Last updated on December 6th, 2021 at 10:18 pm
Title 49 – Transportation–Volume 6
Subtitle B – Other Regulations Relating to Transportation (Continued)
CHAPTER IV – COAST GUARD, DEPARTMENT OF HOMELAND SECURITY
SUBCHAPTER A [RESERVED]
SUBCHAPTER B – SAFETY APPROVAL OF CARGO CONTAINERS
PARTS 400-449 [RESERVED]
PART 450 – GENERAL
Subpart A – General Provisions
§ 450.1 Purpose.
This subchapter establishes requirements and procedures for safety approval and periodic examination of cargo containers used in international transport, as defined in the International Safe Container Act.
§ 450.3 Definitions.
(a) In this subchapter: (1) Approval Authority means a delegate of the Commandant authorized to approve containers within the terms of the convention, the International Safe Container Act and this subchapter.
(2) Container means an article of transport equipment:
(i) Of a permanent character and suitable for a repeated use.
(ii) Specially design to facilitate the transport of goods, by one or more modes of transport, without intermediate reloading.
(iii) Designed to be secured and readily handled, having corner fittings for these purposes.
(iv) Of a size that the area enclosed by the four outer bottom corners is either:
(A) At least 14 sq.m. (150 sq.ft.), or
(B) At least 7 sq.m. (75 sq.ft.) if it has top corner fittings.
(v) The term container includes neither vehicles nor packaging; however, containers when carried on chassis are included.
(3) Convention means the International Convention for Safe Containers (CSC) done at Geneva, December 2, 1972 and ratified by the United States on January 3, 1978.
(4) District Commander means the Coast Guard officer designated by the Commandant to command a Coast Guard District.
(5) New Container means a container, the construction of which began on or after September 6, 1977.
(6) Existing Container means a container that is not a new container.
§ 450.5 General requirements and applicability.
(a) Every owner of a new or existing container used or offered for movement in international transport shall have the container approved in accordance with the procedures established by the Administration of any contracting party to the convention, except that existing containers need not be approved until September 6, 1982.
(b) Every owner of an approved container used or offered for movement in international transport who:
(1) Is domiciled in the United States and has the head office in the United States, or
(2) Is domiciled in a country which is not a contracting party to the convention but has the principal office in the United States, shall have the container periodically examined in accordance with part 452 of this subchapter.
(c) Every owner of an approved container used or offered for movement in international transport who:
(1) Is domiciled in the United States but has the principal office in the jurisdiction of another contracting party to the convention, or
(2) Is domiciled in the jurisdiction of another contracting party to the convention but has the principal office in the United States, but elects to have the container examined in accordance with the procedures prescribed by the United States, shall conform to part 452 of this subchapter.
(d) Every owner of an approved container used or offered for movement in international transport who is neither domiciled in nor has the principal office in the jurisdiction of a contracting party to the convention, but elects to have the container examined in accordance with procedures prescribed by the United States, shall conform to part 452 of this subchapter.
§ 450.7 Marking.
(a) On each container that construction begins on or after January 1, 1984, all maximum gross weight markings on the container must be consistent with the maximum gross weight information on the safety approval plate.
(b) On each container that construction begins before January 1, 1984, all maximum gross weight markings on the container must be consistent with the gross weight information on the safety approval plate no later than January 1, 1989.
Subpart B – Procedure for Delegation to Approval Authorities
(a) Any person or organization seeking delegation of authority to act as an Approval Authority may apply to the Commandant (CG-OES), Attn: Office of Operating and Environmental Standards, U.S. Coast Guard Stop 7509, 2703 Martin Luther King Jr. Avenue SE., Washington, DC 20593-7509. Each application must be signed and certified by the applicant or, if the applicant is an organization, by an authorized officer of the organization. A list of delegated approval authorities may be obtained from the Commandant (CG-OES).
(b) The application must include the following information:
(1) Name and address, including place of incorporation, if a corporation.
(2) A description of the organization, including the ownership, managerial structure, organizational components and directly affiliated agencies and their functions utilized for supporting technical services.
(3) A listing of the basic technical services offered.
(4) A general description of the geographic area served.
(5) A general description of the clients being served or intended to be served.
(6) A description of the types of work performed by the applicant in the past, noting the amount and extent of such work performed within the previous three years.
(7) A description of the personnel to be utilized, indicating general background and qualifications, particularly for the surveyors to be involved in the actual witnessing of tests.
(8) A description of its means of assuring continued competence of its personnel.
(9) A detailed schedule of the fees proposed to be charged for the approval service.
(10) Evidence of financial stability.
(11) At least three business references who will furnish information regarding work performed by the applicant.
(12) A statement that the Coast Guard may inspect the applicant’s facilities and records of approvals under the convention and these regulations.
(c) The application may contain any additional information the applicant deems to be pertinent.
(d) The applicant must furnish any additional information to evaluate the applicant’s qualifications, if requested by the Chief, Office of Operating and Environmental Standards (CG-OES), U.S. Coast Guard.
(e) Applications from foreign nationals or organizations must contain an affidavit stating that the agency responsible for implementing the Convention in their country has delegated to the applicant an approval authority, and that it also delegates similar authority to United States citizens or organizations having delegations from the United States. The affidavit must also contain the name and address of the agency to which U.S. citizens or organizations must apply for delegation as an approval authority.
§ 450.12 Criteria for selection of Approval Authorities.
(a) The Chief, Office of Operating and Environmental Standards (CG-OES), U.S. Coast Guard selects persons or organizations in accordance with the following criteria:
(1) The person or organization is independent of manufacturers and owners in that:
(i) It has sufficient breadth of interest or activity, so that the loss or award of a specific contract to approve containers would not be a substantial factor in the financial well-being of the organization.
(ii) The employment status of the personnel of the organization is free from influence or control of manufacturers, owners, operators or lessors of containers.
(2) The person or organization has demonstrated the ability to competently carry out the procedures required for approval.
(3) The person or organization has an acceptable degree of financial security.
§ 450.13 Granting of delegation.
(a) The Chief, Office of Operating and Environmental Standards (CG-OES), U.S. Coast Guard acts on applications for delegation within 60 days of receipt.
(b) If an applicant for delegation does not provide sufficient information with regard to all the criteria for delegation, the Chief, Office of Operating and Environmental Standards (CG-OES), U.S. Coast Guard denies the application. A denial of an application on this basis is without prejudice to the submission of a new or amended application.
(c) If an applicant satisfies all the criteria for delegation the Chief, Office of Operating and Environmental Standards (CG-OES), U.S. Coast Guard sends the applicant a letter of delegation, and assigns to the Approval Authority an alphabetic Approval Authority identification code.
(d) If an applicant fails to satisfy all the criteria for delegation, the Chief, Office of Operating and Environmental Standards (CG-OES), U.S. Coast Guard gives the applicant written notice of denial of his application. The notice contains all the reasons for the denial. The applicant may contest the denial by submitting additional oral or written evidence in support of its qualifications. Upon review of the evidence, the Chief, Office of Operating and Environmental Standards (CG-OES), U.S. Coast Guard notifies the applicant of the final decision.
§ 450.14 Conditions of delegation.
(a) The following conditions are part of every delegation:
(1) The Approval Authority shall use only testing equipment that it has determined by inspection to be suitable for the purpose.
(2) All approval numbers issued by the Approval Authority must contain the identification code, assigned to the Approval Authority by the Chief, Office of Operating and Environmental Standards (CG-OES), U.S. Coast Guard.
(3) Each Approval Authority shall maintain the following records for a period of at least 15 years from the date of approval. (When the Approval Authority’s delegation is withdrawn before such time, the records relating to the approvals issued within the prior 15 years must be turned over to the Chief, Office of Operating and Environmental Standards (CG-OES), U.S. Coast Guard):
(i) Each notice of approval issued.
(ii) A copy of the application and final approved drawings (if applicable) to which each approval refers.
(iii) The manufacturer’s serial numbers and the owner’s identification numbers of all containers covered by each approval.
(4) Each Approval Authority shall establish and make available to the public a schedule of fees for the approval services performed under these regulations. The fees must not be disproportionate to the costs (including transportation expense, if any) actually incurred.
(5) The Approval Authority shall grant the Coast Guard the right to inspect records and shall cooperate in the conduct of such inspections.
(6) The Approval Authority shall comply with any other term or condition stated in its letter of delegation.
§ 450.15 Termination of delegation.
(a) An Approval Authority may voluntarily terminate its delegation by giving written notice of its intent to the Chief, Office of Operating and Environmental Standards (CG-OES), U.S. Coast Guard. This notice must contain the date on which the termination is to be effective.
§ 450.16 Withdrawal of delegation.
(a) The Chief, Office of Operating and Environmental Standards (CG-OES), U.S. Coast Guard withdraws a delegation if: (1) It is determined that the application for delegation contained a material misrepresentation.
(2) An Approval Authority fails to comply with a condition of delegation.
(3) An Approval Authority is incompetent.
(b) When a delegation is withdrawn, the Chief, Office of Operating and Environmental Standards (CG-OES), U.S. Coast Guard gives to the Approval Authority:
(1) Written notice of the facts or conduct believed to warrant the withdrawal.
(2) Opportunity to submit oral or written evidence.
(3) Opportunity to demonstrate or achieve compliance with the applicable requirement.
PART 451 – TESTING AND APPROVAL OF CONTAINERS
Subpart A – Approval of Existing Containers
§ 451.1 Application for approval.
(a) Any owner of an existing container may apply for approval to the Commandant (CG-OES), Attn: Office of Operating and Environmental Standards, U.S. Coast Guard Stop 7509, 2703 Martin Luther King Jr. Avenue SE., Washington, DC 20593-7509 or to any Approval Authority.
(b) Each application must include the following for each container:
(1) Date and place of manufacture.
(2) Manufacturer’s identification number, if available.
(3) Maximum operating gross weight capacity.
(4) Allowable stacking weight for 1.8G (1.8 × Gross weight in kilograms or pounds).
This value is the total load the container is designed to support when subjected to a vertical acceleration of 1.8G.
(5) A statement that the owner possesses documentary evidence that:
(i) Container of this type has been safely used in marine or inland transport for a period of at least two years; or
(ii) The container was manufactured to a design type which had been tested and found to comply with the technical conditions set out in Annex II to the convention with the exception of those technical conditions relating to the end-wall and side-wall strength tests; or
(iii) The container was constructed to standards that were equivalent to the technical conditions set out in Annex II to the convention with the exception of those technical conditions relating to end-wall and side-wall strength tests.
(6) A certification by the owner, or, if the owner is a corporation, partnership or unincorporated association, by a person authorized to make such statements for the organization, that the information provided in the application is true and correct.
§ 451.3 Action by Approval Authority.
(a) The Approval Authority (or the Chief, Office of Operating and Environmental Standards (CG-OES), U.S. Coast Guard, if the application was submitted to the Coast Guard) issues to the owner a notice of approval or notifies the owner in writing that approval is denied, setting forth the deficiencies causing denial. Notification of approval entitles the owner to affix a safety approval plate to each container after an examination of each container concerned has been carried out in accordance with part 452 of this subchapter. In the case of an application submitted to the Coast Guard, the Chief, Office of Operating and Environmental Standards (CG-OES), U.S. Coast Guard acts on the application within 30 days of receipt of the application.
§ 451.5 Resubmission or appeal.
(a) Upon receipt of a denial of approval for certain containers, an owner may correct the noted deficiencies and resubmit the application without prejudice.
(b) An applicant aggrieved by a decision of an approval authority may obtain review of the decision by the Chief, Office of Operating and Environmental Standards (CG-OES), U.S. Coast Guard. The decision of the Chief, Office of Operating and Environmental Standards (CG-OES), U.S. Coast Guard is a final agency action.
§ 451.7 Alternative approval of existing containers.
(a) Existing containers that do not qualify for approval under this subpart may be presented for approval under the provisions of subpart B of this part. For such containers, the requirements of subpart B of this part, relating to the end and sidewall strength tests, do not apply. Upon showing that the containers have performed satisfactorily in service, the applicant may omit the presentation of drawings and testing, other than the lifting and floor strength test, if permitted by the approval authority.
Subpart B – Approval of New Containers
§ 451.11 Application for approval-general.
(a) An owner of a new container, or a manufacturer acting on behalf of an owner, may apply for approval to any approval authority.
§ 451.12 Application for approval by design type.
(a) For approval of new containers by design type, each application must include the following:
(1) Engineering drawings and plans showing platform, end framing, welds and hardware, connections of cross-members, top and bottom rails, roof bows, detailed subassemblies of major structural components and attachments, and any other plans and drawings required by the approval authority.
(2) Design and material specifications including type and size of materials. Material specifications of the safety approval plate must also be given.
(3) The manufacturer’s identification number assigned to each container in the type series.
(4) The identification code assigned to each container in the series by the owner, lessee, or bailee responsible for maintenance.
(5) The written assurance from the manufacturer, that the manufacturer will:
(i) Produce to the approval authority such containers as the approval authority may wish to examine;
(ii) Advise the approval authority of any change in the design or specification and await its approval before affixing the Safety Approval Plate to the container;
(iii) Affix the Safety Approval Plate to each container in the design type and to no others;
(iv) Keep a record of containers manufactured to the approved design type containing at least the manufacturer’s identification numbers, date of delivery, and names and addresses of customers to whom the containers are delivered; and
(v) Supply to the approval authority the information contained in paragraphs (a)(3) and (4) of this section if not available at the time of original application.
(6) A statement as to whether this design type has been examined by any approval authority previously and judged unacceptable. Affirmative statements must be documented with the name of the approving authority, the reason for nonacceptance, and the nature of modifications made to the design type.
(a) The approval authority arranges with the manufacturer, with notification to the owner, to witness the prototype tests required by the convention, and to examine any number of containers that the approval authority considers appropriate. Upon witnessing successful completion of prototype tests and examination of several containers the approval authority issues to the owner, a notice of approval which authorizes the attachment of safety approval plates to the containers. Absence of individual inspections will not relieve the manufacturer of any responsibility to maintain proper quality control. If a prototype container fails to pass the tests, the approval authority may require testing of as many further representative containers as necessary to ensure the adequacy of the design.
§ 451.14 Alternative approval of new containers by design type.
(a) New containers manufactured before June 16, 1978 without being approved under the preceding section may be approved by submission to an approval authority of an application corresponding to that required under § 451.1(b) for existing containers. All new containers so approved must have safety approval plates affixed and receive their first periodic examination in accordance with the procedures prescribed in § 452.3 by January 1, 1985.
§ 451.15 Application for individual approval.
(a) For approval of new containers by individual approval, each application must include the following:
(1) The manufacturer’s identification number.
(2) The identification code of the owner, lessee, or bailee responsible for maintenance of the container.
(a) The approval authority arranges with the manufacturer or owner to witness testing in accordance with Annex II to the convention. Upon witnessing successful completion of the tests, the approval authority issues to the owner a notice of approval that authorizes the attachment of a safety approval plate.
§ 451.18 Review of denials of approval.
(a) An applicant aggrieved by a decision of an approval authority may obtain review of the decision by the Chief, Office of Operating and Environmental Standards (CG-OES), U.S. Coast Guard. The decision of the Chief, Office of Operating and Environmental Standards (CG-OES), U.S. Coast Guard is a final agency action.
Subpart C – Safety Approval Plate
§ 451.21 Safety approval plate required.
(a) The safety approval plate must be supplied by the owner or manufacturer.
§ 451.23 Plate specifications.
(a) The safety approval plate must be of the size and in the format specified in the appendix to Annex I to the convention.
(b) The safety approval plate must be:
(1) Designed to withstand and remain legible after a 15 minute exposure to a medium intensity fire producing a temperature of 1,000 °F (540 °C), when mounted on the specified material of construction of the container.
(2) Designed to resist the corrosive effects of its environment, both at sea and ashore, so as to remain legible for the working life of the container.
(3) Designed to have a legible life expectancy equal to or greater than the life expectancy of the container to which the plate is affixed.
§ 451.25 Required information.
(a) The safety approval number appearing on line 1 of the safety approval plate must be of the form “USA/(approval number, which includes the approval authority identification code)/(year in which approval was granted).”
(b) The date upon which approval was granted must be the same for all containers of a design-type or type-series covered by one notice of approval.
(c) The safety approval number must be the same for all containers of a design-type or type-series covered by one notice of approval.
(d) The owner’s International Organization for Standardization (ISO) alpha numeric identification numbers may be used in place of the manufacturer’s identification numbers on line 3 of the safety approval plate. If owner’s identification numbers are used and the manufacturer’s are available, the owner shall keep records correlating the owner’s identification numbers used with the manufacturer’s number. If a container marked with owner’s identification numbers changes ownership, and the owner’s identification number is changed as a result, the new owner must add the new owner’s identification number, following the original owner’s identification number on line 3 of the safety approval plate. In the event that the new owner’s identification number cannot be legibly added to line 3 of the safety approval plate following the original owner’s identification number, the new owner is authorized to put a new safety approval plate on the freight container provided that all the information contained on the original safety approval plate is retained in the owners files.
PART 452 – EXAMINATION OF CONTAINERS
§ 452.1 Periodic examination required.
(a) Except as provided for in § 452.7, each owner of an approved container subject to this part shall examine the container or have it examined in accordance with the procedures prescribed in § 452.3 at intervals of not more than 30 months, except that for containers approved as new containers, the interval from the date of manufacture to the date of the first examination must not exceed five years. For containers approved, examined and plated as existing containers before January 1, 1985 and containers approved and plated as new containers before January 1, 1985, the subsequent examination must be carried out in accordance with the following schedule:
| Date of initial plating | Subsequent examination |
|---|---|
| Existing containers before Sept. 30, 1981 and new containers before Dec. 31, 1978 | Before Jan. 1986. |
| Existing containers between Oct. 1, 1981 and Sept. 30, 1982 and new containers between Jan. 1, 1979 and Dec. 31, 1979 | Before May 1986. |
| Existing containers between Oct. 1, 1982 and Sept. 30, 1983 and new containers between Jan. 1, 1980 and Dec. 31, 1980 | Before Sept. 1986. |
| Existing containers between Oct. 1, 1983 and Dec. 31, 1984 and new containers between Jan. 1, 1981 and Dec. 31, 1981 | Before Jan. 1987. |
Containers plated under § 451.14 are considered existing containers in the above schedule.
(b) Upon completion of an examination required by this part, the owner shall mark on the safety approval plate, or on the container itself as close as practicable to the safety approval plate, the month and year before which the container must next be examined. This marking must be on all containers by January 1, 1987. The marking may be by a decal, sticker, stencil, or other means so long as it is capable of remaining legible for at least 24 months. Affixing such a marking to a container that has not been examined in accordance with § 452.3 constitutes a misrepresentation in a matter within the jurisdiction of an agency of the United States, and makes the owner punishable under 18 U.S.C. 1001.
(c) The owner of containers subject to this section shall have those containers examined in accordance with the program prescribed in this section regardless of whether the examinations are preformed within or outside the United States.
§ 452.3 Elements of periodic examinations.
(a) Periodic examinations required by § 452.1 must conform to the following minimum requirements:
(1) Each examination must include a detailed visual inspection for defects such as cracks, failures, corrosion, missing or deteriorated fasteners, and any other safety related deficiency or damage which could place any person in danger. Any such deficiencies disclosed by the examination must be corrected by the owner before the container is continued in service.
(2) Each examination must take into account the particular characteristics of various kinds of containers and materials of construction.
(3) Each examination must be performed by qualified personnel, trained and experienced in the detection of container structural damage.
(4) The examinations must be scheduled so as to allow adequate time for thorough performance.
(5) Each examination must apply owner established or industry accepted pass/fail criteria to determine whether a container has any deficiency that must be remedied before the container is returned to service.
(b) Examinations must be documented, and the records retained by the owner, until the next examination is completed and recorded. The records must include, in addition to identification of the container, a record of the date of last examination and a means of identifying the examiner. The records must be maintained in an office under the control of the owner and be made available for inspection by the Coast Guard upon demand. If the original records are maintained outside the United States, its territories or possessions, supplementary records must be available in written or data processing form to be produced on demand of the Commandant or his representative.
§ 452.5 Examinations made in conjunction with other inspections.
(a) Periodic examinations may be made in conjunction with or as part of routine change-of-custody inspections, or in any other manner convenient to the owner so long as the examinations conform to the requirements of § 452.3.
§ 452.7 Continuous examination program.
(a) In lieu of a periodic examination under § 452.1, each owner of an approved container meeting § 450.5 may examine the container or have it examined using an approved continuous examination program. An owner must submit the continuous examination program for approval to the Commandant (CG-OES), Attn: Office of Operating and Environmental Standards, U.S. Coast Guard Stop 7509, 2703 Martin Luther King Jr. Avenue SE., Washington, DC 20593-7509. When submitting a continuous examination program for approval the owner must show the continuous examination complies with § 452.9.
(b) The owner must mark the container with the letters “ACEP/USA/(year continuous examination program is approved)” to indicate the container is being periodically examined under an approved continuous examination program. This marking must be as close as practicable to the safety approval plate. This marking must be on all containers covered by a continuous examination program by January 1, 1987.
(c) The owner of containers subject to this section shall have those containers examined in accordance with the program prescribed in this section regardless of whether the examinations are performed within or outside the United States.
§ 452.9 Elements of a continuous examination program.
(a) Examinations required by § 452.7 must conform to the following minimum requirements:
(1) A thorough examination that must include a detailed visual inspection for defects such as cracks, failures, corrosion, missing or deteriorated fasteners, and any other safety related deficiency or damage that could place any person in danger. Any such deficiencies disclosed by the examination must be corrected by the owner before the container is continued in service. A thorough examination must be done each time a container undergoes a major repair, refurbishment or on-hire/off-hire interchange. In no case is the time period between thorough examinations to exceed 30 months.
(2) Each thorough examination must be performed by qualified personnel, trained and experienced in the detection of container structural damage.
(3) Each thorough examination must apply owner established or industry accepted pass/fail criteria to determine whether a container has any deficiency that must be remedied before the container is returned to service.
(b) Thorough examinations must be documented, and the records retained by the owner, until the next examination is completed and recorded. The records must include, in addition to identification of the container, a record of the date of last examination and a means of identifying the examiner. The records must be maintained in an office under the control of the owner and be made available for inspection by the Coast Guard upon demand. If the original records are maintained outside the United States, its territories or possessions, supplementary records must be available in written or data processing form to be produced on demand of the Commandant or his representative.
PART 453 – CONTROL AND ENFORCEMENT
§ 453.1 Unsafe and noncomplying containers subject to detention or control.
(a) Any container used in or offered for movement in international transport which does not have a valid safety approval plate attached to it is subject to detention or other control by a District Commander or Captain of the Port. However, upon receipt of evidence that a container which does not have a valid safety approval plate attached to it meets the standards of the convention, the District Commander or Captain of the Port may authorize limited movement of such container under conditions he deems appropriate. This paragraph becomes effective on January 3, 1979 for new containers and on January 1, 1985 for existing containers.
(b) If a District Commander or Captain of the Port finds that a container used in or offered for movement in international transport, even though it has a valid safety approval plate attached to it, is in a condition that creates an obvious risk to safety, he issues a detention order causing the container to be removed from service until it is restored to a safe condition. In addition to removing a container from transport, a detention order may require any special handling, including unloading prior to movement, necessary to ensure safety.
(c) If a District Commander or Captain of the Port finds that a container used or offered for movement in international transport has not been timely examined, the District Commander or Captain of the Port affixes to the container, at a place on the container where it will be readily noticeable to anyone loading or unloading the container, a mark or tag indicating that the container must be examined before being reloaded and again used in international transport. The mark or tag affixed by the District Commander or Captain of the Port indicates the place and the date on which it was affixed, and is capable of remaining legible and in place for at least 12 months. Such mark or tag must not be removed until the container is examined in accordance with § 452.3 of this subchapter. If a District Commander or Captain of the Port finds that container marked or tagged as provided for in this paragraph was reloaded and used or offered for movement in international transport without having been examined, the District Commander or Captain of the Port issues a detention order causing the container to be removed from service until it is brought into compliance.
§ 453.3 Detention orders and other orders.
(a) The terms of any detention order or other order issued under § 453.1, to the maximum extent practicable, make provisions to avoid loss or damage to cargo.
(b) Written notice of any detention order or other order issued under § 453.1 is given immediately to the terminal operator, stevedore, or other person having actual control over the container involved. Prompt notification is also given to the owner of the container, or his agent. The notification identifies the container involved, its location, and describes the condition which gave rise to the order.
§ 453.5 Termination of detention orders and other orders.
(a) When a container, which is the subject of a detention order or other order, is restored to a safe condition or otherwise brought into compliance, it must be examined in accordance with § 452.3 and a new re-examination date marked on the container in accordance with § 452.1(b) of this subchapter.
(b) The owner or the owner’s agent shall notify the District Commander or Captain of the Port who issue the order, in writing, that the container has been brought into compliance. Upon giving such notice, the owner, or his agent, may return the container to service.
§ 453.7 Appeal provisions.
(a) The owner, his agent, or the custodian of a container subject to a detention order or other order, may petition the Chief, Office of Operating and Environmental Standards (CG-OES), U.S. Coast Guard to review that order.
(b) The Chief, Office of Operating and Environmental Standards (CG-OES), U.S. Coast Guard requires independent surveys to determine the extent of deficiencies, if necessary. Upon completion of his review, including review of the results of any required independent surveys, the Chief, Office of Operating and Environmental Standards (CG-OES), U.S. Coast Guard affirms, sets aside, or modifies the order.
(c) The owner of a container is liable for any costs incident to a petition for review including any independent surveys, and for any other costs incident to or resulting from detention or other control of a container.
(d) Unless otherwise determined by the Chief, Office of Operating and Environmental Standards (CG-OES), U.S. Coast Guard, a detention order or other order remains in effect pending the outcome of any petition or appeal of that order.
(e) The Chief, Office of Operating and Environmental Standards (CG-OES), U.S. Coast Guard acts on all appeals within ten days of receipt.
PARTS 454-499 [RESERVED]
CHAPTER V – NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION, DEPARTMENT OF TRANSPORTATION
PART 500 [RESERVED]
PART 501 – ORGANIZATION AND DELEGATION OF POWERS AND DUTIES
§ 501.1 Purpose.
This part describes the organization of the National Highway Traffic Safety Administration (NHTSA), an operating administration within the U.S. Department of Transportation, and provides for the performance of duties imposed on, and the exercise of powers vested in, the Administrator of NHTSA.
§ 501.2 General.
The responsibilities and authorities delegated to NHTSA and the Administrator are set forth in §§ 1.81, 1.94, and 1.95 of this title.
§ 501.3 Organization and general responsibilities.
NHTSA consists of a headquarters organization located in Washington, DC, a unified field organization consisting of ten geographic regions with a Regional Office located in each region, the Vehicle Research and Test Center located in East Liberty, Ohio, and the Uniform Tire Quality Grading Test Facility located in San Angelo, Texas. The organization of, and general spheres of responsibility within, NHTSA are as follows:
(a) Office of the Administrator – (1) Administrator. (i) Represents the Department and is the principal advisor to the Secretary in all matters related to 49 U.S.C. chapters 301, 303, 321, 323, 325, 327, 329 and 331; 23 U.S.C. chapter 4, except section 409; 23 U.S.C. 153, 154, 158, 161, 163, 164 and 313 (with respect to matters within the primary responsibility of NHTSA); and such other responsibilities and authorities as are delegated by the Secretary of Transportation (49 CFR 1.94 and 1.95);
(ii) Establishes NHTSA program policies, objectives, and priorities and directs the development of action plans to accomplish the NHTSA mission;
(iii) Directs, controls, and evaluates the organization, program activities, performance of NHTSA staff, program and field offices;
(iv) Approves broad legislative, budgetary, fiscal and program proposals and plans; and
(v) Takes management actions of major significance, such as those relating to changes in basic organizational structure, appointment of key personnel, allocation of resources, and matters of special political or public interest or sensitivity.
(2) Deputy Administrator. Assists the Administrator in discharging responsibilities. Directs and coordinates the Administration’s management and operational programs, and related policies and procedures at headquarters and in the field.
(3) Executive Director. As the principal advisor to the Administrator and Deputy Administrator, provides direction on internal management and mission support programs. Provides executive direction over the Associate Administrators, Chief Financial Officer, and Chief Information Officer.
(4) Director, Office of Civil Rights. As the principal advisor to the Administrator and Deputy Administrator on all matters pertaining to civil rights, serves as Director of Equal Employment Opportunity and of Title VI Compliance (Civil Rights Act of 1964, as amended, and related regulations). Assures agency compliance with Section 504 of the Rehabilitation Act of 1973, the Americans with Disabilities Act (ADA), and other nondiscrimination statutes, regulations, Executive Orders, and policies. Periodically reviews and evaluates the civil rights programs of State Department of Motor Vehicles and Highway Safety Offices to ensure that recipients of NHTSA financial assistance meet applicable Federal civil rights requirements. Monitors the implementation of and compliance with civil rights requirements, investigates complaints of discrimination, conducts compliance reviews, provides technical assistance to recipients of NHTSA financial assistance and stakeholders, and provides assistance to the Office of the Secretary in investigating and adjudicating formal complaints of discrimination.
(5) Director, Office of Governmental Affairs, Policy & Strategic Planning. As the principal advisor to the Administrator and Deputy Administrator on all intergovernmental matters, including communications with Congress, communicates agency policy and serves as coordinator on legislative affairs. Also, serves as coordinator of agency policy discussions and activities and communicates with other operating administrations and the Office of Secretary on strategic planning efforts.
(6) Director of Communications. As the principal advisor to the Administrator and Deputy Administrator on external communications and information dissemination, serves as coordinator on public affairs.
(b) Chief Counsel. As chief legal officer for the Administrator and the Administration, provides general legal services and legal services related to legislative activities; prepares litigation and issues subpoenas; and effects rulemaking actions.
(c) Associate Administrators, Chief Financial Officer, and Chief Information Officer – (1) Associate Administrator for Administration. Administers and conducts NHTSA’s personnel management activities; initiates and oversees a comprehensive program of administrative support services to meet agency requirements, including development, maintenance, and operation of NHTSA’s manuals, notices, and orders, property management, and the purchase, delivery, and administration of a range of supplies, equipment, and other support services; is responsible for administrative operational expenses and working capital fund operations; serves as the agency’s technical expert for all administrative activities; and administers an executive correspondence program and maintains policy files for the Administrator and Deputy Administrator.
(2) Associate Administrator for Communications and Consumer Information. Represents NHTSA to the general public and others; provides reliable, timely, and accurate traffic safety information to the general public, consumers, partner organizations, and citizens groups through media and public education efforts; and provides scheduling and speechwriting support for the Administrator.
(3) Associate Administrator for Enforcement. Directs matters related to the enforcement of motor vehicle safety, fuel economy, theft prevention, damageability, consumer information, and odometer laws and regulations; conducts testing, inspection, and investigation necessary for the identification and correction of safety-related defects in motor vehicles and motor vehicle equipment; and ensures recalls of noncomplying and defective vehicles and motor vehicle equipment are effective and are conducted in accordance with Federal law and regulations.
(4) Associate Administrator for National Center for Statistics and Analysis. Provides the data, analysis, and evaluation to support determination of the nature, causes, and injury outcomes of motor vehicle traffic crashes, the strategies and interventions that will reduce crashes and their consequences, and the potential impact, costs, and benefits of highway safety programs and regulatory activities; targets the collection and analysis of data and the dissemination of information to identify potential highway safety problems, evaluate expected program and regulatory impact and actual goal achievement, and support data driven decisions; and identifies, advances, and promotes new methodologies, technologies, systems, and procedures that improve the completeness, accuracy, timeliness, and accessibility of data collection, analysis, and evaluation.
(5) Associate Administrator for Regional Operations and Program Delivery. Directs the management of State and community highway safety programs; administers and coordinates all Regional activities, including activities having a headquarters-regional interface; develops, reviews, implements, and coordinates related programs, policies, and procedures; and coordinates with the Federal Highway Administration, the Federal Motor Carrier Safety Administration, and other Federal agencies on traffic safety programs, as appropriate.
(6) Associate Administrator for Research and Program Development. Administers traffic safety programs and provides national leadership and technical assistance to States, local communities, national organizations, and other partners in the identification, research, planning, development, demonstration, implementation, evaluation, and dissemination of highway safety programs designed to prevent or reduce traffic-related crashes and the resulting deaths, injuries, property damage, and associated costs. Coordinates with the Federal Highway Administration, the Federal Motor Carrier Safety Administration, and other Federal agencies on traffic safety programs, as appropriate.
(7) Associate Administrator for Rulemaking. Develops and promulgates Federal standards dealing with motor vehicle safety, theft prevention, consumer information, the National Driver Register, and fuel economy, and directs programs relating to bumper standards, safety performance standards, and other regulations for new and used motor vehicles and equipment, including tires. Develops and conducts the New Car Assessment Program.
(8) Associate Administrator for Vehicle Safety Research. Develops and conducts research, development, test, and evaluation programs and projects necessary to support consumer information programs, guidelines, industry voluntary standards, and Federal motor vehicle regulations; manages the facilities and programs related to these activities; and conducts crash data analyses in defining safety problems.
(9) Chief Financial Officer. Administers the agency planning and budget activities in coordination with the Department of Transportation, the Office of Management and Budget, and Congress; assures the appropriate development of budget requests and the subsequent execution of operating budgets within the agency to meet all programmatic requirements; conducts all necessary accounting transactions to assure full and accurate accountability for all financial resources of the agency; initiates and oversees a comprehensive program of acquisition support for agency buying and supplier requirements, including acquisition planning, purchasing, payments, and administration; facilitates, coordinates, tracks, and monitors all external audits, reviews, and other oversight activities of agency programs, finances, transactions, or activities – working closely with responsible program and operational officials; facilitates and oversees the agency travel program, including the administration and operation of the travel management system, the travel card program, and the provision of travel management advice and guidance; and serves as the agency’s technical expert for all financial management activities.
(10) Chief Information Officer. Administers all NHTSA Information Technology functions and needs to ensure that IT resources are effectively acquired and managed to maximize mission performance and return on IT investments.
§ 501.4 Succession to Administrator.
(a) The Deputy Administrator is the “first assistant” to the Administrator for purposes of the Federal Vacancies Reform Act of 1998 (5 U.S.C. 3345-3349d) and shall, in the event the Administrator dies, resigns, or is otherwise unable to perform the functions and duties of the office, serve as the Acting Administrator, subject to the limitations established by law.
(b) In the event both the Administrator and the Deputy Administrator die, resign, and/or are otherwise unable to perform the functions and duties of their respective offices, or in the event that both positions are vacant, the following officials, subject to paragraph (c) and in the order indicated, shall serve as Acting Deputy Administrator and shall perform the functions and duties of the Administrator, except for any non-delegable statutory and/or regulatory functions and duties:
(1) The Chief Counsel;
(2) The Executive Director;
(3) Further officials as may be designated in an internal order on succession.
(c) In order to qualify for the line of succession, officials must be encumbered in their position on a permanent basis.
(a) All authorities lawfully vested in and reserved to the Administrator in this title, part, or other NHTSA regulation or directive may be exercised by the Deputy Administrator and, in the absence or disability of both officials, by the Chief Counsel, unless specifically prohibited by statute, regulation, or order.
(b) In exercising the powers and performing the duties delegated by this part, officers of NHTSA and their delegates are governed by applicable laws, executive orders, regulations, and other directives, and by policies, objectives, plans, standards, procedures, and limitations as may be issued from time to time by or on behalf of the Secretary of Transportation, the Administrator, the Deputy Administrator, the Chief Counsel, and the Executive Director or, with respect to matters under their jurisdiction, by or on behalf of the Associate Administrators, the Regional Administrators, and the Directors of Staff Offices.
(c) Each officer to whom authority is delegated by this part may redelegate and authorize successive redelegations of that authority subject to any conditions the officer prescribes.
(d) Each officer to whom authority is delegated will administer and perform the functions described in the officer’s respective functional statements.
The authorities reserved to the Secretary of Transportation are set forth in § 1.21 of this title.
The delegations of authority in this part do not extend to the following authority, which is reserved to the Administrator, except when exercised pursuant to §§ 501.4 and 501.5(a):
(a) The authority under 23 U.S.C. chapter 4 (except section 403) and any uncodified provision of law to apportion authorization amounts and distribute obligation limitations or award grants to States for highway safety programs or other highway safety purposes;
(b) The authority to issue, amend, or revoke uniform State highway safety guidelines and rules identifying highly effective highway safety programs under 23 U.S.C. 402;
(c) The authority to fix the rate of compensation for non-government members of agency sponsored committees which are entitled to compensation.
(d) The authority under 49 U.S.C. chapter 301 to:
(1) Issue, amend, or revoke final Federal motor vehicle safety standards and regulations;
(2) Make final decisions concerning alleged safety-related defects and noncompliances with Federal motor vehicle safety standards;
(3) Grant or renew temporary exemptions from Federal motor vehicle safety standards; and
(4) Grant or deny appeals from determinations upon a manufacturer’s petition for decision of inconsequential defect or noncompliance and exemption from the notification and remedy requirements of 49 U.S.C. chapter 301 in connection with a defect or noncompliance.
(e) The authority under 49 U.S.C. chapters 303, 321, 323, 325, and 329 (except section 32916(b)) to:
(1) Issue, amend, or revoke final rules and regulations; and
(2) Assess civil penalties and approve manufacturer fuel economy credit plans under chapter 329.
(f) The authority to carry out, in coordination with the Federal Motor Carrier Safety Administrator, the authority vested in the Secretary by 49 U.S.C. chapter 311 subchapter III, to promulgate safety standards for commercial motor vehicles and equipment subsequent to initial manufacture when the standards are based upon and similar to a Federal Motor Vehicle Safety Standard promulgated, either simultaneously or previously, under 49 U.S.C. chapter 301.
§ 501.8 Delegations.
(a) Deputy Administrator. The Deputy Administrator is delegated authority to act for the Administrator, except where specifically limited by law, order, regulation, or instructions of the Administrator. The Deputy Administrator is delegated authority to assist the Administrator in providing executive direction to all organizational elements of NHTSA.
(b) Executive Director. The Executive Director is delegated line authority for executive direction over the Associate Administrators, the Chief Financial Officer, and the Chief Information Officer.
(c) Director, Office of Civil Rights. The Director, Office of Civil Rights is delegated authority to:
(1) Serve as the Director of Equal Employment Opportunity.
(2) Serve as the compliance coordinator for:
(i) Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.), as amended, and related regulations;
(ii) Section 504 of the Rehabilitation Act of 1973;
(iii) The Americans with Disabilities Act (ADA); and
(iv) Other nondiscrimination statutes, regulations, Executive Orders, and policies.
(3) Investigate complaints of civil rights discrimination, conduct compliance reviews, and provide technical assistance to recipients of NHTSA financial assistance and stakeholders.
(4) Review and evaluate the civil rights programs of State Department of Motor Vehicles and Highway Safety Offices to ensure that recipients of NHTSA financial assistance meet applicable Federal civil rights requirements.
(d) Chief Counsel. The Chief Counsel is delegated authority to:
(1) Exercise the powers and perform the duties of the Administrator with respect to:
(i) Issuing odometer regulations authorized under 49 U.S.C. chapter 327.
(ii) Providing technical assistance and granting extensions of time to the states under 49 U.S.C. 32705.
(iii) Granting or denying petitions for approval of alternate motor vehicle mileage disclosure requirements under 49 U.S.C. 32705.
(2) Establish the legal sufficiency of all investigations and enforcement actions conducted under the authority of 49 U.S.C. chapters 301, 303, 321, 323, 325, 327, 329 and 331; to make an initial penalty demand based on a violations of any of these chapters; and to compromise:
(i) Any civil penalty imposed under 49 U.S.C. 30165 in an amount of $1,000,000 or less.
(ii) Any civil penalty or monetary settlement other than those imposed under 49 U.S.C. 30165 in an amount of $100,000 or less.
(3) Exercise the powers of the Administrator under 49 U.S.C. 30166(c), (g), (h), (i), and (k).
(4) Issue subpoenas, after notice to the Administrator, for the attendance of witnesses and production of documents pursuant to 49 U.S.C. chapters 301, 321, 323, 325, 327, 329 and 331.
(5) Issue authoritative interpretations of the statutes administered by NHTSA and the regulations issued by the agency.
(6) Administer 5 U.S.C. 552 (FOIA) and 49 CFR part 7 (Public Availability of Information) in connection with the records of NHTSA.
(7) Administer the Privacy Act of 1974, 5 U.S.C. 552a, and 49 CFR part 10 (Maintenance of and Access to Records Pertaining to Individuals) in connection with the records of NHTSA.
(8) Carry out the functions and exercise the authority vested in the Secretary for 23 U.S.C. 313 (Buy America), with respect to matters within the primary responsibility of NHTSA.
(e) Associate Administrator for Administration. The Associate Administrator for Administration is delegated authority to administer and conduct NHTSA’s personnel management activities; conduct administrative and management services in support of NHTSA missions and programs; and administer an executive correspondence program.
(f) Associate Administrator for Communications and Consumer Information. The Associate Administrator for Communications and Consumer Information is delegated authority to manage and coordinate market research, planning coordination, development, and promotion of public education campaigns for both paid media and unpaid public services to support program efforts; develop overall agency messaging and communications strategies in support of program initiatives; and develop agency policies on messaging and communications procedures and processes.
(g) Associate Administrator for Enforcement. The Associate Administrator for Enforcement is delegated authority to administer the NHTSA enforcement program for all laws, standards, and regulations pertinent to vehicle safety, fuel economy, theft prevention, damageability, consumer information, and odometers, authorized under 49 U.S.C. chapters 301, 323, 325, 327, 329, and 331; conduct testing, inspection, and investigation necessary for the identification and correction of safety-related defects in motor vehicles and motor vehicle equipment and noncompliances with Federal motor vehicle safety standards; make initial decisions concerning alleged safety-related defects and noncompliances with Federal motor vehicle safety standards; grant or deny a manufacturer’s petition for decision of inconsequential defect or noncompliance and exemption from the notification and remedy requirements of 49 U.S.C. chapter 301 in connection with a defect or noncompliance; issue regulations relating to the importation of motor vehicles under 49 U.S.C. 30141-30147; and grant and deny petitions for import eligibility determinations submitted to NHTSA by motor vehicle manufacturers and registered importers under 49 U.S.C. 30141.
(h) Associate Administrator for National Center for Statistics and Analysis. The Associate Administrator for National Center for Statistics and Analysis is delegated authority to provide the data, analysis, and evaluation and create and maintain information systems necessary to support the purposes of 49 U.S.C. chapters 301, 303, 323, 325, 327, 329, and 331, 23 U.S.C. chapter 4, any uncodified provisions of law related to such issues, and any cross-cutting safety initiatives; to develop, maintain, and operate the National Driver Register and a nationwide clearinghouse of problem drivers; and to support State integrated highway and traffic records safety information systems.
(i) Associate Administrator for Regional Operations and Program Delivery. The Associate Administrator for Regional Operations and Program Delivery is delegated authority, except for authority reserved to the Administrator, to exercise the powers and perform the duties of the Administrator with respect to grants to States for highway safety programs or other State programs under 23 U.S.C. chapter 4 (except section 403) and uncodified provisions of law, including approval and disapproval of State highway safety plans and vouchers, in accordance with the procedural requirements of the Administration. The Associate Administrator for Regional Operations and Program Delivery is also delegated authority over programs with respect to the authority vested by section 210(2) of the Clean Air Act, as amended (42 U.S.C. 7544(2)); the authority vested by 49 U.S.C. 20134(a) with respect to laws administered by NHTSA pertaining to highway, traffic, and motor vehicle safety, in coordination with the Associate Administrator for Research and Program Development; the authority vested by 23 U.S.C. 153, 154, 158, 161, 163, and 164, in coordination with the Federal Highway Administrator as appropriate; and the authority vested by 23 U.S.C. 404, in coordination with the Associate Administrator for Communications and Consumer Information.
(j) Associate Administrator for Research and Program Development. The Associate Administrator for Research and Program Development is delegated authority to develop and conduct research and development programs and projects necessary to support the purposes of 23 U.S.C. chapter 4, any uncodified provisions of law related to that chapter, and cross-cutting safety initiatives; conduct research and development activities described or specifically enumerated in 23 U.S.C. 403; carry out the functions and exercise the authority vested in the Secretary and Administrator under section 10202 of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users, Public Law 109-59 [42 U.S.C. 300d-4], as amended by section 31108 of the Moving Ahead for Progress in the 21st Century Act, Public Law 112-141, relating to emergency medical services, except for authority reserved to the Secretary under § 1.21 or the Administrator under § 501.7; and exercise the authority vested by 49 U.S.C. 20134(a) with respect to laws administered by NHTSA pertaining to highway, traffic, and motor vehicle safety, in coordination with the Associate Administrator for Regional Operations and Program Delivery.
(k) Associate Administrator for Rulemaking. The Associate Administrator for Rulemaking is delegated authority, except for authority reserved to the Administrator or delegated to the Chief Counsel, to exercise the powers and perform the duties of the Administrator with respect to the setting of motor vehicle safety and theft prevention standards, fuel economy standards, procedural regulations, the National Driver Register, and the development of consumer information and odometer regulations authorized under 49 U.S.C. chapters 301, 303, 321, 323, 325, 327, 329, and 331, and any uncodified provisions of law related to such issues. The Associate Administrator for rulemaking is also delegated authority to perform activities that support the development of these regulations and standards; extend comment periods (both self-initiated and in response to a petition or request for extension of time) for noncontroversial rulemakings; make technical amendments or corrections to a final rule; extend the effective date of a noncontroversial final rule; and develop and conduct the New Car Assessment Program.
(l) Associate Administrator for Vehicle Safety Research. The Associate Administrator for Vehicle Safety Research is delegated authority to develop and conduct research, development, test, and evaluation programs and projects necessary to support the purposes of 49 U.S.C. chapters 301, 323, 325, 327, 329, and 331, any uncodified provisions of law related to such issues, and any cross-cutting safety initiatives.
(m) Chief Financial Officer. The Chief Financial Officer is delegated authority to direct the NHTSA planning and evaluation system in conjunction with Departmental requirements and planning goals; coordinate the development of the Administrator’s plans, budgets, and programs, and analyses of their expected impact; exercise procurement authority with respect to NHTSA requirements; administer NHTSA financial management programs, including systems of funds control and accounts of all financial transactions; and enter into inter- and intra-departmental reimbursable agreements other than with the head of another Department or agency, provided that this authority to enter into such agreements may be redelegated only to Office Directors and Contracting Officers.
(n) Chief Information Officer. The Chief Information Officer is delegated authority to formulate IT policy, guidance, procedures, security, and best practices; implement an IT capital planning program, an integrated Enterprise Architecture program, and a mission information protection program that ensures privacy, security, and critical infrastructure protection for NHTSA systems and data; and provide for other NHTSA IT functions to support the agency’s mission, performance goals, and objectives.
PART 509 – OMB CONTROL NUMBERS FOR INFORMATION COLLECTION REQUIREMENTS
§ 509.1 Purpose.
This part collects and displays the control numbers assigned to information collection requirements of NHTSA by the Office of Management and Budget (OMB). NHTSA intends that this part comply with the requirements of 44 U.S.C. 3507(f), which mandates that agencies display a current control number assigned by the Director of the OMB for each agency information collection requirement.
§ 509.2 Display.
| 49 CFR part or section containing information collection requirement | OMB control No. |
|---|---|
| Part 512 | 2127-0025 |
| Part 537 | 2127-0019 |
| Part 538 | 2127-0554 |
| Part 541 | 2127-0510 |
| Part 542 | 2127-0539 |
| Part 543 | 2127-0542 |
| Part 544 | 2127-0547 |
| Section 551.45 | 2127-0040 |
| Part 552 and Part 527 | 2127-0046 |
| Part 556 | 2127-0045 |
| Part 557 | 2127-0039 |
| Part 566 | 2127-0043 |
| Consolidated owners’ manual requirements for vehicles and equipment (§§ 571.126, 571.205 571.208, 571.210, and 575.105) | 2127-0541 |
| Consolidatd labeling requirements for tires and rims (parts 569 and 574, §§ 571.109, 571.110, 571.117, 571,119, and 571.120) | 2127-0503 |
| Consolidated VIN and Theft Prevention Standard and Labeling Requirements (parts 541, 565, 567 and § 571.115) | 2127-0510 |
| Consolidated lighting requirements (part 564 and § 571.108) | 2127-0563 |
| Section 571.106 | 2127-0052 |
| Section 571.116 | 2127-0521 |
| Section 571.125 | 2127-0506 |
| Section 571.205 | 2127-0038 |
| Section 571.209 | 2127-0512 |
| Section 571.213 | 2127-0511 |
| Section 571.214 | 2127-0558 |
| Section 571.217 | 2127-0505 |
| Section 571.218 | 2127-0518 |
| Part 573 | 2127-0004 |
| Part 574 | 2127-0050 |
| Part 575 excluding UTQGS | 2127-0049 |
| Section 575.104 (UTQGS) | 2127-0519 |
| Part 576 | 2127-0042 |
| Part 580 | 2127-0047 |
| Part 585 | 2127-0535 |
| Parts 591 and 592 | 2127-0002 |
PART 510 – INFORMATION GATHERING POWERS
§ 510.1 Scope and purpose.
This rule governs the use of the information gathering powers of the National Highway Traffic Safety Administration contained in section 112 of the National Traffic and Motor Vehicle Safety Act of 1966, as amended 15 U.S.C. 1401, and sections 104, 204, 414, and 505 of the Motor Vehicle Information and Cost Savings Act, as amended 15 U.S.C. 1914, 1944, 1990d, and 2005.
§ 510.2 Definitions.
(a) NHTSA means the National Highway Traffic Safety Administration.
(b) Administrator means the Administrator of the National Highway Traffic Safety Administration.
(c) Chief Counsel means the Chief Counsel of the National Highway Traffic Safety Administration.
(d) Deputy Administrator means the Deputy Administrator of the National Highway Traffic Safety Administration.
(e) Person includes agents, officers, and employees of sole proprietorships, partnerships, corporations, and other entities.
§ 510.3 Compulsory process, the service thereof, claims for confidential treatment, and terms of compliance.
(a) NHTSA may use any of the following means to conduct investigations, inspections, or inquiries to obtain information to carry out its functions under the National Traffic and Motor Vehicle Safety Act of 1966, as amended, 15 U.S.C. 1381 et seq., and the Motor Vehicle Information and Cost Savings Act, as amended, 15 U.S.C. 1901 et seq.:
(1) Subpoenas;
(2) Information gathering hearings;
(3) Administrative depositions;
(4) General or special orders; and
(5) Written requests for the production of documents and things.
(b) A person, sole proprietorship, partnership, corporation, or other entity served with compulsory process under this part shall be provided with the following information at the time of the service:
(1) The name of the person, sole proprietorship, partnership, corporation, or other entity to which the process is addressed;
(2) The statutory provision under which the compulsory process is issued;
(3) The date, time, and place of return;
(4) A brief statement of the subject matter of the investigation, inspection, or inquiry; and
(5) In the case of a subpoena duces tecum or a written request for the production of documents and things, a reasonably specific description of the documents or things to be produced.
(c) Service of the compulsory processes specified in paragraph (a) of this section is effected:
(1) By personal service upon the person, agent-in-charge, or agent designated to receive process under 15 U.S.C. 1399(e) of the sole proprietorship, partnership, corporation or other entity being investigated, inspected, or inquired of; or
(2) By mail (registered or certified) or delivery to the last known residence or business address of such person or agent.
(d) The date of service of any compulsory process specified in paragraph (a) of this section is the date on which the process is mailed by the agency, or delivered in person, as the case may be. Whenever a period is prescribed for compliance with compulsory process, and the process is served upon the party by mail, 3 days are added to the period.
(e)(1) Any person, sole proprietorship, partnership, corporation, or other entity submitting information or producing documents or things in response to any compulsory process issued under this part may request confidential treatment for all or part of that information or for those documents or things.
(2)(i) Except as provided in paragraph (e)(2)(ii) of this section, requests for confidentiality shall be in writing, and addressed to the Chief Counsel.
(ii) Requests for confidentiality made during an information gathering hearing or an administrative deposition may be made orally to the presiding officer. Any oral request for confidentiality shall be supplemented by a written request, and this written request must be addressed to the Chief Counsel and received by NHTSA within five days of the date of the oral request.
(iii) A written request for confidentiality under paragraph (e) of this section shall specify the information, documents, or things which are to be kept confidential, specify the grounds upon which the claim is based, provide such information as may be necessary to permit the NHTSA to determine whether the claim is valid, and specify the period of time for which confidential treatment is requested.
(f) The Chief Counsel, or his or her delegate, is authorized to negotiate and approve the terms of satisfactory compliance with any compulsory process issued under this part.
§ 510.4 Subpoenas, generally.
NHTSA may issue to any person, sole proprietorship, partnership, corporation, or other entity a subpoena requiring the production of documents or things (subpoena duces tecum) and testimony of witnesses (subpoena ad testificandum), or both, relating to any matter under investigation or the subject of any inquiry. Subpoenas are issued by the Chief Counsel. When a person, sole proprietorship, partnership, corporation, or other entity is served with a subpoena ad testificandum under this part, the subpoena will describe with reasonable particularity the matters on which the testimony is required. In response to a subpoena ad testificandum, the sole proprietorship, partnership, corporation, or other entity so named shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and set forth, for each person designated, the matters on which he or she will testify. The persons so designated shall testify as to matters known or reasonably available to the entity.
§ 510.5 Information gathering hearings.
(a) NHTSA may issue a subpoena to compel any person, sole proprietorship, partnership, corporation, or other entity to provide information at an information gathering hearing. The subpoenas are used for the purpose of obtaining testimony from a witness under oath and obtaining relevant documents and things. The Administrator, or a NHTSA employee designated by the Administrator, presides at the hearing. Information gathering hearings are open to the public unless the presiding officer rules otherwise, and the hearings are stenographically reported.
(b) In addition to the presiding officer, one or more other persons may comprise the panel. Each member of the panel may question any witness at the hearing. No person who is not a member of the panel may ask questions of a witness. However, any person may submit to the panel, in writing, proposed questions to be asked of a witness. A member of the panel may pose these questions to the witness if that member deems the questions useful and appropriate. Proposed questions may be submitted to the panel at any time before or during the course of the hearing.
(c) The stenographic record of each witness’s testimony will be available to the public, unless the testimony was not given publicly and the witness requests confidential treatment for some or all of his or her testimony. When an oral request for confidential treatment is made during the course of a witness’s testimony, the presiding officer may order the hearing closed to the public at that point and continue the questioning of the witness, or may note the request for confidentiality and direct the witness not to answer the question at that time, but require the witness to answer the question in writing within some specified period, or take such other action as the presiding officer deems appropriate. If a request for confidential treatment is made, the release of the record is governed by the applicable laws or regulations relating to the handling of allegedly confidential information. To the extent that some or all of a witness’s testimony is not publicly available, that witness may procure a copy of his or her testimony as recorded upon payment of lawfully prescribed costs.
(d)(1) Any person who is required by subpoena or designated by an entity that is required by subpoena to provide information at an information gathering hearing conducted under this section may be accompanied, represented, and advised by counsel. Any member of the bar of a Federal court or the courts of any State or Territory of the United States, the Commonwealth of Puerto Rico, or the District of Columbia, and any representative, official, or employee of the sole proprietorship, partnership, corporation or other entity under subpoena may act as counsel.
(2) A witness appearing in response to subpoena may confer in confidence with his or her counsel or representative concerning any questions asked of the witness. If such witness, counsel, or representative objects to a question, he or she shall state the objection and basis therefor on the record.
(e) The presiding officer at an information gathering hearing takes all necessary action to regulate the course of the hearing, to avoid delay, and to assure that reasonable standards of orderly and ethical conduct are maintained. In any case in which counsel for or a representative of a witness has refused to comply with the presiding officer’s directions, or to adhere to reasonable standards of orderly and ethical conduct in the course of a hearing, the presiding officer states on the record the reasons given, if any, for the refusal and, if the presiding officer is someone other than the Administrator, immediately reports the refusal to the Administrator. The Administrator thereupon takes such action as the circumstances warrant.
(f) Where appropriate, the procedures established in this subsection may be utilized in informal hearings conducted by NHTSA pursuant to its authority under sections 152 and 156 of the Safety Act (15 U.S.C. 1412, 1416) to receive data, views and arguments concerning alleged safety-related defects. The rights accorded to witnesses in this subsection may also be accorded to witnesses who appear voluntarily at such hearings.
§ 510.6 Administrative depositions.
(a) NHTSA may issue a subpoena to compel any person, sole proprietorship, partnership, corporation, or other entity to provide information as a witness at an administrative deposition. These depositions are for the purpose of obtaining information from the witness under oath and receiving documents and things relevant to an agency investigation. These depositions shall be taken before an officer authorized to administer oaths by the laws of the United States or of the place where the deposition is taken. Unless otherwise ordered by the Administrator, administrative depositions are closed to the public.
(b) Any person who is required by subpoena or designated by an entity that is required by subpoena to produce documents or things or to give testimony as a witness at an administrative deposition conducted under this section may be accompanied, represented, and advised by counsel. Any member of the bar or a Federal court or the courts of any State or Territory of the United States, the Commonwealth of Puerto Rico, or the District of Columbia and any representative, official, or employee of the person, sole proprietorship, partnership, corporation, or other entity under subpoena may act as counsel.
(c) During an administrative deposition:
(1) The presiding officer before whom the deposition is to be taken puts the witness on oath and personally, or by someone acting under his or her direction and in his or her presence, records the testimony of the witness. The testimony is stenographically reported.
(2) After NHTSA has examined the witness at the deposition, that witness’ counsel or representative may examine the witness. NHTSA may then reexamine the witness and the witness’ counsel or representative may reexamine the witness and so forth, as appropriate.
(3) A witness appearing in response to a subpoena may confer in confidence with his or her counsel or representative concerning any questions asked of the witness. If such witness, counsel, or representative objects to a question, he or she shall state the objection and the basis therefor on the record.
(4) Objections to the qualifications of the officer taking the deposition, or to the manner of taking it, or to the evidence presented, and any other objection to the proceedings shall be noted by the officer on the record, and shall be treated as continuing. Evidence objected to shall be taken subject to the objections. Errors and irregularities occurring at a deposition in the manner of the taking of the deposition, in the form of questions or answers, or in the oath or affirmation, and errors of any kind which might be obviated, removed, or cured if promptly presented shall be deemed to be waived unless reasonable objection is made thereto at the taking of the deposition.
(5) If the witness refuses to answer any question or answers evasively, or if the witness or his or her counsel engages in conduct likely to delay or obstruct the administrative deposition, such refusal, evasive answer or conduct shall be a failure to comply with the subpoena issued to the witness.
(6) Upon completion of the examination of a witness, the witness may clarify on the record any of his or her answers.
(d) The transcript of the testimony of a witness who testified in response to a subpoena at an administrative deposition is submitted to the witness for signature, unless the witness waives the right to sign the transcript. If a witness desires to make any changes in the form or substance contained in the transcript, the witness shall submit, together with the transcript, a separate document setting forth the changes and stating the reasons for such changes. If the deposition is not signed by the witness within 30 days of its submission to the witness, or such other period as the NHTSA may designate, the officer before whom the deposition was taken or a NHTSA employee signs the transcript and states on the record the fact of the waiver of the right to sign or the fact of the witness’ unavailability or inability or refusal to sign together with the reasons, if any, given therefor.
(e) The transcript of the testimony of a witness will be inspected by NHTSA to determine if there are any errors in the transcription of the questions posed to the witness and the testimony in response to those questions. If NHTSA discovers any errors, it notes that fact and forwards the notation of errors together with the transcript to the witness, requesting the witness to stipulate that the transcript is in error and that the corrections made by NHTSA are accurate. If the witness will not make this stipulation, NHTSA may make a motion to the presiding officer to include its notation of error and its corrections in the record along with the version of the testimony signed by the witness.
(f)(1) Upon payment of lawfully prescribed costs, any person who is required by subpoena or designated by a sole proprietorship, partnership, corporation, or other entity that is required by subpoena to appear as a witness at an administrative deposition may procure a copy of the deposition as recorded, except that in a nonpublic investigatory proceeding, the witness may, for good cause, be limited to an inspection of the record of the deposition.
(2) A copy of the record of the deposition may be furnished to the witness without charge or at a reduced charge if the Associate Administrator for Administration determines that waiver of the fee is in the public interest because furnishing the copy can be considered as primarily benefitting the general public. Any witness who seeks a waiver of the copying charge may apply in writing to the Associate Administrator for Administration, and shall state the reasons justifying waiver of the fee in the application.
(g) The testimony obtained in an adminstrative deposition may be used or considered by the NHTSA in any of its activities, and may be used or offered into evidence in any administrative proceeding in accordance with the provisions of 5 U.S.C. 554, or in any judicial proceeding.
§ 510.7 General or special orders.
The NHTSA may require by the issuance of general or special orders any person, sole proprietorship, partnership, corporation, or other entity to file with the NHTSA, in such form as NHTSA may prescribe, periodic or special reports or answers in writing to specific questions. The responses to general or special orders will provide NHTSA with such information as it may require, including, but not limited to, information relating to the organization of that person, sole proprietorship, partnership, corporation, or other entity, its business, conduct, practices, management, and relation to any other person or entity. General or special orders which are required to be answered under oath are issued by the Chief Counsel. Any general or special order issued under this section contains the information specified in § 510.3(b). Reports and answers filed in response to general or special orders must be made under oath, or otherwise, as NHTSA may prescribe.
§ 510.8 Written requests for the production of documents and things.
The NHTSA may, by the issuance of a written request for the production of documents and things, require any person, sole proprietorship, partnership, corporation, or other entity to produce documents or things. A written request for the production of documents and things may be issued alone, or as a part of a general or special order issued under § 510.7. Written requests for the production of documents and things are issued by the Chief Counsel. Any written request for the production of documents and things issued under this section shall contain the information specified in § 510.3(b).
§ 510.9 Motions to modify, limit, or quash process.
(a)(1) Any person, sole proprietorship, partnership, corporation, or other entity served with a subpoena issued under § 510.4 may file with the Deputy Administrator a motion to modify, limit, or quash that subpoena. If there is no Deputy Administrator, or the Deputy Administrator is not available, such motions shall be filed with and decided by the Associate Administrator for Administration. A motion to modify, limit, or quash must be filed not later than 15 days after the service of the process or five days before the return date specified in the process, whichever is earlier, except that, if the process is served within five days of its return date, such motion may be filed at any time before the return date. Any motion must set forth the grounds and theories of why and how the party believes the process should be modified, limited, or quashed and must contain all facts and arguments which support those grounds and theories.
(2) The Deputy Administrator may, upon receiving a motion filed pursuant to paragraph (a)(1) of this section:
(i) Deny the motion;
(ii) Modify the return date of the subpoena;
(iii) Modify, limit or quash the subpoena;
(iv) Condition granting the motion upon certain requirements; or
(v) Take any other action he or she believes to be appropriate in the circumstances.
(3) The Office of the Deputy Administrator serves the decision on the motion on the moving party or the counsel or representative of the moving party. This service may be made by personal service, by registered or certified mail, or by reading a copy of the decision to the moving party or the counsel or representative of the moving party.
(4) A denial of any motion properly filed under this section shall be in writing, and shall contain a brief statement of the facts involved and the conclusions drawn from those facts by the Deputy Administrator.
(b) The Deputy Administrator’s decision on the motion to modify, limit, or quash, filed under paragraph (a) of this section is not subject to reconsideration by NHTSA.
§ 510.10 Supplementation of responses to process.
(a) A person, sole proprietorship, partnership, corporation, or other entity which has provided NHTSA with information under this part, which information was complete and accurate at the time the information was given to NHTSA, is not required to supplement that information in the light of after acquired information, except:
(1) The person or entity to whom the process is addressed shall supplement the response with respect to any question directly addressed to the identity and location of persons having knowledge of information obtainable under this part.
(2) The person or entity to whom the process is addressed shall seasonably amend a prior response if that person or entity obtains information upon the basis of which the person or entity knows that the response was incorrect when made or the person or entity knows that the response, though correct when made, is no longer true and the circumstances are such that a failure to amend the response is in substance a knowing concealment.
(b) The requirement to supplement information set forth in paragraph (a) of this section terminates when:
(1) The compulsory process stated that it was issued in connection with a contemplated rulemaking action, and a final rule is issued on that subject or a notice is issued announcing that the rulemaking action has been suspended or terminated.
(2) The compulsory process stated that it was issued in connection with an enforcement investigation, and the investigation is closed.
(3) The compulsory process does not state that it is issued in connection with a specific rulemaking action or enforcement investigation, and 18 months have passed since the date of the original response.
(c) This section in no way limits NHTSA’s authority to obtain supplemental information by specific demands through the means specified in § 510.3.
§ 510.11 Fees.
Any person compelled to appear in person in response to a subpoena issued under this part at an information gathering hearing or an administrative deposition is paid the same attendance and mileage fees as are paid witnesses in the courts of the United States, in accordance with title 28, U.S.C., section 1821.
§ 510.12 Remedies for failure to comply with compulsory process.
Any failure to comply with compulsory process authorized by law and issued under this part is a violation of this part. In the event of such failure to comply, NHTSA may take appropriate action pursuant to the authority conferred by the National Traffic and Motor Vehicle Safety Act or the Motor Vehicle Information and Cost Savings Act, as appropriate, including institution of judicial proceedings to enforce the order and to collect civil penalties.
PART 511 – ADJUDICATIVE PROCEDURES
Subpart A – Scope of Rules; Nature of Adjudicative Proceedings, Definitions
§ 511.1 Scope of the rules.
This part establishes rules of practice and procedure for adjudicative proceedings conducted pursuant to section 508(a)(2) of the Motor Vehicle Information and Cost Savings Act (15 U.S.C. Pub. L. 94-163, 89 Stat. 911, section 2008(a)(2)), which are required by statute to be determined on the record after opportunity for a public hearing.
§ 511.2 Nature of adjudicative proceedings.
Adjudicative proceedings shall be conducted in accordance with title 5, U.S.C., sections 551 through 559 and this part. It is the policy of the agency that adjudicative proceedings shall be conducted expeditiously and with due regard to the rights and interests of all persons affected, and to the public interest. Therefore, the presiding officer and all parties shall make every effort at each stage of a proceeding to avoid unnecessary delay.
§ 511.3 Definitions.
(a) As used in this part:
(1) The term application means an ex parte request by a party for an order that may be granted or denied without opportunity for response by any other party.
(2) The term NHTSA means the National Highway Traffic Safety Administration.
(3) The term Administrator means the Administrator of the National Highway Traffic Safety Administration.
(4) The term Complaint Counsel means prosecuting counsel for the NHTSA.
(5) The term motion means a request by a party for a ruling or order that may be granted or denied only after opportunity for response by each affected party.
(6) The term party means the NHTSA, and any person named as a respondent in a proceeding governed by this part.
(7) The term person means any individual, partnership, corporation, association, public or private organization, or Federal, State or municipal governmental entity.
(8) The term petition means a written request, made by a person or a party and addressed to the Presiding Officer or the Administrator, that the addressee take some action.
(9) The term Presiding Officer means the person who conducts an adjudicative hearing under this part, who shall be an administrative law judge qualified under title 5, U.S.C., section 3105 and assigned by the Chief Administrative Law Judge, Office of Hearings, United States Department of Transportation.
(10) The term Respondent means any person against whom a complaint has been issued.
(11) The term Office of Hearings means the Officer of Hearings, Department of Transportation.
(12) The term staff means the staff of the National Highway Traffic Safety Administration.
(13) The term Chief Administrative Law Judge means the Chief Administrative Law Judge of the Office of Hearings, Department of Transportation.
(14) The term Docket Section means the Docket Section, Office of the Secretary of Transportation.
Subpart B – Pleadings; Form; Execution; Service of Documents
§ 511.11 Commencement of proceedings.
(a) Notice of institution of an enforcement proceeding. An adjudicative proceeding under this part is commenced by the issuance of a complaint by the NHTSA.
(b) Form and content of complaint. The complaint shall be signed by the Complaint Counsel and shall contain the following:
(1) Recital of the legal authority for instituting the proceeding, with specific designation of the statutory provisions involved in each allegation.
(2) Identification of each respondent.
(3) A clear and concise statement of the charges, sufficient to inform each respondent with reasonable definiteness of the factual basis of the allegations of violation. A list and summary of documentary evidence supporting the charges shall be attached.
(4) A statement of the civil penalty which the Complaint Counsel believes is in the public interest, or which is required by law. In the case of civil penalties assessed for violations of section 507(3) of the Motor Vehicle Information and Cost Savings Act (15 U.S.C. 2007(3)), the amount of such penalty shall be calculated from the time of the alleged violation. In the case of civil penalties assessed for violations of section 507 (1) or (2) of that Act, any monetary credits available to offset those civil penalties shall be specified.
(5) The right of the respondent to a hearing on the alleged violations.
(c) Notice to the public. Once a complaint is issued, notice of it shall be immediately submitted to the
§ 511.12 Answer.
(a) Time for filing. A respondent shall have twenty (20) days after service of a complaint within which to file an answer.
(b) Content of answer. An answer shall conform to the following:
(1) Request for hearing. Respondent shall state whether it requests a full, adjudicatory hearing or whether it desires to proceed on the basis of written submissions. If a hearing is requested, respondent shall specify those issues on which a hearing is desired.
(2) Contested allegations. An answer in which the allegations of a complaint are contested shall contain:
(i) Specific admission or denial of each allegation in the complaint. If the respondent is without knowledge or information sufficient to form a belief as to the truth of an allegation, respondent shall so state. Such a statement shall have the effect of a denial. Denials shall fairly meet the substance of the allegations denied. Allegations not thus answered shall be deemed to have been admitted.
(ii) A concise statement of the factual and/or legal defenses to each allegation of the complaint.
(3) Admitted allegations. If the respondent admits or fails to deny any factual allegation, he or she shall be deemed to have waived a hearing as to such allegation.
(c) Default. Failure of the respondent to file an answer within the time provided (or within an extended time, if provided), shall be deemed to constitute a waiver of the right to appear and contest the allegations set forth in the complaint and to authorize the Presiding Officer to make such findings of fact as are reasonable under the circumstances.
§ 511.13 Amendments and supplemental pleadings.
Whenever determination of a controversy on the merits will be facilitated thereby, the Presiding Officer upon motion, may allow appropriate amendments and supplemental pleadings which do not unduly broaden the issues in the proceeding or cause undue delay.
§ 511.14 Form and filing of documents.
(a) Filing. Except as otherwise provided, all documents submitted to the Administrator or a Presiding Officer shall be filed with the Docket Section, Office of the Secretary, Department of Transportation, Room 4107, 400 Seventh Street, SW., Washington, DC 20590. Documents may be filed in person or by mail and shall be deemed filed on the day of filing or mailing.
(b) Caption. Every document shall contain a caption setting forth the name of the action in connection with which it is filed, the docket number, and the title of the document.
(c) Copies. An original and nine (9) copies of all documents shall be filed. Documents may be reproduced by printing or any other process, provided that all copies filed are clear and legible.
(d) Signature. (1) The original of each document filed shall be signed by a representative of record for the party; or in the case of parties not represented, by the party; or by a partner, officer, or regular employee of any corporation, partnership, or association, who files an appearance on behalf of the party.
(2) The act of signing a document constitutes a representation by the signer that the signer has read it; that to the best of the signer’s knowledge, information and belief, the statements made in it are true; and that it is not filed for purposes of delay.
§ 511.15 Time.
(a) Computation. In computing any period of time prescribed or allowed by the rules in this part, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a legal holiday. When the period of time prescribed or allowed is less than 7 days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation. As used in this part, “legal holiday” includes New Year’s Day, Washington’s Birthday, Memorial Day, Independence Day, Labor Day, Columbus Day, Veteran’s Day, Thanksgiving Day, Christmas Day, and any other day appointed as a holiday by the President or the Congress of the United States.
(b) Additional time after service by mail. Whenever a party is required or permitted to do an act within a prescribed period after service of a document and the document is served by mail, three (3) days shall be added to the prescribed period.
(c) Extensions. For good cause shown, the Presiding Officer may extend any time limit prescribed or allowed under this part or by order of the Administrator or the Presiding Officer, except those governing the filing of interlocutory appeals and appeals from Initial Decisions and those expressly requiring the Administrator’s action. Except as otherwise provided by law, the Administrator, for good cause shown, may extend any time limit prescribed under this part, or by order of the Administrator or the Presiding Officer. A party or participant may petition the Presiding Officer or the Administrator, as appropriate, for an extension under this paragraph. Such a petition shall be filed prior to the occurrence of the time limit which is the subject of the petition.
§ 511.16 Service.
(a) Mandatory service. Every document filed with the Office of Hearings shall be served upon all parties and participants to a proceeding, i.e., Complaint Counsel, respondent(s), and participants, and upon the Presiding Officer.
(b) Service of complaint, ruling, order, decision, or subpoena. Service of a complaint, ruling, order, decision, or subpoena may be effected as follows:
(1) By registered or certified mail. A copy of the document shall be addressed to the person, partnership, corporation or unincorporated association to be served at his or its residence or principal office or place of business; registered or certified; and mailed; or
(2) By delivery to an individual. A copy of the document may be delivered to the person to be served; or to a member of the partnership to be served; or to the president, secretary, or other executive officer, or a director of the corporation or unincorporated association to be served; or to an agent authorized by appointment or by law to receive service; or
(3) By delivery to an address. A copy of the document may be left at the principal office or place of business of the person, partnership, corporation, unincorporated association, or authorized agent with an officer, a managing or general agent; or it may be left with a person of suitable age and discretion residing therein, at the residence of the person or of a member of the partnership or of an executive officer, director, or agent of the corporation or unincorporated association to be served.
(c) Service of documents with prescribed response periods. When service of a document starts the running of a prescribed period of time for the submission of a responsive document or the occurrence of an event, the document shall be served as provided in paragraph (b) of this section.
(d) Service of other documents. All documents other than those specified in paragraph (c) of this section may be served as provided in paragraph (b) of this section, or by ordinary first-class mail, properly addressed, postage prepaid.
(e) Service on a representative. When a party has appeared by an attorney or other representative, service upon that attorney or other representative shall constitute service on the party.
(f) Certificate of service. The original of every document filed with the agency and required to be served upon all parties to a proceeding shall be accompanied by a certificate of service signed by the party making service, stating that such service has been made upon each party to the proceeding. Certificates of service may be in substantially the following form:
I hereby certify that I have this day served the foregoing document upon all parties of record in this proceeding by mailing, postage prepaid (or by delivering in person) a copy to each such party.
Dated at __________ this __ day of __________, 19__.
(g) Date of service. The date of service of a document shall be the date on which the document is deposited in the United States mail or is delivered in person.
§ 511.17 Public participation.
Participant Status. Any person interested in a proceeding commenced pursuant to § 511.11 who desires to participate in the proceeding, shall file with the Docket Section a notice of intention to participate in the proceeding and shall serve a copy of such notice on each party to the proceeding. A notice of intention to participate shall be filed not later than the commencement of the hearing. Untimely filings will not be accepted absent a determination by the Presiding Officer that the person making the request has made a substantial showing of good cause for failure to file on time. Any person who files a notice to participate in the proceeding as a nonparty shall be known as a “participant” and shall have the rights specified in § 511.41(d).
§ 511.18 Joinder of proceedings.
Two or more matters which have been scheduled for adjudicative proceedings, and which involve one or more common questions of law or fact, may be consolidated for the purpose of hearing, appeal or the Administrator’s review. A motion for consolidation for the purpose of hearing may be filed with the Presiding Officer by any party to such proceedings not later than thirty (30) days prior to the hearing. A motion for consolidation for the purpose of appeal may be filed by any party to such proceedings within 10 days after issuance of the Initial Decision. A motion to consolidate shall be served upon all parties to all proceedings whose joinder is contemplated. The proceedings may be consolidated where to do so would tend to avoid unnecessary costs or delay. Such consolidation may also be ordered upon the initiative of the Presiding Officer or the Administrator, as appropriate. The Presiding Officer may order separate hearings on any issue where to do so would promote economy or convenience or would avoid prejudice to a party.
Subpart C – Prehearing Procedures; Motions; Interlocutory Appeals; Summary Judgment; Settlement
§ 511.21 Prehearing conferences.
(a) When held. (1) A prehearing conference shall be held in person or by conference telephone call, except in unusual circumstances, approximately fifty (50) days after publication in the
(i) Motions for consolidation of proceedings;
(ii) Identification, simplification and clarification of the issues;
(iii) Necessity or desirability of amending the pleadings;
(iv) Stipulations and admissions of fact and of the content and authenticity of documents;
(v) Oppositions to notices of oral examination;
(vi) Motions for protective orders to limit or modify discovery;
(vii) Issuance of subpoenas to compel the appearance of witnesses and the production of documents;
(viii) Limitation of the number of witnesses, particularly the avoidance of duplicate expert witnesses;
(ix) Matters of which official notice will be taken and matters which may be resolved by reliance upon findings of other Federal agencies; and
(x) Other matters which may expedite the conduct of the hearing.
§ 511.22 Prehearing briefs.
Not later ten (10) days prior to the hearing, the parties shall, except when ordered otherwise by the Presiding Officer in unusual circumstances, simultaneously serve and file prehearing briefs, which shall set forth (a) a statement of the facts expected to be proved, and of the anticipated order of proof; (b) a statement of the issues and the legal argument in support of the party’s contentions with respect to each issue; and (c) a table of authorities with a designation by asterisk of the principal authorities relied upon.
§ 511.23 Motions.
(a) Presentations and dispositions. During the time a proceeding is before a Presiding Officer, all motions, whether oral or written, except those filed under § 511.42(e), shall be addressed to the Presiding Officer, who shall rule upon them promptly after affording an opportunity for response.
(b) Written motions. All written motions shall state the particular order, ruling, or action desired and the grounds therefor. If a motion is supported by memoranda, affidavits or other documents, they shall be served and filed with the motion. All motions shall contain a proposed order setting forth the relief sought. All written motions shall be filed with the Executive Secretary and served on all parties, and all motions addressed to the Administrator shall be in writing.
(c) Responses. Within ten (10) days after service of any written motion or petition or within such longer or shorter time as may be designated by these Rules or by the Presiding Officer or the Administrator, the opposing party or parties shall file a written response to such motion. Where a motion would affect only a single party, or an identifiable group of parties, the Presiding Officer or Administrator may limit the response to the motion to the affected party or parties. Failure to respond to a written motion may, in the discretion of the Presiding Officer be deemed as consent to the granting of the relief sought in the motion. The moving party shall have no right to reply, except as permitted by the Presiding Officer or the Administrator.
(d) Rulings on motions for dismissal. When a motion to dismiss a complaint or motion for other relief is granted with the result that the proceeding before the Presiding Officer is terminated, the Presiding Officer shall issue an Initial Decision and Order thereon in accordance with the provisions of § 511.51. If such a motion is granted as to all issues alleged in the complaint in regard to some, but not all, of the respondents, or is granted as to any part of the allegations in regard to any or all of the respondents, the Presiding Officer shall enter an order on the record and consider the remaining issues in the Initial Decision. The Presiding Officer may elect to defer ruling on a motion to dismiss until the close of the case.
§ 511.24 Interlocutory appeals.
(a) General. Rulings of the Presiding Officer may not be appealed to the Administrator prior to the Initial Decision, except as provided herein.
(b) Exceptions – (1) Interlocutory appeals to Administrator. The Administrator may, in his or her discretion, entertain interlocutory appeals where a ruling of the Presiding Officer:
(i) Requires the production or disclosure of records claimed to be confidential;
(ii) Requires the testimony of a supervisory official of the agency other than one especially cognizant of the facts of the matter in adjudication;
(iii) Excludes an attorney from participation in a proceeding pursuant to § 511.42(b).
(2) Procedures for interlocutory appeals. Within ten (10) days of issuance of a ruling, any party may petition the Administrator to entertain an interlocutory appeal on a ruling in the categories enumerated above. The petition shall not exceed fifteen (15) pages. Any other party may file a response to the petition within ten (10) days of its service. The response shall not exceed fifteen (15) pages. The Administrator shall thereupon act upon the petition, or the Administrator shall request such further briefing or oral presentation as he may deem necessary.
(3) Interlocutory appeals from all other rulings – (i) Grounds. Interlocutory appeals from all other rulings by the Presiding Officer may proceed only upon motion to the Presiding Officer and a determination by the Presiding Officer in writing, with justification in support thereof, that the ruling involves a controlling question of law or policy as to which there is substantial ground for differences of opinion and that an immediate appeal from the ruling may materially advance the ultimate termination of the litigation, or that subsequent review will be an inadequate remedy.
(ii) Form. If the Presiding Officer determines, in accordance with paragraph (b)(3)(i) of this section that an interlocutory appeal may proceed, a petition for interlocutory appeal may be filed with and acted upon by the Administrator in accordance with paragraph (b)(2) of this section.
(c) Proceedings not stayed. A petition for interlocutory appeal under this part shall not stay the proceedings before the Presiding Officer unless the Presiding Officer shall so order, except that a ruling of the Presiding Officer requiring the production of records claimed to be confidential shall be automatically stayed for a period of (10) days following the issuance of such ruling to allow an affected party the opportunity to file a petition for an interlocutory appeal pursuant to § 511.24(b)(2). The filing of such a petition shall automatically extend the stay of such a ruling pending the Administrator’s action on such petition.
§ 511.25 Summary decision and order.
(a) Motion. Any party may move, with a supporting memorandum, for a Summary Decision and Order in its favor upon all or any of the issues in controversy. Complaint Counsel may so move at any time after thirty (30) days following issuance of a complaint, and any other party may so move at any time after issuance of a complaint. Any such motion by any party shall be filed at least twenty (20) days before the date fixed for the adjudicatory hearing.
(b) Response to motion. Any other party may, within ten (10) days after service of the motion, file a response thereto with a supporting memorandum.
(c) Grounds. A Summary Decision and Order shall be granted if the pleadings and any testimony upon oral examination, answers to interrogatories, admissions, and/or affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to a Summary Decision and Order as a matter of law.
(d) Legal effect. A Summary Decision and Order upon all the issues being adjudicated shall constitute the Initial Decision of the Presiding Officer, and may be appealed to the Administrator in accordance with § 511.53. A Summary Decision, interlocutory in character, may be rendered on fewer than all issues and may not be appealed prior to issuance of the Initial Decision, except in accordance with § 511.24.
(e) Case not fully adjudicated on motion. A Summary Decision and Order that does not dispose of the whole case shall include a statement of those material facts as to which there is no substantial controversy, and of those material facts that are actually and in good faith controverted. The Summary Order shall direct such further proceedings as are just.
§ 511.26 Settlement.
(a) Applicability. This section applies only to cases of alleged violations of section 507(3) of the Motor Vehicle Information and Cost Savings Act, Pub. L. 94-163, 89 Stat. 911 (15 U.S.C. section 2007(3)). Settlement in other cases may be made only in accordance with subpart G of this part.
(b) Availability. Any party shall have the opportunity to submit an offer of settlement to the Presiding Officer.
(c) Form. Offers of settlement shall be in the form of a consent agreement and order, shall be signed by the party submitting the offer or his representative, and may be signed by any other party. Each offer of settlement shall be accompanied by a motion to transmit to the Administrator the proposed agreement and order, outlining the substantive provisions of the agreement, and the reasons why it should be accepted.
(d) Contents. The proposed consent agreement and order which constitute the offer of settlement shall contain the following:
(1) An admission of all jurisdictional facts;
(2) An express waiver of further procedural steps, and of all rights to seek judicial review or otherwise to contest the validity of the order;
(3) A description of the alleged noncompliance, or violation;
(4) Provisions to the effect that the allegations of the complaint are resolved by the proposed consent agreement and order;
(5) A listing of the acts or practices from which the respondent shall refrain;
(6) A detailed statement of the corrective action(s) which the respondent shall excute and the civil penalty, if any, that respondent shall pay.
(e) Transmittal. The Presiding Officer shall transmit to the Administrator for decision all offers of settlement and accompanying memoranda that meet the requirements enumerated in paragraph (d) of this section. The Presiding Officer may, but need not, recommend acceptance or rejection of such offers. Any party or participant may object to a proposed consent agreement by filing a motion and supporting memorandum with the Administrator.
(f) Stay of proceedings. When an offer of settlement has been agreed to by the parties and has been transmitted to the Administrator, the proceedings shall be stayed until the Administrator has ruled on the offer. When an offer of settlement has been made and transmitted to the Administrator but has not been agreed to by all parties, the proceedings shall not be stayed pending the Administrator’s decision on the offer.
(g) Administrator’s ruling. The Administrator will rule upon all transmitted offers of settlement. If the Administrator accepts the offer, the Administrator shall issue an appropriate order. The order shall become effective upon issuance. In determining whether to accept an offer of settlement, the Administrator will consider the gravity of the alleged violation, and any good faith efforts by the respondent to comply with applicable requirements.
(h) Rejection. If the Administrator rejects an offer of settlement, the Administrator shall give written notice of that decision and the reasons therefor to the parties and the Presiding Officer. Promptly thereafter, the Presiding Officer shall issue an order notifying the parties of the resumption of the proceedings, including any modifications to the schedule resulting from the stay of the proceedings.
(i) Effect of rejected offer. Rejected offers of settlement shall not be admissible in evidence over the objection of any signatory, nor shall the fact of the proposal of the offer be admissible in evidence.
Subpart D – Discovery; Compulsory Process
§ 511.31 General provisions governing discovery.
(a) Applicability. The discovery rules established in this subpart are applicable to the discovery of information among the parties to a proceeding. Parties seeking information from persons not parties may do so by subpoena in accordance with § 511.38.
(b) Discovery methods. Parties may obtain discovery by one or more of the following methods: (1) Written interrogatories; (2) requests for production of documents or things; (3) requests for admissions; or (4) testimony upon oral examination. Unless the Presiding Officer otherwise orders under paragraph (d) of this section, the frequency of use of these methods is not limited.
(c) Scope of discovery. The scope of discovery is as follows:
(1) In general. Parties may obtain discovery regarding any matter not privileged, which is relevant to the subject matter involved in the proceedings, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party. It is not ground for objection that the information sought will be inadmissible at the hearing if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.
(2) Exception. Parties may not obtain discovery of documents which accompanied the staff’s recommendation as to whether a complaint should issue or of documents or portions thereof which would be exempt from discovery under Rule 26(b)(3) of the Federal Rules of Civil Procedure.
(3) Hearing preparation: Experts. A party may obtain discovery of facts known and opinions held by experts, regardless of whether they are acquired or developed in anticipation of or for litigation. Such discovery may be had by any of the methods provided in paragraph (b) of this section.
(d) Protective orders. Upon motion by a party or person and for good cause shown, the Presiding Officer may make any order which justice requires to protect such party or person from annoyance, embarrassment, competitive disadvantage, oppression or undue burden or expense, including one or more of the following: (1) That the discovery shall not be had; (2) that the discovery may be had only on specified terms and conditions, including a designation of the time and/or place; (3) that the discovery shall be had only by a method of discovery other than that selected by the party seeking discovery; (4) that certain matters shall not be inquired into, or that the scope of discovery shall be limited to certain matters; (5) that discovery shall be conducted with no one present except persons designated by the Presiding Officer; (6) that a trade secret or other confidential research, development, or commercial information shall not be disclosed or shall be disclosed only in a designated way or only to designated parties; and (7) that responses to discovery shall be placed in camera in accordance with § 511.45.
(e) Sequence and timing of discovery. Discovery may commence at any time after filing of the answer. Unless otherwise provided in these Rules or by order of the Presiding Officer, methods of discovery may be used in any sequence and the fact that a party is conducting discovery shall not operate to delay any other party’s discovery.
(f) Supplementation of responses. A party who has responded to a request for discovery shall supplement the response with information thereafter acquired.
(g) Completion of discovery. All discovery shall be completed as soon as practical but in no case longer than one hundred fifty (150) days after issuance of a complaint unless otherwise ordered by the Presiding Officer in exceptional circumstances and for good cause shown. All discovery shall be served by a date which affords the party from whom discovery is sought the full response period provided by these Rules.
(h) Service and filing of discovery. All discovery requests and written responses, and all notices of the taking of testimony, shall be filed with the Docket Section and served on all parties and the Presiding Officer.
(i) Control of discovery. The use of these discovery procedures is subject to the control of the Presiding Officer, who may issue any just and appropriate order for the purpose of ensuring their timely completion.
§ 511.32 Written interrogatories to parties.
(a) Availability; procedures for use. Any party may serve upon any other party written interrogatories to be answered by the party served or, if the party served is a public or private corporation or a partnership or association or governmental agency, by any officer or agent, who shall furnish such information as is available to the party. Interrogatories may, without leave of the Presiding Officer, be served upon any party after filing of the answer.
(b) Procedures for response. Each interrogatory shall be answered separately and fully in writing under oath, unless it is objected to, in which event the reasons for objection shall be stated in lieu of an answer. The answers are to be signed by a responsible representative of the respondent and the objections signed by the representative making them. The party upon whom the interrogatories have been served shall serve a copy of the answers, and objections if any, within 30 days after service of the interrogatories. The Presiding Officer may allow a shorter or longer time for response. The party submitting the interrogatories may move for an order under § 511.36 with respect to any objection to or other failure to answer an interrogatory.
(c) Scope of interrogatories. Interrogatories may relate to any matters which can be inquired into under § 511.31(c)(1), and the answers may be used to the extent permitted under this part. An interrogatory otherwise proper is not objectionable merely because an answer to the interrogatory would involve an opinion or contention that relates to fact or to the application of law to fact, but the Presiding Officer may order that such an interrogatory need not be answered until a later time.
(d) Option to produce business records. Where the answer to an interrogatory may be derived or ascertained from the business records of the party upon whom the interrogatory has been served, or from an examination, audit or inspection of such business records, or from a compilation, abstract or summary based thereon, and the burden of deriving the answer is substantially the same for the party serving the interrogatory as for the party served, it is a sufficient answer to the interrogatory to specify the records from which the answer may be derived or ascertained and to afford to the party serving the interrogatory reasonable opportunity to examine, audit or inspect such records and to make copies, complications, abstracts, or summaries.
§ 511.33 Production of documents and things.
(a) Scope. Any party may serve upon any other party a request (1) to produce and permit the party making the request, or someone acting on behalf of that party, to inspect and copy any designated documents (including writings, drawings, graphs, charts, photographs, phono-records, and any other data-compilation from which information can be obtained, translated, if necessary, by the party in possession into reasonably usable form), or (2) to inspect and copy, test or sample tangible things which constitute or contain matters within the scope of § 511.31(c)(1) and which are in the possession, custody or control of the party upon whom the request is served.
(b) Procedure for request. The request may be served at any time after the filing of the answer without leave of the Presiding Officer. The request shall set forth the items to be inspected either by individual item or by category, and shall describe each item or category with reasonable particularity. The request shall specify a reasonable time, place and manner for making the inspection and performing the related acts.
(c) Procedure for response. The party upon whom the request is served shall serve a written response within twenty (20) days after service of the request. The Presiding Officer may allow a shorter or longer time for response. The response shall state, with respect to each item or category requested, that inspection and related activities will be permitted as requested, unless the request is objected to, in which event the reasons for objection shall be stated. If objection is made to only part of an item or category, that part shall be so specified. The party submitting the request may move for an order under § 511.36 with respect to any objection to or other failure to respond to the request or any part thereof, or to any failure to permit inspection as requested.
§ 511.34 Requests for admission.
(a) Procedure for request. A party may serve upon any other party a written request for the admission, for the purposes of the pending proceeding only, of the truth of any matters within the scope of § 511.31(c)(1) set forth in the request that relate to statements or opinions of fact or of the application of law to fact, including the genuineness of documents described in the request. Copies of documents shall be served with the request unless they have been, or are otherwise furnished or made available for inspection and copying. The request may, without leave of the Presiding Officer, be served upon any party after filing of the answer. Each matter as to which an admission is requested shall be separately set forth.
(b) Procedure for response. The matter as to which an admission is requested is deemed admitted unless within thirty (30) days after service of the request, or within such shorter or longer time as the Presiding Officer may allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or the party’s representatives. If objection is made, the reasons therefore shall be stated.
(c) Effect of admission. Any matter admitted under this section is conclusively established unless the Presiding Officer on motion permits withdrawal or amendment of such admission. The Presiding Officer may permit withdrawal or amendment when the presentation of the merits of the action will be served thereby and the party that obtained the admission fails to satisfy the Presiding Officer that withdrawal or amendment will prejudice that party in maintaining an action or defense on the merits.
§ 511.35 Testimony upon oral examination.
(a) When testimony may be taken. At any time after the answer is filed under § 511.12, upon leave of the Presiding Officer and under such terms and conditions as the Presiding Officer may prescribe, any party may take the testimony of any other party, including the agents, employees, consultants or prospective witnesses of that party at a place convenient to the witness. The attendance of witnesses and the production of documents and things at the examination may be compelled by subpoena as provided in § 511.38.
(b) Notice of oral examination – (1) Examination of a party. A party desiring to examine another party to the proceeding shall, after obtaining leave from the Presiding Officer, serve written notice of the examination on all other parties and the Presiding Officer at least ten (10) days before the date of the examination. The notice shall state (i) the time and place for making the examination; (ii) the name and address of each person to be examined, if known, or if the name is not known, a general description sufficient to identify him; and (iii) the subject matter of the expected testimony. If a subpoena duces tecum is to be served on the person to be examined, the designation of the materials to be produced, as set forth in the subpoena, shall be attached to or included in the notice of examination.
(2) Examination of a nonparty. A party desiring to examine a person who is not a party to the proceeding shall make application for a subpoena, in accordance with § 511.38, to compel the attendance, testimony and/or production of documents by such person who is not a party. The party desiring such examination shall serve written notice of the examination on all other parties to the proceeding, after issuance of the subpoena by the Presiding Officer or a designated alternate.
(3) Opposition to notice. A person served with a notice of examination may, within 3 days of the date of service, oppose, in writing, the examination. The Presiding Officer shall rule on the notice and any opposition and may order the taking of all noticed examinations, upon a showing of good cause therefor. The Presiding Officer may, for good cause shown, enlarge or shorten the time for the taking of an examination.
(c) Persons before whom examinations may be taken. Examinations may be taken before any person authorized to administer oaths by the laws of the United States or of the place where the examination is held. No examination shall be taken before a person who is a relative or employee or attorney or representative of any party, or who is a relative or employee of such attorney or representative, or who is financially interested in the action.
(d) Procedure – (1) Examination. Each witness shall be duly sworn, and all testimony shall be duly recorded. All parties or their representatives may be present and participate in the examination. Examination and cross-examination of witnesses may proceed as permitted at the hearing. Questions objected to shall be answered subject to the objections. Objections shall be in short form, and shall state the grounds relied upon. The questions propounded and the answers thereto, together with all objections made, shall be recorded by the official reporter before whom the examination is made. The original or a verified copy of all documents and things produced for inspection during the examination of the witness shall, upon a request of any party present, be marked for identification and annexed to the record of the examination.
(2) Motion to terminate or limit examination. At any time during the examination, upon motion of any party or of the witness, and upon showing that the examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass or oppress the witness or party, the Presiding Officer may, upon motion, order the party conducting the examination to terminate the examination, or may limit the scope and manner of the examination as provided in § 511.31(d).
(3) Participation by parties not present. In lieu of attending an examination, any party may serve written questions in a sealed envelope on the party conducting the examination. That party shall transmit the envelope to the official reporter, who shall unseal it and propound the questions contained therein to the witness.
(e) Transcription and filing of testimony – (1) Transcription. Upon request by any party, the testimony recorded at an examination shall be transcribed. When the testimony is fully transcribed, the transcript shall be submitted to the witness for examination and signing, and shall be read to or by the witness, unless such examination and signature are waived by the witness. Any change in form or substance which the witness desires to make shall be entered upon the transcript of the official reporter with a statement of the reasons given by the witness for making them. The transcript shall then be signed by the witness, unless the parties by stipulation waive the signing, or the witness is ill or cannot be found or refuses to sign. If the transcript is not signed by the witness within thirty (30) days of its submission to him, the official reporter shall sign it and state on the record the fact of the waiver of signature or of the illness or absence of the witness or the fact of the refusal to sign, together with a statement of the reasons therefor. The testimony may then be used as fully as though signed, in accordance with paragraph (i) of this section.
(2) Certification and filing. The official reporter shall certify on the transcript that the witness was duly sworn and that the transcript is a true record of the testimony given and corrections made by the witness. The official reporter shall then seal the transcript in an envelope endorsed with the title and docket number of the action and marked “Testimony of [name of witness]” and shall promptly file the transcript with the Docket Section. The Presiding Officer shall notify all parties of the filing of the transcript and the Docket Section shall furnish a copy of the transcript to any party or to the witness upon payment of reasonable charges therefor.
(f) Costs of examination. The party who notices the examination shall pay for the examination. The party who requests transcription of the examination shall pay for the transcription.
(g) Failure to attend or to serve subpoena; expenses. If a party who notices an examination fails to attend and proceed therewith and another party attends in person or by a representative pursuant to the notice, the Presiding Officer may order the party who gave the notice to pay the attending party the reasonable expenses incurred. If a party who notices an examination fails to serve a subpoena upon the witness and as a result the witness does not attend, and if another party attends in person or by a representative because that party expects the examination to be made, the Presiding Officer may order the party who gave notice to pay the attending party the reasonable expenses incurred.
(h) Examination to preserve testimony – (1) When available. By leave of the Presiding Officer, a party may examine a witness for the purpose of perpetuating the testimony of that witness. A party who wishes to conduct such an examination shall obtain prior leave of the Presiding Officer by filing a motion. The motion shall include a showing of substantial reason to believe that the testimony could not be presented at the hearing. If the Presiding Officer is satisfied that the perpetuation of the testimony may prevent a failure of justice or is otherwise reasonably necessary, he or she shall order that the deposition be taken.
(2) Procedure. Notice of an examination to preserve testimony shall be served at least fifteen (15) days prior to the examination. The examination shall be taken in accordance with the provisions of paragraph (d) of this section. Any examination taken to preserve testimony shall be fully transcribed and filed in accordance with paragraph (e) of this section.
(i) Use of testimony obtained under this section. At the hearing or upon a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence applied as though the witness were then present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof, in accordance with any of the following provisions:
(1) Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of the deponent as a witness.
(2) The deposition of a party or of a person who at the time of the taking of his testimony was an officer, director or managing agent of a party may be used against that party for any purpose.
(3) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the Presiding Officer finds:
(i) That the witness is dead; or
(ii) That the witness is at a greater distance than 100 miles from the place of the hearing, or is out of the United States, unless it appears that the absence of the witness was procured by the party offering the deposition; or
(iii) That the witness is unable to attend or testify because of age, illness, infirmity, or imprisonment; or
(iv) That the party offering the deposition has been unable to procure the attendance of the witness by subpoena; or
(v) Upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used.
(4) If only part of a deposition is offered in evidence by a party, an adverse party may require him to introduce any other part which ought in fairness to be considered with the part introduced, and any party may introduce any other parts.
§ 511.36 Motions to compel discovery.
If a party fails to respond to discovery, in whole or in part, the party seeking discovery may move within twenty (20) days for an order compelling an answer, or compelling inspection or production of documents, or otherwise compelling discovery. For purposes of this subsection, an evasive or incomplete response is to be treated as a failure to respond. If the motion is granted, the Presiding Officer shall issue an order compelling discovery. If the motion is denied in whole or in part, the Presiding Officer may make such protective order as he or she would have been empowered to make on a motion pursuant to § 511.31(d). When making oral examinations, the discovering party shall continue the examination to the extent possible with respect to other areas of inquiry before moving to compel discovery.
§ 511.37 Sanctions for failure to comply with order.
If a party fails to obey an order to provide or permit discovery, the Presiding Officer may take such action as is just, including but not limited to the following:
(a) Infer that the admission, testimony, document or other evidence would have been adverse to the party;
(b) Order that for the purposes of the proceeding, the matters regarding which the order was made or any other designated facts shall be taken to be established in accordance with the claim of the party obtaining the order;
(c) Order that the party withholding discovery not introduce into evidence or otherwise rely, in support of any claim or defense, upon the documents or other evidence withheld;
(d) Order that the party withholding discovery not introduce into evidence or otherwise use at the hearing, information obtained in discovery;
(e) Order that the party withholding discovery not be heard to object to introduction and use of secondary evidence to show what the withheld admission, testimony, documents, or other evidence would have shown;
(f) Order that a pleading, or part of a pleading, or a motion or other submission by the party, concerning which the order was issued, be stricken, or that decision on the pleadings be rendered against the party, or both; and
(g) Exclude the party or representative from proceedings, in accordance with § 511.42(b).
§ 511.38 Subpoenas.
(a) Availability. A subpoena shall be addressed to any party or any person not a party for the purpose of compelling attendance, testimony and production of documents at a hearing or oral examination.
(b) Form. A subpoena shall identify the action with which it is connected; shall specify the person to whom it is addressed and the date, time and place for compliance with its provisions; and shall be issued by order of the Presiding Officer and signed by the Chief Counsel, or by the Presiding Officer. A subpoena duces tecum shall specify the books, papers, documents, or other materials or data-compilations to be produced.
(c) How obtained – (1) Content of application. An application for the issuance of a subpoena stating reasons shall be submitted in triplicate to the Presiding Officer.
(2) Procedure of application. The original and two copies of the subpoena, marked “original,” “duplicate” and “triplicate,” shall accompany the application. The Presiding Officer shall rule upon an application for a subpoena ex parte, by issuing the subpoena or by issuing an order denying the application.
(d) Issuance of a subpoena. The Presiding Officer shall issue a subpoena by signing and dating, or ordering the Chief Counsel to sign and date, each copy in the lower right-hand corner of the document. The “duplicate” and “triplicate” copies of the subpoena shall be transmitted to the applicant for service in accordance with these Rules; the “original” copy shall be retained by or forwarded to the Chief Counsel for retention in the docket of the proceeding.
(e) Service of a subpoena. A subpoena may be served in person or by certified mail, return receipt requested, as provided in § 511.16(b). Service shall be made by delivery of the signed “duplicate” copy to the person named therein.
(f) Return of service. A person serving a subpoena shall promptly execute a return of service, stating the date, time, and manner of service. If service is effected by mail, the signed return receipt shall accompany the return of service. In case of failure to make service, a statement of the reasons for the failure shall be made. The “triplicate” of the subpoena, bearing or accompanied by the return of service, shall be returned forthwith to the Chief Counsel after service has been completed.
(g) Motion to quash or limit subpoena. Within five (5) days of receipt of a subpoena, the person against whom it is directed may file with the Presiding Officer a motion to quash, modify, or limit the subpoena, setting forth the reasons why the subpoena should be withdrawn or why it should be modified or limited in scope. Any such motion shall be answered within five (5) days of service, and shall be ruled on immediately thereafter. The order shall specify the date, if any, for compliance with the specifications of the subpoena and the reasons for the decision.
(h) Consequences of failure to comply. In the event of failure to comply with a subpoena, the Presiding Officer may take any of the actions enumerated in § 511.37 or may order any other appropriate relief to compensate for the withheld testimony, documents, or other materials. If in the opinon of the Presiding Officer such relief is insufficient, the Presiding Officer shall certify to the Administrator a request for judicial enforcement of the subpoena.
§ 511.39 Orders requiring witnesses to testify or provide other information and granting immunity.
(a) A party who desires the issuance of an order requiring a witness to testify or provide other information upon being granted immunity from prosecution under title 18, U.S.C., section 6002, may make a motion to that effect. The motion shall be made and ruled on in accordance with § 511.22, and shall include a showing:
(1) That the testimony or other information sought from a witness or prospective witness may be necessary to the public interest; and
(2) That such individual has refused or is likely to refuse to testify or provide such information on the basis of that individual’s privilege against self-incrimination.
(b) If the Presiding Officer determines that the witness’ testimony appears necessary and that the privilege against self-incrimination may be invoked, he or she may certify to the Administrator a request that he or she obtain the approval of the Attorney General of the United States for the issuance of an order granting immunity.
(c) Upon application to and approval of the Attorney General of the United States, and after the witness has invoked the privilege against self-incrimination, the Presiding Officer shall issue the order granting immunity unless he or she determines that the privilege was improperly invoked.
(d) Failure of a witness to testify after a grant of immunity or after a denial of the issuance of an order granting immunity shall result in the imposition of appropriate sanctions as provided in § 511.37.
Subpart E – Hearings
§ 511.41 General rules.
(a) Public hearings. All hearings pursuant to this part shall be public unless otherwise ordered by the Presiding Officer. Notice of the time and location of the hearing shall be served on each party and participant, and published in the
(b) Expedition. Hearings shall proceed with all reasonable speed, insofar as practicable and with due regard to the convenience of the parties and shall continue without suspension until concluded, except in unusual circumstances.
(c) Rights of parties. Every party shall have the right of timely notice and all other rights essential to a fair hearing, including, but not limited to, the rights to present evidence, to conduct such cross-examination as may be necessary in the judgment of the Presiding Officer for a full and complete disclosure of the facts, and to be heard by objection, motion, brief, and argument.
(d) Rights of participants. Every participant shall have the right to make a written or oral statement of position, file proposed findings of fact, conclusions of law and a posthearing brief, in accordance with § 511.17(b).
(e) Rights of witnesses. Any person compelled to testify in a proceeding in response to a subpoena may be accompanied, represented, and advised by counsel or other representative, and may obtain a transcript of his or her testimony at no cost.
§ 511.42 Powers and duties of Presiding Officer.
(a) General. A Presiding Officer shall have the duty to conduct full, fair, and impartial hearings, to take appropriate action to avoid unnecessary delay in the disposition of proceedings, and to maintain order. He or she shall have all powers necessary to that end, including the following powers:
(1) To administer oaths and affirmations;
(2) To compel discovery and to impose appropriate sanctions for failure to make discovery;
(3) To issue subpoenas;
(4) To rule upon offers of proof and receive relevant and probative evidence;
(5) To regulate the course of the hearings and the conduct of the parties and their representatives therein;
(6) To hold conferences for simplification of the issues, settlement of the proceedings, or any other proper purposes;
(7) To consider and rule, orally or in writing, upon all procedural and other motions appropriate in an adjudicative proceeding;
(8) To issue initial decisions, rulings, and orders, as appropriate;
(9) To certify questions to the Administrator for determination; and
(10) To take any action authorized in this part or in conformance with the provisions of title 5, U.S.C., sections 551 through 559.
(b) Exclusion of parties by Presiding Officer. A Presiding Officer shall have the authority, for good cause stated on the record, to exclude from participation in a proceeding any party, participant, and/or representative who shall violate requirements of § 511.76. Any party, participant and/or representative so excluded may appeal to the Administrator in accordance with the provisions of § 511.23. If the representative of a party or participant is excluded, the hearing shall be suspended for a reasonable time so that the party or participant may obtain another representative.
(c) Substitution of Presiding Officer. In the event of the substitution of a new Presiding Officer for the one originally designated, any motion predicated upon such substitution shall be made within five (5) days of the substitution.
(d) Interference. In the performance of adjudicative functions, a Presiding Officer shall not be responsible to or subject to the supervision or direction of the Administrator or of any officer, employee, or agent engaged in the performance of investigative or prosecuting functions for NHTSA. All directions by the Administrator to a Presiding Officer concerning any adjudicative proceeding shall appear on and be made a part of the record.
(e) Disqualification of Presiding Officer. (1) When a Presiding Officer deems himself or herself disqualified to preside in a particular proceeding, he or she shall withdraw by notice on the record and shall notify the Chief Administrative Law Judge of the withdrawal.
(2) Whenever, for any reason, any party shall deem the Presiding Officer to be disqualified to preside, or to continue to preside, in a particular proceeding, that party may file with the Chief Administrative Law Judge a motion to disqualify and remove, supported by affidavit(s) setting forth the alleged grounds for disqualification. A copy of the motion and supporting affidavit(s) shall be served by the Chief Administrative Law Judge on the Presiding Officer whose removal is sought. The Presiding Officer shall have ten (10) days from service to reply in writing. Such motion shall not stay the proceeding unless otherwise ordered by the Presiding Officer or the Administrator. If the Presiding Officer does not disqualify himself or herself, the Administrator will determine the validity of the grounds alleged, either directly or on the report of another Presiding Officer appointed to conduct a hearing for that purpose, and shall in the event of disqualification take appropriate action, by assigning another Presiding Officer or requesting assignment of another Administrative Law Judge through the Office of Hearings.
§ 511.43 Evidence.
(a) Applicability of Federal Rules of Evidence. The Federal Rules of Evidence shall apply to proceedings held under this part only as a general guide. The Presiding Officer may admit any relevent and probative evidence.
(b) Burden of proof. (1) Complaint counsel shall have the burden of sustaining the allegations of any complaint.
(2) Any party who is the proponent of a legal and/or factual proposition shall have the burden of sustaining the proposition.
(c) Presumptions. A presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption, but does not shift to such party the burden of proof in the sense of the risk of nonpersuasion, which remains throughout the hearing upon the party on whom it was originally cast.
(d) Admissibility. All relevant and reliable evidence is admissible, but may be excluded if its probative value is substantially outweighed by unfair prejudice or by considerations of undue delay, waste of time, immateriality, or needless presentation of cumulative evidence.
(e) Official notice – (1) Definition. Official notice means use by the Presiding Officer of extra-record facts and legal conclusions drawn from those facts. An officially noticed fact or legal conclusion must be one not subject to reasonable dispute in that it is either (i) generally known within the jurisdiction of the Presiding Officer or (ii) known by the Presiding Officer in areas of his or her expertise; or (iii) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.
(2) Method of taking official notice. The Presiding Officer may at any time take official notice upon motion of any party or upon its own initiative. The record shall reflect the facts and conclusions which have been officially noticed.
(3) Opportunity to challenge. Any party may upon application in writing rebut officially noticed facts and conclusions by supplementing the record. The Presiding Officer shall determine the permissible extent of this challenge; that is, whether to limit the party to presentation of written materials, whether to allow presentation of testimony, whether to allow cross-examination, or whether to allow oral argument. The Presiding Officer shall grant or deny the application on the record.
(f) Objections and exceptions. Objections to evidence shall be timely interposed, shall appear on the record, and shall contain the grounds upon which they are based. Rulings on all objections, and the bases therefore, shall appear on the record. Formal exception to an adverse ruling is not required to preserve the question for appeal.
(g) Offer of proof. When an objection to proffered testimony or documentary evidence is sustained, the sponsoring party may make a specific offer, either in writing or orally, of what the party expects to prove by the testimony or the document. When an offer of proof is made, any other party may make a specific offer, either in writing or orally, of what the party expects to present to rebut or contradict the offer of proof. Written offers of proof or of rebuttal, adequately marked for identification, shall accompany the record and be available for consideration by any reviewing authority.
§ 511.44 Expert witnesses.
(a) Definition. An expert witness is one who, by reason of education, training, experience, or profession, has peculiar knowlege concerning the matter of science or skill to which his or her testimony relates and from which he or she may draw inferences based upon hypothetically stated facts or from facts involving scientific or technical knowledge.
(b) Method of presenting testimony of expert witness. Except as may be otherwise ordered by the Presiding Officer, a detailed written statement of the elements of the direct testimony of an expert witness shall be filed on the record and exchanged between the parties no later than 10 days preceding the commencement of the hearing. The statement must contain a full explanation of the methodology underlying any analysis, and a full disclosure of the basis of any opinion. The direct testimony of an expert witness shall not include points not contained in the written statement. A party may waive direct examination of an expert witness by indicating that the written statement be considered the testimony of the witness. In such a case, the written testimony shall be incorporated into the record and shall constitute the testimony of the witness.
(c) Cross-examination and redirect examination of expert witness. Cross-examination, redirect examination, and re-cross-examination of an expert witness will proceed in due course based upon the written testimony and any amplifying oral testimony.
(d) Failure to file and/or to exchange written statement. Failure to file and/or to exchange the written statement of an expert witness as provided in this section shall deprive the sponsoring party of the use of the expert witness and of the conclusions which that witness would have presented.
§ 511.45 In camera materials.
(a) Definition. In camera materials are documents, testimony, or other data which by order of the Presiding Officer or the Administrator, as appropriate under this part, are kept confidential and excluded from the public record. Only materials exempt under the Freedom of Information Act may be kept confidential and excluded from the public record. Pursuant to 49 CFR part 512, the Chief Counsel of the NHTSA is responsible for determining whether an alleged confidential business record is exempt from the Freedom of Information Act. The right of the Presiding Officer, the Administrator and reviewing courts to order disclosure of in camera materials is specifically reserved.
(b) In camera treatment of documents and testimony. The Presiding Officer or the Administrator, as appropriate under this part, shall have authority, when good cause is found on the record, to order documents or testimony offered in evidence, whether admitted or rejected, to be received and preserved in camera. The order shall specify the length of time for in camera treatment and shall include:
(1) A description of the documents and/or testimony;
(2) The reasons for granting in camera treatment for the specified length of time.
(c) Access and disclosure to parties. (1) The Administrator and Presiding Officer, and their immediate advisory staffs shall have complete access to all in camera materials. All other parties shall also have complete access to all in camera materials, except that these parties may seek access only in accordance with paragraph (c)(2) of this section when:
(i) The in camera materials consist of information obtained by the government from persons not parties to the proceeding; or
(ii) The in camera materials consist of information provided by one of the parties to the proceeding which is confidential as to the other parties to the proceeding.
(2) Any party desiring access to and/or disclosure of the in camera materials specified in paragraph (c)(1) (i) and (ii) of this section for the preparation and presentation of that party’s case shall make a motion which sets forth the justification therefor. The Presiding Officer or the Administrator, as appropriate under this part, may grant such motion on the record for substantial good cause shown and shall enter a protective order prohibiting unnecessary disclosure and requiring other necessary safeguards. The Presiding Officer or the Administrator, as appropriate, may examine the in camera materials and excise portions thereof before disclosing the materials to the moving party.
(d) Segregation of in camera materials. In camera materials shall be segregated from the public record and protected from public view.
(e) Public release of in camera materials. In camera materials constitute a part of the confidential records of the NHTSA and shall not be released to the public until the expiration of in camera treatment.
(f) Reference to in camera materials. In the submission of proposed findings, conclusions, briefs, or other documents, all parties shall refrain from disclosing specific details of in camera materials. Such refraining shall not preclude general references to such materials. To the extent that parties consider it necessary to include specific details of in camera materials, the references shall be incorporated into separate proposed findings, briefs, or other documents marked “CONFIDENTIAL, CONTAINS IN CAMERA MATERIAL,” which shall be placed in camera and become part of the in camera record. These documents shall be served only on parties accorded access to the in camera materials in accordance with paragraph (c)(2) of this section.
§ 511.46 Proposed findings, conclusions, and order.
Within a reasonable time after the closing of the record and receipt of the transcript, all parties and participants may, simultaneously, file post-hearing briefs, including proposed findings of fact, conclusions of law and a proposed order, together with reasons therefore. The Presiding Officer shall establish a date certain for the filing of the briefs, which shall not exceed 45 days after the close of the record except in unusual circumstances. The briefs shall be in writing, shall be served upon all parties, and shall contain adequate references to the record and authorities relied on. Replies shall be filed within fifteen (15) days of the date for the filing of briefs unless otherwise established by the Presiding Officer. The parties and participants may waive either or both submissions.
§ 511.47 Record.
(a) Reporting and transcription. Hearings shall be recorded and transcribed under the supervision of the Presiding Officer by a reporter appointed by the Administrator. The original transcript shall be a part of the record and the official transcript. Copies of transcripts are available from the reporter at a cost not to exceed the maximum rates fixed by contract between the NHTSA and the reporter.
(b) Corrections. Corrections of the official transcript may be made only when they involve errors affecting substance and then only in the manner herein provided. The Presiding Officer may order corrections, either on his or her own motion or on motion of any party. The Presiding Officer shall determine the corrections to be made and so order. Corrections shall be interlineated or otherwise inserted in the official transcript so as not to obliterate the original text.
§ 511.48 Official docket.
(a) The official docket in adjudicatory proceedings will be maintained in the Docket Section, Office of the Secretary, Room 4107, 400 Seventh Street SW., Washington, DC 20590, and will be available for inspection during normal working hours (9:00 a.m.-5:00 p.m.) Monday through Friday.
(b) Fees for production or disclosure of records contained in the official docket shall be levied as prescribed in the Department of Transportation’s regulations on Public Availability of Information (49 CFR part 7).
§ 511.49 Fees.
(a) Witnesses. Any person compelled to appear in person in response to a subpoena or notice of oral examination shall be paid at least the same attendance and mileage fees as are paid witnesses in the courts of the United States, in accordance with title 28, U.S.C., section 1821.
(b) Responsibility. The fees and mileage referred to in this section shall be paid by the party at whose instance witnesses appear.
Subpart F – Decision
§ 511.51 Initial decision.
(a) When filed. The Presiding Officer shall endeavor to file an Initial Decision with the Administrator within sixty (60) days of the close of the record, the filing of post-hearing briefs, or the filing of replies thereto, whichever is latest.
(b) Content. The Initial Decision shall be based upon a consideration of the entire record and it shall be supported by reliable, probative, and substantial evidence. It shall include:
(1) Findings and conclusions, as well as the reasons or bases therefor, upon the material questions of fact, material issues of law, or discretion presented on the record, and should, where practicable, be accompanied by specific page citations to the record and to legal and other materials relied upon.
(2) An appropriate order.
(c) By whom made. The Initial Decision shall be made and filed by the Presiding Officer who presided over the hearing, unless otherwise ordered by the Administrator.
(d) Reopening of proceeding by presiding officer; termination of jurisdiction. (1) At any time prior to or concomitant with the filing of the Initial Decision, the Presiding Officer may reopen the proceedings for the reception of further evidence.
(2) Except for the correction of clerical errors, the jurisdiction of the Presiding Officer is terminated upon the filing of the Initial Decision, unless and until the proceeding is remanded to the Presiding Officer by the Administrator.
§ 511.52 Adoption of initial decision.
The Initial Decision and Order shall become the Final Decision and Order of the Administrator forty (40) days after issuance unless an appeal is noted and perfected or unless review is ordered by the Administrator. Upon the expiration of the fortieth day, the Executive Secretary shall prepare, sign and enter an order adopting the Initial Decision and Order.
§ 511.53 Appeal from initial decision.
(a) Who may file notice of intention. Any party may appeal an Initial Decision to the Administrator provided that within ten (10) days after issuance of the Initial Decision such party files and serves a notice of intention to appeal.
(b) Appeal brief. The appeal shall be in the form of a brief, filed within forty (40) days after service of the Initial Decision, duly served upon all parties and participants. The appeal brief shall contain, in the order indicated, the following:
(1) A subject index of the matters in the brief, with page references, and a table of cases (alphabetically arranged), textbooks, statutes, and other material cited, with page references thereto;
(2) A concise statement of the case;
(3) A specification of the position urged;
(4) The argument, presenting clearly the points of fact and law relied upon in support of the position on each question, with specific page references to the record and the legal or other material relied upon; and
(5) A proposed form of order for the Administrator’s consideration in lieu of the order contained in the Initial Decision.
(c) Answering brief. Within thirty (30) days after service of the appeal brief upon all parties and participants, any party may file an answering brief which shall also contain a subject index, with page references, and a table of cases (alphabetically arranged), textbooks, statutes, and other material cited, with page references thereto. Such brief shall present clearly the points of fact and law relied upon in support of the position taken on each question, with specific page references to the record and legal or other material relied upon.
(d) Participant’s brief. Within thirty (30) days after service of the appeal brief upon all parties and participants, any participant may file an appeal brief which should contain a subject index, with page references, and a table of authorities being relied upon. Such brief shall present clearly the position taken by the participant on each question raised by the appellant(s).
(e) Cross appeal. If a timely notice of appeal is filed by a party, any other party may file a notice of cross-appeal within ten (10) days of the date on which the first notice of appeal was filed. Cross-appeals shall be included in the answering brief and shall conform to the requirements for form, content and filing specified in paragraph (c) of this section. If an appeal is noticed but not perfected, no cross-appeal shall be permitted and the notice of cross-appeal shall be deemed void.
(f) Reply brief. A reply brief shall be limited to rebuttal of matters in answering briefs, including matters raised in cross-appeals. A reply brief shall be filed and within fourteen (14) days after service of an answering brief, or on the day preceding the oral argument, whichever comes first.
(g) Oral argument. The purpose of an oral argument is to emphasize and clarify the issues. Any party may request oral argument. The Administrator may order oral argument upon request or upon his or her own initiative. All oral arguments shall be reported and transcribed.
§ 511.54 Review of initial decision in absence of appeal.
The Administrator may, by order, review a case not otherwise appealed by a party. Thereupon the parties shall and participants may file briefs in accordance with § 511.53(b), (c), (d), (e), and (f) except that the Administrator may, in his or her discretion, establish a different briefing schedule in his or her order. Any such order shall issue within forty (40) days of issuance of the Initial Decision. The order shall set forth the issues which the Administrator will review.
§ 511.55 Final decision on appeal or review.
(a) Upon appeal from or review of an Initial Decision, the Administrator shall consider such parts of the record as are cited or as may be necessary to resolve the issues presented and, in addition, shall, to the extent necessary or desirable, exercise all the powers which he or she could have exercised if he or she had made the Initial Decision.
(b) In rendering his or her decision, the Administrator shall adopt, modify, or set aside the findings, conclusions, and order contained in the Initial Decision, and shall include in his or her Final Decision a statement of the reasons or bases for his or her action. The Administrator shall issue an order reflecting his or her Final Decision.
§ 511.56 Reconsideration.
Within twenty (20) days after issuance of a Final Decision and Order, any party may file with the Administrator a petition for reconsideration of such decision or order, setting forth the relief desired and the grounds in support thereof. Any party desiring to oppose such a petition shall file an answer thereto within ten (10) days after service of the petition. The filing of a petition for reconsideration shall not stay the effective date of the Decision and Order or toll the running of any statutory time period affecting the decision or order unless specifically so ordered by the Administrator.
§ 511.57 Effective date of order.
(a) Consent orders. An order which has been issued following acceptance of an offer of settlement in accordance with § 511.26 becomes effective upon issuance.
(b) Litigated orders. All other orders become effective upon the expiration of the statutory period for court review specified in section 508(c)(1) of the Motor Vehicle Information and Cost Savings Act, title 15, U.S.C. section 2008(c)(1), Pub. L. 94-163, 89 Stat. 911, or, if a petition for review has been filed, upon court affirmance of the Administrator’s order.
Subpart G – Settlement Procedure in Cases of Violation of Average Fuel Economy Standards
§ 511.61 Purpose.
This subpart establishes the procedures and requirements necessary to obtain a settlement of a case of violation of section 507 (1) or (2) of the Motor Vehicle Information and Cost Savings Act, as amended, Pub. L. 94-163, 89 Stat. 911 (15 U.S.C. section 2007(1)(2)). No settlement of such cases may be had except as in accordance with this subpart.
§ 511.62 Definitions.
Average fuel economy standard means an average fuel economy standard established by or pursuant to the Motor Vehicle Information and Cost Savings Act.
Insolvency means the inability to meet expenses when due.
Settlement means a compromise, modification, or remission of a civil penalty assessed under this part for a violation of an average fuel economy standard.
§ 511.63 Criteria for settlement.
Settlement of a case of violation of an average fuel economy standard is discretionary with the Administrator. The Administrator will consider settlement only to the extent:
(a) Necessary to prevent the insolvency or bankruptcy of the person seeking settlement, or
(b) That the violation of the average fuel economy standard resulted, as shown by the person seeking settlement, from an act of God, a strike, or fire, or
(c) That modification of a civil penalty assessed under this part is necessary to prevent lessening of competition, as determined and as certified by the Federal Trade Commission under section 508(b)(4) of the Motor Vehicle Information and Cost Savings Act, Pub. L. 94-163, 89 Stat. 911 (15 U.S.C. section 2008(b)(4)).
§ 511.64 Petitions for settlement; timing, contents.
(a) A petition seeking settlement under this subpart must be filed within 30 days after the issuance of a final order assessing a civil penalty for a violation of an average fuel economy standard.
(b)(1) A petition for settlement should be sufficient to allow the Administrator to determine that at least one of the criteria set out in § 511.63 is satisfied, and that the public interest would be served by settlement.
(2) A petition asserting that settlement is necessary to prevent bankruptcy or insolvency must include:
(i) Copies of all pertinent financial records, auditor’s reports, and documents that show that the imposition of a civil penalty would cause insolvency, or would cause a company to do an act of bankruptcy, and
(ii) A payment schedule that would allow the petitioner to pay a civil penalty without resulting in insolvency or an act of bankruptcy.
(3) A petition asserting that the violation of the average fuel economy standard was caused by an act of God, fire, or strike must describe corrective and ameliorative steps taken to mitigate the effects of the act of God, fire, or strike.
(4) A petition based on a certification by the Federal Trade Commission that modification of the civil penalty assessed is necessary to prevent a substantial lessening of competition must include a certified copy of:
(i) The application to the Federal Trade Commission for a certification under section 508(b)(4) of the Motor Vehicle Information and Cost Savings Act, Pub. L. 94-163, 89 Stat. 911 (15 U.S.C. 2008(b)(4)), and materials supporting the application.
(ii) The administrative record of any Federal Trade Commission proceeding held in regard to the application, and
(iii) The certification by the Federal Trade Commission.
(c) It is the policy of the National Highway Traffic Safety Administration that unconditional settlements of violations of average fuel economy standards are not in the public interest, and absent special and extraordinary circumstances, will not be allowed. All petitions for settlement shall contain a section proposing conditions for settlement. Conditions for settlement can be specific acts designed to lead to the reduction of automotive fuel consumption, which the petitioner is not otherwise required to perform pursuant to any statute, regulation, or administrative or judicial order, such as sponsoring public education programs, advertising, accelerating commercial application of technology, accelerating technology development programs, or making public the results of privately performed studies, surveys, or research activities.
§ 511.65 Public comment.
Notice and opportunity for comment are provided to the public in regard to settlements under this part. Subject to § 511.66, notice of receipt of a petition for settlement is published in the
§ 511.66 Confidential business information.
The Administrator shall have authority to segregate from the public docket and to protect from public view information in support of a petition for settlement which has been determined to be confidential business information. The provisions of 15 U.S.C. 2005(d) pertaining to discretionary release by the Administrator of and to limited disclosure of information determined to be confidential business information shall apply to this section.
§ 511.67 Settlement order.
If, in accordance with this subpart, the Administrator allows a settlement of a case of violation of an average fuel economy standard, an order of settlement shall be issued, setting out the terms of the settlement, and containing a brief discussion of the factors underlying the exercise of the Administrator’s discretion in allowing the settlement, including a discussion of comments received under § 511.65. If the Administrator rejects a petition for settlement, the Administrator shall give written notice of the rejection and the reasons for the rejection to the parties and the Presiding Officer.
Subpart H – Appearances; Standards of Conduct
§ 511.71 Who may make appearances.
A party or participant may appear in person, or by a duly authorized officer, partner, regular employee, or other agent of this party or participant, or by or with counsel or other duly qualified representative, in any proceeding under this part.
§ 511.72 Authority for representation.
Any individual acting in a representative capacity in any adjudicative proceeding may be required by the Presiding Officer or the Administrator to show his or her authority to act in such capacity. A regular employee of a party who appears on behalf of the party shall be required by the Presiding Officer or the Administrator to show his or her authority to so appear.
§ 511.73 Written appearances.
(a) Any person who appears in a proceeding shall file a written notice of appearance with the Executive Secretary or deliver a written notice of appearance to the reporter at the hearing, stating for whom the appearance is made and the name, address, and telephone number (including area code) of the person making the appearance and the date of the commencement of the appearance. The written appearance shall be made a part of the record.
(b) Any person who has previously appeared in a proceeding may withdraw his or her appearance by filing a written notice of withdrawal of appearance with the Docket Section. The notice of withdrawal shall state the name, address, and telephone number (including area code) of the person withdrawing the appearance, for whom the appearance was made, and the effective date of the withdrawal of the appearance, and such notice of withdrawal shall be filed within five (5) days of the effective date of the withdrawal of the appearance.
§ 511.74 Attorneys.
An attorney at law who is admitted to practice before the Federal courts or before the highest court of any State, the District of Columbia, or any territory or Commonwealth of the United States, may practice before the NHTSA. An attorney’s own representation that he or she is in good standing before any of such courts shall be sufficient proof thereof, unless otherwise ordered by the Presiding Officer or the Administrator.
§ 511.75 Persons not attorneys.
(a) Any person who is not an attorney at law may be admitted to appear in an adjudicative proceeding if that person files proof to the satisfaction of the Presiding Officer that he or she possesses the necessary legal, technical or other qualifications to render valuable service in the proceeding and is otherwise competent to advise and assist in the presentation of matters in the proceedings. An application by a person not an attorney at law to appear in a proceeding shall be submitted in writing to the Docket Section, not later than thirty (30) days prior to the hearing in the proceedings. The application shall set forth the applicant’s qualifications to appear in the proceedings.
(b) No person who is not an attorney at law and whose application has not been approved shall be permitted to appear in the Administration’s proceedings. However, this provision shall not apply to any person who appears before the NHTSA on his or her own behalf or on behalf of any corporation, partnership, or association of which the person is a partner, officer, or regular employee.
§ 511.76 Qualifications and standards of conduct.
(a) The NHTSA expects all persons appearing in proceedings before it to act with integrity, with respect, and in an ethical manner. Business transacted before and with the NHTSA shall be in good faith.
(b) To maintain orderly proceedings, the Presiding Officer or the Administrator, as appropriate under this part, may exclude parties, participants, and their representatives for refusal to comply with directions, continued use of dilatory tactics, refusal to adhere to reasonable standards of orderly and ethical conduct, failure to act in good faith, or violation of the prohibition against certain ex parte communications. The Presiding Officer may, in addition to the above sanctions, deny access to additional in camera materials when a party or participant publicly releases such materials without authorization.
(c) An excluded party, participant, or representative thereof may petition the Administrator to entertain an interlocutory appeal in accordance with § 511.24. If, after such appeal, the representative of a party or participant, is excluded, the hearing shall, at the request of the party or participant, be suspended for a reasonable time so that the party or participant may obtain another representative.
§ 511.77 Restrictions as to former members and employees.
The postemployee restrictions applicable to former Administrators and NHTSA employees, as set forth in 18 U.S.C. 207, shall govern the activities of former Administrators and NHTSA employees in matters connected with their former duties and responsibilities.
§ 511.78 Prohibited communications.
(a) Applicability. This section is applicable during the period commencing with the date of issuance of a complaint and ending upon final NHTSA action in the matter.
(b) Definitions. (1) “Decision-maker” means those NHTSA personnel who render decisions in adjudicative proceedings under this part, or who advise officials who render such decisions, including:
(i) The Administrator,
(ii) The Administrative Law Judges;
(2) “Ex parte communication” means:
(i) Any written communication other than a request for a status report on the proceeding made to a decisionmaker by any person other than a decisionmaker which is not served on all parties,
(ii) Any oral communication other than a request for a status report on the proceeding made to a decisionmaker by any person other than a decisionmaker without advance notice to the parties to the proceeding and opportunity for them to be present.
(c) Prohibited ex parte communications. Any oral or written ex parte communication relative to the merits of a proceeding under this part is a prohibited ex parte communication, except as provided in paragraph (d) of this section.
(d) Permissible ex parte communications. The following communications shall not be prohibited under this section:
(1) Ex parte communications authorized by statute or by this part.
(2) Any staff communication concerning judicial review or judicial enforcement in any matter pending before or decided by the Administrator.
(e) Procedures for handling prohibited ex parte communication – (1) Prohibited written ex parte communication. To the extent possible, a prohibited written ex parte communication received by any NHTSA employee shall be forwarded to the Docket Section rather than to a decisionmaker. A prohibited written ex parte communication which reaches a decisionmaker shall be forwarded by the decisionmaker to the Docket Section. If the circumstances in which a prohibited ex parte written communication was made are not apparent from the communication itself, a statement describing those circumstances shall be forwarded with the communication.
(2) Prohibited oral ex parte communication. (i) If a prohibited oral ex parte communication is made to a decisionmaker, he or she shall advise the person making the communication that the communication is prohibited and shall terminate the discussion.
(ii) In the event of a prohibited oral ex parte communication, the decisionmaker shall forward to the Docket Section a dated statement containing such of the following information as is known to him/her:
(A) The title and docket number of the proceeding;
(B) The name and address of the person making the communication and his/her relationship (if any) to the parties to the proceeding;
(C) The date and time of the communication, its duration, and the circumstances (telephone call, personal interview, etc.) under which it was made;
(D) A brief statement of the substance of the matters discussed;
(E) Whether the person making the communication persisted in doing so after being advised that the communication was prohibited.
(3) All communications and statements forwarded to the Docket Section under this section shall be placed in the public file which shall be associated with, but not made a part of, the record of the proceedings to which the communication or statement pertains.
(4) Service on parties. The Administrator shall serve a copy of each communication and statement forwarded under this section on all parties to the proceedings. However, if the parties are numerous, or if other circumstances satisfy the Administrator that service of the communication or statement would be unduly burdensome, he or she may, in lieu of service, notify all parties in writing that the communication or statement has been made and filed and that it is available for inspection and copying.
(5) Service on maker. The Administrator shall forward to the person who made the prohibited ex parte communication a copy of each communication or statement filed under this section.
(f) Effect of ex parte communications. No prohibited ex parte communication shall be considered as part of the record for decision unless introduced into evidence by a party to the proceedings.
(g) Sanctions. A party or participant who makes a prohibited ex parte communication, or who encourages or solicits another to make any such communication, may be subject to any appropriate sanction or sanctions, including, but not limited to, exclusion from the proceedings and adverse rulings on the issues which are the subject of the prohibited communication.
Appendix I to Part 511 – Final Prehearing Order
A prehearing conference was held in this matter pursuant to Rule 21 of the Administration’s Rules of Practice for Adjudicative Proceedings, on the __________ day of __________, 19__, at __ o’clock _ M.
Counsel appeared as follows:
1. NATURE OF ACTION AND JURISDICTION.
2. STIPULATIONS AND STATEMENTS.
The following stipulations and statements were submitted, attached to, and made a part of this order:
(a) A comprehensive written stipulation or statement of all uncontested facts;
(b) A concise summary of the ultimate facts as claimed by each party. (Complaint Counsel must set forth the claimed facts, specifically; for example, if violation is claimed, Complaint Counsel must assert specifically the acts of violation complained of; each respondent must reply with equal clarity and detail.)
(c) Written stipulations or statements setting forth the qualifications of the expert witnesses to be called by each party;
(d) A written list or lists of the witnesses whom each party will call, a written list or lists of the additional witnesses whom each party may call, and a statement of the subject on which each witness will testify;
(e) An agreed statement of the contested issues of fact and of law, and/or separate statements by each party or any contested issues of fact and law not agreed to;
(f) A list of all depositions to be read into evidence and statements of any objections thereto;
(g) A list and brief description of any charts, graphs, models, schematic diagrams, and similar objects that will be used in opening statements or closing arguments, but will not be offered in evidence. If any other such objects are to be used by any party, they will be submitted to opposing counsel at least three days prior to hearing. If there is then any objection to their use, the dispute will be submitted to the Presiding Officer at least one day prior to hearing;
(h) Written waivers of claims or defenses which have been abandoned by the parties.
3. COMPLAINT COUNSEL’S EVIDENCE.
3.1 The following exhibits were offered by Complaint Counsel, received in evidence, and marked as follows:
3.2 The following exhibits were offered by the Complaint Counsel and marked for identification. There was reserved to the respondent(s) and party intervenors, if any, the right to object to their receipt in evidence on the grounds stated:
4. RESPONDENT’S EVIDENCE.
4.1 The following exhibits were offered by the respondent(s), received in evidence, and marked as herein indicated:
4.2 The following exhibits were offered by the respondent(s) and marked for identification. There was reserved to Complaint Counsel and party intervenors, if any, the right to object to their receipt in evidence on the grounds stated:
5. ADDITIONAL ACTIONS.
6. LIMITATIONS AND RESERVATIONS.
6.1 Each of the parties has the right to further supplement the list of witnesses not later than ten (10) days prior to trial by furnishing opposing counsel with the name and address of the witness and general subject matter of his or her testimony and filing a supplement to this pretrial order. Thereafter additional witnesses may be added only after application to the Presiding Officer, for good cause shown.
6.2 Rebuttal witnesses not listed in the exhibits to this order may be called only if the necessity of their testimony could not reasonably be foreseen ten (10) days prior to trial. If it appears to counsel at any time before trial that such rebuttal witnesses will be called, notice will immediately be given to opposing counsel and the Presiding Officer.
6.3 The probable length of hearing is ____ days. The hearings will be commenced on the __ day of _____, 19__, at __ o’clock _ M. at (location) _____.
6.4 Prehearing briefs will be filed not later than 5:00 p.m. on ____. (Insert date not later than ten (10) days prior to hearing.) All anticipated legal questions, including those relating to the admissibility of evidence, must be covered by prehearing briefs.
This prehearing order has been formulated after a conference at which counsel for the respective parties appeared. Reasonable opportunity has been afforded counsel for corrections or additions prior to signing. It will control the course of the hearing, and it may not be amended except by consent of the parties and the Presiding Officer, or by order of the Presiding Officer to prevent manifest injustice.
Where intervenors appear pursuant to § 511.17 the prehearing order may be suitably modified; the initial page may be modified to reflect the intervention.
PART 512 – CONFIDENTIAL BUSINESS INFORMATION
Subpart A – General Provisions
§ 512.1 Purpose and scope.
The purpose of this part is to establish the procedures and standards by which NHTSA will consider claims that information submitted to the agency is entitled to confidential treatment under 5 U.S.C. 552(b), most often because it constitutes confidential business information as described in 5 U.S.C. 552(b)(4), and to address the treatment of information determined to be entitled to confidential treatment.
§ 512.2 Applicability.
(a) This part applies to all information submitted to NHTSA, except as provided in paragraph (b) of this section, for which a determination is sought that the material is entitled to confidential treatment under 5 U.S.C. 552(b), most often because it constitutes confidential business information as described in 5 U.S.C. 552(b)(4), and should be withheld from public disclosure.
(b) Information received as part of the procurement process is subject to the Federal Acquisition Regulation, 48 CFR Chapter 1, as well as this part. In any case of conflict between the Federal Acquisition Regulation and this part, the provisions of the Federal Acquisition Regulation prevail.
§ 512.3 Definitions.
Whenever used in this part:
(a) Administrator means the Administrator of the National Highway Traffic Safety Administration.
(b) Chief Counsel means the Chief Counsel of the National Highway Traffic Safety Administration.
(c) Confidential business information means trade secrets or commercial or financial information that is privileged or confidential, as described in 5 U.S.C. 552(b)(4).
(1) A trade secret is a secret, commercially valuable plan, formula, process, or device that is used for the making, preparing, compounding, or processing of trade commodities and that can be said to be the end product of either innovation or substantial effort.
(2) Commercial or financial information is considered confidential if it has not been publicly disclosed and:
(i) If the information was required to be submitted and its release is likely to impair the Government’s ability to obtain necessary information in the future, or is likely to cause substantial harm to the competitive position of the person from whom the information was obtained; or
(ii) if the information was voluntarily submitted and is the kind of information that is customarily not released to the public by the person from whom it was obtained.
(d) NHTSA means the National Highway Traffic Safety Administration.
(e) “Substantial competitive harm” includes “significant competitive damage” under Chapter 329 of Title 49 of the United States Code, Automobile Fuel Economy, 49 U.S.C. 32910(c).
Subpart B – Submission Requirements
§ 512.4 When requesting confidentiality, what should I submit?
Any person submitting information to NHTSA, other than information in a class identified in appendix C of this Part, and requesting that the information be withheld from public disclosure pursuant to 5 U.S.C. 552(b) shall submit the following:
(a) The materials for which confidentiality is being requested, in conformance with §§ 512.5, 512.6, and 512.7 of this part;
(b) The Certificate, in the form set out in appendix A to this part;
(c) Supporting information, in conformance with § 512.8; and
(d) Any request for an extension of time, made in accordance with § 512.11.
§ 512.5 How many copies should I submit?
(a) Except as provided for in subsection (c), a person must send the following in hard copy or electronic format to the Chief Counsel when making a claim for confidential treatment covering submitted material:
(1) A complete copy of the submission, and
(2) A copy of the submission containing only the portions for which no claim of confidential treatment is made and from which those portions for which confidential treatment is claimed has been redacted, and
(3) Either a second complete copy of the submission or, alternatively, those portions of the submission containing the material for which confidential treatment is claimed and any additional information the submitter deems important to the Chief Counsel’s consideration of the claim.
(4) If submitted in electronic format, a copy of any special software required to review materials for which confidential treatment is requested and user instructions must also be provided.
(b) A person filing comments to a rulemaking action must additionally submit to the rulemaking docket a copy of the submission containing only the portions for which no claim of confidential treatment is made and from which those portions for which confidential treatment is claimed has been redacted.
(c) Any person submitting blueprints or engineering drawings need only provide an original version with their submission.
§ 512.6 How should I prepare documents when submitting a claim for confidentiality?
(a) Information claimed to be confidential must be clearly identified to enable the agency to distinguish between those portions of the submission claimed to constitute confidential business information and those portions for which no such claim is made.
(b) The word “CONFIDENTIAL” must appear on the top of each page containing information claimed to be confidential.
(1) If an entire page is claimed to be confidential, the submitter must indicate clearly that the entire page is claimed to be confidential.
(2) If the information for which confidentiality is being requested is contained within a page, the submitter shall enclose each item of information that is claimed to be confidential within brackets: “[ ].”
(c) Submissions in electronic format – (1) Persons submitting information under this Part may submit the information in an electronic format. Except for early warning reporting data submitted to the agency under 49 CFR part 579, the information submitted in an electronic format shall be submitted in a physical medium such as a CD-ROM. The exterior of the medium (e.g., the disk itself) shall be permanently labeled with the submitter’s name, the subject of the information and the words “CONFIDENTIAL BUSINESS INFORMATION”.
(2) Confidential portions of electronic files submitted in other than their original format must be marked “Confidential Business Information” or “Entire Page Confidential Business Information” at the top of each page. If only a portion of a page is claimed to be confidential, that portion shall be designated by brackets. Files submitted in their original format that cannot be marked as described above must, to the extent practicable, identify confidential information by alternative markings using existing attributes within the file or means that are accessible through use of the file’s associated program. When alternative markings are used, such as font changes or symbols, the submitter must use one method consistently for electronic files of the same type within the same submission. The method used for such markings must be described in the request for confidentiality. Files and materials that cannot be marked internally, such as video clips or executable files or files provided in a format specifically requested by the agency, shall be renamed prior to submission so the words “Confidential Bus Info” appears in the file name or, if that is not practicable, the characters “Conf Bus Info” or “Conf” appear. In all cases, a submitter shall provide an electronic copy of its request for confidential treatment on any medium containing confidential information, except where impracticable.
(3) Confidential portions of electronic files submitted in other than their original format must be marked with consecutive page numbers or sequential identifiers so that any page can be identified and located using the file name and page number. Confidential portions of electronic files submitted in their original format must, if practicable, be marked with consecutive page numbers or sequential identifiers so that any page can be identified and located using the file name and page number. Confidential portions of electronic files submitted in their original format that cannot be marked as described above must, to the extent practicable, identify the portions of the file that are claimed to be confidential through the use of existing indices or placeholders embedded within the file. If such indices or placeholders exist, the submitter’s request for confidential treatment shall clearly identify them and the means for locating them within the file. If files submitted in their original format cannot be marked with page or sequence number designations and do not contain existing indices or placeholders for locating confidential information, then the portions of the files that are claimed to be confidential shall be described by other means in the request for confidential treatment. In all cases, submitters shall provide an electronic copy of their request for confidential treatment on any media containing confidential data except where impracticable.
(4) Electronic media may be submitted only in commonly available and used formats.
§ 512.7 Where should I send the information for which I am requesting confidentiality?
A claim for confidential treatment must be submitted in accordance with the provisions of this regulation to the Chief Counsel of the National Highway Traffic Safety Administration, 1200 New Jersey Avenue, SE., West Building W41-227, Washington, DC 20590.
§ 512.8 What supporting information should I submit with my request?
When requesting confidentiality, the submitter shall:
(a) Describe the information for which confidentiality is being requested;
(b) Identify the confidentiality standard(s) under which the confidentiality request should be evaluated, in accordance with § 512.15;
(c) Justify the basis for the claim of confidentiality under the confidentiality standard(s) identified pursuant to paragraph (b) of this section by describing:
(1) Why the information qualifies as a trade secret, if the basis for confidentiality is that the information is a trade secret;
(2) What the harmful effects of disclosure would be and why the effects should be viewed as substantial, if the claim for confidentiality is based upon substantial competitive harm;
(3) What significant NHTSA interests will be impaired by disclosure of the information and why disclosure is likely to impair such interests, if the claim for confidentiality is based upon impairment to government interests;
(4) What measures have been taken by the submitter to ensure that the information is not customarily disclosed or otherwise made available to the public, if the basis for confidentiality is that the information is voluntarily submitted; and
(5) The information is otherwise entitled to protection, pursuant to 5 U.S.C. 552(b).
(d) Indicate if any items of information fall within any of the class determinations included in appendix B to this Part;
(e) Indicate the time period during which confidential treatment is sought; and
(f) State the name, address, and telephone number of the person to whom NHTSA’s response and any inquiries should be directed.
Subpart C – Additional Requirements
§ 512.9 What are the requirements if the information comes from a third party?
Where confidentiality is claimed for information obtained by the submitter from a third party, such as a supplier, the submitter is responsible for obtaining from the third party the information that is necessary to comply with § 512.4 of this part, including a certificate in the form set out in appendix A to this Part.
§ 512.10 Duty to amend.
The submitter shall promptly amend any supporting information provided under § 512.4 if the submitter obtains information upon the basis of which the submitter knows that the supporting information was incorrect when provided, or that the supporting information, though correct when provided to the agency, is no longer correct and the circumstances are such that a failure to amend the supporting information is in substance a knowing concealment.
§ 512.11 What if I need an extension of time?
If a person is unable to submit the necessary information required under § 512.4 at the time the claimed confidential information is submitted to NHTSA, then that person may request an extension of time. Any request for an extension shall explain the reason for the extension of time and the length of time requested.
§ 512.12 What if I am submitting multiple items of information?
Any certificate provided under § 512.4(b) of this part, and any supporting information provided under § 512.4(c) of this part, may be used to support a claim for confidential treatment of more than one item of information. However, general or nonspecific assertions or analysis may be insufficient to form an adequate basis for the agency to find that the information is entitled to confidential treatment, and may result in the denial of the claim.
§ 512.13 What are the consequences for noncompliance with this part?
(a) If the submitter fails to comply with § 512.4 of this part at the time the information is submitted to NHTSA or does not request an extension of time under § 512.11, the claim for confidentiality may be waived, unless the agency is notified or otherwise becomes aware of the claim before the information is disclosed to the public. If the information is placed in a public docket or file, such placement is disclosure to the public within the meaning of this part and may preclude any claim for confidential treatment. The Chief Counsel may notify a submitter of information or, if applicable, a third party from whom the information was obtained, of inadequacies regarding a claim for confidential treatment and may allow the submitter or third party additional time to supplement the submission, but has no obligation to provide either notice or additional time.
(b) If the submitter does not provide the certificate required under § 512.4(b) of this part or any supporting information required under § 512.4(c) of this part, or if the information is insufficient to establish that the information should be afforded confidential treatment under the confidentiality standards set out in § 512.15 of this part, a request that such information be treated confidentially may be denied. The Chief Counsel may notify a submitter of information of inadequacies in the supporting information and may allow the submitter additional time to supplement the showing, but has no obligation to provide either notice or additional time.
Subpart D – Agency Determination
§ 512.14 Who makes the confidentiality determination?
The Chief Counsel will determine whether an item of information will be afforded confidential treatment under this part.
§ 512.15 How will confidentiality determinations be made?
Information may be afforded confidential treatment if the Chief Counsel determines that:
(a) The information is a trade secret;
(b) Public disclosure of the information would be likely to cause substantial harm to the competitive position of the submitter;
(c) Public disclosure of the information would be likely to impair NHTSA’s ability to obtain necessary information in the future;
(d) The information was provided to NHTSA voluntarily and was not customarily released to the public by the person from whom it was obtained; or
(e) The information is otherwise entitled to protection, pursuant to 5 U.S.C. 552(b).
§ 512.16 Class determinations.
(a) The Chief Counsel may issue class determinations of categories of information to be entitled to confidential treatment if the Chief Counsel determines that one or more characteristics common to each item of information in that class, will, in most cases, result in identical treatment, and further that it is appropriate to treat all such items as a class for one or more purposes under this part. Once a class determination is made, the Chief Counsel will publish the new class determination in the
(b) The Chief Counsel may amend, modify, or terminate any class determination established under this section. These changes will be published in the
(c) Class determinations made by the Chief Counsel are listed in Appendices B and C to this Part.
(d) A class determination may state that all of the information in the class:
(1) Is or is not governed by a particular section of this part or by a particular set of substantive criteria of this part;
(2) Satisfies one or more of the applicable substantive criteria; or
(3) Satisfies one or more of the substantive criteria, but only for a certain period of time.
§ 512.17 How long should it take to determine whether information is entitled to confidential treatment?
(a) When information claimed to be confidential is requested under the Freedom of Information Act, the determination will be made within twenty (20) working days after NHTSA receives such a request or within thirty (30) working days in unusual circumstances as provided under 5 U.S.C. 552(a)(6)(A). However, these time periods may be extended by the Chief Counsel for good cause shown or on request from any person. An extension will be made in accordance with 5 U.S.C. 552(a)(6)(A), and will be accompanied by a written statement setting out the reasons for the extension.
(b) When information claimed to be confidential is not requested under the Freedom of Information Act, the determination of confidentiality will be made within a reasonable period of time, at the discretion of the Chief Counsel.
§ 512.18 How will I be notified of the confidentiality determination?
(a) If a request for confidential treatment is granted, the submitter of the information will be notified in writing of the determination and of any appropriate limitations.
(b) If a request for confidential treatment is denied in whole or in part, the submitter of the information will be notified in writing of the determination, and the reasons for the denial, by certified mail, return receipt requested. The information may be made available to the public twenty (20) working days after the submitter of the information has received notice of the denial, unless a request for reconsideration is filed. The information may be released publicly on an earlier date, if the Chief Counsel determines in writing that the public interest requires that the information be made available to the public on such date.
§ 512.19 What can I do if I disagree with the determination?
(a) A submitter of information whose request for confidential treatment is denied in whole or in part, may petition for reconsideration of that decision. Petitions for reconsideration shall be addressed to and received by the Chief Counsel prior to the date on which the information would otherwise be made available to the public. The determination by the Chief Counsel upon such petition for reconsideration shall be administratively final.
(b) If a person is unable to submit a petition for reconsideration within twenty (20) working days of receiving notice that a claim for confidential treatment was denied, that person may submit a request for an extension of time. The Chief Counsel must receive any request for an extension of time before the date on which the information would be made available to the public, and the request must be accompanied by an explanation describing the reason for the request and the length of time requested. The Chief Counsel will determine whether to grant or deny the extension and the length of the extension.
(c) If a petition for reconsideration is granted, the petitioner will be notified in writing of the determination and of any appropriate limitations.
(d) If a petition for reconsideration is denied in whole or in part, or if a request for an extension is denied, the petitioner will be notified in writing of the denial, and the reasons for the denial, and will be informed that the information will be made available to the public not less than twenty (20) working days after the petitioner has received notice of the denial. The information may be released publicly on an earlier date, if the Administrator determines in writing that the public interest requires that the information be made available to the public on such date.
Subpart E – Agency Treatment of Information Claimed To Be Confidential
§ 512.20 How does the agency treat information submitted pursuant to this part before a confidentiality determination is made?
(a) Information received by NHTSA, for which a properly filed confidentiality request is submitted, will be kept confidential until the Chief Counsel makes a determination regarding its confidentiality. Such information will not be disclosed publicly, except in accordance with this part.
(b) Redacted copies of documents submitted to NHTSA under this part will be disclosed to the public.
§ 512.21 How is information submitted pursuant to this part treated once a confidentiality determination is made?
(a) Once the Chief Counsel makes a determination regarding the confidentiality of the submitted information, all materials determined not to be entitled to confidential protection will be disclosed to the public in accordance with the determination, unless a timely petition for reconsideration is received by the agency.
(b) Upon receipt of a timely petition for reconsideration under § 512.19 of this part, the submitted information will remain confidential, pending a determination regarding the petition.
(c) Should the Chief Counsel, after considering a petition for reconsideration, decide that information is not entitled to confidential treatment, the agency may make the information available after twenty (20) working days after the submitter has received notice of that decision from the Chief Counsel unless the agency receives direction from a court not to release the information.
§ 512.22 Under what circumstances may NHTSA modify a grant of confidentiality?
(a) The Chief Counsel may modify a grant of confidentiality based upon:
(1) Newly discovered or changed facts;
(2) A change in the applicable law;
(3) A change in class determination, pursuant to § 512.16;
(4) The passage of time; or
(5) A finding that the prior determination is erroneous.
(b) If the Chief Counsel believes that an earlier determination of confidentiality should be modified based on one or more of the factors listed in paragraph (a) of this section, the submitter of the information will be notified in writing that the Chief Counsel has modified its earlier determination and of the reasons for the modification, and will be informed that the information will be made available to the public in not less than twenty (20) working days from the date of receipt of the notice of modification. The information may be released publicly on an earlier date, if the Administrator determines in writing that the public interest requires that the information be made available to the public on such date. The submitter may seek reconsideration of the modification, pursuant to § 512.19.
§ 512.23 Under what circumstances may NHTSA publicly release confidential information?
(a) Information that has been claimed or determined to be confidential under this part may be disclosed to the public by the Administrator notwithstanding such claim or determination, if disclosure would be in the public interest as follows:
(1) Information obtained under chapter 325, 327, 329 or 331 of title 49 of the United States Code (formerly under the Motor Vehicle Information and Cost Savings Act) may be disclosed when that information is relevant to a proceeding under the chapter under which the information was obtained.
(2) Information obtained under chapter 301 of title 49 of the United States Code (49 U.S.C. § 30101 et seq.), relating to the establishment, amendment, or modification of Federal motor vehicle safety standards, may be disclosed when relevant to a proceeding under the chapter.
(3) Except as specified in the next sentence, information obtained under Chapter 301 of title 49 of the United States Code (49 U.S.C. 30101 et seq.), related to a possible defect or noncompliance, shall be disclosed when the Administrator decides the information will assist in carrying out sections 30117(b) and 30118 through 30121 of title 49 or is required to be disclosed under 30118(a) of title 49, except as provided in paragraph (a)(4) of this section.
(4) No information will be disclosed under paragraph (a) of this section unless the submitter of the information is given written notice of the Administrator’s intention to disclose information under this section. Written notice will be given at least twenty (20) working days before the day of release, unless the Administrator finds that shorter notice is in the public interest. The notice under this paragraph will include a statement of the Administrator’s reasons for deciding to disclose the information, and will afford the submitter of the information an opportunity to comment on the contemplated release of the information. The Administrator may also give notice of the contemplated release of information to other persons and may allow these persons the opportunity to comment. In making the determination to release information pursuant to this section, the Administrator will consider ways to release the information that will cause the least possible adverse effects to the submitter.
(b) Notwithstanding any other provision of this part, information that has been determined or claimed to be confidential may be released:
(1) To a committee of Congress;
(2) Pursuant to an order of a court of competent jurisdiction;
(3) To the Office of the Secretary, U.S. Department of Transportation and other Executive branch offices or other Federal agencies in accordance with applicable laws;
(4) With the consent of the submitter of the information; and
(5) To contractors, if necessary for the performance of a contract with the agency or any Federal agency, with specific prohibitions on further release of the information.
Appendix A to Part 512 – Certificate in Support of Request for Confidentiality
I _____, pursuant to the provisions of 49 CFR part 512, state as follows:
(1) I am (official’s name, title) and I am authorized by (company) to execute this certificate on its behalf;
(2) I certify that the information contained in (pertinent document(s)) is confidential and proprietary data and is being submitted with the claim that it is entitled to confidential treatment under 5 U.S.C. 552(b)(4) (as incorporated by reference in and modified by the statute under which the information is being submitted);
(3) I hereby request that the information contained in (pertinent document(s)) be protected for (requested period of time);
(4) This certification is based on the information provided by the responsible (company) personnel who have authority in the normal course of business to release the information for which a claim of confidentiality has been made to ascertain whether such information has ever been released outside (company);
(5) Based upon that information, to the best of my knowledge, information and belief, the information for which (company) has claimed confidential treatment has never been released or become available outside (company); (except as hereinafter specified);
(6) I make no representations beyond those contained in this certificate and, in particular, I make no representations as to whether this information may become available outside (company) because of unauthorized or inadvertent disclosure (except as stated in paragraph 5); and
(7) I certify under penalty of perjury that the foregoing is true and correct. Executed on this the ___ day of ___, ___. (If executed outside of the United States of America: I certify under penalty of perjury under the laws of the United States of America that the foregoing is true and correct). (signature of official)
Appendix B to Part 512 – General Class Determinations
The Chief Counsel has determined that the following types of information would presumptively be likely to result in substantial competitive harm if disclosed to the public:
(1) Blueprints and engineering drawings containing process and production data where the subject could not be manufactured without the blueprints or engineering drawings except after significant reverse engineering;
(2) Future specific model plans (to be protected only until the date on which the specific model to which the plan pertains is first offered for sale); and
(3) Future vehicle production or sales figures for specific models (to be protected only until the termination of the production period for the model year vehicle to which the information pertains).
Appendix C to Part 512 – Early Warning Reporting Class Determinations
(a) The Chief Counsel has determined that the following information required to be submitted to the agency under 49 CFR 579, Subpart C, if released, is likely to cause substantial harm to the competitive position of the manufacturer submitting the information and is likely to impair the government’s ability to obtain necessary information in the future:
(1) Reports and data relating to warranty claim information and warranty adjustment information for manufacturers of tires;
(2) Reports and data relating to field reports, including dealer reports, product evaluation reports, and hard copies of field reports; and
(3) Reports and data relating to consumer complaints.
(b) The Chief Counsel has determined that the following information required to be submitted to the agency under 49 CFR 579, Subpart C, if released, is likely to cause substantial harm to the competitive position of the manufacturer submitting the information:
(1) Reports of production numbers for child restraint systems, tires, and vehicles other than light vehicles, as defined in 49 CFR 579.4(c); and
(2) Lists of common green tire identifiers.
Appendix D to Part 512 – Vehicle Identification Number Information
The Chief Counsel has determined that the disclosure of the last six (6) characters, when disclosed along with the first eleven (11) characters, of vehicle identification numbers reported in information on incidents involving death or injury pursuant to the early warning information requirements of 49 CFR part 579 will constitute a clearly unwarranted invasion of personal privacy within the meaning of 5 U.S.C. 552(b)(6).
Appendix E to Part 512 – Consumer Assistance to Recycle and Save (CARS) Class Determinations
(a) The Chief Counsel has determined that the following information required to be submitted to the agency under 49 CFR part 599, if released, is likely to cause substantial harm to the competitive position of the entity submitting the information:
(1) Vehicle Manufacturer Issued Dealer Identification Code;
(2) Dealer Bank Name, ABA Routing Number and Bank Account Number; and
(3) CARS Dealer Code and Authorization Code.
(b) The Chief Counsel has determined that the disclosure of the new vehicle owner’s name, home address, telephone number, state identification number and last six (6) characters, when disclosed along with the first eleven (11) characters, of the new vehicle identification numbers reported in transactions submitted to the agency under 49 CFR Part 599 will constitute a clearly unwarranted invasion of personal privacy within the meaning of 5 U.S.C. 552(b)(6).
Appendix F to Part 512 – OMB Clearance
The OMB clearance number for this part 512 is 2127-0025.
PART 520 – PROCEDURES FOR CONSIDERING ENVIRONMENTAL IMPACTS
Subpart A – General
§ 520.1 Purpose and scope.
(a) Section 102(2)(C) of the National Environmental Policy Act of 1969 (83 Stat. 853; 42 U.S.C. 4332(2)(C)), as implemented by Executive Order 11514 (3 CFR, 1966-1970 Comp., p. 902) and the Council on Environmental Quality’s Guidelines of April 23, 1971 (36 FR 7724), requires that all agencies of the Federal Government prepare detailed environmental statements on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment. The purpose of the Act is to build into the agency decision-making process careful consideration of all environmental aspects of proposed actions.
(b) This part specifies National Highway Traffic Safety Administration (NHTSA) procedures for conducting environmental assessments and reviews, and for the preparation of environmental impact statements on proposals for legislation and other major agency actions significantly affecting the quality of the human environment.
§ 520.2 Policy.
The agency will strive to carry out the full intent and purpose of the National Environmental Policy Act of 1969 and related orders and statutes, and take positive steps to avoid any action which could adversely affect the quality of the human environment.
§ 520.3 Definitions.
(a) Environmental assessment is a written analysis describing the environmental impact of a proposed or ongoing agency action, submitted to the agency either by its grantees or contractors, or by any person outside the agency as part of any program or project proposal within the scope of activities listed in § 520.4(b).
(b) Environmental review is a formal evaluation undertaken by the agency, culminating in a brief document (the environmental review report), to determine whether a proposed or ongoing NHTSA action may have a significant impact on the environment. The review document will be included in the proposed or ongoing agency action, and either support a negative declaration or recommend the preparation of a draft environmental impact statement.
(c) Draft environmental impact statement (DEIS) means a preliminary statement on the environmental impact of a proposed or ongoing NHTSA action which is circulated for comment and review within and outside NHTSA.
(d) Final environmental impact statement (FEIS) means a detailed statement which, pursuant to section 102(2)(C) of the National Environmental Policy Act, identifies and analyzes the anticipated environmental impact of a proposed or ongoing NHTSA action.
(e) Negative declaration means a statement prepared subsequent to an environmental review, which states that a proposed or ongoing NHTSA action will have no significant environmental impact and therefore does not require a draft or final environmental impact statement.
§ 520.4 Applicability.
(a) Scope. This part applies to all elements of NHTSA, including the Regional Offices.
(b) Actions covered. Except as provided in paragraph (e) of this section, this part applies to the following agency actions and such actions and proposals as may be sponsored jointly with another agency:
(1) New and continuing programs and projects; budget proposals; legislative proposals by the agency; requests for appropriations; reports on legislation initiated elsewhere where the agency has primary responsibility for the subject matter involved; and any renewals or reapprovals of the foregoing;
(2) Research, development, and demonstration projects; formal approvals of work plans; and associated contracts;
(3) Rulemaking and regulatory actions, including Notices of Proposed Rulemaking (NPRM); requests for procurement (RFP); requests for grants (Annual Work Programs); and contracts;
(4) All grants, loans or other financial assistance for use in State and Community projects;
(5) Annual State Highway Safety Work Programs;
(6) Construction; leases; purchases; operation of Federal facilities; and
(7) Any other activity, project, or action likely to have a significant effect on the environment.
(c) Continuing actions. This part applies to any action enumerated in paragraph (b) of this section, even though such actions arise from a project or program initiated prior to enactment of the National Environmental Policy Act on January 1, 1970.
(d) Environmental assessments. Within the scope of activities listed in § 520.4(b), any person outside the agency submitting a program or project proposal may be requested to prepare an environmental assessment of such proposed action to be included in his submission to the agency.
(e) Exceptions. (1) Assistance in the form of general revenue sharing funds, distributed under the State and Local Fiscal Assistance Act of 1972, 31 U.S.C. 1221, with no control by the NHTSA over the subsequent use of such funds;
(2) Personnel actions;
(3) Administrative procurements (e.g., general supplies) and contracts for personal services;
(4) Legislative proposals originating in another agency and relating to matters not within NHTSA’s primary areas of responsibility;
(5) Project amendments (e.g., increases in costs) which have no environmental significance; and
(6) Minor agency actions that are determined by the official responsible for the actions to be of such limited scope that they clearly will not have a significant effect on the quality of the human environment.
(f) Consolidation of statements. Proposed actions (and alternatives thereto) having substantially similar environmental impacts may be covered by a single environmental review and environmental impact statement or negative declaration.
§ 520.5 Guidelines for identifying major actions significantly affecting the environment.
(a) General guidelines. The phrase, “major Federal actions significantly affecting the quality of the human environment,” as used in this part, shall be construed with a view to the overall, cumulative impact of the actions, other Federal projects or actions in the area, and any further contemplated or anticipated actions. Therefore, an environmental impact statement should be prepared in any of the following situations:
(1) Proposed actions which are localized in their impact but which have a potential for significantly affecting the environment;
(2) Any proposed action which is likely to be controversial on environmental grounds;
(3) Any proposed action which has unclear but potentially significant environmental consequences.
(b) Specific guidelines. While a precise definition of environmental significance that is valid in all contexts is not possible, any of the following actions should ordinarily be considered as significantly affecting the quality of the human environment:
(1) Any matter falling under section 4(f) of the Department of Transportation Act (49 U.S.C. 1653(f)) and section 138 of Federal-aid highway legislation (23 U.S.C. 138), requiring the use of any publicly owned land from a park, recreation area, or wildlife and waterfowl refuge of national, State, or local significance as determined by the Federal, State, or local officials having jurisdiction thereof, or any land from an historic site of national, State, or local significance;
(2) Any matter falling under section 106 of the National Historic Preservation Act of 1966 (16 U.S.C. 470(f)), requiring consideration of the effect of the proposed action on any building included in the National Register of Historic Preservation and reasonable opportunity for the Advisory Council on Historic Preservation to comment on such action;
(3) Any action that is likely to affect the preservation and enhancement of sites of historical, architectural, or archaeological significance;
(4) Any action that is likely to be highly controversial regarding relocation housing;
(5) Any action that (i) divides or disrupts an established community, disrupts orderly, planned development, or is inconsistent with plans or goals that have been adopted by the community in which the project is located; or (ii) causes significantly increased congestion;
(6) Any action that (i) involves inconsistency with any Federal, State, or local law or administrative determination relating to the environment; (ii) has a significantly detrimental impact on air or water quality or on ambient noise levels for adjoining areas; (iii) involves a possibility of contamination of a public water supply system; or (iv) affects ground water, flooding, erosion, or sedimentation;
(7) Any action that may directly or indirectly result in a significant increase in noise levels, either within a motor vehicle’s closed environment or upon nearby areas;
(8) Any action that may directly or indirectly result in a significant increase in the energy or fuel necessary to operate a motor vehicle, including but not limited to the following: (i) Actions which may directly or indirectly result in a significant increase in the weight of a motor vehicle; and (ii) actions which may directly or indirectly result in a significant adverse effect upon the aerodynamic drag of a motor vehicle;
(9) Any action that may directly or indirectly result in a significant increase in the amount of harmful emissions resulting from the operation of a motor vehicle;
(10) Any action that may directly or indirectly result in a significant increase in either the use of or the exposure to toxic or hazardous materials in the manufacture, operation, or disposal of motor vehicles or motor vehicle equipment;
(11) Any action that may directly or indirectly result in a significant increase in the problem of solid waste, as in the disposal of motor vehicles or motor vehicle equipment;
(12) Any action that may directly or indirectly result in a significant depletion of scarce natural resources associated with the manufacture or operation of motor vehicles or motor vehicle equipment; and
(13) Any other action that causes significant environment impact by directly or indirectly affecting human beings through adverse impacts on the environment.
(c) Research activities. (1) In accord-ance with DOT Order 5610.1B, the Assistant Secretary for Systems Development and Technology (TST) will prepare, with the concurrence of the NHTSA, proposed procedures for assessing the environmental consequences of research activities. Until final procedures are promulgated, the following factors are to be considered for periodic evaluation to determine when an environmental statement is required for such programs:
(i) The magnitude of Federal investment in the program;
(ii) The likelihood of widespread application of the technology;
(iii) The degree of environmental impact which would occur if the technology were widely applied; and
(iv) The extent to which continued investment in the new technology is likely to restrict future alternatives.
(2) The statement or environmental review culminating in a negative declaration must be written late enough in the development process to contain meaningful information, but early enough so that this information can practically serve as an input in the decision-making process. Where it is anticipated that an environmental impact statement may ultimately be required but its preparation is still premature, the office shall prepare a publicly available record briefly setting forth the reasons for its determination that a statement is not yet necessary. This record shall be updated at least quarterly, or as may be necessary when significant new information becomes available concerning the potential environmental impact of the program. In any case, a statement or environmental review culminating in a negative declaration must be prepared before research activities have reached a state of investment or commitment to implementation likely to determine subsequent development or restrict later alternatives. Statements on technology research and development programs shall include an analysis not only of alternative forms of the same technology that might reduce any adverse environmental impacts but also of alternative technologies that would serve the same function as the technology under consideration. Efforts shall be made to involve other Federal agencies and interested groups with relevant expertise in the preparation of such statements because the impacts and alternatives to be considered are likely to be less well defined than in other types of statements.
Subpart B – Procedures
§ 520.21 Preparation of environmental reviews, negative declarations, and notices of intent.
(a) General responsibilities – (1) Associate Administrators and Chief Counsel. Each Associate Administrator and the Chief Counsel is responsible for determining, in accordance with Subpart A, whether the projects and activities under his jurisdiction require an environmental review, and for preparing all such reviews, negative declarations, and notices of intent.
(2) Regional Administrators. Each Regional Administrator, in consultation with the Governor’s Representative, is responsible for determining, in accordance with Subpart A, whether proposed State activities in his Region, as stated in Annual Work Programs, require an environmental review, and for the preparing all such reviews, negative declarations, and notices of intent.
(3) Associate Administrator for Planning and Evaluation. The Associate Administrator for Planning and Evaluation may request in accordance with the requirements of this order, that the appropriate Associate Administrator or Regional Administrator prepare an Environmental review or Environmental Impact Statement for any proposed or continuing NHTSA action, or comment on any environmental statement prepared by other agencies.
(b) Coordination. Coordination with appropriate local, State and Federal agencies should be accomplished during the early stages by the responsible official to assist in identifying areas of significance and concern. Existing procedures, including those established under the Office of Management and Budget (OMB) Revised Circular A-95, should be used to the greatest extent practicable to accomplish this early coordination.
(c) Applicants. (1) Each applicant for a grant, loan, or other financial assistance for use in State and community projects may be requested to submit, with the original application, an environmental assessment of the proposed project.
(2) Under OMB Revised Circular A-95, “Evaluation, Review, and Coordination of Federal Assistance Programs and Projects,” and DOT 4600.4B, “Evaluation, Review and Coordination of DOT Assistance Programs and Projects,” dated February 27, 1974, a grant applicant must notify the clearinghouse of its intention to apply for Federal program assistance. The notification must solicit comments on the project and its impacts from appropriate State and local agencies. Since it is the NHTSA’s policy to assure that (i) interested parties and Federal, State, and local agencies receive early notification of the decision to prepare an environmental impact statement, and (ii) their comments on the environmental effects of the proposed Federal action are solicited at an early stage in the preparation of the draft impact statement, this early notification requirement may be met by a grant applicant by sending the notification to interested parties and agencies at the same time it is sent to the clearinghouse.
(d) Consultants. Consultants may prepare background or preliminary material and assist in preparing a draft or final environmental statement for which the NHTSA takes responsibility. Care should be exercised in selecting consultants, and in reviewing their work, to insure complete and objective consideration of all relevant project impacts and alternatives, particularly if the consultant may expect further contracts based on the outcome of the environmental decision.
(e) Environmental review report. The environmental review shall culminate in a brief written report of the same title, which shall be included in the proposed or ongoing agency action, and which:
(1) Describes the proposed or ongoing NHTSA action, the environment affected, and the anticipated benefits;
(2) Evaluates the potential environmental impact, including those adverse impacts which cannot be avoided, should the proposal be implemented or the action continued;
(3) Assesses the alternatives to the proposed or ongoing action and their potential environmental impact;
(4) Evaluates the cumulative and long-term environmental effects of the proposed or ongoing action;
(5) Describes the irreversible and irretrievable commitments of resources involved in the proposal’s implementation or the action’s continuance;
(6) Identifies any known or potential conflicts with State, regional, or local plans and programs;
(7) Weighs and analyzes the anticipated benefits against the environmental and other costs of the proposed or ongoing action in a manner which reflects similar comparisons of reasonably available alternatives; and
(8) Concludes with a negative declaration or recommends the preparation of a DEIS.
(f) Negative declarations. (1) If the responsible official judges that the environmental impact of a proposed or ongoing action under his jurisdiction will not significantly affect the quality of the human environment, the following declaration will be included in the environmental review report:
(2) A DEIS may be changed to a negative declaration if the public review process indicates that the proposal or ongoing action will not have a significant effect upon the environment.
(3) An index of all negative declarations and a copy of each environmental review report shall be retained by the responsible official under whose jurisdiction it was prepared and shall be made available for public inspection upon request.
(g) Notice of intent to prepare a draft environmental impact statement. If the responsible official under whose jurisdiction an environmental review is prepared determines that the proposed or ongoing action could have a potentially significant effect on the quality of the environment, he shall: coordinate with the Associate Administrator for Planning and Evaluation and the Chief Counsel, transmit to appropriate Federal, State and local agencies and have published in the
§ 520.22 Maintenance of a list of actions.
(a) The Associate Administrator for Planning and Evaluation shall be responsible for the preparation and maintenance of a list of actions for which draft or final environmental impact statements have been or are to be prepared. This list shall be on file with the Associate Administrator for Planning and Evaluation and shall be available for public inspection in the Docket Section upon request. A copy of the initial list and its updatings at the end of each calendar quarter shall be transmitted by the Associate Administrator for Planning and Evaluation to TES and CEQ.
(b) If a determination is made that an environmental statement is not necessary for a proposed action (1) which has been identified as normally requiring preparation of a statement, (2) which is similar to actions for which a significant number of statements have been prepared, (3) which the agency has previously announced would be the subject of a statement, or (4) for which the official responsible for such proposal has made a negative determination in response to a request from the CEQ, a record briefly setting forth the decision and the reasons for that determination shall be prepared by the responsible official. Such a record of negative determinations and any evaluations made pursuant to § 520.21 which conclude that preparation of a statement is not yet timely shall be prepared by the responsible official, submitted to the Associate Administrator for Planning and Evaluation, and made available by the Associate Administrator for Planning and Evaluation in the same manner as provided in paragraph (a) of this section for lists of statements under preparation.
§ 520.23 Preparation of draft environmental impact statements.
(a) Planning stage. (1) When a DEIS is to be prepared, the responsible official shall promptly initiate its preparation and develop a schedule in consultation with the Associate Administrator for Planning and Evaluation, to assure completion prior to the first significant point of decision in the program or project development process.
(2) The environmental impacts of proposed activities should be initially assessed concurrently with the initial technical and economic studies.
(3) Section 102(2)(A) of NEPA requires each Federal agency to utilize a “systematic, interdisciplinary approach” to plans and programs affecting the environment. To assure that all environmental impacts are identified and assessed, all relevant disciplines should be represented. If the necessary disciplines are not represented on the staff of the applicant or NHTSA, it is appropriate to use professional services available in other Federal, State or local agencies, universities, or consulting firms. The use of the interdisciplinary approach should not be limited to the environmental statement. This approach should also be used in the early planning stages to help assure a systematic evaluation of reasonable alternative courses of action and their potential social, economic, and environmental consequences.
(b) Form and content requirements. Attachment 1 of this order prescribes the form and content requirements to be followed for each draft and final environmental impact statement. The DEIS must fulfill and satisfy, to the fullest extent possible at the time it is prepared, the requirements established for final statements.
(c) Lead agency. CEQ guidelines provide that when more than one Federal agency (1) directly sponsors an action, or is directly involved in an action through funding, licenses, or permits, or (2) is involved in a group of actions directly related to each other because of their functional interdependence and geographical proximity, consideration should be given to preparing one statement for all the Federal actions involved. Agencies in such cases should consider the designation of a single “lead agency” to assume supervisory responsibility for preparation of a joint statement. Where a lead agency prepares the statement, the other agencies involved should provide assistance with respect to their areas of jurisdiction and expertise. The statement should contain an evaluation of the full range of Federal actions involved, should reflect the views of all participating agencies, and should be prepared before major or irreversible actions have been taken by any of the participating agencies. Some relevant factors in determining an appropriate lead agency are: The time sequence in which the agencies become involved, the magnitude of their respective involvement, and their relative expertise with respect to the project’s environmental effects. Questions concerning “lead agency” decisions should be raised with CEQ through TES. For projects serving and primarily involving land owned by or under the jurisdiction of another Federal agency, that agency may be the appropriate lead agency.
(d) Applicants. Where the agency requests an applicant for financial assistance or other agency approval to submit an environmental assessment, the responsible official will (1) assist the applicant by outlining the information required, and (2) in all cases make his own evaluation of the environmental issues involved and take responsibility for the scope and content of draft and final environmental statements.
§ 520.24 Internal processing of draft environmental impact statements.
Before circulating a DEIS for external review, the official responsible for the DEIS shall receive the concurrence of the Associate Administrator for Planning and Evaluation and the Chief Counsel; and prepare a memorandum for approval by the Administrator which shall:
(a) Set forth the basis on which it was determined that a potentially significant environmental effect exists;
(b) Attach the DEIS;
(c) Identify the Federal, State, and local agencies and private sources from which comments on the DEIS are proposed to be solicited (see Attachment 2);
(d) Include a recommendation on whether a public hearing on the proposed action should be held.
§ 520.25 External review of draft environmental impact statements.
(a) Requirements. The official responsible for the DEIS shall:
(1) Transmit 5 copies of the DEIS to the CEQ and 2 copies to TES;
(2) Solicit comments from all Federal, State, and local agencies which have jurisdiction by law or special expertise with respect to the possible environmental impact involved, and from the public (see Attachment 2); and
(3) Inform the public and interested parties of the availability of the DEIS and provide copies as appropriate; and
(4) Allow a comment period of not less than 45 days from the Friday of the week following receipt of the draft impact statement by CEQ. Requests for extensions shall be granted whenever possible, and particularly when warranted by the magnitude and complexity of the statement or the extent of citizen interest.
(b) Procedures – (1) Federal and Federal-State agency review. (i) The DEIS shall be circulated for review to the Federal and Federal-State agencies with special expertise or jurisdiction by law with regard to the potential environmental impact involved. These agencies and their relevant areas of expertise are identified in Attachment 2.
(ii) For actions within the jurisdiction of the Environmental Protection Agency (air or water quality, solid wastes, pesticides, radiation standards, noise), the DEIS shall be sent to EPA.
(iii) For actions which would affect any property that is included in the National Register of Historic Preservation, the DEIS should be sent to the Advisory Council on Historic Preservation and the State Liaison Office for Historic Preservation.
(2) State and local review. Where a review of the proposed action by State and local agencies authorized to develop and enforce environmental stand-ards is relevant, comments are to be solicited directly from such agencies with known responsibilities in environmental matters, and shall be obtained as follows:
(i) Where review of direct Federal development projects, and of projects assisted under programs listed in Attachment D to revised OMB Circular A-95 (as implemented by DOT 4600.4B “Evaluation, Review and Coordination of DOT Assistance Programs and Projects”, dated February 27, 1974), takes place prior to preparation of an environmental statement, comments of the reviewing agencies on the environmental effects of the proposed project are inputs to the environmental statement. These comments shall be attached to the draft statement when it is circulated for review and copies of the draft shall be sent to those who commented. A-05 clearinghouses or other agencies designated by the Governor may also secure comments on environmental statements. In all cases, copies of the draft environmental statements shall be sent to clearinghouses and to the applicant whose project is the subject of the statement.
(ii) Comments shall be directly obtained from appropriate State and local agencies, except where review is secured by agreement through A-95 clearinghouses, unless the Governor of the appropriate State has designated some other point for obtaining his review. Instructions for obtaining the views of such agencies are contained in the joint OMB-CEQ memorandum (see Attachment 4). Comments shall be solicited from municipalities and counties on all projects located therein.
(iii) State and local review of NHTSA procedures, regulations, and policies for administering Federal programs of assistance to State and local governments shall be obtained pursuant to procedures established by OMB Circular No. A-85.
(iv) Generally, environmental statements on legislative and budget proposals may be excluded from State and local review.
(3) General public review. (i) At the time the DEIS is circulated to Federal, State, and local agencies, public availability of the DEIS for comment and review will be announced by the CEQ in the
(ii) A DEIS should be available to the public at least 30 days prior to the time of a public hearing on the DEIS.
(iii) Copies of the DEIS will be made available at the NHTSA Docket Section, Room 5109, 400 Seventh Street, SW., Washington, DC 20590, and, where appropriate, NHTSA Regional Offices, at the offices of any applicants or grantees, at appropriate State, regional, and metropolitan clearing houses, and local public libraries, and furnished to public and private organizations and individuals with special expertise with respect to the potential environmental impact involved, and to those with an interest in the action who request an opportunity to comment. Copies to be made available to the public shall be provided without charge to the extent practicable, or at a fee which is not more than the actual cost of reproducing copies required to be sent to other Federal agencies, including the CEQ.
(iv) A copy of the DEIS should in all cases be sent to any applicant whose project is the subject of the statement.
(v) If a DEIS is changed to a negative declaration as a result of the public review process, all agencies and individuals that received copies and/or commented on the DEIS must be informed that a negative declaration was substituted for the DEIS and given a brief explanation of the reason for such substitution.
(c) Utilization of comments. Comments received on the draft statement, and inputs (in summary form, if appropriate) from the processes for citizen participation, shall accompany the environmental statement through the normal internal project or program review process.
§ 520.26 Public hearings.
(a) A public hearing on a proposed or ongoing action covered by a DEIS shall be held upon the determination by the official responsible for such action, in consultation with the Associate Administrator for Planning and Evaluation, that a public hearing would be appropriate and in the public interest. In deciding whether a public hearing is appropriate, the responsible official should consider:
(1) The magnitude of the proposal in terms of economic costs, the geographic area involved, and the uniqueness or size of the commitment of the resources involved;
(2) The degree of interest in the proposal, as evidenced by requests from the public and from Federal, State, and local authorities that a hearing be held;
(3) The likelihood that information will be presented at the hearing which will be of assistance to the agency in fulfilling its responsibilities under the NEPA;
(4) The extent to which public involvement already has been achieved through other means, such as earlier public hearings, meetings with citizen representatives, and/or written comments on the proposed action; and
(5) The extent of potential environmental impact.
(b) If it is determined that a public hearing is to be held in accordance with paragraph (a) of this section, the official responsible for the action shall both announce the hearing through newspaper articles, direct notification to interested parties, and clearinghouses, and cause a notice to be issued in the
(1) Identifying the subject matter of the hearing;
(2) Announcing the date, time, and place of the hearing and the procedures to be followed; and
(3) Announcing the availability of the DEIS and any other information, as appropriate, for public inspection at one or more locations in the area affected by the action.
§ 520.27 Legislative actions.
(a) A DEIS on both legislative proposals and reports for which NHTSA either develops the Departmental position or originates the legislation will be cleared with TES, filed with CEQ, and submitted to the Office of Management and Budget through the normal DOT and NHTSA legislative process.
(b) The preparation, circulation, and filing of the environmental statement shall be in accordance with OMB Bulletin 72-6, “Proposed Federal Actions Affecting the Environment.”
(c) A DEIS and any comments that have been received should be available to the Congress and to the public for consideration in connection with the proposed legislation or report on proposed legislation. In cases where the scheduling of Congressional hearings on recommendations or reports on proposals for legislation which the Department has forwarded to the Congress does not allow adequate time for the completion of a FEIS, a DEIS may be furnished to the Congress and made available to the public pending transmittal of the comments as received and the final text.
§ 520.28 Preparation of final environmental impact statements.
(a) If the action is to go forward and the DEIS has not been changed to a negative declaration, as soon as practicable after the expiration of the comment period and hearing process, if any, the official responsible for the action shall prepare a final environmental impact statement (FEIS), taking into account all comments received and issues raised during such period and process.
(b) The FEIS shall conform to the guidelines for form and content in Attachment 1.
(c) The FEIS shall then be submitted to the Chief Counsel by the official responsible for the action, for determination of legal sufficiency.
§ 520.29 Internal review of final environmental impact statements.
(a) Upon completion of the review for legal sufficiency of the FEIS, the Chief Counsel shall transmit 2 copies of the FEIS to TES for concurrence. Unless other notification is provided within 2 weeks after receipt in TES, the statement will be considered concurred in by TES.
(b) After concurrence by TES, the FEIS will be transmitted by the Chief Counsel to the Administrator for approval.
(c) If an action requires the personal approval of the Secretary or Deputy Secretary pursuant to a request by them or by TES, TGC, or the NHTSA office originating the action, the final environmental statement shall be accompanied by a brief cover memorandum requesting the Secretary’s or Deputy Secretary’s approval of the action.
(1) The memorandum shall have signature lines for the concurrence of the Assistant Secretary for Environment, Safety, and Consumer Affairs, the General Counsel, and the Deputy Secretary, and for the approval of the Secretary or Deputy Secretary.
(2) TES, in conjunction with the Executive Secretary, is responsible for informing the Assistant Secretary for Congressional and Intergovernmental Affairs and the Office of Public Affairs of the Secretary’s decisions so that they, in coordination with the operating administrations or other Secretarial Offices involved, may take the appropriate actions.
§ 520.30 Availability of final environmental impact statements.
(a) Pending final approval and filing with CEQ, a proposed FEIS may be made available to the public and Federal, State, or local agencies if it carries a notation that it is not approved and filed.
(b) After approval by the Administrator, the Associate Administrator for Planning and Evaluation will send 5 copies of the FEIS (together with comments) to the CEQ; individual copies with comments attached to the EPA and all Federal, State, and local agencies and members of the public who submitted comments on the DEIS or requested copies of the FEIS. If the length of the statement or the number of comments make this distribution requirement highly impractical, TES should be consulted to consider an alternative arrangement.
(c) Copies of the FEIS will be made available in the NHTSA Docket Section, Room 5109, 400 Seventh Street SW., Washington, DC 20590, and, where appropriate, NHTSA Regional Offices, at the offices of any applicants or grantees, and at appropriate State, regional, and metropolitan clearinghouses and, where the impact is localized, public libraries.
(d) The official responsible for the action shall, upon request, make available copies of the FEIS and substantive comments received on the DEIS without charge to the extent practicable, or at a fee which is not more than the actual cost of reproducing copies.
§ 520.31 Amendments or supplements.
A draft or final environmental impact statement may be amended or supplemented. Supplements or amendments should be considered when substantial changes are made in the proposed or ongoing action that will introduce a new or changed environmental effect of significance to the quality of the environment, or significant new information becomes available concerning its environmental aspects. In such cases, the supplement or amendment shall be processed in consultation with TES with respect to the need for, or desirability of, recirculating the statement for the appropriate period. TES concurrence must be secured before issuance.
§ 520.32 Emergency action procedures.
The CEQ Guidelines allow modification of requirements in case of a national emergency, a disaster or similar great urgency. The processing times may be reduced, or if the emergency situation warrants, preparation and processing of a DEIS, FEIS, or negative declaration may be abbreviated. Such procedural changes, however, should be requested only for those projects where the need for immediate action requires processing in other than the normal manner.
§ 520.33 Timing of proposed NHTSA actions.
To the maximum extent practicable, no administrative action (i.e., any proposed action to be taken by the agency other than agency proposals for legislation to Congress, budget proposals, or agency reports on legislation) subject to this part and covered by an environmental impact statement shall be taken sooner than 90 days after a DEIS has been circulated for comment, furnished to the CEQ, and made public. Neither shall such administrative action be taken sooner than 30 days after the FEIS (together with comments) has been filed with CEQ, and made available to commenting agencies and the public. If the FEIS is filed within 90 days after a DEIS has been circulated for comment, furnished to the CEQ and made public, the 30-day period and 90-day period may run concurrently to the extent that they overlap. The 90-day time period is measured from the date of publication in the
§ 520.34 Comments on environmental statements prepared by other agencies.
(a) All requests for NHTSA’s views on a DEIS or a proposed action undergoing environmental review by another agency will be transmitted to the Associate Administrator for Planning and Evaluation for action or referral to TES where appropriate. Offices within NHTSA may be requested by the Associate Administrator for Planning and Evaluation to supply any pertinent information and comments for a coordinated agency response.
(b) NHTSA’s comments and the comments of any offices responding to a request by the Associate Administrator for Planning and Evaluation should be organized in a manner consistent with the structure of an environmental review set out in § 520.21(e). NHTSA programs that are environmentally related to the proposed action under review should be identified so interrelationships may receive due consideration.
(c) Copies of NHTSA’s comments on environmental statements prepared by other agencies shall be distributed as follows:
(1) The original and 1 copy to the requesting agency;
(2) 1 copy to TES-70; and
(3) 5 copies to CEQ.
(d) Requests by the public for copies should be referred to the agency originating the statement.
Attachment 1 to Part 520 – Form and Content of Statement
1. Form. a. Each statement will be headed as follows:
(Draft) Environmental Impact Statement Pursuant to section 102(2)(C), Pub. L. 91-190; 83 Stat. 853; 42 U.S.C. 4332(2)(C).
b. The heading specified above shall be modified to indicate that the statement also covers sections 4(f) of the DOT Act or 106 of the National Historic Preservation Act, when appropriate.
c. Each statement will, as a minimum, contain sections corresponding to paragraph 3 herein, supplemented as necessary to cover other matters provided in this Attachment.
d. The format for the summary to accompany draft and final environmental statements is as follows:
(Check one) ( ) Draft ( ) Final; Department of Transportation, National Highway Traffic Safety Administration. Name, address, and telephone number of individual who can be contacted for additional information about the proposed action or the statement. (Note: DOT Order 2100.2 prescribes procedures for reporting public contacts in rulemaking.)
(1) Name of Action. (Check one) ( ) Administrative Action. ( ) Legislative Action.
(2) Brief description of action indicating what States (and counties) are particularly affected.
(3) Summary of environmental impact and adverse environmental effects.
(4) List alternatives considered.
(5)(a) (For draft statements) List all Federal, State, and local agencies from which comments have been requested.
(b) (For final statements) List all Federal, State, and local agencies and other sources from which written comments have been received.
(6) Dates the draft statement and the final statement if issued were made available to the Council on Environmental Quality and the public.
2. Guidance as to content of statement. The following paragraphs of this Attachment are intended to be considered, where relevant, as guidance regarding the content of environmental statements. This guidance is expected to be supplemented by research reports, guidance on methodology, and other material from the literature as may be pertinent to evaluation of relevant environmental factors.
3. General content. The following points are to be covered:
a. A description of the proposed Federal action (e.g., “The proposed Federal action is approval of a grant application to construct * * *”), a statement of its purpose, and a description of the environment affected, including information, summary technical data, and maps and diagrams where relevant, adequate to permit an assessment of potential environmental impact by commenting offices and the public.
(1) Highly technical and specialized analyses and data should generally be avoided in the body of the draft impact statement. Such materials should be appropriately summarized in the body of the environmental statement and attached as appendices or footnoted with adequate bibliographic references.
(2) The statement should succinctly describe the environment of the area affected as it exists prior to a proposed action, including other related Federal activities in the area, their interrelationships, and cumulative environmental impact. The amount of detail provided in such descriptions should be commensurate with the extent and expected impact of the action, and with the amount of information required at the particular level of decision making (planning, feasibility, design, etc.). In order to insure accurate descriptions and environmental considerations, site visits should be made where appropriate.
(3) The statement should identify, as appropriate, population and growth characteristics of the affected area and any population and growth assumptions used to justify the project or program or to determine secondary population and growth impacts resulting from the proposed action and its alternatives (see paragraph 3c(2)). In discussing these population aspects, the statement should give consideration to using the rates of growth in the region of the project contained in the projection compiled for the Water Resources Council by the Bureau of Economic Analysis of the Department of Commerce and the Economic Research Service of the Department of Agriculture (the OBERS projection).
(4) The sources of data used to identify, quantify, or evaluate any or all environmental consequences must be expressly noted.
b. The relationship of the proposed action and how it may conform to or conflict with adopted or proposed land use plans, policies, controls, and goals and objectives as have been promulgated by affected communities. Where a conflict or inconsistency exists, the statement should describe the extent of reconciliation and the reasons for proceeding notwithstanding the absence of full reconciliation.
c. The probable impact of the proposed action on the environment. (1) This requires assessment of the positive and negative effects of the proposed action is it affects both national and international human environment. The attention given to different environmental factors will vary according to the nature, scale, and location of proposed actions. Among factors to be considered should be the potential effect of the action on such aspects of the environment as those listed in Attachment 2, and in section 520.5(b), supra. Primary attention should be given in the statement to discussing those factors most evidently impacted by the proposed action.
(2) Secondary and other foreseeable effects, as well as primary consequences for the environment, should be included in the analyses. Secondary effects, such as the impact on fuel consumption, emissions, or noise levels of automobiles or in the use of toxic or scarce materials, may be more substantial than the primary effects of the original action.
d. Alternatives to the proposed action, including, where relevant, those not within the existing authority of the responsible preparing office. Section 102(2)(D) of NEPA requires the responsible agency to “study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources.” A rigorous exploration and an objective evaluation of the environmental impacts of all reasonable alternative actions, particularly those that might enhance environmental quality or avoid some or all of the adverse environmental effects, are essential. Sufficient analysis of such alternatives and their environmental benefits, costs, and risks should accompany the proposed action through the review process in order not to foreclose prematurely options which might enhance environmental quality or have less detrimental effects. Examples of such alternatives include: The alternatives of not taking any action or of postponing action pending further study; alternatives requiring actions of a significantly different nature which would provide similar benefits with different environmental impacts, e.g., low capital intensive improvements, mass transit alternatives to highway construction; alternatives related to different locations or designs or details of the proposed action which would present different environmental impacts. In each case, the analysis should be sufficiently detailed to reveal comparative evaluation of the environmental benefits, costs, and risks of the proposed action and each reasonable alternative. Where an existing impact statement already contains such an analysis its treatment of alternatives may be incorporated, provided such treatment is current and relevant to the precise purpose of the proposed action.
e. Any probable adverse environmental effacts which cannot be avoided (such as water or air pollution, noise, undesirable land use patterns, or impacts on public parks and recreation areas, wildlife and waterfowl refuges, or on historic sites, damage to life systems, traffic congestion, threats to health, or other consequences adverse to the environmental goals set out in section 101(b) of NEPA). This should be a brief section summarizing in one place those effects discussed in paragraph 3c that are adverse and unavoidable under the proposed action. Included for purposes of contrast should be a clear statement of how all adverse effects will be mitigated. Where mitigating steps are included in the statement, the responsible official shall see that they are carried out.
f. The relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity. This section should contain a brief discussion of the extent to which the proposed action involves tradeoffs between short-term environmental gains at the expense of long-term losses, or vice versa, and a discussion of the extent to which the proposed action forecloses future options.
g. Any irreversible and irretrievable commitments of resources that would be involved in the proposed action should it be implemented. This requires identification of unavoidable impacts and the extent to which the action irreversibly curtails the range of potential uses of the environment. “Resources” means not only the labor and materials devoted to an action but also the natural and cultural resources lost or destroyed.
h. An indication of what other interests and considerations of Federal policy are thought to offset the adverse environmental effects of the proposed action identified pursuant to subparagraphs (c) and (e) of this paragraph. The statement should also indicate the extent to which these stated countervailing benefits could be realized by following reasonable alternatives to the proposed action (as identified in subparagraph (d) of this paragraph) that would avoid some or all of the adverse environmental effects. In this connection if a cost-benefit analysis of the proposed action has been prepared, it, or a summary, should be attached to the environmental impact statement, and should clearly indicate the extent to which environmental costs have not been reflected in such analysis.
i. A discussion of problems and objections raised by other Federal agencies, State and local entities, and citizens in the review process, and the disposition of the issues involved and the reasons therefor. (This section shall be added to the final environmental statement at the end of the review process.)
(1) The draft and final statements should document issues raised through consultations with Federal, State, and local agencies with jurisdiction or special expertise and with citizens, of actions taken in response to comments, public hearings, and other citizens involvement proceedings.
(2) Any unresolved environmental issues and efforts to resolve them, through further consultations or otherwise, should be identified in the final statement. For instance, where an agency comments that the statement has inadequate analysis or that the agency has reservations concerning the impacts, or believes that the impacts are too adverse for approval, either the issue should be resolved or the final statement should reflect efforts to resolve the issue and set forth any action that will result.
(3) The statement should reflect that every effort was made to discover and discuss all major points of view on the environmental effects of the proposed action and alternatives in the draft statement. However, where opposing professional views and responsible opinion have been overlooked in the draft statement and are raised through the commenting process, the environmental effects of the action should be reviewed in light of those views. A meaningful reference should be made in the final statement to the existence of any responsible opposing view not adequately discussed in the draft statement indicating responses to the issues raised.
(4) All substantive comments received on the draft (or summaries of responses from the public which have been exceptionally voluminous) should be attached to the final statement, whether or not each such comment is thought to merit individual discussion in the text of the statement.
j. Draft statement should indicate at appropriate points in the text any underlying studies, reports, and other information obtained and considered in preparing the statement, including any cost-benefit analyses prepared. In the case of documents not likely to be easily accessible (such as internal studies or reports), the statement should indicate how such information may be obtained. If such information is attached to the statement, care should be taken to insure that the statement remains an essentially self-contained instrument, capable of being understood by the reader without the need for undue cross reference.
4. Publicly owned parklands, recreational areas, wildlife and waterfowl refuges and historic sites. The following points are to be covered:
a. Description of “any publicly owned land from a public park, recreational area or wildlife and waterfowl refuge” or “any land from an historic site” affected or taken by the project. This includes its size, available activities, use, patronage, unique or irreplaceable qualities, relationship to other similarly used lands in the vicinity of the project, maps, plans, slides, photographs, and drawings showing a sufficient scale and detail the project. This also includes its impact on park, recreation, wildlife, or historic areas, and changes in vehicular or pedestrian access.
b. Statement of the “national, State or local significance” of the entire park, recreational area, refuge, or historic site “as determined by the Federal, State or local officials having jurisdiction thereof.”
(1) In the absence of such a statement lands will be presumed to be significant. Any statement of “insignificance” by the official having jurisdiction is subject to review by the Department as to whether such statement is capricious.
(2) Where Federal lands are administered for multiple uses, the Federal official having jurisdiction over the lands shall determine whether the subject lands are in fact being used for park, recreation, wildlife, waterfowl, or historic purposes.
c. Similar data, as appropriate, for alternative designs and locations, including detailed cost estimates (with figures showing percentage differences in total project costs) and technical feasibility, and appropriate analysis of the alternatives, including any unique problems present and evidence that the cost or community disruptions resulting from alternative routes reach extraordinary magnitudes. This portion of the statement should demonstrate compliance with the Supreme Court’s statement in the Overton Park case, as follows:
[The] very existence of the statute indicates that protection of parkland was to be given paramount importance. The few green havens that are public parks were not to be lost unless there were truly unusual factors present in a particular case or the cost or community disruption resulting from alternative routes reached extraordinary magnitudes. If the statutes are to have any meaning, the Secretary cannot approve the destruction of parkland unless he finds that alternative routes present unique problems. 401 U.S. 402, 412 (1971).
d. If there is no feasible and prudent alternative, description of all planning undertaken to minimize harm to the protected area and statement of actions taken or to be taken to implement this planning, including measures to maintain or enhance the natural beauty of the lands traversed.
(1) Measures to minimize harm may include replacement of land and facilities, providing land or facilities, provision for functional replacement of the facility (see 49 CFR 25.267).
(2) Design measures to minimize harm; e.g., tunneling, cut and cover, cut and fill, treatment of embankments, planting, screening, maintenance of pedestrian or bicycle paths and noise mitigation measures all reflecting utilization of appropriate interdisciplinary design personnel.
e. Evidence of concurrence or description of efforts to obtain concurrence of Federal, State or local officials having jurisdiction over the section 4(f) property regarding the action proposed and the measures planned to minimize harm.
f. If Federally-owned properties are involved in highway projects, the final statement shall include the action taken or an indication of the expected action after filing a map of the proposed use of the land or other appropriate documentation with the Secretary of the Department supervising the land (23 U.S.C. 317).
g. If land acquired with Federal grant money (Department of Housing and Urban Development open space or Bureau of Outdoor Recreation land and water conservation funds) is involved, the final statement shall include appropriate communications with the grantor agency.
h. TGC will determine application of section 4(f) to public interests in lands, such as easements, reversions, etc.
i. A specific finding by the Administrator that there is no feasible and prudent alternative and that the proposal includes all possible planning to minimize harm to the “4(f) area” involved.
5. Properties and sites of historic and cultural significance. The statement should document actions taken to preserve and enhance districts, sites, buildings, structures, and objects of historical, architectural, archeological, or cultural significance affected by the action.
a. Draft environmental statements should include identification, through consulting the National Register and applying the National Register Criteria (36 CFR part 800), of properties that are included in or eligible for inclusion in the National Register of Historic Places that may be affected by the project. The National Register is published in its entirety each February in the
b. If application of the Advisory Council on Historic Preservation’s (ACHP) Criteria of Effect (36 CFR part 800) indicates that the project will have an effect upon a property included in or eligible for inclusion in the National Register of Historic Places, the draft environmental statement should document the effect. Evaluation of the effect should be made in consultation with the State Historic Preservation Officer (SHPO) and in accordance with the ACHP’s criteria of Adverse Effect (36 CFR part 800).
c. Determinations of no adverse effect should be documented in the draft statement with evidence of the application of the ACHP’s Criteria of Adverse Effect, the views of the appropriate State Historic Preservation Officer, and submission of the determination to the ACHP for review.
d. If the project will have an adverse effect upon a property included in or eligible for inclusion in the National Register of Historic Places, the final environmental statement should include either an executed Memorandum of Agreement or comments from the Council after consideration of the project at a meeting of the ACHP and an account of actions to be taken in response to the comments of the ACHP. Procedures for obtaining a Memorandum of Agreement and the comments of the Council are found in 36 CFR part 800.
e. To determine whether the project will have an effect on properties of State or local historical, architectural, archaeological, or cultural significance not included in or eligible for inclusion in the National Register, the responsible official should consult with the State Historic Preservation Officer, with the local official having jurisdiction of the property, and where appropriate, with historical societies, museums, or academic institutions having expertise with regard to the property. Use of land from historic properties of Federal, State and local significance as determined by the official having jurisdiction thereof involves section 4(f) of the DOT Act and documentation should include information necessary to consider a 4(f) determination (see paragraph 4).
6. Impacts of the proposed action on the human environment involving community disruption and relocation. a. The statement should include a description of probable impact sufficient to enable an understanding of the extent of the environmental and social impact of the project alternatives and to consider whether relocation problems can be properly handled. This would include the following information obtainable by visual inspection of the proposed affected area and from secondary sources and community sources when available.
(1) An estimate of the households to be displaced including the family characteristics (e.g., minorities, and income levels, tenure, the elderly, large families).
(2) Impact on the human environment of an action which divides or disrupts an established community, including where pertinent, the effect of displacement on types of families and individuals affected, effect of streets cut off, separation of residences from community facilities, separation of residential areas.
(3) Impact on the neighborhood and housing to which relocation is likely to take place (e.g., lack of sufficient housing for large families, doublings up).
(4) An estimate of the businesses to be displaced, and the general effect of business dislocation on the economy of the community.
(5) A discussion of relocation housing in the area and the ability to provide adequate relocation housing for the types of families to be displaced. If the resources are insufficient to meet the estimated displacement needs, a description of the actions proposed to remedy this situation including, if necessary, use of housing of last resort.
(6) Results of consultation with local officials and community groups regarding the impacts to the community affected. Relocation agencies and staff and other social agencies can help to describe probable social impacts of this proposed action.
(7) Where necessary, special relocation advisory services to be provided the elderly, handicapped and illiterate regarding interpretations of benefits, assistance in selecting replacement housing and consultation with respect to acquiring, leasing, and occupying replacement housing.
b. This data should provide the preliminary basis for assurance of the availability of relocation housing as required by DOT 5620.1, Replacement Housing Policy, dated June 24, 1970, and 49 CFR 25.53.
7. Considerations relating to pedestrians and bicyclists. Where appropriate, the statement should discuss impacts on and consideration to be given in the development of the project to pedestrian and bicycle access, movement and safety within the affected area, particularly in medium and high density commercial and residential areas.
8. Other social impacts. The general social groups specially benefitted or harmed by the proposed action should be identified in the statement including the following:
a. Particular effects of a proposal on the elderly, handicapped, non-drivers, transit dependent, or minorities should be described to the extent reasonably predictable.
b. How the proposal will facilitate or inhibit their access to jobs, educational facilities, religious institutions, health and welfare services, recreational facilities, social and cultural facilities, pedestrian movement facilities, and public transit services.
9. Standards as to noise, air, and water pollution. The statement shall reflect sufficient analysis of the effects of the proposed action on attainment and maintenance of any environmental standards established by law or administrative determination (e.g., noise, ambient air quality, water quality) including the following documentation:
a. With respect to water quality, there should be consultation with the agency responsible for the State water pollution control program as to conformity with standards and regulations regarding storm sewer discharge sedimentation control, and other non-point source discharges.
b. The comments or determinations of the offices charged with administration of the State’s implementation plan for air quality as to the consistency of the project with State plans for the implementation of ambient air quality standards.
c. Conformity to adopted noise standards, compatible, if appropriate, with different land uses.
10. Energy supply and natural resources development. Where applicable, the statement should reflect consideration of whether the project or program will have any effect on either the production or consumption of energy and other natural resources, and discuss such effects if they are significant.
11. Flood hazard evaluation. When an alternative under consideration encroaches on a flood plain, the statement should include evidence that studies have been made and evidence of consultations with agencies with expertise have been carried out. Necessary measures to handle flood hazard problems should be described. In compliance with Executive Order 11296, and Flood Hazard Guidelines for Federal Executive Agencies, promulgated by the Water Resources Council, or how such requirements can be met during project development.
12. Considerations relating to wetlands or coastal zones. Where wetlands or coastal zones are involved, the statement should include:
a. Information on location, types, and extent of wetlands areas which might be affected by the proposed action.
b. An assessment of the impacts resulting from both construction and operation of the project on the wetlands and associated wildlife, and measures to minimize adverse impacts.
c. A statement by the local representative of the Department of the Interior, and any other responsible officials with special expertise, setting forth his views on the impacts of the project on the wetlands, the worth of the particular wetlands areas involved to the community and to the Nation, and recommendations as to whether the proposed action should proceed, and, if applicable, along what alternative route.
d. Where applicable, a discussion of how the proposed project relates to the State coastal zone management program for the particular State in which the project is to take place.
13. Construction impacts. In general, adverse impacts during construction will be of less importance than long-term impacts of a proposal. Nonetheless, statements should appropriately address such matters as the following identifying any special problem areas:
a. Noise impacts from construction and any specifications setting maximum noise levels.
b. Disposal of spoil and effect on borrow areas and disposal sites (include specifications where special problems are involved).
c. Measures to minimize effects on traffic and pedestrians.
14. Land use and urban growth. The statement should include, to the extent relevant and predictable:
a. The effect of the project on land use, development patterns, and urban growth.
b. Where significant land use and development impacts are anticipated, identify public facilities needed to serve the new development and any problems or issues which would arise in connection with these facilities, and the comments of agencies that would provide these facilities.
Attachment 2 to Part 520 – Areas of Environmental Impact and Federal Agencies and Federal-State Agencies With Jurisdiction by Law or Special Expertise To Comment Thereon
Attachment 3 to Part 520 – Offices Within Federal Agencies and Federal-State Agencies for Information Regarding the Agencies’ Impact Statements for Which Comments Are Requested
Attachment 4 to Part 520 – State and Local Agency Review of Impact Statements
1. OBM Revised Circular No. A-95 through its system of clearinghouses provides a means for securing the views of State and local environmental agencies, which can assist in the preparation of impact statements. Under A-95, review of the proposed project in the case of federally assisted projects (Part I of A-95) generally takes place prior to the preparation of the impact statement. Therefore, comments on the environmental effects of the proposed project that are secured during this stage of the A-95 process represent inputs to the environmental impact statement.
2. In the case of direct Federal development (Part II of A-95), Federal agencies are required to consult with clearinghouses at the earliest practicable time in the planning of the project or activity. Where such consultation occurs prior to completion of the draft impact statement, comments relating to the environmental effects of the proposed action would also represent inputs to the environmental impact statement.
3. In either case, whatever comments are made on environmental effects of proposed Federal or federally assisted projects by clearinghouses, or by State and local environmental agencies through clearinghouses, in the course of the A-95 review should be attached to the draft impact statement when it is circulated for review. Copies of the statement should be sent to the agencies making such comments. Whether those agencies then elect to comment again on the basis of the draft impact statement is a matter to be left to the discretion of the commenting agency depending on its resources, the significance of the project and the extent to which its earlier comments were considered in preparing the draft statement.
4. The clearinghouses may also be used, by mutual agreement, for securing reviews of the draft environmental impact statement. However, the Federal agency may wish to deal directly with appropriate State or local agencies in the review of impact statements because the clearinghouses may be unwilling or unable to handle this phase of the process. In some cases, the Governor may have designated a specific agency, other than the clearinghouse, for securing reviews of impact statements. In any case, the clearinghouses should be sent copies of the impact statement.
5. To aid clearinghouses in coordinating State and local comments, draft statements should include copies of State and local agency comments made earlier under the A-95 process and should indicate on the summary sheet those other agencies from which comments have been requested, as specified in Attachment 1.
PART 523 – VEHICLE CLASSIFICATION
§ 523.1 Scope.
This part establishes categories of vehicles that are subject to title V of the Motor Vehicle Information and Cost Savings Act, 15 U.S.C. 2001 et seq.
§ 523.2 Definitions.
As used in this part:
Ambulance has the meaning given in 40 CFR 86.1803.
Approach angle means the smallest angle, in a plane side view of an automobile, formed by the level surface on which the automobile is standing and a line tangent to the front tire static loaded radius arc and touching the underside of the automobile forward of the front tire.
Axle clearance means the vertical distance from the level surface on which an automobile is standing to the lowest point on the axle differential of the automobile.
Base tire (for passenger automobiles, light trucks, and medium duty passenger vehicles) means the tire size specified as standard equipment by the manufacturer on each unique combination of a vehicle’s footprint and model type. Standard equipment is defined in 40 CFR 86.1803.
Basic vehicle frontal area is used as defined in 40 CFR 86.1803 for passenger automobiles, light trucks, medium duty passenger vehicles and Class 2b through 3 pickup trucks and vans. For heavy-duty tracts and vocational vehicles, it has the meaning given in 40 CFR 1037.801.
Breakover angle means the supplement of the largest angle, in the plan side view of an automobile that can be formed by two lines tangent to the front and rear static loaded radii arcs and intersecting at a point on the underside of the automobile.
Bus has the meaning given in 49 CFR 571.3.
Cab-complete vehicle means a vehicle that is first sold as an incomplete vehicle that substantially includes the vehicle cab section as defined in 40 CFR 1037.801. For example, vehicles known commercially as chassis-cabs, cab-chassis, box-deletes, bed-deletes, and cut-away vans are considered cab-complete vehicles. A cab includes a steering column and a passenger compartment. Note that a vehicle lacking some components of the cab is a cab-complete vehicle if it substantially includes the cab.
Cargo-carrying volume means the luggage capacity or cargo volume index, as appropriate, and as those terms are defined in 40 CFR 600.315-08, in the case of automobiles to which either of these terms apply. With respect to automobiles to which neither of these terms apply, “cargo-carrying volume” means the total volume in cubic feet, rounded to the nearest 0.1 cubic feet, of either an automobile’s enclosed nonseating space that is intended primarily for carrying cargo and is not accessible from the passenger compartment, or the space intended primarily for carrying cargo bounded in the front by a vertical plane that is perpendicular to the longitudinal centerline of the automobile and passes through the rearmost point on the rearmost seat and elsewhere by the automobile’s interior surfaces.
Class 2b vehicles are vehicles with a gross vehicle weight rating (GVWR) ranging from 8,501 to 10,000 pounds.
Class 3 through Class 8 vehicles are vehicles with a gross vehicle weight rating (GVWR) of 10,001 pounds or more as defined in 49 CFR 565.15.
Coach bus has the meaning given in 40 CFR 1037.801.
Commercial medium- and heavy-duty on-highway vehicle means an on-highway vehicle with a gross vehicle weight rating of 10,000 pounds or more as defined in 49 U.S.C. 32901(a)(7).
Complete vehicle has the meaning given to completed vehicle as defined in 49 CFR 567.3.
Concrete mixer has the meaning given in 40 CFR 1037.801.
Curb weight has the meaning given in 40 CFR 86.1803-01.
Dedicated vehicle has the same meaning as dedicated automobile as defined in 49 U.S.C. 32901(a)(8).
Departure angle means the smallest angle, in a plane side view of an automobile, formed by the level surface on which the automobile is standing and a line tangent to the rear tire static loaded radius arc and touching the underside of the automobile rearward of the rear tire.
Dual-fueled vehicle (multi-fuel, or flexible-fuel vehicle) has the same meaning as dual fueled automobile as defined in 49 U.S.C. 32901(a)(9).
Electric vehicle means a vehicle that does not include an engine, and is powered solely by an external source of electricity and/or solar power. Note that this does not include electric hybrid or fuel-cell vehicles that use a chemical fuel such as gasoline, diesel fuel, or hydrogen. Electric vehicles may also be referred to as all-electric vehicles to distinguish them from hybrid vehicles.
Emergency vehicle means one of the following:
(1) For passenger cars, light trucks and medium duty passenger vehicles, emergency vehicle has the meaning given in 49 U.S.C. 32902(e).
(2) For heavy-duty vehicles, emergency vehicle has the meaning given in 40 CFR 1037.801.
Engine code has the meaning given in 40 CFR 86.1803.
Final stage manufacturer has the meaning given in 49 CFR 567.3.
Fire truck has the meaning given in 40 CFR 86.1803.
Footprint is defined as the product of track width (measured in inches, calculated as the average of front and rear track widths, and rounded to the nearest tenth of an inch) times wheelbase (measured in inches and rounded to the nearest tenth of an inch), divided by 144 and then rounded to the nearest tenth of a square foot. For purposes of this definition, track width is the lateral distance between the centerlines of the base tires at ground, including the camber angle. For purposes of this definition, wheelbase is the longitudinal distance between front and rear wheel centerlines.
Full-size pickup truck means a light truck or medium duty passenger vehicle that meets the specifications in 40 CFR 86.1803-01.
Gross axle weight rating (GAWR) has the meaning given in 49 CFR 571.3.
Gross combination weight rating (GCWR) has the meaning given in 49 CFR 571.3.
Gross vehicle weight rating (GVWR) has the meaning given in 49 CFR 571.3.
Heavy-duty engine means any engine used for (or for which the engine manufacturer could reasonably expect to be used for) motive power in a heavy-duty vehicle. For purposes of this definition in this part, the term “engine” includes internal combustion engines and other devices that convert chemical fuel into motive power. For example, a fuel cell and motor used in a heavy-duty vehicle is a heavy-duty engine. Heavy duty-engines include those engines subject to the standards in 49 CFR part 535.
Heavy-duty vehicle means a vehicle as defined in § 523.6.
Hitch means a device attached to the chassis of a vehicle for towing.
Incomplete vehicle has the meaning given in 49 CFR 567.3.
Light truck means a non-passenger automobile meeting the criteria in § 523.5.
Manufacturer has the meaning given in 49 U.S.C. 32901(a)(14).
Medium duty passenger vehicle means a vehicle which would satisfy the criteria in § 523.5 (relating to light trucks) but for its gross vehicle weight rating or its curb weight, which is rated at more than 8,500 lbs GVWR or has a vehicle curb weight of more than 6,000 pounds or has a basic vehicle frontal area in excess of 45 square feet, and which is designed primarily to transport passengers, but does not include a vehicle that –
(1) Is an “incomplete vehicle” ‘ as defined in this subpart; or
(2) Has a seating capacity of more than 12 persons; or
(3) Is designed for more than 9 persons in seating rearward of the driver’s seat; or
(4) Is equipped with an open cargo area (for example, a pick-up truck box or bed) of 72.0 inches in interior length or more. A covered box not readily accessible from the passenger compartment will be considered an open cargo area for purposes of this definition.
Mild hybrid gasoline-electric vehicle means a vehicle as defined by EPA in 40 CFR 86.1866-12(e).
Motor home has the meaning given in 49 CFR 571.3.
Motor vehicle has the meaning given in 49 U.S.C. 30102.
Passenger-carrying volume means the sum of the front seat volume and, if any, rear seat volume, as defined in 40 CFR 600.315-08, in the case of automobiles to which that term applies. With respect to automobiles to which that term does not apply, “passenger-carrying volume” means the sum in cubic feet, rounded to the nearest 0.1 cubic feet, of the volume of a vehicle’s front seat and seats to the rear of the front seat, as applicable, calculated as follows with the head room, shoulder room, and leg room dimensions determined in accordance with the procedures outlined in Society of Automotive Engineers Recommended Practice J1100, Motor Vehicle Dimensions (Report of Human Factors Engineering Committee, Society of Automotive Engineers, approved November 2009).
(1) For front seat volume, divide 1,728 into the product of the following SAE dimensions, measured in inches to the nearest 0.1 inches, and round the quotient to the nearest 0.001 cubic feet.
(i) H61-Effective head room – front.
(ii) W3-Shoulder room – front.
(iii) L34-Maximum effective leg room-accelerator.
(2) For the volume of seats to the rear of the front seat, divide 1,728 into the product of the following SAE dimensions, measured in inches to the nearest 0.1 inches, and rounded the quotient to the nearest 0.001 cubic feet.
(i) H63-Effective head room – second.
(ii) W4-Shoulder room – second.
(iii) L51-Minimum effective leg room – second.
Pickup truck means a non-passenger automobile which has a passenger compartment and an open cargo area (bed).
Pintle hooks means a type of towing hitch that uses a tow ring configuration to secure to a hook or a ball combination for the purpose of towing.
Recreational vehicle or RV means a motor vehicle equipped with living space and amenities found in a motor home.
Refuse hauler has the meaning given in 40 CFR 1037.801.
Running clearance means the distance from the surface on which an automobile is standing to the lowest point on the automobile, excluding unsprung weight.
School bus has the meaning given in 49 CFR 571.3.
Static loaded radius arc means a portion of a circle whose center is the center of a standard tire-rim combination of an automobile and whose radius is the distance from that center to the level surface on which the automobile is standing, measured with the automobile at curb weight, the wheel parallel to the vehicle’s longitudinal centerline, and the tire inflated to the manufacturer’s recommended pressure.
Strong hybrid gasoline-electric vehicle means a vehicle as defined by EPA in 40 CFR 86.1866-12(e).
Temporary living quarters means a space in the interior of an automobile in which people may temporarily live and which includes sleeping surfaces, such as beds, and household conveniences, such as a sink, stove, refrigerator, or toilet.
Transmission class has the meaning given in 40 CFR 600.002.
Tranmission configuration has the meaning given in 40 CFR 600.002.
Transmission type has the meaning given in 40 CFR 86.1803.
Truck tractor has the meaning given in 49 CFR 571.3 and 49 CFR 535.5(c). This includes most heavy-duty vehicles specifically designed for the primary purpose of pulling trailers, but does not include vehicles designed to carry other loads. For purposes of this definition “other loads” would not include loads carried in the cab, sleeper compartment, or toolboxes. Examples of vehicles that are similar to tractors but that are not tractors under this part include dromedary tractors, automobile haulers, straight trucks with trailers hitches, and tow trucks.
Van means a vehicle with a body that fully encloses the driver and a cargo carrying or work performing compartment. The distance from the leading edge of the windshield to the foremost body section of vans is typically shorter than that of pickup trucks and sport utility vehicles.
Vocational tractor means a tractor that is classified as a vocational vehicle according to 40 CFR 1037.630
Vocational vehicle (or heavy-duty vocational vehicle) has the meaning given in § 523.8 and 49 CFR 535.5(b). This includes any vehicle that is equipped for a particular industry, trade or occupation such as construction, heavy hauling, mining, logging, oil fields, refuse and includes vehicles such as school buses, motorcoaches and RVs.
Work truck means a vehicle that is rated at more than 8,500 pounds and less than or equal to 10,000 pounds gross vehicle weight, and is not a medium-duty passenger vehicle as defined in 49 U.S.C. 32901(a)(19).
§ 523.3 Automobile.
(a) An automobile is any 4-wheeled vehicle that is propelled by fuel, or by alternative fuel, manufactured primarily for use on public streets, roads, and highways and rated at less than 10,000 pounds gross vehicle weight, except:
(1) A vehicle operated only on a rail line;
(2) A vehicle manufactured in different stages by 2 or more manufacturers, if no intermediate or final-stage manufacturer of that vehicle manufactures more than 10,000 multi-stage vehicles per year; or
(3) A work truck.
(b) The following vehicles rated at more than 6,000 pounds and less than 10,000 pounds gross vehicle weight are determined to be automobiles:
(1) Vehicles which would satisfy the criteria in § 523.4 (relating to passenger automobiles) but for their gross vehicle weight rating.
(2) Vehicles which would satisfy the criteria in § 523.5 (relating to light trucks) but for their gross vehicle weight rating, and which
(i) Have a basic vehicle frontal area of 45 square feet or less,
(ii) Have a curb weight of 6,000 pounds or less,
(iii) Have a gross vehicle weight rating of 8,500 pounds or less, and
(iv) Are manufactured during the 1980 model year or thereafter.
(3) Vehicles that are defined as medium duty passenger vehicles, and which are manufactured during the 2011 model year or thereafter.
§ 523.4 Passenger automobile.
A passenger automobile is any automobile (other than an automobile capable of off-highway operation) manufactured primarily for use in the transportation of not more than 10 individuals.
§ 523.5 Non-passenger automobile.
A non-passenger automobile means an automobile that is not a passenger automobile or a work truck and includes vehicles described in paragraphs (a) and (b) of this section:
(a) An automobile designed to perform at least one of the following functions:
(1) Transport more than 10 persons;
(2) Provide temporary living quarters;
(3) Transport property on an open bed;
(4) Provide, as sold to the first retail purchaser, greater cargo-carrying than passenger-carrying volume, such as in a cargo van; if a vehicle is sold with a second-row seat, its cargo-carrying volume is determined with that seat installed, regardless of whether the manufacturer has described that seat as optional; or
(5) Permit expanded use of the automobile for cargo-carrying purposes or other nonpassenger-carrying purposes through:
(i) For non-passenger automobiles manufactured prior to model year 2012, the removal of seats by means installed for that purpose by the automobile’s manufacturer or with simple tools, such as screwdrivers and wrenches, so as to create a flat, floor level, surface extending from the forwardmost point of installation of those seats to the rear of the automobile’s interior; or
(ii) For non-passenger automobiles manufactured in model year 2008 and beyond, for vehicles equipped with at least 3 rows of designated seating positions as standard equipment, permit expanded use of the automobile for cargo-carrying purposes or other nonpassenger-carrying purposes through the removal or stowing of foldable or pivoting seats so as to create a flat, leveled cargo surface extending from the forwardmost point of installation of those seats to the rear of the automobile’s interior.
(b) An automobile capable of off-highway operation, as indicated by the fact that it:
(1)(i) Has 4-wheel drive; or
(ii) Is rated at more than 6,000 pounds gross vehicle weight; and
(2) Has at least four of the following characteristics calculated when the automobile is at curb weight, on a level surface, with the front wheels parallel to the automobile’s longitudinal centerline, and the tires inflated to the manufacturer’s recommended pressure –
(i) Approach angle of not less than 28 degrees.
(ii) Breakover angle of not less than 14 degrees.
(iii) Departure angle of not less than 20 degrees.
(iv) Running clearance of not less than 20 centimeters.
(v) Front and rear axle clearances of not less than 18 centimeters each.
§ 523.6 Heavy-duty vehicle.
(a) A heavy-duty vehicle is any commercial medium or heavy-duty on-highway vehicle or a work truck, as defined in 49 U.S.C. 32901(a)(7) and (19). For the purpose of this section, heavy-duty vehicles are divided into four regulatory categories as follows:
(1) Heavy-duty pickup trucks and vans;
(2) Heavy-duty vocational vehicles;
(3) Truck tractors with a GVWR above 26,000 pounds; and
(4) Heavy-duty trailers.
(b) The heavy-duty vehicle classification does not include vehicles excluded as specified in 49 CFR 535.3.
§ 523.7 Heavy-duty pickup trucks and vans.
(a) Heavy-duty pickup trucks and vans are pickup trucks and vans with a gross vehicle weight rating between 8,501 pounds and 14,000 pounds (Class 2b through 3 vehicles) manufactured as complete vehicles by a single or final stage manufacturer or manufactured as incomplete vehicles as designated by a manufacturer. See references in 40 CFR 86.1801-12, 40 CFR 86.1819-17, 40 CFR 1037.150, and 49 CFR 535.5(a).
(b) Heavy duty vehicles above 14,000 pounds GVWR may be optionally certified as heavy-duty pickup trucks and vans and comply with fuel consumption standards in 49 CFR 535.5(a), if properly included in a test group with similar vehicles at or below 14,000 pounds GVWR. Fuel consumption standards apply to these vehicles as if they were Class 3 heavy-duty vehicles. The work factor for these vehicles may not be greater than the largest work factor that applies for vehicles in the test group that are at or below 14,000 pounds GVWR (see 40 CFR 86.1819-14).
(c) Incomplete heavy-duty vehicles at or below 14,000 pounds GVWR may be optionally certified as heavy-duty pickup trucks and vans and comply with to the fuel consumption standards in 49 CFR 535.5(a).
§ 523.8 Heavy-duty vocational vehicle.
Heavy-duty vocational vehicles are vehicles with a gross vehicle weight rating (GVWR) above 8,500 pounds excluding:
(a) Heavy-duty pickup trucks and vans defined in § 523.7;
(b) Medium duty passenger vehicles; and
(c) Truck tractors, except vocational tractors, with a GVWR above 26,000 pounds;
§ 523.9 Truck tractors.
Truck tractors for the purpose of this part are considered as any truck tractor as defined in 49 CFR part 571 having a GVWR above 26,000 pounds.
§ 523.10 Heavy-duty trailers.
(a) A trailer means a motor vehicle with or without motive power, designed for carrying cargo and for being drawn by another motor vehicle as defined in 49 CFR 571.3. For the purpose of this part, heavy-duty trailers include only those trailers designed to be drawn by a truck tractor excluding non-box trailers other than flatbed trailer, tanker trailers and container chassis and those that are coupled to vehicles exclusively by pintle hooks or hitches instead of a fifth wheel. Heavy-duty trailers may be divided into different types and categories as follows:
(1) Box vans are trailers with enclosed cargo space that is permanently attached to the chassis, with fixed sides, nose, and roof. Tank trailers are not box vans.
(2) Box van with front-mounted HVAC systems are refrigerated vans. Note that this includes systems that provide cooling, heating, or both. All other box vans are dry vans.
(3) Trailers that are not box vans are non-box trailers. Note that the standards for non-box trailers in 49 CFR 535.5(e)(2) apply only to flatbed trailers, tank trailers, and container chassis.
(4) Box van with a length greater than 50 feet are long box vans. Other box vans are short box vans.
(5) The following types of equipment are not trailers:
(i) Containers that are not permanently mounted on chassis.
(ii) Dollies used to connect tandem trailers.
(iii) Equipment that serves similar purposes but are not intended to be pulled by a tractor.
(b) Heavy-duty trailers do not include trailers excluded in 49 CFR 535.3.
PART 525 – EXEMPTIONS FROM AVERAGE FUEL ECONOMY STANDARDS
§ 525.1 Scope.
This part establishes procedures under section 502(c) of the Motor Vehicle Information and Cost Savings Act, as amended (15 U.S.C. 2002) for the submission and disposition of petitions filed by low volume manufacturers of passenger automobiles to exempt them from the average fuel economy standards for passenger automobiles and to establish alternative average fuel economy standards for those manufacturers.
§ 525.2 Purpose.
The purpose of this part is to provide content and format requirements for low volume manufacturers of passenger automobiles which desire to petition the Administrator for exemption from applicable average fuel economy standards and for establishment of appropriate alternative average fuel economy standards and to give interested persons an opportunity to present data, views and arguments on those petitions.
§ 525.3 Applicability.
This part applies to passenger automobile manufacturers.
§ 525.4 Definitions.
(a) Statutory terms. (1) The terms fuel, manufacture, manufacturer, and model year, are used as defined in section 501 of the Act.
(2) The terms average fuel economy, fuel economy, and model type are used as defined in 40 CFR 600.002-77.
(3) The term automobile means a vehicle determined by the Administrator under 49 CFR part 523 to be an automobile.
(4) The term passenger automobile means an automobile determined by the Administrator under 49 CFR part 523 to be a passenger automobile.
(5) The term customs territory of the United States is used as defined in 19 U.S.C. 1202.
(b) Other terms. (1) The term base level and vehicle configuration are used as defined in 40 CFR 600.002-77.
(2) The term vehicle curb weight is used as defined in 40 CFR 85.002.
(3) The term interior volume index is used as defined in 40 CFR 600.315-77.
(4) The term frontal area is used as defined in 40 CFR 86.129-79.
(5) The term basic engine is used as defined in 40 CFR 600.002-77(a)(21).
(6) The term designated seating position is defined in 49 CFR 571.3.
(7) As used in this part, unless otherwise required by the context:
Act means the Motor Vehicle Information and Cost Savings Act (Pub. L. 92-513), as amended by the Energy Policy and Conservation Act (Pub. L. 94-163);
Administrator means the Administrator of the National Highway Traffic Safety Administration;
Affected model year means a model year for which an exemption and alternative average fuel economy standard are requested under this part;
Production mix means the number of passenger automobiles, and their percentage of the petitioner’s annual total production of passenger automobiles, in each vehicle configuration which a petitioner plans to manufacture in a model year; and
Total drive ratio means the ratio of an automobile’s engine rotational speed (in revolutions per minute) to the automobile’s forward speed (in miles per hour).
§ 525.5 Limitation on eligibility.
Any manufacturer that manufactures (whether or not in the customs territory of the United States) 10,000 or more passenger automobiles in the second model year preceding an affected model year or in the affected model year is ineligible for an exemption for that affected model year.
§ 525.6 Requirements for petition.
Each petition filed under this part must –
(a) Identify the model year or years for which exemption is requested;
(b) Be submitted not later than 24 months before the beginning of the affected model year, unless good cause for later submission is shown;
(c) Be submitted in three copies to: Administrator, National Highway Traffic Safety Administration, Washington, DC 20590;
(d) Be written in the English language;
(e) State the full name, address, and title of the official responsible for preparing the petition, and the name and address of the manufacturer;
(f) Set forth in full data, views and arguments of the petitioner supporting the exemption and alternative average fuel economy standard requested by the petitioner, including the information and data specified by § 525.7 and the calculations and analyses used to develop that information and data. No documents may be incorporated by reference in a petition unless the documents are submitted with the petition;
(g) Specify and segregate any part of the information and data submitted under this part that the petitioner wishes to have withheld from public disclosure in accordance with part 512 of this chapter.
§ 525.7 Basis for petition.
(a) The petitioner shall include the information specified in paragraphs (b) through (h) in its petition.
(b) Whether the petitioner controls, is controlled by, or is under common control with another manufacturer of passenger automobiles, and if so, the nature of that control relationship, and the total number of passenger automobiles manufactured by such other manufacturer or manufacturers.
(c) The total number of passenger automobiles manufactured or likely to be manufactured (whether or not in the customs territory of the United States) by the petitioner in the second model year immediately preceding each affected model year.
(d) For each affected model year, the petitioner’s projections of the most fuel efficient production mix of vehicle configurations and base levels of its passenger automobiles which the petitioner could sell in that model year, and a discussion demonstrating that these projections are reasonable. The discussion shall include information showing that the projections are consistent with –
(1) The petitioner’s annual total production and production mix of passenger automobiles manufactured or likely to be manufactured in each of the four model years immediately preceding that affected model year;
(2) Its passenger automobile production capacity for that affected model year;
(3) Its efforts to comply with that average fuel economy standard; and
(4) Anticipated consumer demand in the United States for passenger automobiles during that affected model year.
(e) For each affected model year, a description of the following features of each vehicle configuration of the petitioner’s passenger automobiles to be manufactured in that affected model year;
(1) Maximum overall body width, overall length, and overall height, determined in accordance with Motor Vehicle Dimensions SAE J1100a (report of Human Engineering Committee, approved September 1973, as revised September 1975);
(2) Vehicle curb weight;
(3) Number of designated seating positions and interior volume index;
(4) Basic engine, displacement, and SAE rated net power, kilowatts;
(5) Fuel metering system, including the number of carburetor barrels, if applicable;
(6) Drive train configuration and total drive ratio;
(7) Emission control system;
(8) Dynamometer road load setting, determined in accordance with 40 CFR part 86, and the method used to determine that setting, including information indicating whether the road load setting was adjusted to account for the presence of air conditioning and whether the setting was based on the use of radial ply tires; and
(9) Use of synthetic lubricants, low viscosity lubricants, or lubricants with additives that affect friction characteristics in the crankcase, differential, and transmission of the vehicles tested under the requirements of 40 CFR parts 86 and 600. With respect to automobiles which will use these lubricants, indicate which one will be used and explain why that type was chosen. With respect to automobiles which will not use these lubricants, explain the reasons for not so doing.
(f) For each affected model year, a fuel economy value for each vehicle configuration specified in 40 CFR 600.506(a)(2), base level, and model type of the petitioner’s passenger automobiles to be manufactured in that affected model year calculated in accordance with subpart C of 40 CFR part 600 and based on tests or analyses comparable to those prescribed or permitted under 40 CFR part 600 and a description of the test procedures or analytical methods.
(g) For each affected model year, an average fuel economy figure for the petitioner’s passenger automobiles to be manufactured in that affected model year calculated in accordance with 40 CFR 600.510(e) and based upon the fuel economy values provided under paragraph (f) of this section and upon the petitioner’s production mix projected under paragraph (d) of this section for the affected model year.
(h) Information demonstrating that the average fuel economy figure provided for each affected model year under paragraph (g) of this section is the maximum feasible average fuel economy achievable by the petitioner for that model year, including –
(1) For each affected model year and each of the two model years immediately following the first affected model year, a description of the technological means selected by the petitioner for improving the average fuel economy of its automobiles to be manufactured in that model year.
(2) A chronological description of the petitioner’s past and planned efforts to implement the means described under paragraph (h)(1) of this section.
(3) A description of the effect of other Federal motor vehicle standards on the fuel economy of the petitioner’s automobiles.
(4) For each affected model year, a discussion of the alternative and additional means considered but not selected by the petitioner that would have enabled its passenger automobiles to achieve a higher average fuel economy than is achievable with the means described under paragraph (h)(1) of this section. This discussion must include an explanation of the reasons the petitioner had for rejecting these additional and alternative means.
(5) In the case of a petitioner which plans to increase the average fuel economy of its passenger automobiles to be manufactured in either of the two model years immediately following the first affected model year, an explanation of the petitioner’s reasons for not making those increases in that affected model year.
§ 525.8 Processing of petitions.
(a) If a petition is found not to contain the information required by this part, the petition is informed about the areas of insufficiency and advised that the petition will not receive further consideration until the required information is submitted.
(b) The Administrator may request the petitioner to provide information in addition to that required by this part.
(c) The Administrator publishes a proposed decision in the
(d) Any interested person may, upon written request to the Administrator not later than 15 days after the publication of a notice under paragraph (c) of this section, meet informally with an appropriate official of the National Highway Traffic Safety Administration to discuss the petition or notice.
(e) After the conclusion of the period for public comment on the proposal, the Administrator publishes a final decision in the
§ 525.9 Duration of exemption.
An exemption may be granted under this part for not more than three model years.
§ 525.10 Renewal of exemption.
A manufacturer exempted under this part may request renewal of its exemption by submitting a petition meeting the requirements of §§ 525.6 and 525.7.
§ 525.11 Termination of exemption; amendment of alternative average fuel economy standard.
(a) Any exemption granted under this part for an affected model year does not apply to a manufacturer that is ineligible under § 525.5 for an exemption in that model year.
(b) The administrator may initiate rulemaking either on his own motion or on petition by an interested person to terminate an exemption granted under this part or to amend an alternative average fuel economy standard established under this part.
(c) Any interested persons may petition the Administrator to terminate an exemption granted under this part or to amend an alternative average fuel economy standard established under this part.
§ 525.12 Public inspection of information.
(a) Except as provided in paragraph (b), any person may inspect available information relevant to a petition under this part, including the petition and any supporting data, memoranda of informal meetings with the petitioner or any other interested persons, and the notices regarding the petition, in the Docket Section of the National Highway Traffic Safety Administration. Any person may obtain copies of the information available for inspection under this paragraph in accordance with part 7 of the regulations of the Office of the Secretary of Transportation (49 CFR part 7).
(b) Except for the release of confidential information authorized by section 505 of the Act and part 512 of this chapter, information made available for public inspection does not include information for which confidentiality is requested under § 525.6(g) and is granted in accordance with part 512 and sections 502 and 505 of the Act and section 552(b) of title 5 of the U.S.C.
PART 526 – PETITIONS AND PLANS FOR RELIEF UNDER THE AUTOMOBILE FUEL EFFICIENCY ACT OF 1980
§ 526.1 General provisions.
(a) Applicability. These regulations apply to petitions and plans submitted under the Automobile Fuel Efficiency Act of 1980, Pub. L. 96-425, as codified in Title V of the Motor Vehicle Information and Cost Savings Act, 15 U.S.C. 2001 et seq.
(b) Address. Each petition and plan submitted under the applicable provisions of sections 502 and 503 of the Motor Vehicle Information and Cost Savings Act must be addressed to the Administrator, National Highway Traffic Safety Administration, 400 Seventh Street, SW., Washington DC 20590.
(c) Authority and scope of relief. Each petition or plan must specify the specific provision of the Motor Vehicle Information and Cost Savings Act under which relief is being sought. The petition or plan must also specify the model years for which relief is being sought.
§ 526.2 U.S. production by foreign manufacturer.
Each petition filed under section 503(b)(3) of the Motor Vehicle Information and Cost Savings Act must contain the following information:
(a) For each model type (as defined by the Environmental Protection Agency in 40 CFR part 600) planned by the petitioner to be sold in the United States (regardless of place of manufacture), and for each model year beginning with the year before the first one for which relief is sought by the petition through the last year covered by the petition, the following information based on the petitioner’s current product plan and the assumption that the petition will be granted:
(1) A description of the model type, including car line designation, engine displacement and type, transmission type, and average fuel economy;
(2) U.S. sales projected for the model type;
(3) The average percentage of the cost to the manufacturer of the model type which is attributable to value added in the United States or Canada, determined in accordance with 40 CFR 600.511-80, and the total manufacturing cost per vehicle; and
(4) In the case of model types not offered for sale in the United States before the first year for which relief is sought in the petition or other model types for which expansions in production capacity are planned during the years covered by the petition, information (including any marketing surveys) indicating from where the additional sales will be captured. If sales are projected to be captured from U.S. manufacturers, the petition must provide an estimate of the employment impact on those manufacturers of the lost sales and the gain in employment for the petitioner and its U.S. suppliers.
(b) The total number of persons employed in the United States by the petitioner, excluding non-motor vehicle industry related employees, for each model year covered by the petition and for the model year immediately prior to those years.
(c) A description of how the petitioner’s responses to paragraphs (a) and (b) of this section would differ if the petition were denied.
§ 526.3 Transfer of vehicle from non-domestic to domestic fleet.
Each plan submitted under section 503(b)(4) of the Motor Vehicle Information and Cost Savings Act must contain the following information:
(a) For each model year for which relief is sought in the plan and for each model type of automobile sought to be included by the submitter in its domestic fleet under the plan (i.e., those with at least 50 percent but less than 75 percent U.S. or Canadian value added), provide the following information:
(1) A description of the model type, including engine type and displacement, transmission class, car line designation, and fuel economy;
(2) The projected U.S. sales of the model type;
(3) The average total manufacturing cost per vehicle for the model type;
(4) The percentage of the cost to the manufacturer attributable to value added in the United States or Canada for the model type:
(b) For each year covered by the plan, a list of individual product actions (e.g., change from imported engine to domestically manufactured engine) which will increase the domestic content of the affected vehicles. For each action, provide the model year in which the action will take effect, a description of the nature of the action, and the percentage change in domestic content resulting from the action.
§ 526.4 [Reserved]
§ 526.5 Earning offsetting monetary credits in future model years.
Each plan submitted under section 502(l) of the Motor Vehicle Information and Cost Savings Act must contain the following information:
(a) Projected average fuel economy and production levels for the class of automobiles which may fail to comply with a fuel economy standard and for any other classes of automobiles from which credits may be transferred, for the current model year and for each model year thereafter ending with the last year covered by the plan.
(b) A list and full description of each planned product action (e.g., new model, mix change) which will affect the average fuel economy of the class of automobiles subject to the credit earning plan, for each model year beginning with the current model year and ending with the last year covered by the credit earning plan.
(c) The portion of the petitioner’s fleet affected by each product action (e.g., all K-cars with 6-cylinder engines) and the number of affected vehicles.
(d) The fuel economy effect of each product action specified under paragraph (b) of this section per affected vehicle.
PART 529 – MANUFACTURERS OF MULTISTAGE AUTOMOBILES
§ 529.1 Scope and purpose.
This part determines, in cases where more than one person is the manufacturer of an automobile, which person is to be treated as the manufacturer for purposes of compliance with Title V of the Motor Vehicle Information and Cost Savings Act, as amended (15 U.S.C. 2001 et seq.) and rules issued thereunder.
§ 529.2 Applicability.
This part applies to incomplete automobile manufacturers, intermediate manufacturers, and final-stage manufacturers of automobiles that are manufactured in two or more stages.
§ 529.3 Definitions.
(a) Statutory terms. (1) The term automobile is used as defined in section 501 of the Act and in accordance with the determinations in 49 CFR part 523.
(2) The terms manufacture, manufacturer, and fuel economy are used as defined in section 501 of the Act.
(b) Other terms. (1) Act means the Motor Vehicle Information and Cost Savings Act (Pub. L. 92-513), as amended by the Energy Policy and Conservation Act (Pub. L. 94-163).
(2) Completed automobile means an automobile that requires no further manufacturing operations to perform its intended function, other than the addition of readily attachable components, such as mirrors or tire and rim assemblies, or minor finishing operations such as painting.
(3) Curb weight is defined the same as vehicle curb weight in 40 CFR part 86.
(4) Final-stage manufacturer means a person who performs such manufacturing operations on an incomplete automobile that it becomes a completed automobile.
(5) Frontal area is used as defined in 40 CFR 86.079-2.
(6) Incomplete automobile means an assemblage consisting, as a minimum, of frame and chassis structure, power train, steering system, suspension system, and braking system to the extent that those systems are to be part of the completed automobile, that requires further manufacturing operations, other than the addition of readily attachable components, such as mirrors or tire and rim assemblies, or minor finishing operations such as painting, to become a completed automobile.
(7) Incomplete automobile manufacturer means a person who manufactures an incomplete automobile by assembling components none of which, taken separately, constitute a complete automobile.
(8) Intermediate manufacturer means a person, other than the incomplete automobile manufacturer or the final-stage manufacturer, who performs manufacturing operations on an incomplete automobile.
§ 529.4 Requirements for incomplete automobile manufacturers.
(a) Except as provided in paragraph (c) of this section, §§ 529.5 and 529.6, each incomplete automobile manufacturer is considered, with respect to multistage automobiles incorporating its incomplete automobiles, the manufacturer of the multistage automobiles for purposes of the requirements of Title V and rules issued thereunder.
(b) Each incomplete automobile manufacturer shall furnish with each of its incomplete automobiles, when it is delivered to the subsequent manufacturer, (1) a document that contains the following information –
(i) Name and mailing address of the incomplete automobile manufacturer.
(ii) Month and year during which the incomplete automobile manufacturer performed its last manufacturing operation on the incomplete automobile.
(iii) Identification of the incomplete automobile or group of incomplete automobiles to which the document applies. The identification may be by serial number or otherwise, but it must be sufficient to enable a subsequent manufacturer to ascertain positively that the document applies to a particular incomplete automobile even if the document is not attached to that automobile.
(iv) Fuel economy values determined by the incomplete automobile manufacturer for the automobile in accordance with 40 CFR part 600 and a statement that a fuel economy label containing those values has been prepared in accordance with Environmental Protection Agency regulation by the manufacturer identified in the document.
(v) Maximum curb weight that may not be exceeded by a subsequent manufacturer without invalidating the fuel economy values determined by the incomplete automobile manufacturer.
(vi) Maximum frontal area that may not be exceeded by a subsequent manufacturer without invalidating the fuel economy values determined by the incomplete automobile manufacturer.
(vii) Whether the fuel economy values have been computed with the road load horsepower set to take into account the presence of air conditioning.
(2) A fuel economy label conforming with 40 CFR part 600.
(c)(1) The incomplete automobile manufacturer shall either attach the document specified in paragraph (b)(1) of this section to the incomplete automobile in such a manner that it will not be inadvertently detached or send that document directly to the subsequent manufacturer to which that automobile is delivered.
(2)(i) If the incomplete automobile manufacturer places the portion of the body including the windshield and front seat side windows on the incomplete automobile, that manufacturer shall attach the fuel economy label specified in paragraph (b)(2) of this section to that automobile in accordance with 40 CFR part 600. If the incomplete automobile manufacturer does not place that portion of the body on the incomplete automobile, that manufacturer shall send that label directly to the subsequent manufacturer to which that automobile is delivered.
(ii) Upon request by an intermediate or final-stage manufacturer for a copy of a fuel economy label that is required by paragraph (b)(2) of this section to have been prepared by the incomplete automobile manufacturer for one of its incomplete automobiles, identified by the requesting manufacturer in the same fashion as in the document specified in paragraph (b)(1) of this section, the incomplete automobile manufacturer shall send that manufacturer a copy of the label.
§ 529.5 Requirements for intermediate manufacturers.
(a) Except as provided in paragraph (d) of this section and in § 529.6, each intermediate manufacturer whose manufacturing operations on an incomplete automobile cause it to exceed the maximum curb weight or maximum frontal area set forth in the document furnished it by the incomplete automobile manufacturer under § 529.4(c)(1) or by a previous intermediate manufacturer under paragraph (b) of this section, as appropriate, is considered the manufacturer of the multistage automobile manufactured from that automobile for the purpose of the requirements of Title V and rules issued thereunder, other than that in part 537, Fuel Economy Reports.
(b) Each intermediate manufacturer of an incomplete automobile shall furnish, in the manner specified in § 529.4(c), to the subsequent manufacturer of that automobile the document required by § 529.4(b) regarding that automobile. If any of the changes in the automobile made by the intermediate manufacturer affect the validity of the fuel economy values or other statement in the document or any addendum attached to the document by a previous manufacturer of the automobile, the intermediate manufacturer shall furnish an addendum to the document that contains its name and mailing address and an indication of all changes that should be made in the document to reflect changes that it made in the automobile.
(c) Each intermediate manufacturer that is required by paragraph (b) of this section to furnish an addendum to a document required by § 529.4(b) shall, within 10 days after completing its manufacturing operations, send a copy of the document and addendum to the Administrator of the Environmental Protection Agency and to the manufacturer previously considered under this part to be the manufacturer of the automobile.
(d)(1) If the intermediate manufacturer’s manufacturing operations on an incomplete automobile cause it to exceed the maximum curb weight or maximum frontal area set forth in the document furnished it by the incomplete automobile manufacturer under § 529.4(c)(1) or a previous intermediate manufacturer under paragraph (b) of this section, as appropriate, that manufacturer shall prepare a new fuel economy label for that automobile in accordance with 40 CFR part 600.
(2) If neither the intermediate manufacturer of an incomplete automobile nor any previous manufacturer of that automobile has placed the portion of the body including the windshield and front seat side windows on that automobile, the intermediate manufacturer shall send the fuel economy label furnished it by the incomplete automobile manufacturer under § 529.4(c)(2)(i) or a previous intermediate manufacturer under paragraph (d)(2) of this section or prepared by it under paragraph (d)(1) of this section, as appropriate, directly to the subsequent manufacturer to which that automobile is delivered.
(3) If the intermediate manufacturer places the portion of the body including the windshield and front seat side windows on the incomplete automobile, that manufacturer shall attach the fuel economy label furnished it under § 529.4(c)(i) or paragraph (d)(2) of this section or the fuel economy label prepared by it under paragraph (d)(1) of this section, as appropriate, to that automobile in accordance with 40 CFR part 600.
(4) The intermediate manufacturer shall attach to the incomplete automobile in accordance with 40 CFR part 600 a fuel economy label identical to the label that is required under this part to have been prepared by the manufacturer considered under this part to be the manufacturer of that automobile if:
(i) The portion of the body including the windshield and front seat side windows was added to the incomplete automobile by a previous manufacturer;
(ii) The intermediate manufacturer’s manufacturing operations do not cause that automobile to exceed either of the maxima specified in paragraph (d)(1) of this section; and
(iii) That label is not on that automobile when received by the intermediate manufacturer or is removed from that automobile while it is in the possession of that manufacturer.
(5) Upon request by a subsequent intermediate manufacturer or by a final-stage manufacturer for a copy of a fuel economy label prepared by the intermediate manufacturer under paragraph (d)(1) of this section for one of its incomplete automobiles, identified by the requesting manufacturer in the same fashion as in the document specified in § 529.4(b)(1), the intermediate manufacturer shall send that manufacturer a copy of that label.
§ 529.6 Requirements for final-stage manufacturers.
(a) Except as provided in paragraph (c) of this section, each final-stage manufacturer whose manufacturing operations on an incomplete automobile cause the completed automobile to exceed the maximum curb weight or maximum frontal area set forth in the document specified in § 529.4(b) and furnished it by the incomplete automobile manufacturer under § 529.4(c)(1) or by the last intermediate manufacturer under § 529.5(b), as appropriate, is considered the manufacturer of the completed automobile for the purpose of the requirements of Title V and rules issued thereunder, other than those in part 537, Fuel Economy Reports.
(b) Each final-stage manufacturer that becomes the manufacturer of a multistage automobile under paragraph (a) of this section shall, within 10 days after completing its manufacturing operations on that automobile, send written notification of its exceeding the curb weight or frontal area maximum to the Administrator of the Environmental Protection Agency and to the manufacturer previously considered under this part to be the manufacturer of the automobile.
(c)(1) If the final-stage manufacturer becomes the manufacturer of a multistage automobile under paragraph (a)(1) of this section, that manufacturer shall prepare a new fuel economy label for that automobile in accordance with 40 CFR part 600.
(2) If the final-stage manufacturer places the portion of the body including the windshield and front seat side windows on the incomplete automobile, that manufacturer shall attach the fuel economy label furnished by the incomplete automobile manufacturer under § 529.4(c)(2) or by the last intermediate manufacturer under § 529.5(d)(2) or the fuel economy label prepared by the final-stage manufacturer under paragraph (c)(1) of this section, as appropriate, to that automobile in accordance with 40 CFR part 600.
(3) The final-stage manufacturer shall attach to the completed automobile in accordance with 40 CFR part 600 a fuel economy label identical to the label that is required under this part to have been prepared by the manufacturer considered under this part to be the manufacturer of that automobile if:
(i) The portion of the body including the windshield and front seat side windows was added to the completed automobile by a previous manufacturer;
(ii) The final-stage manufacturer’s manufacturing operations do not cause that automobile to exceed either of the maxima specified in paragraph (c)(1) of this section; and
(iii) That fuel economy label is not on that automobile when received by that manufacturer or is removed from that automobile while it is in the possession of that manufacturer.
PART 531 – PASSENGER AUTOMOBILE AVERAGE FUEL ECONOMY STANDARDS
§ 531.1 Scope.
This part establishes average fuel economy standards pursuant to section 502 (a) and (c) of the Motor Vehicle Information and Cost Savings Act, as amended, for passenger automobiles.
§ 531.2 Purpose.
The purpose of this part is to increase the fuel economy of passenger automobiles by establishing minimum levels of average fuel economy for those vehicles.
§ 531.3 Applicability.
This part applies to manufacturers of passenger automobiles.
§ 531.4 Definitions.
(a) Statutory terms. (1) The terms average fuel economy, manufacture, manufacturer, and model year are used as defined in section 501 of the Act.
(2) The terms automobile and passenger automobile are used as defined in section 501 of the Act and in accordance with the determination in part 523 of this chapter.
(b) Other terms. As used in this part, unless otherwise required by the context –
(1) Act means the Motor Vehicle Information and Cost Savings Act, as amended by Pub. L. 94-163.
§ 531.5 Fuel economy standards.
(a) Except as provided in paragraph (f) of this section, each manufacturer of passenger automobiles shall comply with the fleet average fuel economy standards in Table I, expressed in miles per gallon, in the model year specified as applicable:
(b) For model year 2011, a manufacturer’s passenger automobile fleet shall comply with the fleet average fuel economy level calculated for that model year according to Figure 1 and the appropriate values in Table II.
Table II-Parameters for the Passenger Automobile Fuel Economy Targets
| Model year | Parameters | |||
|---|---|---|---|---|
2) | ||||
| 2011 | 31.20 | 24.00 | 51.41 | 1.91 |
(c) For model years 2012-2026, a manufacturer’s passenger automobile fleet shall comply with the fleet average fuel economy level calculated for that model year according to this Figure 2 and the appropriate values in this Table III.
TARGET
Table III – Parameters for the Passenger Automobile Fuel Economy Targets, MYs 2012-2026
| Model year | Parameters | |||
|---|---|---|---|---|
2) | ||||
| 2012 | 35.95 | 27.95 | 0.0005308 | 0.006057 |
| 2013 | 36.80 | 28.46 | 0.0005308 | 0.005410 |
| 2014 | 37.75 | 29.03 | 0.0005308 | 0.004725 |
| 2015 | 39.24 | 29.90 | 0.0005308 | 0.003719 |
| 2016 | 41.09 | 30.96 | 0.0005308 | 0.002573 |
| 2017 | 43.61 | 32.65 | 0.0005131 | 0.001896 |
| 2018 | 45.21 | 33.84 | 0.0004954 | 0.001811 |
| 2019 | 46.87 | 35.07 | 0.0004783 | 0.001729 |
| 2020 | 48.74 | 36.47 | 0.0004603 | 0.001643 |
| 2021 | 49.48 | 37.02 | 0.000453 | 0.00162 |
| 2022 | 50.24 | 37.59 | 0.000447 | 0.00159 |
| 2023 | 51.00 | 38.16 | 0.000440 | 0.00157 |
| 2024 | 51.78 | 38.74 | 0.000433 | 0.00155 |
| 2025 | 52.57 | 39.33 | 0.000427 | 0.00152 |
| 2026 | 53.37 | 39.93 | 0.000420 | 0.00150 |
(d) In addition to the requirements of paragraphs (b) and (c) of this section, each manufacturer shall also meet the minimum fleet standard for domestically manufactured passenger automobiles expressed in Table IV:
Table IV – Minimum Fuel Economy Standards for Domestically Manufactured Passenger Automobiles, MYs 2011-2026
| Model year | Minimum standard |
|---|---|
| 2011 | 27.8 |
| 2012 | 30.7 |
| 2013 | 31.4 |
| 2014 | 32.1 |
| 2015 | 33.3 |
| 2016 | 34.7 |
| 2017 | 36.7 |
| 2018 | 38.0 |
| 2019 | 39.4 |
| 2020 | 40.9 |
| 2021 | 39.9 |
| 2022 | 40.6 |
| 2023 | 41.1 |
| 2024 | 41.8 |
| 2025 | 42.4 |
| 2026 | 43.1 |
(e) The following manufacturers shall comply with the standards indicated below for the specified model years:
(1) Avanti Motor Corporation.
Average Fuel Economy Standard
| Model year | Miles per gallon |
|---|---|
| 1978 | 16.1 |
| 1979 | 14.5 |
| 1980 | 15.8 |
| 1981 | 18.2 |
| 1982 | 18.2 |
| 1983 | 16.9 |
| 1984 | 16.9 |
| 1985 | 16.9 |
(2) Rolls-Royce Motors, Inc.
| Model year | Average fuel economy standard (miles per gallon) |
|---|---|
| 1978 | 10.7 |
| 1979 | 10.8 |
| 1980 | 11.1 |
| 1981 | 10.7 |
| 1982 | 10.6 |
| 1983 | 9.9 |
| 1984 | 10.0 |
| 1985 | 10.0 |
| 1986 | 11.0 |
| 1987 | 11.2 |
| 1988 | 11.2 |
| 1989 | 11.2 |
| 1990 | 12.7 |
| 1991 | 12.7 |
| 1992 | 13.8 |
| 1993 | 13.8 |
| 1994 | 13.8 |
| 1995 | 14.6 |
| 1996 | 14.6 |
| 1997 | 15.1 |
| 1998 | 16.3 |
| 1999 | 16.3 |
(3) Checker Motors Corporation.
Average Fuel Economy Standard
| Model year | Miles per gallon |
|---|---|
| 1978 | 17.6 |
| 1979 | 16.5 |
| 1980 | 18.5 |
| 1981 | 18.3 |
| 1982 | 18.4 |
(4) Aston Martin Lagonda, Inc.
Average Fuel Economy Standard
| Model year | Miles per gallon |
|---|---|
| 1979 | 11.5 |
| 1980 | 12.1 |
| 1981 | 12.2 |
| 1982 | 12.2 |
| 1983 | 11.3 |
| 1984 | 11.3 |
| 1985 | 11.4 |
(5) Excalibur Automobile Corporation.
Average Fuel Economy Standard
| Model year | Miles per gallon |
|---|---|
| 1978 | 11.5 |
| 1979 | 11.5 |
| 1980 | 16.2 |
| 1981 | 17.9 |
| 1982 | 17.9 |
| 1983 | 16.6 |
| 1984 | 16.6 |
| 1985 | 16.6 |
(6) Lotus Cars Ltd.
| Model year | Average fuel economy standard (miles per gallon) |
|---|---|
| 1994 | 24.2 |
| 1995 | 23.3 |
(7) Officine Alfieri Maserati, S.p.A.
Average Fuel Economy Standard
| Model year | Miles per gallon |
|---|---|
| 1978 | 12.5 |
| 1979 | 12.5 |
| 1980 | 9.5 |
| 1984 | 17.9 |
| 1985 | 16.8 |
(8) Lamborghini of North America.
Average Fuel Economy Standard
| Model year | Miles per gallon |
|---|---|
| 1983 | 13.7 |
| 1984 | 13.7 |
(9) LondonCoach Co., Inc.
Average Fuel Economy Standard
| Model year | Miles per gallon |
|---|---|
| 1985 | 21.0 |
| 1986 | 21.0 |
| 1987 | 21.0 |
(10) Automobili Lamborghini S.p.A./Vector Aeromotive Corporation.
| Model year | Average fuel economy standard (miles per gallon) |
|---|---|
| 1995 | 12.8 |
| 1996 | 12.6 |
| 1997 | 12.5 |
(11) Dutcher Motors, Inc.
| Model year | Average fuel economy standard (miles per gallon) |
|---|---|
| 1986 | 16.0 |
| 1987 | 16.0 |
| 1988 | 16.0 |
| 1992 | 17.0 |
| 1993 | 17.0 |
| 1994 | 17.0 |
| 1995 | 17.0 |
(12) MedNet, Inc.
| Model year | Average fuel economy standard (miles per gallon) |
|---|---|
| 1996 | 17.0 |
| 1997 | 17.0 |
| 1998 | 17.0 |
(13) Vector Aeromotive Corporation.
| Model year | Average fuel economy standard (miles per gallon) |
|---|---|
| 1998 | 12.1 |
(14) Qvale Automotive Group Srl.
| Model year | Average fuel economy standard (miles per gallon) |
|---|---|
| 2000 | 22.0 |
| 2001 | 22.0 |
(15) Spyker Automobielen B.V.
Average Fuel Economy Standard
| Model year | Miles per gallon |
|---|---|
| 2006 | 18.9 |
| 2007 | 18.9 |
§ 531.6 Measurement and calculation procedures.
(a) The fleet average fuel economy performance of all passenger automobiles that are manufactured by a manufacturer in a model year shall be determined in accordance with procedures established by the Administrator of the Environmental Protection Agency under 49 U.S.C. 32904 and set forth in 40 CFR part 600. For model years 2017 to 2026, a manufacturer is eligible to increase the fuel economy performance of passenger cars in accordance with procedures established by the EPA set forth in 40 CFR part 600, subpart F, including any adjustments to fuel economy the EPA allows, such as for fuel consumption improvements related to air conditioning efficiency and off-cycle technologies.
(1) A manufacturer that seeks to increase its fleet average fuel economy performance through the use of technologies that improve the efficiency of air conditioning systems must follow the requirements in 40 CFR 86.1868-12. Fuel consumption improvement values resulting from the use of those air conditioning systems must be determined in accordance with 40 CFR 600.510-12(c)(3)(i).
(2) A manufacturer that seeks to increase its fleet average fuel economy performance through the use of off-cycle technologies must follow the requirements in 40 CFR 86.1869-12. A manufacturer is eligible to gain fuel consumption improvements for predefined off-cycle technologies in accordance with 40 CFR 86.1869-12(b) or for technologies tested using the EPA’s 5-cycle methodology in accordance with 40 CFR 86.1869-12(c). The fuel consumption improvement is determined in accordance with 40 CFR 600.510-12(c)(3)(ii).
(b) A manufacturer is eligible to increase its fuel economy performance through use of an off-cycle technology requiring an application request made to the EPA in accordance with 40 CFR 86.1869-12(d). The request must be approved by the EPA in consultation with NHTSA. To expedite NHTSA’s consultation with the EPA, a manufacturer shall concurrently submit its application to NHTSA if the manufacturer is seeking off-cycle fuel economy improvement values under the CAFE program for those technologies. For off-cycle technologies that are covered under 40 CFR 86.1869-12(d), NHTSA will consult with the EPA regarding NHTSA’s evaluation of the specific off-cycle technology to ensure its impact on fuel economy and the suitability of using the off-cycle technology to adjust the fuel economy performance. NHTSA will provide its views on the suitability of the technology for that purpose to the EPA. NHTSA’s evaluation and review will consider:
(1) Whether the technology has a direct impact upon improving fuel economy performance;
(2) Whether the technology is related to crash-avoidance technologies, safety critical systems or systems affecting safety-critical functions, or technologies designed for the purpose of reducing the frequency of vehicle crashes;
(3) Information from any assessments conducted by the EPA related to the application, the technology and/or related technologies; and
(4) Any other relevant factors.
§ 531.7 Preemption.
(a) General. When an average fuel economy standard prescribed under this chapter is in effect, a State or a political subdivision of a State may not adopt or enforce a law or regulation related to fuel economy standards or average fuel economy standards for automobiles covered by an average fuel economy standard under this chapter.
(b) Requirements must be identical. When a requirement under section 32908 of title 49 of the United States Code is in effect, a State or a political subdivision of a State may adopt or enforce a law or regulation on disclosure of fuel economy or fuel operating costs for an automobile covered by section 32908 only if the law or regulation is identical to that requirement.
(c) State and political subdivision automobiles. A State or a political subdivision of a State may prescribe requirements for fuel economy for automobiles obtained for its own use.
Appendix A to Part 531 – Example of Calculating Compliance Under § 531.5(c )
Assume a hypothetical manufacturer (Manufacturer X) produces a fleet of domestic passenger automobiles in MY 2012 as follows:
Appendix A Table I
| Model type | Description | Actual measured fuel economy (mpg) | Volume | |||||||
|---|---|---|---|---|---|---|---|---|---|---|
| Group | Carline name | Basic engine (L) | Transmission class | |||||||
| 1 | PC A FWD | 1.8 | A5 | 2-door sedan | 34.0 | 1,500 | ||||
| 2 | PC A FWD | 1.8 | M6 | 2-door sedan | 34.6 | 2,000 | ||||
| 3 | PC A FWD | 2.5 | A6 | 4-door wagon | 33.8 | 2,000 | ||||
| 4 | PC A AWD | 1.8 | A6 | 4-door wagon | 34.4 | 1,000 | ||||
| 5 | PC A AWD | 2.5 | M6 | 2-door hatchback | 32.9 | 3,000 | ||||
| 6 | PC B RWD | 2.5 | A6 | 4-door wagon | 32.2 | 8,000 | ||||
| 7 | PC B RWD | 2.5 | A7 | 4-door sedan | 33.1 | 2,000 | ||||
| 8 | PC C AWD | 3.2 | A7 | 4-door sedan | 30.6 | 5,000 | ||||
| 9 | PC C FWD | 3.2 | M6 | 2-door coupe | 28.5 | 3,000 | ||||
| Total | 27,500 | |||||||||
Note to Appendix A Table I: Manufacturer X’s required fleet average fuel economy standard level would first be calculated by determining the fuel economy targets applicable to each unique model type and footprint combination for model type groups 1-9 as illustrated in Appendix A Table II:
Manufacturer X calculates a fuel economy target standard for each unique model type and footprint combination.
Appendix A Table II
| Model type | Description | Base tire size | Wheelbase (inches) | Track width F&R average (inches) | Footprint (ft 2) | Volume | Fuel economy target standard (mpg) | |||
|---|---|---|---|---|---|---|---|---|---|---|
| Group | Carline name | Basic engine (L) | Transmission class | |||||||
| 1 | PC A FWD | 1.8 | A5 | 2-door sedan | 205/75R14 | 99.8 | 61.2 | 42.4 | 1,500 | 35.01 |
| 2 | PC A FWD | 1.8 | M6 | 2-door sedan | 215/70R15 | 99.8 | 60.9 | 42.2 | 2,000 | 35.14 |
| 3 | PC A FWD | 2.5 | A6 | 4-door wagon | 215/70R15 | 100.0 | 60.9 | 42.3 | 2,000 | 35.08 |
| 4 | PC A AWD | 1.8 | A6 | 4-door wagon | 235/60R15 | 100.0 | 61.2 | 42.5 | 1,000 | 35.95 |
| 5 | PC A AWD | 2.5 | M6 | 2-door hatchback | 225/65R16 | 99.6 | 59.5 | 41.2 | 3,000 | 35.81 |
| 6 | PC B RWD | 2.5 | A6 | 4-door wagon | 265/55R18 | 109.2 | 66.8 | 50.7 | 8,000 | 30.33 |
| 7 | PC B RWD | 2.5 | A7 | 4-door sedan | 235/65R17 | 109.2 | 67.8 | 51.4 | 2,000 | 29.99 |
| 8 | PC C AWD | 3.2 | A7 | 4-door sedan | 265/55R18 | 111.3 | 67.8 | 52.4 | 5,000 | 29.52 |
| 9 | PC C FWD | 3.2 | M6 | 2-door coupe | 225/65R16 | 111.3 | 67.2 | 51.9 | 3,000 | 29.76 |
| Total | 27,500 | |||||||||
Note to Appendix A Table II: With the appropriate fuel economy targets determined for each unique model type and footprint combination, Manufacturer X’s required fleet average fuel economy standard would be calculated as illustrated in Appendix A Figure 1:
Appendix A Figure 1 – Calculation of Manufacturer X’s fleet average fuel economy standard using Table II:
Appendix A Figure 2 – Calculation of Manufacturer X’s actual fleet average fuel economy performance level using Table I:
Note to Appendix A Figure 2: Since the actual fleet average fuel economy performance of Manufacturer X’s fleet is 32.0 mpg, as compared to its required fleet fuel economy standard of 31.6 mpg, Manufacturer X complied with the CAFE standard for MY 2012 as set forth in § 531.5(c).
Appendix B to Part 531 – Preemption
(a) Express Preemption:
(1) To the extent that any law or regulation of a State or a political subdivision of a State regulates or prohibits tailpipe carbon dioxide emissions from automobiles, such a law or regulation relates to average fuel economy standards within the meaning of 49 U.S.C. 32919.
(A) Automobile fuel economy is directly and substantially related to automobile tailpipe emissions of carbon dioxide;
(B) Carbon dioxide is the natural by-product of automobile fuel consumption;
(C) The most significant and controlling factor in making the measurements necessary to determine the compliance of automobiles with the fuel economy standards in this part is their rate of tailpipe carbon dioxide emissions;
(D) Almost all technologically feasible reduction of tailpipe emissions of carbon dioxide is achievable through improving fuel economy, thereby reducing both the consumption of fuel and the creation and emission of carbon dioxide;
(E) Accordingly, as a practical matter, regulating fuel economy controls the amount of tailpipe emissions of carbon dioxide, and regulating the tailpipe emissions of carbon dioxide controls fuel economy.
(2) As a law or regulation related to fuel economy standards, any law or regulation of a State or a political subdivision of a State regulating or prohibiting tailpipe carbon dioxide emissions from automobiles is expressly preempted under 49 U.S.C. 32919.
(3) A law or regulation of a State or a political subdivision of a State having the direct or substantial effect of regulating or prohibiting tailpipe carbon dioxide emissions from automobiles or automobile fuel economy is a law or regulation related to fuel economy standards and expressly preempted under 49 U.S.C. 32919.
(b) Implied Preemption:
(1) A law or regulation of a State or a political subdivision of a State regulating tailpipe carbon dioxide emissions from automobiles, particularly a law or regulation that is not attribute-based and does not separately regulate passenger cars and light trucks, conflicts with:
(A) The fuel economy standards in this part;
(B) The judgments made by the agency in establishing those standards; and
(C) The achievement of the objectives of the statute (49 U.S.C. Chapter 329) under which those standards were established, including objectives relating to reducing fuel consumption in a manner and to the extent consistent with manufacturer flexibility, consumer choice, and automobile safety.
(2) Any law or regulation of a State or a political subdivision of a State regulating or prohibiting tailpipe carbon dioxide emissions from automobiles is impliedly preempted under 49 U.S.C. Chapter 329.
(3) A law or regulation of a State or a political subdivision of a State having the direct or substantial effect of regulating or prohibiting tailpipe carbon dioxide emissions from automobiles or automobile fuel economy is impliedly preempted under 49 U.S.C. Chapter 329.
PART 533 – LIGHT TRUCK FUEL ECONOMY STANDARDS
§ 533.1 Scope.
This part establishes average fuel economy standards pursuant to section 502(b) of the Motor Vehicle Information and Cost Savings Act, as amended, for light trucks.
§ 533.2 Purpose.
The purpose of this part is to increase the fuel economy of light trucks by establishing minimum levels of average fuel economy for those vehicles.
§ 533.3 Applicability.
This part applies to manufacturers of light trucks.
§ 533.4 Definitions.
(a) Statutory terms. (1) The terms average fuel economy, average fuel economy standard, fuel economy, import, manufacture, manufacturer, and model year are used as defined in section 501 of the Act.
(2) The term automobile is used as defined in section 501 of the Act and in accordance with the determinations in part 523 of this chapter.
(3) The term domestically manufactured is used as defined in section 503(b)(2)(E) of the Act.
(b) Other terms. As used in this part, unless otherwise required by the context –
(1) Act means the Motor Vehicle Information Cost Savings Act, as amended by Pub. L. 94-163.
(2) Light truck is used in accordance with the determinations in part 523 of this chapter.
Captive import means with respect to a light truck, one which is not domestically manufactured but which is imported in the 1980 model year or thereafter by a manufacturer whose principal place of business is in the United States.
4-wheel drive, general utility vehicle means a 4-wheel drive, general purpose automobile capable of off-highway operation that has a wheelbase of not more than 280 centimeters, and that has a body shape similar to 1977 Jeep CJ-5 or CJ-7, or the 1977 Toyota Land Cruiser.
Basic engine means a unique combination of manufacturer, engine displacement, number of cylinders, fuel system (as distinguished by number of carburetor barrels or use of fuel injection), and catalyst usage.
Limited product line light truck means a light truck manufactured by a manufacturer whose light truck fleet is powered exclusively by basic engines which are not also used in passenger automobiles.
§ 533.5 Requirements.
(a) Each manufacturer of light trucks shall comply with the following fleet average fuel economy standards, expressed in miles per gallon, in the model year specified as applicable:
Table I
| Model year | 2-wheel drive light trucks | 4-wheel drive light trucks | Limited product line light trucks | ||
|---|---|---|---|---|---|
| Captive imports | Other | Captive imports | Other | ||
| 1979 | 17.2 | 15.8 | |||
| 1980 | 16.0 | 16.0 | 14.0 | 14.0 | 14.0 |
| 1981 | 16.7 | 16.7 | 15.0 | 15.0 | 14.5 |
Table II
| Model year | Combined standard | 2-wheel drive light trucks | 4-wheel drive light trucks | |||
|---|---|---|---|---|---|---|
| Captive imports | Others | Captive imports | Others | Captive imports | Others | |
| 1982 | 17.5 | 17.5 | 18.0 | 18.0 | 16.0 | 16.0 |
| 1983 | 19.0 | 19.0 | 19.5 | 19.5 | 17.5 | 17.5 |
| 1984 | 20.0 | 20.0 | 20.3 | 20.3 | 18.5 | 18.5 |
| 1985 | 19.5 | 19.5 | 19.7 | 19.7 | 18.9 | 18.9 |
| 1986 | 20.0 | 20.0 | 20.5 | 20.5 | 19.5 | 19.5 |
| 1987 | 20.5 | 20.5 | 21.0 | 21.0 | 19.5 | 19.5 |
| 1988 | 20.5 | 20.5 | 21.0 | 21.0 | 19.5 | 19.5 |
| 1989 | 20.5 | 20.5 | 21.5 | 21.5 | 19.0 | 19.0 |
| 1990 | 20.0 | 20.0 | 20.5 | 20.5 | 19.0 | 19.0 |
| 1991 | 20.2 | 20.2 | 20.7 | 20.7 | 19.1 | 19.1 |
Table III
| Model year | Combined standard | |
|---|---|---|
| Captive imports | Other | |
| 1992 | 20.2 | 20.2 |
| 1993 | 20.4 | 20.4 |
| 1994 | 20.5 | 20.5 |
| 1995 | 20.6 | 20.6 |
Table IV
| Model year | Standard |
|---|---|
| 2001 | 20.7 |
| 2002 | 20.7 |
| 2003 | 20.7 |
| 2004 | 20.7 |
| 2005 | 21.0 |
| 2006 | 21.6 |
| 2007 | 22.2 |
| 2008 | 22.5 |
| 2009 | 23.1 |
| 2010 | 23.5 |
Figure 1:
Table V – Parameters for the Light Truck Fuel Economy Targets for MYs 2008-2011
| Model year | Parameters | |||
|---|---|---|---|---|
2) | ||||
| 2008 | 28.56 | 19.99 | 49.30 | 5.58 |
| 2009 | 30.07 | 20.87 | 48.00 | 5.81 |
| 2010 | 29.96 | 21.20 | 48.49 | 5.50 |
| 2011 | 27.10 | 21.10 | 56.41 | 4.28 |
Figure 2:
CAFE
Subscript i is a designation of multiple groups of light trucks, where each group’s designation, i.e., i = 1, 2, 3, etc., represents light trucks that share a unique model type and footprint within the applicable fleet.
Production
TARGET
Figure 3:
Table VI – Parameters for the Light Truck Fuel Economy Targets for MYs 2012-2016
| Model year | Parameters | |||
|---|---|---|---|---|
2) | ||||
| 2012 | 29.82 | 22.27 | 0.0004546 | 0.014900 |
| 2013 | 30.67 | 22.74 | 0.0004546 | 0.013968 |
| 2014 | 31.38 | 23.13 | 0.0004546 | 0.013225 |
| 2015 | 32.72 | 23.85 | 0.0004546 | 0.011920 |
| 2016 | 34.42 | 24.74 | 0.0004546 | 0.010413 |
Figure 4:
Table VII – Parameters for the Light Truck Fuel Economy Targets for MYs 2017-2026
| Model year | Parameters | |||||||
|---|---|---|---|---|---|---|---|---|
(mpg) | (mpg) | (gal/mi/ft 2) | (gal/mi) | (mpg) | (mpg) | (gal/mi/ft 2) | (gal/mi) | |
| 2017 | 36.26 | 25.09 | 0.0005484 | 0.005097 | 35.10 | 25.09 | 0.0004546 | 0.009851 |
| 2018 | 37.36 | 25.20 | 0.0005358 | 0.004797 | 35.31 | 25.20 | 0.0004546 | 0.009682 |
| 2019 | 38.16 | 25.25 | 0.0005265 | 0.004623 | 35.41 | 25.25 | 0.0004546 | 0.009603 |
| 2020 | 39.11 | 25.25 | 0.0005140 | 0.004494 | 35.41 | 25.25 | 0.0004546 | 0.009603 |
| 2021 | 39.71 | 25.63 | 0.000506 | 0.00443 | NA | NA | NA | NA |
| 2022 | 40.31 | 26.02 | 0.000499 | 0.00436 | NA | NA | NA | NA |
| 2023 | 40.93 | 26.42 | 0.000491 | 0.00429 | NA | NA | NA | NA |
| 2024 | 41.55 | 26.82 | 0.000484 | 0.00423 | NA | NA | NA | NA |
| 2025 | 42.18 | 27.23 | 0.000477 | 0.00417 | NA | NA | NA | NA |
| 2026 | 42.82 | 27.64 | 0.000469 | 0.00410 | NA | NA | NA | NA |
(b)(1) For model year 1979, each manufacturer may:
(i) Combine its 2- and 4-wheel drive light trucks and comply with the average fuel economy standard in paragraph (a) of this section for 2-wheel drive light trucks; or
(ii) Comply separately with the two standards specified in paragraph (a) of this section.
(2) For model year 1979, the standard specified in paragraph (a) of this section for 4-wheel drive light trucks applies only to 4-wheel drive general utility vehicles. All other 4-wheel drive light trucks in that model year shall be included in the 2-wheel drive category for compliance purposes.
(c) For model years 1980 and 1981, manufacturers of limited product line light trucks may:
(1) Comply with the separate standard for limited product line light trucks, or
(2) Comply with the other standards specified in § 533.5(a), as applicable.
(d) For model years 1982-91, each manufacture may:
(1) Combine its 2- and 4-wheel drive light trucks (segregating captive import and other light trucks) and comply with the combined average fuel economy standard specified in paragraph (a) of this section; or
(2) Comply separately with the 2-wheel drive standards and the 4-wheel drive standards (segregating captive import and other light trucks) specified in paragraph (a) of this section.
(e) For model year 1992, each manufacturer shall comply with the average fuel economy standard specified in paragraph (a) of this section (segregating captive import and other light trucks).
(f) For each model year 1996 and thereafter, each manufacturer shall combine its captive imports with its other light trucks and comply with the fleet average fuel economy standard in paragraph (a) of this section.
(g) For model years 2008-2010, at a manufacturer’s option, a manufacturer’s light truck fleet may comply with the fuel economy standard calculated for each model year according to Figure 1 and the appropriate values in Table V, with said option being irrevocably chosen for that model year and reported as specified in § 537.8.
(h) For model year 2011, a manufacturer’s light truck fleet shall comply with the fleet average fuel economy standard calculated for that model year according to Figure 1 and the appropriate values in Table V.
(i) For model years 2012-2016, a manufacturer’s light truck fleet shall comply with the fleet average fuel economy standard calculated for that model year according to Figures 2 and 3 and the appropriate values in Table VI.
(j) For model years 2017-2025, a manufacturer’s light truck fleet shall comply with the fleet average fuel economy standard calculated for that model year according to Figures 2 and 4 and the appropriate values in Table VII.
§ 533.6 Measurement and calculation procedures.
(a) Any reference to a class of light trucks manufactured by a manufacturer shall be deemed –
(1) To include all light trucks in that class manufactured by persons who control, are controlled by, or are under common control with, such manufacturer; and
(2) To exclude all light trucks in that class manufactured (within the meaning of paragraph (a)(1) of this section) during a model year by such manufacturer which are exported prior to the expiration of 30 days following the end of such model year.
(b) The fleet average fuel economy performance of all light trucks that are manufactured by a manufacturer in a model year shall be determined in accordance with procedures established by the Administrator of the Environmental Protection Agency under 49 U.S.C. 32904 and set forth in 40 CFR part 600. For model years 2017 to 2026, a manufacturer is eligible to increase the fuel economy performance of light trucks in accordance with procedures established by the EPA set forth in 40 CFR part 600, subpart F, including any adjustments to fuel economy the EPA allows, such as for fuel consumption improvements related to air conditioning efficiency, off-cycle technologies, and hybridization and other performance-based technologies for full-size pickup trucks that meet the requirements specified in 40 CFR 86.1803.
(1) A manufacturer that seeks to increase its fleet average fuel economy performance through the use of technologies that improve the efficiency of air conditioning systems must follow the requirements in 40 CFR 86.1868-12. Fuel consumption improvement values resulting from the use of those air conditioning systems must be determined in accordance with 40 CFR 600.510-12(c)(3)(i).
(2) A manufacturer that seeks to increase its fleet average fuel economy performance through the use of off-cycle technologies must follow the requirements in 40 CFR 86.1869-12. A manufacturer is eligible to gain fuel consumption improvements for predefined off-cycle technologies in accordance with 40 CFR 86.1869-12(b) or for technologies tested using the EPA’s 5-cycle methodology in accordance with 40 CFR 86.1869-12(c). The fuel consumption improvement is determined in accordance with 40 CFR 600.510-12(c)(3)(ii).
(3) The eligibility of a manufacturer to increase its fuel economy using hybridized and other performance-based technologies for full-size pickup trucks must follow 40 CFR 86.1870-12 and the fuel consumption improvement of these full-size pickup truck technologies must be determined in accordance with 40 CFR 600.510-12(c)(3)(iii).
(c) A manufacturer is eligible to increase its fuel economy performance through use of an off-cycle technology requiring an application request made to the EPA in accordance with 40 CFR 86.1869-12(d). The request must be approved by the EPA in consultation with NHTSA. To expedite NHTSA’s consultation with the EPA, a manufacturer shall concurrently submit its application to NHTSA if the manufacturer is seeking off-cycle fuel economy improvement values under the CAFE program for those technologies. For off-cycle technologies that are covered under 40 CFR 86.1869-12(d), NHTSA will consult with the EPA regarding NHTSA’s evaluation of the specific off-cycle technology to ensure its impact on fuel economy and the suitability of using the off-cycle technology to adjust the fuel economy performance. NHTSA will provide its views on the suitability of the technology for that purpose to the EPA. NHTSA’s evaluation and review will consider:
(1) Whether the technology has a direct impact upon improving fuel economy performance;
(2) Whether the technology is related to crash-avoidance technologies, safety critical systems or systems affecting safety-critical functions, or technologies designed for the purpose of reducing the frequency of vehicle crashes;
(3) Information from any assessments conducted by the EPA related to the application, the technology and/or related technologies; and
(4) Any other relevant factors.
§ 533.7 Preemption.
(a) General. When an average fuel economy standard prescribed under this chapter is in effect, a State or a political subdivision of a State may not adopt or enforce a law or regulation related to fuel economy standards or average fuel economy standards for automobiles covered by an average fuel economy standard under this chapter.
(b) Requirements must be identical. When a requirement under section 32908 of title 49 of the United States Code is in effect, a State or a political subdivision of a State may adopt or enforce a law or regulation on disclosure of fuel economy or fuel operating costs for an automobile covered by section 32908 only if the law or regulation is identical to that requirement.
(c) State and political subdivision automobiles. A State or a political subdivision of a State may prescribe requirements for fuel economy for automobiles obtained for its own use.
Appendix A to Part 533 – Example of Calculating Compliance Under § 533.5(i )
Assume a hypothetical manufacturer (Manufacturer X) produces a fleet of light trucks in MY 2012 as follows:
Appendix A Table I
| Model type | Description | Actual measured fuel economy (mpg) | Volume | |||
|---|---|---|---|---|---|---|
| Group | Carline name | Basic engine (L) | Transmission class | |||
| 1 | Pickup A 2WD | 4 | A5 | Reg cab, MB | 27.1 | 800 |
| 2 | Pickup B 2WD | 4 | M5 | Reg cab, MB | 27.6 | 200 |
| 3 | Pickup C 2WD | 4.5 | A5 | Reg cab, LB | 23.9 | 300 |
| 4 | Pickup C 2WD | 4 | M5 | Ext cab, MB | 23.7 | 400 |
| 5 | Pickup C 4WD | 4.5 | A5 | Crew cab, SB | 23.5 | 400 |
| 6 | Pickup D 2WD | 4.5 | A6 | Crew cab, SB | 23.6 | 400 |
| 7 | Pickup E 2WD | 5 | A6 | Ext cab, LB | 22.7 | 500 |
| 8 | Pickup E 2WD | 5 | A6 | Crew cab, MB | 22.5 | 500 |
| 9 | Pickup F 2WD | 4.5 | A5 | Reg cab, LB | 22.5 | 1,600 |
| 10 | Pickup F 4WD | 4.5 | A5 | Ext cab, MB | 22.3 | 800 |
| 11 | Pickup F 4WD | 4.5 | A5 | Crew cab, SB | 22.2 | 800 |
| Total | 6,700 | |||||
Manufacturer X calculates a fuel economy target standard for each unique model type and footprint combination.
Appendix A Table II
| Model type | Description | Base tire size | Wheelbase (inches) | Track width F&R average (inches) | Footprint (ft 2) | Volume | Fuel economy target standard (mpg) | |||
|---|---|---|---|---|---|---|---|---|---|---|
| Group | Carline name | Basic engine (L) | Transmission class | |||||||
| 1 | Pickup A 2WD | 4 | A5 | Reg cab, MB | 235/75R15 | 100.0 | 68.8 | 47.8 | 800 | 27.30 |
| 2 | Pickup B 2WD | 4 | M5 | Reg cab, MB | 235/75R15 | 100.0 | 68.2 | 47.4 | 200 | 27.44 |
| 3 | Pickup C 2WD | 4.5 | A5 | Reg cab, LB | 255/70R17 | 125.0 | 68.8 | 59.7 | 300 | 23.79 |
| 4 | Pickup C 2WD | 4 | M5 | Ext cab, MB | 255/70R17 | 125.0 | 68.8 | 59.7 | 400 | 23.79 |
| 5 | Pickup C 4WD | 4.5 | A5 | Crew cab, SB | 275/70R17 | 150.0 | 69.0 | 71.9 | 400 | 22.27 |
| 6 | Pickup D 2WD | 4.5 | A6 | Crew cab, SB | 255/70R17 | 125.0 | 68.8 | 59.7 | 400 | 23.79 |
| 7 | Pickup E 2WD | 5 | A6 | Ext cab, LB | 255/70R17 | 125.0 | 68.8 | 59.7 | 500 | 23.79 |
| 8 | Pickup E 2WD | 5 | A6 | Crew cab, MB | 285/70R17 | 125.0 | 69.2 | 60.1 | 500 | 23.68 |
| 9 | Pickup F 2WD | 4.5 | A5 | Reg cab, LB | 255/70R17 | 125.0 | 68.9 | 59.8 | 1,600 | 23.76 |
| 10 | Pickup F 4WD | 4.5 | A5 | Ext cab, MB | 275/70R17 | 150.0 | 69.0 | 71.9 | 800 | 22.27 |
| 11 | Pickup F 4WD | 4.5 | A5 | Crew cab, SB | 285/70R17 | 150.0 | 69.2 | 72.1 | 800 | 22.27 |
| Total | 6,700 | |||||||||
Since the actual fleet average fuel economy performance of Manufacturer X’s fleet is 23.3 mpg, as compared to its required fleet fuel economy standard of 23.7 mpg, Manufacturer X did not comply with the CAFE standard for MY 2012 as set forth in § 533.5(i).
Appendix B to Part 533 – Preemption
(a) Express Preemption:
(1) To the extent that any law or regulation of a State or a political subdivision of a State regulates or prohibits tailpipe carbon dioxide emissions from automobiles, such a law or regulation relates to average fuel economy standards within the meaning of 49 U.S.C. 32919.
(A) Automobile fuel economy is directly and substantially related to automobile tailpipe emissions of carbon dioxide;
(B) Carbon dioxide is the natural by-product of automobile fuel consumption;
(C) The most significant and controlling factor in making the measurements necessary to determine the compliance of automobiles with the fuel economy standards in this part is their rate of tailpipe carbon dioxide emissions;
(D) Almost all technologically feasible reduction of tailpipe emissions of carbon dioxide is achievable through improving fuel economy, thereby reducing both the consumption of fuel and the creation and emission of carbon dioxide;
(E) Accordingly, as a practical matter, regulating fuel economy controls the amount of tailpipe emissions of carbon dioxide, and regulating the tailpipe emissions of carbon dioxide controls fuel economy.
(2) As a law or regulation of a State or a political subdivision of a State related to fuel economy standards, any state law or regulation regulating or prohibiting tailpipe carbon dioxide emissions from automobiles is expressly preempted under 49 U.S.C. 32919.
(3) A law or regulation of a State or a political subdivision of a State having the direct or substantial effect of regulating or prohibiting tailpipe carbon dioxide emissions from automobiles or automobile fuel economy is a law or regulation related to fuel economy standards and expressly preempted under 49 U.S.C. 32919.
(b) Implied Preemption:
(1) A law or regulation of a State or a political subdivision of a State regulating tailpipe carbon dioxide emissions from automobiles, particularly a law or regulation that is not attribute-based and does not separately regulate passenger cars and light trucks, conflicts with:
(A) The fuel economy standards in this part;
(B) The judgments made by the agency in establishing those standards; and
(C) The achievement of the objectives of the statute (49 U.S.C. Chapter 329) under which those standards were established, including objectives relating to reducing fuel consumption in a manner and to the extent consistent with manufacturer flexibility, consumer choice, and automobile safety.
(2) Any law or regulation of a State or a political subdivision of a State regulating or prohibiting tailpipe carbon dioxide emissions from automobiles is impliedly preempted under 49 U.S.C. Chapter 329.
(3) A law or regulation of a State or a political subdivision of a State having the direct or substantial effect of regulating or prohibiting tailpipe carbon dioxide emissions from automobiles or automobile fuel economy is impliedly preempted under 49 U.S.C. Chapter 329.
PART 534 – RIGHTS AND RESPONSIBILITIES OF MANUFACTURERS IN THE CONTEXT OF CHANGES IN CORPORATE RELATIONSHIPS
§ 534.1 Scope.
This part defines the rights and responsibilities of manufacturers in the context of changes in corporate relationships for purposes of the fuel economy and fuel consumption programs established by 49 U.S.C. chapter 329.
§ 534.2 Applicability.
This part applies to manufacturers of passenger automobiles, light trucks, heavy-duty vehicles and the engines manufactured for use in heavy-duty vehicles as defined in 49 CFR part 523.
§ 534.3 Definitions.
(a) Statutory definitions and terms. All terms used in 49 U.S.C. Chapter 329 are used according to their statutory meaning.
(b) As used in this part –
“Control relationship” means the relationship that exists between manufacturers that control, are controlled by, or are under common control with, one or more other manufacturers.
“Predecessor” means a manufacturer whose rights have been vested in and whose burdens have been assumed by another manufacturer.
“Successor” means a manufacturer that has become vested with the rights and assumed the burdens of another manufacturer.
§ 534.4 Successors and predecessors.
For purposes of the fuel economy and fuel consumption programs, “manufacturer” includes “predecessors” and “successors” to the extent specified in this section.
(a) Successors are responsible for any civil penalties that arise out of fuel economy and fuel consumption shortfalls incurred and not satisfied by predecessors.
(b) If one manufacturer has become the successor of another manufacturer during a model year, all of the vehicles or engines produced by those manufacturers during the model year are treated as though they were manufactured by the same manufacturer. A manufacturer is considered to have become the successor of another manufacturer during a model year if it is the successor on September 30 of the corresponding calendar year and was not the successor for the preceding model year.
(c)(1) For passenger automobiles and light trucks, fuel economy credits earned by a predecessor before or during model year 2007 may be used by a successor, subject to the availability of credits and the general three-year restriction on carrying credits forward and the general three-year restriction on carrying credits backward. Fuel economy credits earned by a predecessor after model year 2007 may be used by a successor, subject to the availability of credits and the general five-year restriction on carrying credits forward and the general three-year restriction on carrying credits backward.
(2) For heavy-duty vehicles and heavy-duty vehicle engines, available fuel consumption credits earned by a predecessor after model year 2015, and in model years 2013, 2014 and 2015 if a manufacturer voluntarily complies in those model years, may be used by a successor, subject to the availability of credits and the general five-year restriction on carrying credits forward and the general three year restriction on carrying credits backward.
(d)(1) For passenger automobiles and light trucks, fuel economy credits earned by a successor before or during model year 2007 may be used to offset a predecessor’s shortfall, subject to the availability of credits and the general three-year restriction on carrying credits forward and the general three-year restriction on carrying credits backward. Credits earned by a successor after model year 2007 may be used to offset a predecessor’s shortfall, subject to the availability of credits and the general five-year restriction on carrying credits forward and the general three-year restriction on carrying credits backward.
(2) For heavy-duty vehicles and heavy-duty vehicle engines, available credits earned by a successor after model year 2015, and in model years 2013, 2014 and 2015, if a manufacturer voluntarily complies in those model years, may be used by a predecessor subject to the availability of credits and the general five-year restriction on carrying credits forward and the general three year restriction on carrying credits backward.
§ 534.5 Manufacturers within control relationships.
(a) If a civil penalty arises out of a fuel economy or fuel consumption shortfall incurred by a group of manufacturers within a control relationship, each manufacturer within that group is jointly and severally liable for the civil penalty.
(b) A manufacturer is considered to be within a control relationship for an entire model year if and only if it is within that relationship on September 30 of the calendar year in which the model year ends.
(c)(1) For passenger automobiles and light trucks, fuel economy credits of a manufacturer within a control relationship may be used by the group of manufacturers within the control relationship to offset shortfalls, subject to the agreement of the other manufacturers, the availability of the credits, and the general three year restriction on carrying credits forward or backward prior to or during model year 2007, or the general five year restriction on carrying credits forward and the general three-year restriction on carrying credits backward after model year 2007.
(2) For heavy-duty vehicles and heavy-duty engines, credits of a manufacturer within a control relationship may be used by the group of manufacturers within the control relationship to offset shortfalls, subject to the agreement of the other manufacturers, the availability of the credits, the general 5-year restriction on carrying credits forward, and the general three year restriction on offsetting past credit shortfalls as specified in the requirements of 49 CFR 535.7.
(d)(1) For passenger automobiles and light trucks, if a manufacturer within a group of manufacturers is sold or otherwise spun off so that it is no longer within that control relationship, the manufacturer may use credits that were earned by the group of manufacturers within the control relationship while the manufacturer was within that relationship, subject to the agreement of the other manufacturers, the availability of the credits, and the general three-year restriction on carrying credits forward or backward prior to or during model year 2007, or the general five-year restriction on carrying credits forward and the general three-year restriction on carrying credits backward after model year 2007.
(2) For heavy-duty vehicles and heavy-duty vehicle engines, if a manufacturer within a group of manufacturers is sold or otherwise spun off so that it is no longer within that control relationship, the manufacturer may use credits that were earned by the group of manufacturers within the control relationship while the manufacturer was within that relationship, subject to the agreement of the other manufacturers, the availability of the credits, the general 5-year restriction on carrying credits forward, and the general three year restriction on offsetting past credit shortfalls as specified in the requirements of 49 CFR 535.7.
(e) Agreements among manufacturers in a control relationship related to the allocation of credits or liabilities addressed by this section shall be filed with the agency within 60 days of the end of each model year in the same form as specified in section 534.6. The manufacturers may seek confidential treatment for information provided in the certified report in accordance with 49 CFR part 512.
§ 534.6 Reporting corporate transactions.
Manufacturers who have entered into written contracts transferring rights and responsibilities such that a different manufacturer owns the controlling stock or exerts control over the design, production or sale of automobiles or heavy-duty vehicles to which Corporate Average Fuel Economy or Fuel Consumption standards apply shall report the contract to the agency as follows:
(a) The manufacturers must file a certified report with the agency affirmatively stating that the contract transfers rights and responsibilities between them such that one manufacturer has assumed a controlling stock ownership or control over the design, production or sale of vehicles. The report must also specify the first full model year to which the transaction will apply.
(b) Each report shall –
(1) Identify each manufacturer;
(2) State the full name, title, and address of the official responsible for preparing the report;
(3) Identify the production year being reported on;
(4) Be written in the English language; and
(5) Be submitted to: Administrator, National Highway Traffic Safety Administration, 1200 New Jersey Avenue, SE., Washington, DC 20590.
(c) The manufacturers may seek confidential treatment for information provided in the certified report in accordance with 49 CFR part 512.
§ 534.7 Situations not directly addressed by this part.
To the extent that this part does not directly address an issue concerning the rights and responsibilities of manufacturers in the context of a change in corporate relationships, the agency will make determinations based on interpretation of the statute and the principles reflected in the part.
(a) Vehicles and engines built by multiple manufacturers can share responsibility for complying with fuel consumption standards in 49 CFR part 535, by following the EPA requirements in 40 CFR 1037.620 and by sending a joint agreement between the parties to EPA and NHTSA before submitting any certificates of conformity for the applicable vehicles or engines in accordance with 40 CFR part 1036, subpart C, and 40 CFR part 1037, subpart C.
(1) Each joint agreement must –
(i) Define how each manufacturer shares responsibility for the planned vehicles or engines.
(ii) Specify which manufacturer(s) will be responsible for the EPA certificates of conformity;
(iii) Describe the planned vehicles and engines in terms of the model types, production volumes, and model years (if known);
(iv) Describe which manufacturer(s) have engineering and design control and sale distribution ownership over the vehicles and/or engines; and
(v) Include signatures from all parties involved in the shared corporate relationship.
(2) After defining the shared relationship between the manufacturers, any contractual changes must be notified to EPA and NHTSA before the next model year’s production of the applicable vehicles or engines begins.
(3) Multiple manufacturers must designate the same shared responsibility for complying with fuel consumption standards as selected for GHG standards unless otherwise allowed by EPA and NHTSA.
(b) NHTSA and EPA reserve the right to reject the joint agreement.
PART 535 – MEDIUM- AND HEAVY-DUTY VEHICLE FUEL EFFICIENCY PROGRAM
§ 535.1 Scope.
This part establishes fuel consumption standards pursuant to 49 U.S.C. 32902(k) for work trucks and commercial medium- and heavy-duty on-highway vehicles, including trailers (hereafter referenced as heavy-duty vehicles), and engines manufactured for sale in the United States. This part establishes a credit program manufacturers may use to comply with standards and requirements for manufacturers to provide reports to the National Highway Traffic Safety Administration regarding their efforts to reduce the fuel consumption of heavy-duty vehicles and engines.
§ 535.2 Purpose.
The purpose of this part is to reduce the fuel consumption of new heavy-duty vehicles and engines by establishing maximum levels for fuel consumption standards while providing a flexible credit program to assist manufacturers in complying with standards.
§ 535.3 Applicability.
(a) This part applies to manufacturers that produce complete and incomplete heavy-duty vehicles as defined in 49 CFR part 523, and to the manufacturers of all heavy-duty engines manufactured for use in the applicable vehicles for each given model year.
(b) This part also applies to alterers, final stage manufacturers, and intermediate manufacturers producing vehicles and engines or assembling motor vehicles or motor vehicle equipment under special conditions. Manufacturers comply with this part by following the special conditions in 40 CFR 1037.620, 1037.621, and 1037.622 in which EPA allows manufacturer to:
(1) Share responsibility for the vehicles they produce. Manufacturers sharing responsibility for complying with emissions and fuel consumption standards must submit to the agencies a joint agreement as specified in 49 CFR 534.8(a);
(2) Have certificate holders sell or ship vehicles that are missing certain emission-related components to be installed by secondary vehicle manufacturers;
(3) Ship partially complete vehicles to secondary manufacturers;
(4) Build electric vehicles; and
(5) Build alternative fueled vehicles from all types of heavy duty engine conversions. The conversion manufacturer must:
(i) Install alternative fuel conversion systems into vehicles acquired from vehicle manufacturers prior to first retail sale or prior to the vehicle’s introduction into interstate commerce.
(ii) Be designated by the vehicle manufacturer and EPA to be the certificate holder.
(iii) Omit alternative fueled vehicles from compliance with vehicle fuel consumption standards, if –
(A) Excluded from EPA emissions standards; and
(B) A reasonable technical basis exist that the modified vehicle continues to meet emissions and fuel consumption vehicle standards.
(c) Vehicle and engine manufacturers that must comply with this part include manufacturers required to have approved certificates of conformity from EPA as specified in 40 CFR parts 86, 1036, and 1037.
(d) The following heavy-duty vehicles and engines are excluded from the requirements of this part:
(1) Vehicles and engines manufactured prior to January 1, 2014, unless certified early under NHTSA’s voluntary provisions in § 535.5.
(2) Medium-duty passenger vehicles and other vehicles subject to the light-duty corporate average fuel economy standards in 49 CFR parts 531 and 533.
(3) Recreational vehicles, including motor homes manufactured before January 1, 2021, except those produced by manufacturers voluntarily complying with NHTSA’s early vocational standards for model years 2013 through 2020.
(4) Aircraft vehicles meeting the definition of “motor vehicle”. For example, this would include certain convertible aircraft that can be adjusted to operate on public roads.
(5) Heavy-duty trailers as defined in 49 CFR 523.10 meeting one or more of the following criteria are excluded from trailer standards in § 535.5(e):
(i) Trailers with four or more axles and trailers less than 35 feet long with three axles (i.e., trailers intended for hauling very heavy loads).
(ii) Trailers intended for temporary or permanent residence, office space, or other work space, such as campers, mobile homes, and carnival trailers.
(iii) Trailers with a gap of at least 120 inches between adjacent axle centerlines. In the case of adjustable axle spacing, this refers to the closest possible axle positioning.
(iv) Trailers built before January 1, 2021, except those trailers built by manufacturers after January 1, 2018, and voluntarily complying with NHTSA’s early trailer standards for model years 2018 through 2020.
(v) Note that the definition of “heavy-duty trailer” in 49 CFR 523.10 excludes equipment that serves similar purposes but are not intended to be pulled by a tractor. This exclusion applies to such equipment whether or not they are known commercially as trailers. For example, any equipment pulled by a heavy-duty vehicle with a pintle hook or hitch instead of a fifth wheel does not qualify as a trailer under this part.
(6) Engines installed in heavy-duty vehicles that are not used to propel vehicles. Note, this includes engines used to indirectly propel vehicles (such as electrical generator engines that power to batteries for propulsion).
(7) The provisions of this part do not apply to engines that are not internal combustion engines. For example, the provisions of this part do not apply to fuel cells. Note that gas turbine engines are internal combustion engines.
(e) The following heavy-duty vehicles and engines are exempted from the requirements of this part:
(1) Off-road vehicles. Vehicle manufacturers producing vehicles intended for off-road may exempt vehicles without requesting approval from the agencies subject to the criteria in § 535.5(b)(9)(i) and 40 CFR 1037.631(a). If unusual circumstances exist and a manufacturer is uncertain as to whether its vehicles qualify, the manufacturer should ask for a preliminary determination from the agencies before submitting its application for certification in accordance with 40 CFR 1037.205 for the applicable vehicles. Send the request with supporting information to EPA and the agencies will coordinate in making a preliminary determination as specified in 40 CFR 1037.210. These decisions are considered to be preliminary approvals and subject to final review and approval.
(2) Small business manufacturers. (i) For Phase 1, small business manufacturers are exempted from the vehicle and engine standards of § 535.5, but must comply with the reporting requirements of § 535.8(g).
(ii) For Phase 2, fuel consumption standards apply on a delayed schedule for manufacturers meeting the small business criteria specified in 13 CFR 121.201 and in 40 CFR 86.1819-14(k)(5), 40 CFR 1036.150, and 40 CFR 1037.150. Qualifying manufacturers of truck tractors, vocational vehicles, heavy duty pickups and vans, and engines are not subject to the fuel consumption standards for vehicles built before January 1, 2022 and engines (such as those engines built by small alternative fuel engine converters) with a date of manufacturer on or after November 14, 2011 and before January 1, 2022. Qualifying manufacturers may choose to voluntarily comply early.
(iii) Small business manufacturers producing vehicles and engines that run on any fuel other than gasoline, E85, or diesel fuel meeting the criteria specified in 13 CFR 121.201 and in 40 CFR 86.1819-14(k)(5), 40 CFR 1036.150, and 40 CFR 1037.150 may delay complying with every new mandatory standard under this part by one model year.
(3) Transitional allowances for trailers. Through model year 2026, trailer manufacturers may calculate a number of trailers that are exempt from the fuel consumption standards of this part. Calculate the number of exempt box vans in a given model year by multiplying the manufacturer’s total U.S.-directed production volume of certified box vans by 0.20 and rounding to the nearest whole number; however, in no case may the number of exempted box vans be greater than 350 units in any given model year. Repeat this calculation to determine the number of non-box trailers, up to 250 annual units, that are exempt from standards and certification requirements. Manufacturers perform the calculation based on their projected production volumes in the first year that standards apply; in later years, use actual production volumes from the preceding model year. Manufacturers must include these calculated values and the production volumes of exempt trailers in their annual production reports required under § 535.8(g)(12).
(4) Engines for specialty vehicles. Engines certified to the alternative standards specified in 40 CFR 86.007-11 and 86.008-10 for use in specialty vehicles as described in 40 CFR 1037.605. Compliance with the vehicle provisions in 40 CFR 1037.605 satisfies compliance for NHTSA under this part.
(f) For model year 2021 and later, vocational vehicle manufacturers building custom chassis vehicles (e.g. emergency vehicles) may be exempted from standards in § 535.5(b)(4) and may comply with alternative fuel consumption standards as specified in § 535.5(b)(6). Manufacturers complying with alternative fuel consumption standards in § 535.5(b)(6) are restricted in using fuel consumption credits as specified in § 535.7(c).
(g) The fuel consumption standards in some cases apply differently for spark-ignition and compression-ignition engines or vehicles as specified in 40 CFR parts 1036 and 1037. Engine requirements are similarly differentiated by engine type and by primary intended service class, as described in 40 CFR 1036.140.
(h) NHTSA may exclude or exempt vehicles and engines under special conditions allowed by EPA in accordance with 40 CFR parts 85, 86, 1036, 1037, 1039, and 1068. Manufacturers should consult the agencies if uncertain how to apply any EPA provision under the NHTSA fuel consumption program. It is recommend that manufacturers seek clarification before producing a vehicle. Upon notification by EPA of a fraudulent use of an exemption, NHTSA reserves that right to suspend or revoke any exemption or exclusion.
(i) In cases where there are differences between the application of this part and the corresponding EPA program regarding whether a vehicle is regulated or not (such as due to differences in applicability resulting from differing agency definitions, etc.), manufacturers should contact the agencies to identify these vehicles and assess the applicability of the agencies’ standards. The agencies will provide guidance on how the vehicles can comply. Manufacturers are required to identify these vehicles in their final reports submitted in accordance with § 535.8.
§ 535.4 Definitions.
The terms manufacture and manufacturer are used as defined in section 501 of the Act and the terms commercial medium-duty and heavy-duty on highway vehicle, fuel and work truck are used as defined in 49 U.S.C. 32901. See 49 CFR 523.2 for general definitions related to NHTSA’s fuel efficiency programs.
Act means the Motor Vehicle Information and Cost Savings Act, as amended by Pub. L. 94-163 and 96-425.
Administrator means the Administrator of the National Highway Traffic Safety Administration (NHTSA) or the Administrator’s delegate.
Advanced technology means vehicle technology under this fuel consumption program in §§ 535.6 and 535.7 and by EPA under 40 CFR 86.1819-14(d)(7), 1036.615, or 1037.615.
Alterers means a manufacturer that modifies an altered vehicle as defined in 49 CFR 567.3
Alternative fuel conversion has the meaning given for clean alternative fuel conversion in 40 CFR 85.502.
A to B testing has the meaning given in 40 CFR 1037.801.
Automated manual transmission has the meaning given in 40 CFR 1037.801.
Automatic tire inflation system has the meaning given in 40 CFR 1037.801.
Automatic transmission (AT) has the meaning given in 40 CFR 1037.801.
Auxiliary power unit has the meaning given in 40 CFR 1037.801.
Averaging set means, a set of engines or vehicles in which fuel consumption credits may be exchanged. Credits generated by one engine or vehicle family may only be used by other respective engine or vehicle families in the same averaging set as specified in § 535.7 . Note that an averaging set may comprise more than one regulatory subcategory. The averaging sets for this HD program are defined as follows:
(1) Heavy-duty pickup trucks and vans.
(2) Light heavy-duty (LHD) vehicles.
(3) Medium heavy-duty (MHD) vehicles.
(4) Heavy heavy-duty (HHD) vehicles.
(5) Light heavy-duty engines subject to compression-ignition standards.
(6) Medium heavy-duty engines subject to compression-ignition standards.
(7) Heavy heavy-duty engines subject to compression-ignition standards.
(8) Engines subject to spark-ignition standards.
(9) Long trailers.
(10) Short trailers.
(11) Vehicle types certifying to optional custom chassis standards as specified in § 535.5(b)(6) form separate averaging sets for each vehicle type as specified in § 535.7(c).
Axle ratio or Drive axle ratio, k
Basic vehicle frontal area has the meaning given in 40 CFR 1037.801.
Cab-complete vehicle has the meaning given in 49 CFR 523.2.
Carryover has the meaning given in 40 CFR 1037.801.
Certificate holder means the manufacturer who holds the certificate of conformity for the vehicle or engine and that assigns the model year based on the date when its manufacturing operations are completed relative to its annual model year period.
Certificate of Conformity means an approval document granted by EPA to a manufacturer that submits an application for a vehicle or engine emissions family in 40 CFR 1036.205 and 1037.205. A certificate of conformity is valid from the indicated effective date until December 31 of the model year for which it is issued. The certificate must be renewed annually for any vehicle a manufacturer continues to produce.
Certification has the meaning given in 40 CFR 1037.801.
Certified emission level has the meaning given in 40 CFR 1036.801.
Chassis-cab means the incomplete part of a vehicle that includes a frame, a completed occupant compartment and that requires only the addition of cargo-carrying, work-performing, or load-bearing components to perform its intended functions.
Chief Counsel means the NHTSA Chief Counsel, or his or her designee.
Class means relating to GVWR classes for vehicles other than trailers, as follows:
(1) Class 2b vehicles are vehicles with a gross vehicle weight rating (GVWR) ranging from 8,501 to 10,000 pounds.
(2) Class 3 through Class 8 vehicles are vehicles with a gross vehicle weight rating (GVWR) of 10,001 pounds or more as defined in 49 CFR 565.15.
Complete sister vehicle is a complete vehicle of the same configuration as a cab-complete vehicle.
Complete vehicle has the meaning given in 49 CFR part 523.
Compression-ignition (CI) means relating to a type of reciprocating, internal-combustion engine, such as a diesel engine, that is not a spark-ignition engine. Note, in accordance with 40 CFR 1036.1, gas turbine engines and other engines not meeting the definition of compression-ignition are deemed to be compression-ignition engines for complying with fuel consumption standards.
Configuration means a subclassification within a test group for passenger cars, light trucks and medium-duty passenger vehicles and heavy-duty pickup trucks and vans which is based on basic engine, engine code, transmission type and gear ratios, and final drive ratio.
Container chassis trailer has the same meaning as container chassis in 40 CFR 1037.801.
Curb weight has the meaning given in 40 CFR 86.1803.
Custom chassis vehicle means a vocational vehicle that is a motor home, school bus, refuse hauler, concrete mixer, emergency vehicle, mixed-use vehicle or other buses that are not school buses or motor coaches. These vehicle types are defined in 49 CFR 523.3. A “mixed-use vehicle” is one that meets at least one of the criteria specified in 40 CFR 1037.631(a)(1) or at least one of the criteria in 40 CFR 1037.631(a)(2), but not both.
Date of manufacture means the date on which the certifying vehicle manufacturer completes its manufacturing operations, except as follows:
(1) Where the certificate holder is an engine manufacturer that does not manufacture the complete or incomplete vehicle, the date of manufacture of the vehicle is based on the date assembly of the vehicle is completed.
(2) EPA and NHTSA may approve an alternate date of manufacture based on the date on which the certifying (or primary) vehicle manufacturer completes assembly at the place of main assembly, consistent with the provisions of 40 CFR 1037.601 and 49 CFR 567.4.
(3) A vehicle manufacturer that completes assembly of a vehicle at two or more facilities may ask to use as the month and year of manufacture, for that vehicle, the month and year in which manufacturing is completed at the place of main assembly, consistent with provisions of 49 CFR 567.4, as the model year. Note that such staged assembly is subject to the provisions of 40 CFR 1068.260(c). NHTSA’s allowance of this provision is effective when EPA approves the manufacturer’s certificates of conformity for these vehicles.
Day cab has the meaning given in 40 CFR 1037.801.
Drayage tractor has the meaning given in 40 CFR 1037.801.
Dual-clutch transmission (DCT) means a transmission has the meaning given in 40 CFR 1037.801.
Dual-fuel has the meaning given in 40 CFR 1037.801.
Electric vehicle has the meaning given in 40 CFR 1037.801.
Emergency vehicle means a vehicle that meets one of the criteria in 40 CFR 1037.801.
Engine family has the meaning given in 40 CFR 1036.230. Manufacturers designate families in accordance with EPA provisions and may not choose different families between the NHTSA and EPA programs.
Excluded means a vehicle or engine manufacturer or component is not required to comply with any aspects with the NHTSA fuel consumption program.
Exempted means a vehicle or engine manufacturer or component is not required to comply with certain provisions of the NHTSA fuel consumption program.
Family certification level (FCL) has the meaning given in 40 CFR 1036.801.
Family emission limit (FEL) has the meaning given in 40 CFR 1037.801.
Final drive ratio has the meaning given in 40 CFR 1037.801.
Final-stage manufacturer has the meaning given in 49 CFR 567.3 and includes secondary vehicle manufacturers as defined in 40 CFR 1037.801.
Flatbed trailer has the meaning given in 40 CFR 1037.801.
Fleet in this part means all the heavy-duty vehicles or engines within each of the regulatory sub-categories that are manufactured by a manufacturer in a particular model year and that are subject to fuel consumption standards under § 535.5.
Fleet average fuel consumption is the calculated average fuel consumption performance value for a manufacturer’s fleet derived from the production weighted fuel consumption values of the unique vehicle configurations within each vehicle model type that makes up that manufacturer’s vehicle fleet in a given model year. In this part, the fleet average fuel consumption value is determined for each manufacturer’s fleet of heavy-duty pickup trucks and vans.
Fleet average fuel consumption standard is the actual average fuel consumption standard for a manufacturer’s fleet derived from the production weighted fuel consumption standards of each unique vehicle configuration, based on payload, tow capacity and drive configuration (2, 4 or all-wheel drive), of the model types that makes up that manufacturer’s vehicle fleet in a given model year. In this part, the fleet average fuel consumption standard is determined for each manufacturer’s fleet of heavy-duty pickup trucks and vans.
Fuel cell means an electrochemical cell that produces electricity via the non-combustion reaction of a consumable fuel, typically hydrogen.
Fuel cell electric vehicle means a motor vehicle propelled solely by an electric motor where energy for the motor is supplied by a fuel cell.
Fuel efficiency means the amount of work performed for each gallon of fuel consumed.
Gaseous fuel has the meaning given in 40 CFR 1037.801.
Greenhouse gas Emissions Model (GEM) has the meaning given in 40 CFR 1037.801.
Gross axle weight rating (GAWR) has the meaning given in 49 CFR 571.3.
Gross combination weight rating (GCWR) has the meaning given in 49 CFR 571.3.
Gross vehicle weight rating (GVWR) has the meaning given in 49 CFR 571.3.
Good engineering judgment has the meaning given in 40 CFR 1068.30. See 40 CFR 1068.5 for the administrative process used to evaluate good engineering judgment.
Heavy-duty off-road vehicle means a heavy-duty vocational vehicle or vocational tractor that is intended for off-road use.
Heavy-duty vehicle has the meaning given in 49 CFR part 523.
Heavy-haul tractor has the meaning given in 40 CFR 1037.801.
Heavy heavy-duty (HHD) vehicle has the meaning given in vehicle service class.
Hybrid engine or hybrid powertrain means an engine or powertrain that includes energy storage features other than a conventional battery system or conventional flywheel. Supplemental electrical batteries and hydraulic accumulators are examples of hybrid energy storage systems. Note that certain provisions in this part treat hybrid engines and powertrains intended for vehicles that include regenerative braking different than those intended for vehicles that do not include regenerative braking.
Hybrid vehicle means a vehicle that includes energy storage features (other than a conventional battery system or conventional flywheel) in addition to an internal combustion engine or other engine using consumable chemical fuel. Supplemental electrical batteries and hydraulic accumulators are examples of hybrid energy storage systems Note that certain provisions in this part treat hybrid vehicles that include regenerative braking different than those that do not include regenerative braking.
Idle operation has the meaning given in 40 CFR 1037.801.
Incomplete vehicle has the meaning given in 49 CFR part 523. For the purpose of this regulation, a manufacturer may request EPA and NHTSA to allow the certification of a vehicle as an incomplete vehicle if it manufactures the engine and sells the unassembled chassis components, provided it does not produce and sell the body components necessary to complete the vehicle.
Innovative technology means technology certified under § 535.7 and by EPA under 40 CFR 86.1819-14(d)(13), 1036.610, and 1037.610 in the Phase 1 program.
Intermediate manufacturer has the meaning given in 49 CFR 567.3.
Light heavy-duty (LHD) vehicle has the meaning given in vehicle service class.
Liquefied petroleum gas (LPG) has the meaning given in 40 CFR 1036.801.
Low rolling resistance tire means a tire on a vocational vehicle with a tire rolling resistance level (TRRL) of 7.7 kg/metric ton or lower, a steer tire on a tractor with a TRRL of 7.7 kg/metric ton or lower, or a drive tire on a tractor with a TRRL of 8.1 kg/metric ton or lower.
Manual transmission (MT) has the meaning given in 40 CFR 1037.801.
Medium heavy-duty (MHD) vehicle has the meaning given in vehicle service class.
Model type has the meaning given in 40 CFR 600.002.
Model year as it applies to vehicles means:
(1) For tractors and vocational vehicles with a date of manufacture on or after January 1, 2021, the vehicle’s model year is the calendar year corresponding to the date of manufacture; however, the vehicle’s model year may be designated to be the year before the calendar year corresponding to the date of manufacture if the engine’s model year is also from an earlier year. Note that subparagraph (2) of this definition limits the extent to which vehicle manufacturers may install engines built in earlier calendar years. Note that 40 CFR 1037.601(a)(2) limits the extent to which vehicle manufacturers may install engines built in earlier calendar years.
(2) For trailers and for Phase 1 tractors and vocational vehicles with a date of manufacture before January 1, 2021, model year means the manufacturer’s annual new model production period, except as restricted under this definition. It must include January 1 of the calendar year for which the model year is named, may not begin before January 2 of the previous calendar year, and it must end by December 31 of the named calendar year. The model year may be set to match the calendar year corresponding to the date of manufacture.
(i) The manufacturer who holds the certificate of conformity for the vehicle must assign the model year based on the date when its manufacturing operations are completed relative to its annual model year period. In unusual circumstances where completion of your assembly is delayed, we may allow you to assign a model year one year earlier, provided it does not affect which regulatory requirements will apply.
(ii) Unless a vehicle is being shipped to a secondary manufacturer that will hold the certificate of conformity, the model year must be assigned prior to introduction of the vehicle into U.S. commerce. The certifying manufacturer must redesignate the model year if it does not complete its manufacturing operations within the originally identified model year. A vehicle introduced into U.S. commerce without a model year is deemed to have a model year equal to the calendar year of its introduction into U.S. commerce unless the certifying manufacturer assigns a later date.
Model year as it applies to engines means the manufacturer’s annual new model production period, except as restricted under this definition. It must include January 1 of the calendar year for which the model year is named, may not begin before January 2 of the previous calendar year, and it must end by December 31 of the named calendar year. Manufacturers may not adjust model years to circumvent or delay compliance with emission standards or to avoid the obligation to certify annually.
Natural gas has the meaning given in 40 CFR 1036.801. Vehicles that use a pilot-ignited natural gas engine (which uses a small diesel fuel ignition system), are still considered natural gas vehicles.
NHTSA Enforcement means the NHTSA Associate Administrator for Enforcement, or his or her designee.
Neutral coasting has the meaning given in 40 CFR 1037.801.
Off-cycle technology means technology certified under § 535.7 and by EPA under 40 CFR 86.1819-14(d)(13), 1036.610, and 1037.610 in the Phase 2 program.
Party means the person alleged to have committed a violation of § 535.9, and includes manufacturers of vehicles and manufacturers of engines.
Payload means in this part the resultant of subtracting the curb weight from the gross vehicle weight rating.
Petroleum has the meaning given in 40 CFR 1037.801.
Phase 1 means the joint NHTSA and EPA program established in 2011 for fuel efficiency standards and greenhouse gas emissions standards regulating medium- and heavy-duty engines and vehicles. See § 535.5 for the specific model years that standards apply to vehicles and engines.
Phase 2 means the joint NHTSA and EPA program established in 2016 for fuel efficiency standards and greenhouse gas emissions standards regulating medium- and heavy-duty vehicles including trailers, and engines. See § 535.5 for the specific model years that standards apply to vehicles and engines.
Pickup truck has the meaning given in 49 CFR part 523.
Plug-in hybrid electric vehicle (PHEV) means a hybrid electric vehicle that has the capability to charge the battery or batteries used for vehicle propulsion from an off-vehicle electric source, such that the off-vehicle source cannot be connected to the vehicle while the vehicle is in motion.
Power take-off (PTO) means a secondary engine shaft or other system on a vehicle that provides substantial auxiliary power for purposes unrelated to vehicle propulsion or normal vehicle accessories such as air conditioning, power steering, and basic electrical accessories. A typical PTO uses a secondary shaft on the engine to transmit power to a hydraulic pump that powers auxiliary equipment such as a boom on a bucket truck.
Powertrain family has the meaning given in 40 CFR 1037.231. Manufacturers choosing to perform powertrain testing as specified in 40 CFR 1037.550, divide product lines into powertrain families that are expected to have similar fuel consumptions and CO
Preliminary approval means approval granted by an authorized EPA representative prior to submission of an application for certification, consistent with the provisions of 40 CFR 1037.210. For requirements involving NHTSA, EPA will ensure decisions are jointly made and will convey the decision to the manufacturer.
Primary intended service class has the same meaning for engines as specified in 40 CFR 1036.140. Manufacturers must identify a single primary intended service class for each engine family that best describes vehicles for which it designs and markets the engine, as follows:
(1) Divide compression-ignition engines into primary intended service classes based on the following engine and vehicle characteristics:
(i) Light heavy-duty “LHD” engines usually are not designed for rebuild and do not have cylinder liners. Vehicle body types in this group might include any heavy-duty vehicle built from a light-duty truck chassis, van trucks, multi-stop vans, and some straight trucks with a single rear axle. Typical applications would include personal transportation, light-load commercial delivery, passenger service, agriculture, and construction. The GVWR of these vehicles is normally below 19,500 pounds.
(ii) Medium heavy-duty “MHD” engines may be designed for rebuild and may have cylinderliners. Vehicle body types in this group would typically include school buses, straight trucks with single rear axles, city tractors, and a variety of special purpose vehicles such as small dump trucks, and refuse trucks. Typical applications would include commercial short haul and intra-city delivery and pickup. Engines in this group are normally used in vehicles whose GVWR ranges from 19,500 to 33,000 pounds.
(iii) Heavy heavy-duty “HHD” engines are designed for multiple rebuilds and have cylinder liners. Vehicles in this group are normally tractors, trucks, straight trucks with dual rear axles, and buses used in inter-city, long-haul applications. These vehicles normally exceed 33,000 pounds GVWR.
(2) Divide spark-ignition engines into primary intended service classes as follows:
(i) Spark-ignition engines that are best characterized by paragraph (1)(i) or (ii) of this definition are in a separate “spark-ignition” primary intended service class.
(ii) Spark-ignition engines that are best characterized by paragraph (1)(iii) of this definition share a primary intended service class with compression-ignition heavy heavy-duty engines. Gasoline-fueled engines are presumed not to be characterized by paragraph (1)(iii) of this definition; for example, vehicle manufacturers may install some number of gasoline-fueled engines in Class 8 trucks without causing the engine manufacturer to consider those to be heavy heavy-duty engines.
(iii) References to “spark-ignition standards” in this part relate only to the spark-ignition engines identified in paragraph (b)(1) of this section. References to “compression-ignition standards” in this part relate to compression-ignition engines, to spark-ignition engines optionally certified to standards that apply to compression-ignition engines, and to all engines identified under paragraph (b)(2) of this section as heavy heavy-duty engines.
Rechargeable Energy Storage System (RESS) means the component(s) of a hybrid engine or vehicle that store recovered energy for later use, such as the battery system in a electric hybrid vehicle.
Refuse hauler has the meaning given in 40 CFR 1037.801.
Regional has the meaning relating to the Regional duty cycle as specified in 40 CFR 1037.510.
Regulatory category means each of the four types of heavy-duty vehicles defined in 49 CFR 523.6 and the heavy-duty engines used in these heavy-duty vehicles.
Regulatory subcategory means the sub-groups in each regulatory category to which mandatory fuel consumption standards and requirements apply as specified in 40 CFR 1036.230 and 1037.230 and are defined as follows:
(1) Heavy-duty pick-up trucks and vans.
(2) Vocational vehicle subcategories have 18 separate vehicle service classes as shown in Tables 1 and 2 below and include vocational tractors. Table 1 includes vehicles complying with Phase 1 standards. Phase 2 vehicles are included in Table 2 which have separate subcategories to account for engine characteristics, GVWR, and the selection of duty cycle for vocational vehicles as specified in 40 CFR 1037.510; vehicles may additionally fall into one of the subcategories defined by the custom-chassis standards in § 535.5(b)(6) and 40 1037.105(h). Manufacturers using the alternate standards in § 535.5(b)(6) and 40 CFR 1037.105(h) should treat each vehicle type as a separate vehicle subcategory.
Table 1 – Phase 1 Vocational Vehicle Subcategories
| Vocational LHD vehicles. |
| Vocational MHD vehicles. |
| Vocational HHD vehicles. |
Table 2 – Phase 2 Vocational Vehicle Subcategories
| Engine type | Vocational LHD vehicles | Vocational MHD vehicles | Vocational HHD vehicles |
|---|---|---|---|
| CI | Urban | Urban | Urban. |
| CI | Multi-Purpose | Multi-Purpose | Multi-Purpose. |
| CI | Regional | Regional | Regional. |
| SI | Urban | Urban | NA. |
| SI | Multi-Purpose | Multi-Purpose | NA. |
| SI | Regional | Regional | NA. |
(3) Tractor subcategories are shown in Table 3 below for Phase 1 and 2. Table 3 includes 10 separate subcategories for tractors complying with Phase 1 and 2 standards. The heavy-haul tractor subcategory only applies for Phase 2.
Table 3 – Phase 1 and 2 Truck Tractor Subcategories
| Class 7 | Class 8 day cabs | Class 8 sleeper cabs |
|---|---|---|
| Low-roof tractors | Low-roof day cab tractors | Low-roof sleeper cab tractors. |
| Mid-roof tractors | Mid-roof day cab tractors | Mid-roof sleeper cab tractors. |
| High-roof tractors | High-roof day cab tractors | High-roof sleeper cab tractors. |
| NA | Heavy-haul tractors (applies only to Phase 2 program). | |
(4) Trailer subcategories are shown in Table 4 of this section for the Phase 2 program. Trailers do not comply under the Phase 1 program. Table 4 includes 10 separate subcategories for trailers, which are only subject to Phase 2 only standards.
Table 4 – Trailer Subcategories
| Full-aero trailers | Partial-aero trailers | Other trailers |
|---|---|---|
| Long box dry vans | Long box dry vans | Non-aero box vans. |
| Short box dry vans | Short box dry vans | Non-box trailers. |
| Long box refrigerated vans | Long box refrigerated vans | NA. |
| Short box refrigerated vans | Short box refrigerated vans | NA. |
(5) Engine subcategories are shown for each primary intended service class in Table 5 below. Table 5 includes 6 separate subcategories for engines which are the same for Phase 1 and 2 standards.
Table 5 – Engine Subcategories
| LHD engines | MHD engines | HHD engines |
|---|---|---|
| CI engines for vocational vehicles | CI engines for vocational vehicles | CI engines for vocational vehicles. |
| NA | CI engines for truck tractors | CI engines for truck tractors. |
| All spark-ignition engines | NA. |
Revoke has the same meaning given in 40 CFR 1068.30.
Roof height means the maximum height of a vehicle (rounded to the nearest inch), excluding narrow accessories such as exhaust pipes and antennas, but including any wide accessories such as roof fairings. Measure roof height of the vehicle configured to have its maximum height that will occur during actual use, with properly inflated tires and no driver, passengers, or cargo onboard. Determine the base roof height on fully inflated tires having a static loaded radius equal to the arithmetic mean of the largest and smallest static loaded radius of tires a manufacturer offers or a standard tire EPA approves. If a vehicle is equipped with an adjustable roof fairing, measure the roof height with the fairing in its lowest setting. Once the maximum height is determined, roof heights are divided into the following categories:
(1) Low-roof means a vehicle with a roof height of 120 inches or less.
(2) Mid-roof means a vehicle with a roof height between 121 and 147 inches.
(3) High-roof means a vehicle with a roof height of 148 inches or more.
Secondary vehicle manufacturer has the same meaning as final-stage manufacturer in 49 CFR part 567.
Service class group means a group of engine and vehicle averaging sets defined as follows:
(1) Spark-ignition engines, light heavy-duty compression-ignition engines, light heavy-duty vocational vehicles and heavy-duty pickup trucks and vans.
(2) Medium heavy-duty compression-ignition engines and medium heavy-duty vocational vehicles and tractors.
(3) Heavy heavy-duty compression-ignition engines and heavy heavy-duty vocational vehicles and tractors.
Sleeper cab means a type of truck cab that has a compartment behind the driver’s seat intended to be used by the driver for sleeping. This includes both cabs accessible from the driver’s compartment and those accessible from outside the vehicle.
Small business manufacturer means a manufacturer meeting the criteria specified in 13 CFR 121.201. For manufacturers owned by a parent company, the employee and revenue limits apply to the total number employees and total revenue of the parent company and all its subsidiaries.
Spark-ignition (SI) means relating to a gasoline-fueled engine or any other type of engine with a spark plug (or other sparking device) and with operating characteristics significantly similar to the theoretical Otto combustion cycle. Spark-ignition engines usually use a throttle to regulate intake air flow to control power during normal operation. Note that some spark-ignition engines are subject to requirements that apply for compression-ignition engines as described in 40 CFR 1036.140.
Standard payload means the payload assumed for each vehicle, in tons, for modeling and calculating emission credits, as follows:
(1) For vocational vehicles:
(i) 2.85 tons for light heavy-duty vehicles.
(ii) 5.6 tons for medium heavy-duty vehicles.
(iii) 7.5 tons for heavy heavy-duty vocational vehicles.
(2) For tractors:
(i) 12.5 tons for Class 7.
(ii) 19 tons for Class 8.
(iii) 43 tons for heavy-haul tractors.
(3) For trailers:
(i) 10 tons for short box vans.
(ii) 19 tons for other trailers.
Standard tractor has the meaning given in 40 CFR 1037.501.
Standard trailer has the meaning given in 40 CFR 1037.501.
Subconfiguration means a unique combination within a vehicle configuration of equivalent test weight, road-load horsepower, and any other operational characteristics or parameters that EPA determines may significantly affect CO
Tank trailer has the meaning given in 40 CFR 1037.801.
Test group means the multiple vehicle lines and model types that share critical emissions and fuel consumption related features and that are certified as a group by a common certificate of conformity issued by EPA and is used collectively with other test groups within an averaging set or regulatory subcategory and is used by NHTSA for determining the fleet average fuel consumption.
The agencies means the National Highway Traffic Safety Administration (NHTSA) and the Environmental Protection Agency (EPA) in this part.
Tire pressure monitoring system (TPMS) has the meaning given in section S3 of 49 CFR 571.138.
Tire rolling resistance level (TRRL) means a value with units of kg/metric ton that represents that rolling resistance of a tire configuration. TRRLs are used as inputs to the GEM model under 40 CFR 1037.520. Note that a manufacturer may assign a value higher than a measured rolling resistance of a tire configuration.
Towing capacity in this part is equal to the resultant of subtracting the gross vehicle weight rating from the gross combined weight rating.
Trade means to exchange fuel consumption credits, either as a buyer or a seller.
U.S.-directed production volume means the number of vehicle units, subject to the requirements of this part, produced by a manufacturer for which the manufacturer has a reasonable assurance that sale was or will be made to ultimate purchasers in the United States.
Useful life has the meaning given in 40 CFR 1036.801 and 1037.801.
Vehicle configuration means a unique combination of vehicle hardware and calibration (related to measured or modeled emissions) within a vehicle family as specified in 40 CFR 1037.801. Vehicles with hardware or software differences, but that have no hardware or software differences related to measured or modeled emissions or fuel consumption can be included in the same vehicle configuration. Note that vehicles with hardware or software differences related to measured or modeled emissions or fuel consumption are considered to be different configurations even if they have the same GEM inputs and FEL. Vehicles within a vehicle configuration differ only with respect to normal production variability or factors unrelated to measured or modeled emissions and fuel consumption for EPA and NHTSA.
Vehicle family has the meaning given in 40 CFR 1037.230. Manufacturers designate families in accordance with EPA provisions and may not choose different families between the NHTSA and EPA programs. If a manufacturer is certifying vehicles within a vehicle family to more than one FEL, it must subdivide its greenhouse gas and fuel consumption vehicle families into subfamilies that include vehicles with identical FELs. Note that a manufacturer may add subfamilies at any time during the model year.
Vehicle service class has the same meaning for vehicles as specified in 40 CFR 1037.140. Fuel consumption standards and other provisions of this part apply to specific vehicle service classes for tractors and vocational vehicles as follows:
(1) Phase 1 and Phase 2 tractors are divided based on GVWR into Class 7 tractors and Class 8 tractors. Where provisions apply to both tractors and vocational vehicles, Class 7 tractors are considered medium heavy-duty “MHD” vehicles and Class 8 tractors are considered heavy heavy-duty “HHD” vehicles.
(2) Phase 1 vocational vehicles are divided based on GVWR. Light heavy-duty “LHD” vehicles includes Class 2b through Class 5 vehicles; medium heavy-duty “MHD” vehicles includes Class 6 and Class 7 vehicles; and heavy heavy-duty “HHD” vehicles includes Class 8 vehicles.
(3) Phase 2 vocational vehicles with spark-ignition engines are divided based on GVWR. Light heavy-duty “LHD” vehicles includes Class 2b through Class 5 vehicles, and medium heavy-duty “MHD” vehicles includes Class 6 through Class 8 vehicles.
(4) Phase 2 vocational vehicles with compression-ignition engines are divided as follows:
(i) Class 2b through Class 5 vehicles are considered light heavy-duty “LHD” vehicles.
(ii) Class 6 through 8 vehicles are considered heavy heavy-duty “HHD” vehicles if the installed engine’s primary intended service class is heavy heavy-duty (see 40 CFR 1036.140). All other Class 6 through Class 8 vehicles are considered medium heavy-duty “MHD” vehicles.
(5) In certain circumstances, manufacturers may certify vehicles to standards that apply for a different vehicle service class such as allowed in § 535.5(b)(6) and (c)(7). If manufacturers optionally certify vehicles to different standards, those vehicles are subject to all the regulatory requirements as if the standards were mandatory.
Vehicle subfamily or subfamily means a subset of a vehicle family including vehicles subject to the same FEL(s).
Vocational tractor has the meaning given in 40 CFR 1037.801.
Zero emissions vehicle means an electric vehicle or a fuel cell vehicle.
§ 535.5 Standards.
(a) Heavy-duty pickup trucks and vans. Each manufacturer’s fleet of heavy-duty pickup trucks and vans shall comply with the fuel consumption standards in this paragraph (a) expressed in gallons per 100 miles. Each vehicle must be manufactured to comply for its full useful life. For the Phase 1 program, if the manufacturer’s fleet includes conventional vehicles (gasoline, diesel and alternative fueled vehicles) and advanced technology vehicles (hybrids with powertrain designs that include energy storage systems, vehicles with waste heat recovery, electric vehicles and fuel cell vehicles), it may divide its fleet into two separate fleets each with its own separate fleet average fuel consumption standard which the manufacturer must comply with the requirements of this paragraph (a). For Phase 2, manufacturers may calculate their fleet average fuel consumption standard for a conventional fleet and multiple advanced technology vehicle fleets. Advanced technology vehicle fleets should be separated into plug-in hybrid electric vehicles, electric vehicles and fuel cell vehicles. NHTSA standards correspond to the same requirements for EPA as specified in 40 CFR 86.1819-14.
(1) Mandatory standards. For model years 2016 and later, each manufacturer must comply with the fleet average standard derived from the unique subconfiguration target standards (or groups of subconfigurations approved by EPA in accordance with 40 CFR 86.1819) of the model types that make up the manufacturer’s fleet in a given model year. Each subconfiguration has a unique attribute-based target standard, defined by each group of vehicles having the same payload, towing capacity and whether the vehicles are equipped with a 2-wheel or 4-wheel drive configuration. Phase 1 target standards apply for model years 2016 through 2020. Phase 2 target standards apply for model year 2021 and afterwards.
(2) Subconfiguration target standards. (i) Two alternatives exist for determining the subconfiguration target standards for Phase 1. For each alternative, separate standards exist for compression-ignition and spark-ignition vehicles:
(A) The first alternative allows manufacturers to determine a fixed fuel consumption standard that is constant over the model years; and
(B) The second alternative allows manufacturers to determine standards that are phased-in gradually each year.
(ii) Calculate the subconfiguration target standards as specified in this paragraph (a)(2)(ii), using the appropriate coefficients from Table 6 choosing between the alternatives in paragraph (a)(2)(i) of this section. For electric or fuel cell heavy-duty vehicles, use compression-ignition vehicle coefficients “c” and “d” and for hybrid (including plug-in hybrid), dedicated and dual-fueled vehicles, use coefficients “c” and “d” appropriate for the engine type used. Round each standard to the nearest 0.001 gallons per 100 miles and specify all weights in pounds rounded to the nearest pound. Calculate the subconfiguration target standards using the following equation:
Table 6 – Coefficients for Mandatory Subconfiguration Target Standards
| Model Year(s) | c | d |
|---|---|---|
| 2016 to 2018 | 0.0004322 | 3.330 |
| 2019 to 2020 | 0.0004086 | 3.143 |
| 2016 to 2017 | 0.0005131 | 3.961 |
| 2018 to 2020 | 0.0004086 | 3.143 |
| 2016 | 0.0004519 | 3.477 |
| 2017 | 0.0004371 | 3.369 |
| 2018 to 2020 | 0.0004086 | 3.143 |
| 2016 | 0.0005277 | 4.073 |
| 2017 | 0.0005176 | 3.983 |
| 2018 to 2020 | 0.0004951 | 3.815 |
| 2021 | 0.0003988 | 3.065 |
| 2022 | 0.0003880 | 2.986 |
| 2023 | 0.0003792 | 2.917 |
| 2024 | 0.0003694 | 2.839 |
| 2025 | 0.0003605 | 2.770 |
| 2026 | 0.0003507 | 2.701 |
| 2027 and later | 0.0003418 | 2.633 |
| 2021 | 0.0004827 | 3.725 |
| 2022 | 0.0004703 | 3.623 |
| 2023 | 0.0004591 | 3.533 |
| 2024 | 0.0004478 | 3.443 |
| 2025 | 0.0004366 | 3.364 |
| 2026 | 0.0004253 | 3.274 |
| 2027 and later | 0.0004152 | 3.196 |
(3) Fleet average fuel consumption standard. (i) For the Phase 1 program, calculate each manufacturer’s fleet average fuel consumption standard for a conventional fleet and a combined advanced technology fleet separately based on the subconfiguration target standards specified in paragraph (a)(2) of this section, weighted to production volumes and averaged using the following equation combining all the applicable vehicles in a manufacturer’s U.S.-directed fleet (compression-ignition, spark-ignition and advanced technology vehicles) for a given model year, rounded to the nearest 0.001 gallons per 100 miles:
(A) A manufacturer may group together subconfigurations that have the same test weight (ETW), GVWR, and GCWR. Calculate work factor and target value assuming a curb weight equal to two times ETW minus GVWR.
(B) A manufacturer may group together other subconfigurations if it uses the lowest target value calculated for any of the subconfigurations.
(ii) For Phase 1, manufacturers must select an alternative for subconfiguration target standards at the same time they submit the model year 2016 pre-model year Report, specified in § 535.8. Once selected, the decision cannot be reversed and the manufacturer must continue to comply with the same alternative for subsequent model years.
(4) Voluntary standards. (i) Manufacturers may choose voluntarily to comply early with fuel consumption standards for model years 2013 through 2015, as determined in paragraphs (a)(4)(iii) and (iv) of this section, for example, in order to begin accumulating credits through over-compliance with the applicable standard. A manufacturer choosing early compliance must comply with all the vehicles and engines it manufactures in each regulatory category for a given model year.
(ii) A manufacturer must declare its intent to voluntarily comply with fuel consumption standards at the same time it submits a Pre-Model Report, prior to the compliance model year beginning as specified in § 535.8; and, once selected, the decision cannot be reversed and the manufacturer must continue to comply for each subsequent model year for all the vehicles and engines it manufactures in each regulatory category for a given model year.
(iii) Calculate separate subconfiguration target standards for compression-ignition and spark-ignition vehicles for model years 2013 through 2015 using the equation in paragraph (a)(2)(ii) of this section, substituting the appropriate values for the coefficients in the following table as appropriate:
Table 7 – Coefficients for Voluntary Subconfiguration Target Standards
| Model Year(s) | c | d |
|---|---|---|
| 2013 and 14 | 0.0004695 | 3.615 |
| 2015 | 0.0004656 | 3.595 |
| 2013 and 14 | 0.0005424 | 4.175 |
| 2015 | 0.0005390 | 4.152 |
(iv) Calculate the fleet average fuel consumption standards for model years 2013 through 2015 using the equation in paragraph (a)(3) of this section.
(5) Exclusion of vehicles not certified as complete vehicles. The vehicle standards in paragraph (a) of this section do not apply for vehicles that are chassis-certified with respect to EPA’s criteria pollutant test procedure in 40 CFR part 86, subpart S. Any chassis-certified vehicles must comply with the vehicle standards and requirements of paragraph (b) of this section and the engine standards of paragraph (d) of this section for engines used in these vehicles. A vehicle manufacturer choosing to comply with this paragraph and that is not the engine manufacturer is required to notify the engine manufacturers that their engines are subject to paragraph (d) of this section and that it intends to use their engines in excluded vehicles.
(6) Optional certification under this section. Manufacturers may certify certain complete or cab-complete vehicles to the fuel consumption standards of this section. All vehicles optionally certified under this paragraph (6) are deemed to be subject to the fuel consumption standards of this section given the following conditions:
(i) For fuel consumption compliance, manufacturers may certify any complete or cab-complete spark-ignition vehicles above 14,000 pounds GVWR and at or below 26,000 pounds GVWR to the fuel consumption standards of this section.
(ii) Manufacturers may apply the provisions of this section to cab-complete vehicles based on a complete sister vehicle. In unusual circumstances, manufacturers may ask the agencies to apply these provisions to Class 2b or Class 3 incomplete vehicles that do not meet the definition of cab-complete.
(A) Except as specified in paragraph (a)(6)(iii) of this section, for purposes of this section, a complete sister vehicle is a complete vehicle of the same vehicle configuration as the cab-complete vehicle. A manufacturer may not apply the provisions of this paragraph (6) to any vehicle configuration that has a four-wheel rear axle if the complete sister vehicle has a two-wheel rear axle.
(B) Calculate the target value for the fleet-average fuel consumption standard under paragraph (a)(3) of this section based on the work factor value that applies for the complete sister vehicle.
(C) Test these cab-complete vehicles using the same equivalent test weight and other dynamometer settings that apply for the complete vehicle from which you used the work factor value (the complete sister vehicle). For fuel consumption certification, manufacturers may submit the test data from that complete sister vehicle instead of performing the test on the cab-complete vehicle.
(D) Manufacturers are not required to produce the complete sister vehicle for sale to use the provisions of this paragraph (a)(6)(ii). This means the complete sister vehicle may be a carryover vehicle from a prior model year or a vehicle created solely for the purpose of testing.
(iii) For fuel consumption purposes, if a cab-complete vehicle is not of the same vehicle configuration as a complete sister vehicle due only to certain factors unrelated to coastdown performance, manufacturers may use the road-load coefficients from the complete sister vehicle for certification testing of the cab-complete vehicle, but it may not use fuel consumption data from the complete sister vehicle for certifying the cab-complete vehicle.
(7) Loose engines. For model year 2023 and earlier spark-ignition engines with identical hardware compared with engines used in vehicles certified to the standards of this section, where such engines are sold as loose engines or as engines installed in incomplete vehicles that are not cab-complete vehicles. Manufacturers may certify such engines to the standards of this section, subject to the following provisions:
(i) For 2020 and earlier model years, the maximum allowable U.S.-directed production volume of engines manufacturers may sell under this paragraph (7) in any given model year is ten percent of the total U.S-directed production volume of engines of that design that the manufacturer produces for heavy-duty applications for that model year, including engines it produces for complete vehicles, cab-complete vehicles, and other incomplete vehicles. The total number of engines a manufacturer may certify under this paragraph (7), of all engine designs, may not exceed 15,000 in any model year. Engines produced in excess of either of these limits are not covered by your certificate. For example, a manufacturer produces 80,000 complete model year 2017 Class 2b pickup trucks with a certain engine and 10,000 incomplete model year 2017 Class 3 vehicles with that same engine, and the manufacturer did not apply the provisions of this paragraph (a)(7) to any other engine designs, it may produce up to 10,000 engines of that design for sale as loose engines under this paragraph (a)(7). If a manufacturer produced 11,000 engines of that design for sale as loose engines, the last 1,000 of them that it produced in that model year 2017 would be considered uncertified.
(ii) For model years 2021 through 2023, the U.S.-directed production volume of engines manufacturers sell under this paragraph (a)(7) in any given model year may not exceed 10,000 units. This paragraph (a)(7) does not apply for engines certified to the standards of paragraph (d) of this section and 40 CFR 1036.108.
(iii) Vehicles using engines certified under this paragraph (a)(7) are subject to the fuel consumption and emission standards of paragraph (b) of this section and 40 CFR 1037.105 and engine standards in 40 CFR 1036.150(j).
(iv) For certification purposes, engines are deemed to have a fuel consumption target values and test result equal to the fuel consumption target value and test result for the complete vehicle in the applicable test group with the highest equivalent test weight, except as specified in paragraph (a)(7)(iv)(B) of this section. Manufacturers use these values to calculate target values and the fleet-average fuel consumption rate. Where there are multiple complete vehicles with the same highest equivalent test weight, select the fuel consumption target value and test result as follows:
(A) If one or more of the fuel consumption test results exceed the applicable target value, use the fuel consumption target value and test result of the vehicle that exceeds its target value by the greatest amount.
(B) If none of the fuel consumption test results exceed the applicable target value, select the highest target value and set the test result equal to it. This means that the manufacturer may not generate fuel consumption credits from vehicles certified under this paragraph (a)(7).
(8) Alternative fuel vehicle conversions. Alternative fuel vehicle conversions may demonstrate compliance with the standards of this part or other alternative compliance approaches allowed by EPA in 40 CFR 85.525.
(9) Advanced, innovative and off-cycle technologies. For vehicles subject to Phase 1 standards, manufacturers may generate separate credit allowances for advanced and innovative technologies as specified in § 535.7(f)(1) and (2). For vehicles subject to Phase 2 standards, manufacturers may generate separate credits allowance for off-cycle technologies in accordance with § 535.7(f)(2). Separate credit allowances for advanced technology vehicles cannot be generated; instead manufacturers may use the credit multipliers specified in § 535.7(f)(1)(iv) through model year 2026.
(10) Useful life. The following useful life values apply for the standards of this section:
(i) 120,000 miles or 10 years, whichever comes first, for Class 2b through Class 3 heavy-duty pickup trucks and vans certified to Phase 1 standards.
(ii) 150,000 miles or 15 years, whichever comes first, for Class 2b through Class 3 heavy-duty pickup trucks and vans certified to Phase 2 standards.
(iii) For Phase 1 credits that you calculate based on a useful life of 120,000 miles, multiply any banked credits that you carry forward for use into the Phase 2 program by 1.25. For Phase 1 credit deficits that you generate based on a useful life of 120,000 miles multiply the credit deficit by 1.25 if offsetting the shortfall with Phase 2 credits.
(11) Compliance with standards. A manufacturer complies with the standards of this part as described in § 535.10.
(b) Heavy-duty vocational vehicles. Each manufacturer building complete or incomplete heavy-duty vocational vehicles shall comply with the fuel consumption standards in this paragraph (b) expressed in gallons per 1000 ton-miles. Engines used in heavy-duty vocational vehicles shall comply with the standards in paragraph (d) of this section. Each vehicle must be manufactured to comply for its full useful life. Standards apply to the vehicle subfamilies based upon the vehicle service classes within each of the vocational vehicle regulatory subcategories in accordance with § 535.4 and based upon the applicable modeling and testing specified in § 535.6. Determine the duty cycles that apply to vocational vehicles according to 40 CFR 1037.140 and 1037.150(z).
(1) Mandatory standards. Heavy-duty vocational vehicle subfamilies produced for Phase 1 must comply with the fuel consumption standards in paragraph (b)(3) of this section. For Phase 2, each vehicle manufacturer of heavy-duty vocational vehicle subfamilies must comply with the fuel consumption standards in paragraph (b)(4) of this section.
(i) For model years 2016 to 2020, the heavy-duty vocational vehicle category is subdivided by GVWR into three regulatory subcategories as defined in § 535.4, each with its own assigned standard.
(ii) For model years 2021 and later, the heavy-duty vocational vehicle category is subdivided into 15 regulatory subcategories depending upon whether vehicles are equipped with a compression or spark-ignition engine, as defined in § 535.4. Standards also differ based upon vehicle service class and intended vehicle duty cycles. See 40 CFR 1037.140 and 1037.150(z).
(iii) For purposes of certifying vehicles to fuel consumption standards, manufacturers must divide their product lines in each regulatory subcategory into vehicle families that have similar emissions and fuel consumption features, as specified by EPA in 40 CFR 1037.230. These families will be subject to the applicable standards. Each vehicle family is limited to a single model year.
(A) Vocational vehicles including custom chassis vehicles must use qualified automatic tire inflation systems or tire pressure monitoring systems for wheels on all axles.
(B) Tire pressure monitoring systems must use low pressure warning and malfunction telltales in clear view of the driver as specified in S4.3 and S4.4 of 49 CFR 571.138.
(2) Voluntary compliance. (i) For model years 2013 through 2015, a manufacturer may choose voluntarily to comply early with the fuel consumption standards provided in paragraph (b)(3) of this section. For example, a manufacturer may choose to comply early in order to begin accumulating credits through over-compliance with the applicable standards. A manufacturer choosing early compliance must comply with all the vehicles and engines it manufacturers in each regulatory category for a given model year.
(ii) A manufacturer must declare its intent to voluntarily comply with fuel consumption standards and identify its plans to comply before it submits its first application for a certificate of conformity for the respective model year as specified in § 535.8; and, once selected, the decision cannot be reversed and the manufacturer must continue to comply for each subsequent model year for all the vehicles and engines it manufacturers in each regulatory category for a given model year.
(3) Regulatory subcategory standards for model years 2013 to 2020. The mandatory and voluntary fuel consumption standards for heavy-duty vocational vehicles are given in the following table:
Table 8 – Phase 1 Vocational Vehicle Fuel Consumption Standards
[Gallons per 1000 ton-miles]
| Regulatory subcategories | Vocational LHD vehicles | Vocational MHD vehicles | Vocational HHD vehicles |
|---|---|---|---|
| Standard | 38.1139 | 22.9862 | 22.2004 |
| Standard | 36.6405 | 22.1022 | 21.8075 |
(4) Regulatory subcategory standards for model years 2021 and later. The mandatory fuel consumption standards for heavy-duty vocational vehicles are given in the following table:
Table 9 – Phase 2 Vocational Vehicle Fuel Consumption Standards
[Gallons per 1,000 ton-miles]
| Duty cycle | LHD Vocational vehicles | MHD Vocational vehicles | Vocational HHD vehicles |
|---|---|---|---|
| Urban | 41.6503 | 29.0766 | 30.2554 |
| Multi-Purpose | 36.6405 | 26.0314 | 25.6385 |
| Regional | 30.5501 | 22.9862 | 20.2358 |
| Urban | 51.8735 | 36.9078 | NA |
| Multi-Purpose | 45.7972 | 32.9695 | NA |
| Regional | 37.6955 | 29.3687 | NA |
| Urban | 37.8193 | 26.6208 | 27.7996 |
| Multi-Purpose | 33.7917 | 24.1650 | 23.7721 |
| Regional | 29.0766 | 21.7092 | 19.0570 |
| Urban | 48.6103 | 34.8824 | NA |
| Multi-Purpose | 43.3217 | 31.3942 | NA |
| Regional | 36.4577 | 28.2435 | NA |
| Urban | 36.0511 | 25.3438 | 26.4244 |
| Multi-Purpose | 32.4165 | 23.0845 | 22.5933 |
| Regional | 28.5855 | 21.4145 | 18.5658 |
| Urban | 46.4724 | 33.4196 | NA |
| Multi-Purpose | 41.8589 | 30.1564 | NA |
| Regional | 35.8951 | 27.7934 | NA |
(5) Subfamily standards. Manufacturers may specify a family emission limit (FEL) in terms of fuel consumption for each vehicle subfamily. The FEL may not be less than the result of fuel consumption modeling from 40 CFR 1037.520. The FELs is the fuel consumption standards for the vehicle subfamily instead of the standards specified in paragraph (b)(3) and (4) of this section and can be used for calculating fuel consumption credits in accordance with § 535.7.
(6) Alternate standards for custom chassis vehicles for model years 2021 and later. Manufacturers may elect to certify certain vocational vehicles to the alternate standards for custom chassis vehicles specified in this paragraph (b)(6) instead of the standards specified in paragraph (b)(4) of this section. Note that, although these standards were established for custom chassis vehicles, manufacturers may apply these provisions to any qualifying vehicle even though these standards were established for custom chassis vehicles. For example, large diversified vehicle manufacturers may certify vehicles to the refuse hauler standards of this section as long as the manufacturer ensures that those vehicles qualify as refuse haulers when placed into service. GEM simulates vehicle operation for each type of vehicle based on an assigned vehicle service class, independent of the vehicle’s actual characteristics, as shown in Table 10 of this section; however, standards apply for the vehicle’s useful life based on its actual characteristics as specified in paragraph (b)(10) of this section. Vehicles certified to these alternative standards must use engines certified to requirements under paragraph (d) of this section and 40 CFR part 1036 for the appropriate model year, except that motor homes and emergency vehicles may use engines certified with the loose-engine provisions of paragraph (a)(7) of this section and 40 CFR 1037.150(m). This also applies for vehicles meeting standards under paragraphs (b)(6)(iv) through (vi) of this section. The fuel consumption standards for custom chassis vehicles are given in the following table:
Table 10 – Phase 2 Custom Chassis Fuel Consumption Standards
[Gallon per 1,000 ton-mile]
| Vehicle type 1 | Assigned vehicle service class | MY 2021 | MY 2027 |
|---|---|---|---|
| Coach Bus | HHD Vehicle | 20.6287 | 20.1375 |
| Motor Home | MDH Vehicle | 22.3969 | 22.2004 |
| School Bus | MHD Vehicle | 28.5855 | 26.6208 |
| Other bus | HHD Vehicle | 29.4695 | 28.0943 |
| Refuse hauler | HHD Vehicle | 30.7466 | 29.2731 |
| Concrete mixer | HHD Vehicle | 31.3360 | 31.0413 |
| Mixed-use vehicle | HHD Vehicle | 31.3360 | 31.0413 |
| Emergency Vehicle | HHD Vehicle | 31.8271 | 31.3360 |
1 Vehicle types are generally defined in § 535.3. “Other bus” includes any bus that is not a school bus or a coach bus. A “mixed-use vehicle” is one that meets at least one of the criteria specified in 40 CFR 1037.631(a)(1) or at least one of the criteria in 40 CFR 1037.631(a)(2), but not both.
(i) Manufacturers may generate or use fuel consumption credits for averaging to demonstrate compliance with the alternative standards as described in § 535.7(c). This requires that manufacturers specify a Family Emission Limit (FEL) for fuel consumption for each vehicle subfamily. The FEL may not be less than the result of emission modeling as described in this paragraph (b). These FELs serve as the fuel consumption standards for the vehicle subfamily instead of the standards specified in this paragraph (b)(6). Manufacturers may only use fuel consumption credits for vehicles certified to the optional standards in this paragraph (b)(6) as specified in § 535.7(c)(6) through (8) and you may not bank or trade fuel consumption credits from any vehicles certified under this paragraph (b)(6).
(ii) For purposes of this paragraph (b)(6), each separate vehicle type identified in Table 10 of this section is in a separate averaging set.
(iii) For purposes of emission and fuel consumption modeling under 40 CFR 1037.520, consider motor homes and coach buses to be subject to the Regional duty cycle, and consider all other vehicles to be subject to the Urban duty cycle.
(iv) Emergency vehicles are deemed to comply with the standards of this paragraph (6) if manufacturers use tires with TRRL at or below 8.4 kg/ton (8.7 g/ton for model years 2021 through 2026).
(v) Concrete mixers are deemed to comply with the standards of this paragraph (6) if manufacturers use tires with TRRL at or below 7.1 kg/ton (7.6 g/ton for model years 2021 through 2026).
(vi) Motor homes are deemed to comply with the standards of this paragraph (b)(6) if manufacturers use the following technologies:
(A) Tires with TRRL at or below 6.0 kg/ton (6.7 g/ton for model years 2021 through 2026).
(B) Automatic tire inflation systems or tire pressure monitoring systems with wheels on all axles.
(C) Tire pressure monitoring systems must use low pressure warning and malfunction telltales in clear view of the driver as specified in S4.3 and S4.4 of 49 CFR 571.138.
(vii) Small business manufacturers using the alternative standards for custom chassis vehicles under this paragraph (b)(6) may use fuel consumption credits subject to the unique provisions in § 535.7(a)(9).
(7) Advanced, innovative and off-cycle technologies. For vocational vehicles subfamilies subject to Phase 1 standards, manufacturers must create separate vehicle subfamilies for vehicles that contain advanced or innovative technologies and group those vehicles together in a vehicle subfamily if they use the same advanced or innovative technologies. Manufacturers may generate s separate credit allowances for advanced and innovative technologies as specified in § 535.7(f)(1) and (2). For vehicles subfamilies subject to Phase 2 standards, manufacturers may generate separate credit allowances for off-cycle technologies in accordance with § 535.7(f)(2). Separate credit allowances for advanced technology vehicles cannot be generated but instead manufacturers may use the credit multipliers specified in § 535.7(f)(1)(iv) through model year 2026.
(8) Certifying across service classes. A manufacturer may optionally certify a vocational vehicle subfamilies to the standards and useful life applicable to a heavier vehicle service class (such as MHD vocational vehicles instead of LHD vocational vehicles). Provisions related to generating fuel consumption credits apply as follows:
(i) If a manufacturer certifies all its vehicles from a given vehicle service class in a given model year to the standards and useful life that applies for a heavier vehicle service class, it may generate credits as appropriate for the heavier service class.
(ii) Class 8 hybrid vehicles with light or medium heavy-duty engines may be certified to compression-ignition standards for the Heavy HDV service class. A manufacturer may generate and use credits as allowed for the Heavy HDV service class.
(iii) Except as specified in paragraphs (b)(8)(i) and (ii) of this section, a manufacturer may not generate credits with the vehicle. If you include lighter vehicles in a subfamily of heavier vehicles with an FEL below the standard, exclude the production volume of lighter vehicles from the credit calculation. Conversely, if a manufacturer includes lighter vehicles in a subfamily with an FEL above the standard, it must include the production volume of lighter vehicles in the credit calculation.
(9) Off-road exemptions. This section provides an exemption for heavy-duty vocational vehicle subfamilies, including vocational tractors that are intended to be used extensively in off-road environments such as forests, oil fields, and construction sites from the fuel consumption standards in this paragraph (b). Vehicle exempted by this part do not comply with vehicle standards in this paragraph (b), but the engines in these vehicles must meet the engine requirements of paragraph (d) of this section. Note that manufacturers may not include these exempted vehicles in any credit calculations under this part.
(i) Qualifying criteria. Vocational vehicles intended for off-road use are exempt without request, subject to the provisions of this section, if they are primarily designed to perform work off-road (such as in oil fields, mining, forests, or construction sites), and they meet at least one of the criteria of paragraph (b)(9)(i)(A) of this section and at least one of the criteria of paragraph (b)(9)(i)(B) of this section. See paragraph (b)(6) of this section for alternate standards that apply for vehicles meeting only one of these sets of criteria.
(A) The vehicle must have affixed components designed to work inherently in an off-road environment (such as hazardous material equipment or off-road drill equipment) or be designed to operate at low speeds such that it is unsuitable for normal highway operation.
(B) The vehicle must meet one of the following criteria:
(1) Have an axle that has a gross axle weight rating (GAWR) at or above 29,000 pounds.
(2) Have a speed attainable in 2.0 miles of not more than 33 mi/hr.
(3) Have a speed attainable in 2.0 miles of not more than 45 mi/hr, an unloaded vehicle weight that is not less than 95 percent of its gross vehicle weight rating, and no capacity to carry occupants other than the driver and operating crew.
(4) Have a maximum speed at or below 54 mi/hr. A manufacturer may consider the vehicle to be appropriately speed-limited if engine speed at 54 mi/hr is at or above 95 percent of the engine’s maximum test speed in the highest available gear. A manufacturer may alternatively limit vehicle speed by programming the engine or vehicle’s electronic control module in a way that is tamper-resistant.
(ii) Tractors. The provisions of this section may apply for tractors only if each tractor qualifies as a vocational tractor under paragraph (c)(9) of this section or is granted approval for the exemption as specified in paragraph (b)(9)(iii) of this section.
(iii) Preliminary approval before certification. If a manufacturers has unusual circumstances where it may be questionable whether its vehicles qualify for the off-road exemption of this part, the manufacturer may send the agencies information before finishing its application for certification (see 40 CFR 1037.205) for the applicable vehicles and ask for a preliminary informal approval. The agencies will review the request and make an appropriate determination in accordance with 40 CFR 1037.210. The agencies will generally not reverse a decision where they have given a manufacturer preliminary approval, unless the agencies find new information supporting a different decision. However, the agencies will normally not grant relief in cases where the vehicle manufacturer has credits or can otherwise comply with the applicable standards.
(iv) Recordkeeping and reporting. (A) A manufacturers must keep records to document that its exempted vehicle configurations meet all applicable requirements of this section. Keep these records for at least eight years after you stop producing the exempted vehicle model. The agencies may review these records at any time.
(B) A manufacturers must also keep records of the individual exempted vehicles you produce, including the vehicle identification number and a description of the vehicle configuration.
(C) Within 90 days after the end of each model year, manufacturers must send to EPA a report as specified in § 535.8(g)(7) and EPA will make the report available to NHTSA.
(v) Compliance. (A) Manufacturers producing vehicles meeting the off-road exemption criteria in paragraph (b)(9)(i) of this section or that are granted a preliminary approval comply with the standards of this part.
(B) In situations where a manufacturer would normally ask for a preliminary approval subject to paragraph (b)(9)(iii) of this section but introduces its vehicle into U.S. commerce without seeking approval first from the agencies, those vehicles violate compliance with the fuel consumption standards of this part and the EPA provisions under 40 CFR 1068.101(a)(1).
(C) If at any time, the agencies find new information that contradicts a manufacturer’s use of the off-road exemption of this part, the manufacturers vehicles will be determined to be non-compliant with the regulations of this part and the manufacturer may be liable for civil penalties.
(10) Useful life. The following useful life values apply for the standards of this section:
(i) 110,000 miles or 10 years, whichever comes first, for vocational LHD vehicles certified to Phase 1 standards.
(ii) 150,000 miles or 15 years, whichever comes first, for vocational LHD vehicles certified to Phase 2 standards.
(iii) 185,000 miles or 10 years, whichever comes first, for vocational MHD vehicles for Phase 1 and 2.
(iv) 435,000 miles or 10 years, whichever comes first, for vocational HHD vehicles for Phase 1 and 2.
(v) For Phase 1 credits calculated based on a useful life of 110,000 miles, multiply any banked credits carried forward for use into the Phase 2 program by 1.36. For Phase 1 credit deficits generated based on a useful life of 110,000 miles multiply the credit deficit by 1.36, if offsetting the shortfall with Phase 2 credits.
(11) Recreational vehicles. Recreational vehicles manufactured after model year 2020 must comply with the fuel consumption standards of this section. Manufacturers producing these vehicles may also certify to fuel consumption standards from 2014 through model year 2020. Manufacturers may earn credits retroactively for early compliance with fuel consumption standards. Once selected, a manufacturer cannot reverse the decision and the manufacturer must continue to comply for each subsequent model year for all the vehicles it manufacturers in each regulatory subcategory for a given model year.
(12) Loose engines. Manufacturers may certify certain spark-ignition engines along with chassis-certified heavy-duty vehicles where there are identical engines used in those vehicles as described in 40 CFR 86.1819(k)(8) and 40 CFR 1037.150(m). Vehicles in which those engines are installed are subject to standards under this part.
(13) Compliance with Standards. A manufacturer complies with the standards of this part as described in § 535.10.
(c) Truck tractors. Each manufacturer building truck tractors, except vocational tractors or vehicle constructed in accordance with § 571.7(e), with a GVWR above 26,000 pounds shall comply with the fuel consumption standards in this paragraph (c) expressed in gallons per 1000 ton-miles. Engines used in heavy-duty truck tractors vehicles shall comply with the standards in paragraph (d) of this section. Each vehicle must be manufactured to comply for its full useful life. Standards apply to the vehicle subfamilies within each of the tractor vehicle regulatory subcategories in accordance with § 535.4 and 40 CFR 1037.230 and based upon the applicable modeling and testing specified in § 535.6. Determine the vehicles in each regulatory subcategory in accordance with 40 CFR 1037.140.
(1) Mandatory standards. For model years 2016 and later, each manufacturer’s truck tractor subfamilies must comply with the fuel consumption standards in paragraph (c)(3) of this section.
(i) Based on the roof height and the design of the cab, the truck tractor category is divided into subcategories as described in § 535.4. The standards that apply to each regulatory subcategory are shown in paragraphs (c)(2) and (3) of this section, each with its own assigned standard.
(ii) For purposes of certifying vehicles to fuel consumption standards, manufacturers must divide their product lines in each regulatory subcategory into vehicles subfamilies that have similar emissions and fuel consumption features, as specified by EPA in 40 CFR 1037.230, and these subfamilies will be subject to the applicable standards. Each vehicle subfamily is limited to a single model year.
(iii) Standards for truck tractor engines are given in paragraph (d) of this section.
(2) Voluntary compliance. (i) For model years 2013 through 2015, a manufacturer may choose voluntarily to comply early with the fuel consumption standards provided in paragraph (c)(3) of this section. For example, a manufacturer may choose to comply early in order to begin accumulating credits through over-compliance with the applicable standards. A manufacturer choosing early compliance must comply with all the vehicles and engines it manufacturers in each regulatory category for a given model year.
(ii) A manufacturer must declare its intent to voluntarily comply with fuel consumption standards and identify its plans to comply before it submits its first application for a certificate of conformity for the respective model year as specified in § 535.8; and, once selected, the decision cannot be reversed and the manufacturer must continue to comply for each subsequent model year for all the vehicles and engines it manufacturers in each regulatory category for a given model year.
(3) Regulatory subcategory standards. The fuel consumption standards for truck tractors, except for vocational tractors, are given in the following table:
Table 11 – Truck Tractor Fuel Consumption Standards
[Gallons per 1,000 ton-miles]
| Regulatory subcategories | Day cab | Sleeper cab | Heavy-Haul | |
|---|---|---|---|---|
| Class 7 | Class 8 | Class 8 | ||
| Low Roof | 10.5108 | 7.9568 | 6.6798 | |
| Mid Roof | 11.6896 | 8.6444 | 7.4656 | |
| High Roof | 12.1807 | 9.0373 | 7.3674 | |
| Low Roof | 10.5108 | 7.9568 | 6.6798 | NA |
| Mid Roof | 11.6896 | 8.6444 | 7.4656 | |
| High Roof | 12.1807 | 9.0373 | 7.3674 | |
| Low Roof | 10.2161 | 7.8585 | 6.4833 | NA |
| Mid Roof | 11.2967 | 8.4479 | 7.1709 | |
| High Roof | 11.7878 | 8.7426 | 7.0727 | |
| Low Roof | 10.36346 | 7.90766 | 7.10216 | 5.14735 |
| Mid Roof | 11.11984 | 8.38900 | 7.66208 | |
| High Roof | 11.14931 | 8.40864 | 7.43615 | |
| Low Roof | 9.80354 | 7.48527 | 6.67976 | 4.93124 |
| Mid Roof | 10.52063 | 7.94695 | 7.22004 | |
| High Roof | 10.47151 | 7.89784 | 6.94499 | |
| Low Roof | 9.44990 | 7.21022 | 6.29666 | 4.74460 |
| Mid Roof | 10.15717 | 7.66208 | 6.83694 | |
| High Roof | 9.82318 | 7.43615 | 6.31631 | |
(4) Subfamily standards. Manufacturers may generate or use fuel consumption credits for averaging, banking, and trading as described in § 535.7(c). This requires that manufacturers calculate a credit quantity if they specify a Family Emission Limit (FEL) that is different than the standard specified in this section. The FEL may not be less than the result of emission and fuel consumption modeling from 40 CFR 1037.520. These FELs serve as the emission standards for the specific vehicle subfamily instead of the standards specified in paragraph (2) of this section.
(5) Alternate standards for tractors at or above 120,000 pounds GCWR. Manufacturers may certify tractors at or above 120,000 pounds GCWR to the following fuel consumption standards in the following table:
Table 12 – Alternate Fuel Consumption Standards for Tractors Above 120,000 Pounds GCWR for 2021 MY and Later Fuel Consumption
[Gallons per 1,000 ton-miles]
| Low roof day cab | Mid roof day cab | High roof day cab | Low roof sleeper cab | Mid roof sleeper cab | High roof sleeper cab |
|---|---|---|---|---|---|
| 3.59528 | 3.82122 | 3.84086 | 3.26130 | 3.52652 | 3.43811 |
(6) Advanced, innovative and off-cycle technologies. For tractors subject to Phase 1 standards, manufacturers must create separate vehicle subfamilies for vehicles that contain advanced or innovative technologies and group those vehicles together in a vehicle subfamilies if they use the same advanced or innovative technologies. Manufacturers may generate separate credit allowances for advanced and innovative technologies as specified in § 535.7(f)(1) and (2). For vehicles subject to Phase 2 standards, manufacturers may generate separate credits allowance for off-cycle technologies in accordance with § 535.7(f)(2). Separate credit allowances for advanced technology vehicles cannot be generated but instead manufacturers may use the credit multipliers specified in § 535.7(f)(1)(iv) through model year 2026.
(7) Certifying across service classes. Manufacturers may certify Class 7 tractors to Class 8 tractors standards as follows:
(i) A manufacturer may optionally certify 4×2 tractors with heavy heavy-duty engines to the standards and useful life for Class 8 tractors, with no restriction on generating or using fuel consumption credits within the Class 8 averaging set.
(ii) A manufacturer may optionally certify a Class 7 tractor to the standards and useful life applicable to Class 8 tractors. Credit provisions apply as follows:
(A) If a manufacturer certifies all of its Class 7 tractors to Class 8 standards, it may use these Heavy HDV credits without restriction.
(B) This paragraph (c)(7)(ii)(B) applies if a manufacturer certifies some Class 7 tractors to Class 8 standards under this paragraph (c)(7)(ii) but not all of them. If a manufacturer includes Class 7 tractors in a subfamily of Class 8 tractors with an FEL below the standard, exclude the production volume of Class 7 tractors from the credit calculation. Conversely, if a manufacturer includes Class 7 tractors in a subfamily of Class 8 tractors with an FEL above the standard, it must include the production volume of Class 7 tractors in the credit calculation.
(8) Expanded families. Manufacturers may combine dissimilar vehicles into a single vehicle subfamilies for applying standards and for testing in special circumstances as follows:
(i) For a Phase 1 vehicle model that straddles a roof-height, cab type, or GVWR division, manufacturers can include all the vehicles in the same vehicle family if it certifies the vehicle family to the more stringent standard. For roof height, the manufacturer must certify to the taller roof standard. For cab-type and GVWR, the manufacturers must certify to the numerically lower standard.
(ii) For a Phase 2 vehicle model that includes a range of GVWR values that straddle weight classes, manufacturers may include all the vehicles in the same vehicle family if it certifies the vehicle family to the numerically lower fuel consumption standard from the affected service classes. Vehicles that are optionally certified to a more stringent standard under this paragraph are subject to useful-life and all other provisions corresponding to the weight class with the numerically lower fuel consumption standard. For a Phase 2 tractor model that includes a range of roof heights that straddle subcategories, a manufacturer may include all the vehicles in the same vehicle family if it certifies the vehicle family to the appropriate subcategory as follows:
(A) A manufacturer may certify mid-roof tractors as high-roof tractors, but it may not certify high-roof tractors as mid-roof tractors.
(B) For tractor families straddling the low-roof/mid-roof division, a manufacturer may certify the family based on the primary roof-height as long as no more than 10 percent of the tractors are certified to the otherwise inapplicable subcategory. For example, if 95 percent of the tractors in the family are less than 120 inches tall, and the other 5 percent are 122 inches tall, a manufacturer may certify the tractors as a single family in the low-roof subcategory.
(C) Determine the appropriate aerodynamic bin number based on the actual roof height if the C
(9) Vocational tractors. Tractors meeting the definition of vocational tractors in 49 CFR 523.2 must comply with requirements for heavy-duty vocational vehicles specified in paragraphs (b) and (d) of this section. For Phase 1, Class 7 and Class 8 tractors certified or exempted as vocational tractors are limited in production to no more than 21,000 vehicles in any three consecutive model years. If a manufacturer is determined as not applying this allowance in good faith by EPA in its applications for certification in accordance with 40 CFR 1037.205 and 1037.610, a manufacturer must comply with the tractor fuel consumption standards in paragraph (c)(3) of this section. No production limit applies for vocational tractors subject to Phase 2 standards.
(10) Small business manufacturers converting to mid roof or high roof configurations. Small manufacturers are to allowed convert low and mid roof tractors to high roof configurations without recertification, provided it is for the purpose of building a custom sleeper tractor or conversion to a natural gas tractor as specified in 40 CFR 1037.150(r).
(11) Useful life. The following useful life values apply for the standards of this section:
(i) 185,000 miles or 10 years, whichever comes first, for vehicles at or below 33,000 pounds GVWR.
(ii) 435,000 miles or 10 years, whichever comes first, for vehicles above 33,000 pounds GVWR.
(12) Conversion to high-roof configurations. Secondary vehicle manufacturers that qualify as small manufacturers may convert low- and mid-roof tractors to high-roof configurations without recertification for the purpose of building a custom sleeper tractor or converting it to run on natural gas, as follows:
(i) The original low- or mid-roof tractor must be covered by a valid certificate of conformity by EPA.
(ii) The modifications may not increase the frontal area of the tractor beyond the frontal area of the equivalent high-roof tractor with the corresponding standard trailer. If a manufacturer cannot use the original manufacturer’s roof fairing for the high-roof tractor, use good engineering judgment to achieve similar or better aerodynamic performance.
(iii) The agencies may require that these manufacturers submit annual production reports as described in § 535.8 and 40 CFR 1037.250 indicating the original roof height for requalified vehicles.
(13) Compliance with standards. A manufacturer complies with the standards of this part as described in § 535.10.
(d) Heavy-duty engines. Each manufacturer of heavy-duty engines shall comply with the fuel consumption standards in this paragraph (d) of this section expressed in gallons per 100 horsepower-hour. Each engine must be manufactured to comply for its full useful life, expressed in service miles, operating hours, or calendar years, whatever comes first. The provisions of this part apply to all new 2014 model year and later heavy-duty engines fueled by conventional and alternative fuels and manufactured for use in heavy-duty tractors or vocational vehicles. Standards apply to the engine families based upon the primary intended service classes within each of the engine regulatory subcategories as described in § 535.4 and based upon the applicable modeling and testing specified in § 535.6.
(1) Mandatory standards. Manufacturers of heavy-duty engine families shall comply with the mandatory fuel consumption standards in paragraphs (d)(3) through (6) of this section for model years 2017 and later for compression-ignition engines and for model years 2016 and later for spark-ignition engines.
(i) The heavy-duty engine regulatory category is divided into six regulatory subcategories, five compression-ignition subcategories and one spark-ignition subcategory, as shown in Table 14 of this section.
(ii) Separate standards exist for engine families manufactured for use in heavy-duty vocational vehicles and in truck tractors.
(iii) For purposes of certifying engines to fuel consumption standards, manufacturers must divide their product lines in each regulatory subcategory into engine families. Fuel consumption standards apply each model year to the same engine families used to comply with EPAstandards in 40 CFR 1036.108 and 40 CFR 1037.230. An engine family is designated under the EPA program based upon testing specified in 40 CFR part 1036, subpart F, and the engine family’s primary intended service class. Each engine family manufactured for use in a heavy-duty tractor or vocational vehicle must be certified to the primary intended service class that it is designed for in accordance with 40 CFR 1036.108 and 1036.140.
(2) Voluntary compliance. (i) For model years 2013 through 2016 for compression-ignition engine families, and for model year 2015 for spark-ignition engine families, a manufacturer may choose voluntarily to comply with the fuel consumption standards provided in paragraphs (d)(3) through (5) of this section. For example, a manufacturer may choose to comply early in order to begin accumulating credits through over-compliance with the applicable standards. A manufacturer choosing early compliance must comply with all the vehicles and engines it manufacturers in each regulatory category for a given model year except in model year 2013 the manufacturer may comply with individual engine families as specified in 40 CFR 1036.150(a)(2).
(ii) A manufacturer must declare its intent to voluntarily comply with fuel consumption standards and identify its plans to comply before it submits its first application for a certificate of conformity for the respective model year as specified in § 535.8; and, once selected, the decision cannot be reversed and the manufacturer must continue to comply for each subsequent model year for all the vehicles and engines it manufacturers in each regulatory category for a given model year.
(3) Regulatory subcategory standards. The primary fuel consumption standards for heavy-duty engine families are given in the following table:
Table 13 – Primary Heavy-Duty Engine Fuel Consumption Standards
[Gallons per 100 hp-hr]
| Regulatory subcategory | CI LHD engines and all other engines | CI MHD engines and all other engines | HHD CI engines and all other engines | SI engines | ||
|---|---|---|---|---|---|---|
| Application | Vocational | Vocational | Tractor | Vocational | Tractor | All |
| 2015 | 7.0552 | |||||
| 2013 to 2016 | 5.8939 | 5.8939 | 4.9312 | 5.5697 | 4.666 | |
| 2016 | 7.0552 | |||||
| 2017 to 2020 | 5.6582 | 5.6582 | 4.6660 | 5.4519 | 4.4401 | 7.0552 |
| 2021 to 2023 | 5.5305 | 5.3536 | 4.6464 | 5.0393 | 4.3910 | 7.0552 |
| 2024 to 2026 | 5.4519 | 5.2849 | 4.5285 | 4.9705 | 4.2829 | 7.0552 |
| 2027 and later | 5.4224 | 5.2554 | 4.4892 | 4.9411 | 4.2436 | 7.0552 |
(4) Alternate subcategory standards. The alternative fuel consumption standards for heavy-duty compression-ignition engine families are as follows:
(i) Manufacturers entering the voluntary program in model years 2014 through 2016, may choose to certify compression-ignition engine families unable to meet standards provided in paragraph (d)(3) of this section to the alternative fuel consumption standards of this paragraph (d)(4).
(ii) Manufacturers may not certify engines to these alternate standards if they are part of an averaging set in which they carry a balance of banked credits. For purposes of this section, manufacturers are deemed to carry credits in an averaging set if they carry credits from advance technology that are allowed to be used in that averaging set in accordance with § 535.7(d)(12).
(iii) The emission standards of this section are determined as specified by EPA in 40 CFR 1036.620(a) through (c) and should be converted to equivalent fuel consumption values.
(5) Alternate phase-in standards. Manufacturers have the option to comply with EPA emissions standards for compression-ignition engine families using an alternative phase-in schedule that correlates with EPA’s OBD standards. If a manufacturer chooses to use the alternative phase-in schedule for meeting EPA standards and optionally chooses to comply early with the NHTSA fuel consumption program, it must use the same phase-in schedule beginning in model year 2013 for fuel consumption standards and must remain in the program for each model year thereafter until model year 2020. The fuel consumption standard for each model year of the alternative phase-in schedule is provided in Table 15 of this section. Note that engine families certified to these standards are not eligible for early credits under § 535.7.
Table 14 – Phase 1 Alternative Phase-In CI Engine Fuel Consumption Standards
[Gallons per 100 hp-hr]
| Tractors | LHD engines | MHD engines | HHD engines |
|---|---|---|---|
| Model Years 2013 to 2015 | NA | 5.0295 | 4.7642 |
| Model Years 2016 to 2020 † | NA | 4.7839 | 4.5187 |
| Vocational | LHD engines | MHD engines | HHD engines |
| Model Years 2013 to 2015 | 6.0707 | 6.0707 | 5.6680 |
| Model Years 2016 to 2020 † | 5.6582 | 5.6582 | 5.4519 |
†
(6) Alternative fuel conversions. Engines that have been converted to operate on alternative fuels may demonstrate compliance with the standards of this part or other alternative compliance approaches allowed by EPA in 40 CFR 85.525.
(7) Optional certification under this section. Manufacturers certifying spark-ignition engines to the compression-ignition standards for EPA must treat those engines as compression-ignition engines for all the provisions of this part.
(8) Advanced, innovative and off-cycle technologies. For engines subject to Phase 1 standards, manufacturers must create separate engine families for engines that contain advanced or innovative technologies and group those engines together in an engine family if they use the same advanced or innovative technologies. Manufacturers may generate separate credit allowances for advanced and innovative technologies as specified in § 535.7(f)(1) and (2). For engines subject to Phase 2 standards, manufacturers may generate separate credits allowance for off-cycle technologies in accordance with § 535.7(f)(2). Credit incentives for advanced technology engines do not apply during the Phase 2 period.
(9) Useful life. The exhaust emission standards of this section apply for the full useful life, expressed in service miles, operating hours, or calendar years, whichever comes first. The following useful life values apply for the standards of this section:
(i) 120,000 miles or 11 years, whichever comes first, for CI and SI LHD engines certified to Phase 1 standards.
(ii) 150,000 miles or 15 years, whichever comes first, for CI and SI LHD and spark-ignition engines certified to Phase 2 standards.
(iii) 185,000 miles or 10 years, whichever comes first, for CI MHD engines certified to Phase 1 and for Phase 2.
(iv) 435,000 miles or 10 years, whichever comes first, for CI HHD engines certified to Phase 1 and for Phase 2.
(v) For Phase 1 credits that manufacturers calculate based on a useful life of 110,000 miles, multiply any banked credits that it carries forward for use into the Phase 2 program by 1.36. For Phase 1 credit deficits that manufacturers generate based on a useful life of 110,000 miles multiply the credit deficit by 1.36, if offsetting the shortfall with Phase 2 credits.
(10) Loose engines. This paragraph (10) describes alternate emission and fuel consumption standards for loose engines certified under. The standards of this paragraph (d) and 1036.108 do not apply for loose engines certified under paragraph (a) of this section and 40 CFR 86.1819-14(k)(8). The standards in 40 CFR 1036.150(j) apply for the emissions and equivalent fuel consumption measured with the engine installed in a complete vehicle consistent with the provisions of 40 CFR 86.1819-14(k)(8)(vi).
(11) Alternate transition option for Phase 2 engine standards. (i) Manufacturers may optionally elect to comply with the model year 2021 primary (Phase 2) vocational vehicle and tractor engine standards in paragraph (d)(3) of this section beginning in model year 2020 (e.g. comply with the more stringent standards one year early). The model year 2021 standard would apply to these manufacturers for model years 2020 through 2023. Manufacturers that voluntarily certify their engines to model year 2021 standards early would then be eligible for less stringent engine tractor standards in model years 2024 through 2026, as follows:
(A) 5.2849 gallons per 100 hp-hr for MHD vocational vehicle engines.
(B) 4.5874 gallons per 100 hp-hr for MHD tractor engines.
(C) 4.9705 gallons per 100 hp-hr for HHD vocational vehicle engines.
(D) 4.3418 gallons per 100 hp-hr for HHD tractor engines.
(ii) The primary standard in paragraph (d)(3) applies for all manufacturers in model year 2027 and later years.
(iii) Manufacturers may apply these provisions separately for medium heavy-duty engines and heavy heavy-duty engines. This election applies to all engines in each segment. For example, if a manufacturer elects this alternate option for its medium heavy-duty engines, all of the manufacturer’s medium heavy-duty vocational and tractor engines must comply. Engine fuel consumption credits generated under § 535.7(d) for manufacturers complying early with the model year 2021 standards follow the temporary extended credit life allowance in § 535.7(d)(9).
(12) Compliance with Standards. A manufacturer complies with the standards of this part as described in § 535.10.
(e) Heavy-duty Trailers. Each manufacturer of heavy-duty trailers as specified in 49 CFR 523.10, except trailers constructed in accordance with 49 CFR 571.7(f), shall comply with the fuel consumption standards in paragraph (e)(1) of this section expressed in gallons per 1000 ton-miles. Each vehicle must be manufactured to comply for its full useful life. There are no Phase 1 standards for trailers. Different levels of stringency apply for box vans depending on features that may affect aerodynamic performance. Standards apply to the trailer vehicle families within each of the trailer regulatory subcategories in accordance with § 535.4 and 40 CFR 1037.230 and based upon the applicable modeling and testing specified in § 535.6.
(1) Fuel consumption standards for Box-Vans. Box van trailer families manufactured in model year 2021 and later must comply with the fuel consumption standards of this section. For model years 2018 through 2020, box van trailer manufacturers have the option to voluntarily comply with the fuel consumption standards of this section. Different levels of stringency apply for box vans depending on features that may affect aerodynamic performance. A manufacturer may optionally meet less stringent standards for different trailer types, which are characterized as follows:
(i) For trailers 35 feet or longer, a manufacturer may designate as “non-aero box vans” those box vans that have a rear lift gate or rear hinged ramp, and at least one of the following side features: Side lift gate, side-mounted pull-out platform, steps for side-door access, a drop-deck design, or belly boxes that occupy at least half the length of both sides of the trailer between the centerline of the landing gear and the leading edge of the front wheels. For trailers less than 35 feet long, manufacturers may designate as “non-aero box vans” any refrigerated box vans with at least one of the side features identified for longer trailers.
(ii) A manufacturer may designate as “partial-aero box vans” those box vans that have at least one of the side features identified in paragraph (a)(1)(i) of this section. Long box vans may also qualify as partial-aero box vans if they have a rear lift gate or rear hinged ramp. Note that this paragraph (e)(1)(ii) does not apply for box vans designated as “non-aero box vans” under paragraph (e)(1)(i) of this section.
(iii) “Full-aero box vans” are box vans that are not designated as non-aero box vans or partial-aero box vans under this paragraph (e)(1).
(iv) Fuel consumption standards apply for full-aero box vans as specified in the following table:
Table 15 – Phase 2 Full Aero Box Van Fuel Consumption Standards
[Gallons per 1,000 ton-miles]
| Model years | Dry van | Refrigerated van | ||
|---|---|---|---|---|
| Long | Short | Long | Short | |
| 2018 to 2020 | 7.98625 | 12.31827 | 8.15324 | 12.68173 |
| 2021 to 2023 | 7.75049 | 12.15128 | 7.91749 | 12.52456 |
| 2024 to 2026 | 7.58350 | 11.87623 | 7.75049 | 12.24951 |
| 2027 and later | 7.43615 | 11.72888 | 7.60314 | 12.10216 |
(v) Fuel consumption standards apply for partial-aero box vans as specified in the following table:
Table 16 – Phase 2 Fuel Consumption Standards for Partial-Aero Box Vans
[Gallons per 1,000 ton-mile]
| Model year | Dry van | Refrigerated van | ||
|---|---|---|---|---|
| Short | Long | Short | Long | |
| 2018-2020 | 12.31827 | 7.98625 | 12.68173 | 8.15324 |
| 2021 and later | 12.15128 | 7.91749 | 12.52456 | 8.08448 |
(2) Fuel consumption standards for Non-aero Box Vans and Non-box Trailers. (i) Non-aero box van and non-box trailer families manufactured in model year 2021 and later must comply with the fuel consumption standards of this section. For model years 2018 through 2020, trailer manufacturers have the option to voluntarily comply with the fuel consumption standards of this section.
(ii) Non-aero box vans and non-box vans must meet the following standards:
(A) Trailers must use automatic tire inflation systems or tire pressure monitoring systems with wheels on all axles. Tire pressure monitoring systems must use low pressure warning and malfunction telltales in clear view of the driver as specified in S4.3 and S4.4 of 49 CFR 571.138.
(B) Non-box trailers must use tires with a TRRL at or below 5.1 kg/tonne. Through model year 2020, non-box trailers may instead use tires with a TRRL at or below 6.0 kg/tonne.
(C) Non-aero box vans must use tires with a TRRL at or below 4.7 kg/tonne. Through model year 2020, non-aero box vans may instead use tires with a TRRL at or below 5.1 kg/tonne.
(3) Subfamily standards. Starting in model year 2027, manufacturers may generate or use fuel consumption credits for averaging to demonstrate compliance with the standards specified in paragraph (e)(1)(iii) of this section as described in § 535.7(e). This requires that manufacturers specify a Family Emission Limit (FEL) for fuel consumption for each vehicle subfamily. The FEL may not be less than the result of the emission and fuel consumption calculation in 40 CFR 1037.515. The FEL may not be greater than the appropriate standard for model year 2021 trailers. These FELs serve as the fuel consumption standards for the specific vehicle subfamily instead of the standards specified in paragraph (e)(1) of this section. Manufacturers may not use averaging for non-box trailers, partial-aero box vans, or non-aero box vans that meet standards under paragraph (e)(1)(i) or (e)(1)(ii) of this section, and manufacturers may not use fuel consumption credits for banking or trading for any trailers.
(4) Useful life. The fuel consumption standards of this section apply for a useful life equal to 10 years.
(5) Transitional allowances for trailers. Through model year 2026, trailer manufacturers may calculate a number of trailers that are exempt from the standards and certification requirements of this part. Calculate the number of exempt box vans in a given model year by multiplying the manufacturer’s total U.S.-directed production volume of certified box vans by 0.20 and rounding to the nearest whole number; however, in no case may the number of exempted box vans be greater than 350 units in any given model year. Repeat this calculation to determine the number of non-box trailers, up to 250 annual units, that are exempt from standards and certification requirements. Perform the calculation based on the manufacturer’s projected production volumes in the first year that standards apply; in later years, use actual production volumes from the preceding model year. Manufacturers include these calculated values of the production volumes of exempt trailers in their annual production report under § 535.8 and 40 CFR 1037.250.
(6) Roll-up doors for non-aero box vans. Through model year 2023, box vans may qualify for non-aero or partial-aero standards under this paragraph (e) by treating roll-up rear doors as being equivalent to rear lift gates.
(7) Expanded families. A manufacturer may include refrigerated box vans in a vehicle family with dry box vans by treating them all as dry box vans for demonstrating compliance with fuel consumption standards. A manufacturer may include certain other types of trailers in a vehicle family with a different type of trailer, such that the combined set of trailers are all subject to the more stringent standards, as follows:
(i) Standards for long trailers are more stringent than standards for short trailers.
(ii) Standards for long dry box vans are more stringent than standards for short refrigerated box vans.
(iii) Standards for non-aero box vans are more stringent than standards for non-box trailers.
(8) Compliance with standards. A manufacturer complies with the standards of this part as described in § 535.10.
§ 535.6 Measurement and calculation procedures.
This part describes the measurement and calculation procedures manufacturers use to determine annual fuel consumption performance results. Manufacturers use the fuel consumption results determined in this part for calculating credit balances specified in § 535.7 and then determine whether they comply with standards as specified in § 535.10. Manufacturers must use EPA emissions test results for deriving NHTSA’s fuel consumption performance rates. Consequently, manufacturers conducting testing for certification or annual demonstration testing and providing CO
(a) Heavy-duty pickup trucks and vans. This section describes the method for determining the fuel consumption performance rates for test groups and for fleets of complete heavy-duty pickup trucks and vans each model year. The NHTSA heavy-duty pickup truck and van fuel consumption performance rates correspond to the same requirements for EPA as specified in 40 CFR 86.1819-14.
(1) For the Phase 1 program, if the manufacturer’s fleet includes conventional vehicles (gasoline, diesel and alternative fueled vehicles) and advanced technology vehicles (hybrids with powertrain designs that include energy storage systems, vehicles with waste heat recovery, electric vehicles and fuel cell vehicles), it may divide its fleet into two separate fleets each with its own separate fleet average fuel consumption performance rate. For Phase 2, manufacturers may calculate their fleet average fuel consumption rates for a conventional fleet and separate advanced technology vehicle fleets. Advanced technology vehicle fleets should be separated into plug-in hybrid electric vehicles, electric vehicles and fuel cell vehicles.
(2) Vehicles in each fleet should be selected and divided into test groups or subconfigurations according to EPA in 40 CFR 86.1819-14(d).
(3) Use the EPA CO
(i) Use CO
(ii) Use CO
(iii) All electric vehicles are deemed to have zero emissions of CO
(iv) Use CO
(v) Use CO
(vi) Manufacturers can choose to analytically derive CO
(4) Calculate equivalent fuel consumption results for all test groups, in gallons per 100 miles, from CO
(i) Calculate the equivalent fuel consumption test group results as follows for compression-ignition vehicles and alternative fuel compression-ignition vehicles. CO
(ii) Calculate the equivalent fuel consumption test group results as follows for spark-ignition vehicles and alternative fuel spark-ignition vehicles. CO
(5) Calculate the fleet average fuel consumption result, in gallons per 100 miles, from the equivalent fuel consumption test group results and round the fuel consumption result to the nearest 0.001 gallon per 100 miles. Calculate the fleet average fuel consumption result using the following equation.
(6) Compare the fleet average fuel consumption standard to the fleet average fuel consumption performance. The fleet average fuel consumption performance must be less than or equal to the fleet fuel consumption standard to comply with standards in § 535.5(a).
(b) Heavy-duty vocational vehicles and tractors. This section describes the method for determining the fuel consumption performance rates for vehicle families of heavy-duty vocational vehicles and tractors. The NHTSA heavy-duty vocational vehicle and tractor fuel consumption performance rates correspond to the same requirements for EPA as specified in 40 CFR 1037, subpart F.
(1) Select vehicles and vehicle family configurations to test as specified in 40 CFR 1037.230 for vehicles that make up each of the manufacturer’s regulatory subcategories of vocational vehicles and tractors. For the Phase 2 program, select powertrain, axle and transmission families in accordance with 40 CFR 1037.231 and 1037.232.
(2) Follow the EPA testing requirements in 40 CFR 1037.230 and 1037.501 to derive inputs for the Greenhouse gas Emissions Model (GEM).
(3) Enter inputs into GEM, in accordance with 40 CFR 1037.520, to derive the emissions and fuel consumption performance results for all vehicles (conventional, alternative fueled and advanced technology vehicles).
(4) For Phase 1 and 2, all of the following GEM inputs apply for vocational vehicles and other tractor regulatory subcategories, as follows:
(i) Model year and regulatory subcategory (see § 535.3 and 40 CFR 1037.230).
(ii) Coefficient of aerodynamic drag or drag area, as described in 40 CFR 1037.520(b) (tractors only for Phase 1).
(iii) Steer and drive tire rolling resistance, as described in 40 CFR 1037.520(c).
(iv) Vehicle speed limit, as described in 40 CFR 1037.520(d) (tractors only).
(v) Vehicle weight reduction, as described in 40 CFR 1037.520(e) (tractors only for Phase 1).
(vi) Automatic engine shutdown systems, as described in 40 CFR 1037.660 (only for Phase 1 Class 8 sleeper cabs). For Phase 1, enter a GEM input value of 5.0 g/ton-mile, or an adjusted value as specified in 40 CFR 1037.660.
(5) For Phase 2 vehicles, the GEM inputs described in paragraphs (b)(4)(i) through (v) of this section continue to apply. Note that the provisions related to vehicle speed limiters and automatic engine shutdown systems are available for vocational vehicles in Phase 2. The additional GEM inputs that apply for vocational vehicles and other tractor regulatory subcategories for demonstrating compliance with Phase 2 standards are as follows:
(i) Engine characteristics. Enter information from the engine manufacturer to describe the installed engine and its operating parameters as described in 40 CFR 1036.510 and 1037.520(f).
(ii) Vehicle information. Enter information in accordance with 40 CFR 1037.520(g) for the vehicle and its operating parameters including:
(A) Transmission make, model and type;
(B) Drive axle configuration;
(C) Drive axle ratio, k
(D) GEM inputs associated with powertrain testing include powertrain family, transmission calibration identifier, test data from 40 CFR 1037.550, and the powertrain test configuration (dynamometer connected to transmission output or wheel hub).
(iii) Idle-reduction technologies. Identify whether the manufacturer’s vehicle has qualifying idle-reduction technologies, subject to the qualifying criteria in 40 and 1037.660 and enter values for stop start and neutral idle technologies as specified in 40 CFR 1037.520(h).
(iv) Axle and transmission efficiency. Manufacturers may use axle efficiency maps as described in 40 CFR 1037.560 and transmission efficiency maps as described in 40 CFR 1037.565 to replace the default values in GEM.
(v) Additional reduction technologies. Enter input values in GEM as follows to characterize the percentage CO
(A) Intelligent controls
(B) Accessory load
(C) Tire-pressure systems
(D) Extended-idle reduction
(E) Additional GEM inputs may apply as follows:
(1) Enter 1.7 and 0.9, respectively, for school buses and coach buses that have at least seven available forward gears.
(2) If the agencies approve an off-cycle technology under § 535.7(f) and 40 CFR 1037.610 in the form of an improvement factor, enter the improvement factor expressed as a percentage reduction in CO
(vi) Vehicles with hybrid power take-off (PTO). For vocational vehicles, determine the delta PTO emission result of the manufacturer’s engine and hybrid power take-off system as described in 40 CFR 1037.540.
(vii) Aerodynamic improvements for vocational vehicles. For vocational vehicles certified using the Regional duty cycle, enter ΔC
(viii) Alternate fuels. For fuels other than those identified in GEM, perform the simulation by identifying the vehicle as being diesel-fueled if the engine is subject to the compression-ignition standard, or as being gasoline-fueled if the engine is subject to the spark-ignition standards. Correct the engine or powertrain fuel map for mass-specific net energy content as described in 40 CFR 1036.535(b).
(ix) Custom chassis vehicles. A simplified versions of GEM applies for custom chassis vehicle subject § 535.5(b)(6) in accordance with 40 CFR 1037.520(a)(2)(ii).
(6) In unusual circumstances, manufacturers may ask EPA to use weighted average results of multiple GEM runs to represent special technologies for which no single GEM run can accurately reflect.
(7) From the GEM results, select the CO
(c) [Reserved]
(d) Heavy-duty engines. This section describes the method for determining equivalent fuel consumption family certification level (FCL) values for engine families of heavy-duty truck tractors and vocational vehicles. The NHTSA heavy-duty engine fuel consumption FCLs are determined from the EPA FCLs tested in accordance with 40 CFR 1036, subpart F. Each engine family must use the same primary intended service class as designated for EPA in accordance with 40 CFR 1036.140.
(1) Manufacturers must select emission-data engines representing the tested configuration of each engine family specified in 40 CFR part 86 and 40 CFR 1036.235 for engines in heavy-duty truck tractors and vocational vehicles that make up each of the manufacture’s regulatory subcategories.
(2) Standards in § 535.5(d) apply to the CO
(i) Use the CO
(ii) Use the CO
(iii) Use the CO
(iv) All electric vehicles are deemed to have zero emissions of CO
(3) Use the CO
(i) If a manufacturer certifies an engine family for use both as a vocational engine and as a tractor engine, the manufacturer must split the family into two separate subfamilies in accordance with 40 CFR 1036.230. The manufacturer may assign the numbers and configurations of engines within the respective subfamilies at any time prior to the submission of the end-of-year report required by 40 CFR 1036.730 and § 535.8. The manufacturer must track into which type of vehicle each engine is installed, although EPA may allow the manufacturer to use statistical methods to determine this for a fraction of its engines.
(ii) The following engines are excluded from the engine families used to determine fuel consumption FCL values and the benefit for these engines is determined as an advanced technology credit under the ABT provisions provided in § 535.7(e); these provisions apply only for the Phase 1 program:
(A) Engines certified as hybrid engines or power packs.
(B) Engines certified as hybrid engines designed with PTO capability and that are sold with the engine coupled to a transmission.
(C) Engines with Rankine cycle waste heat recovery.
(4) Manufacturers generating CO
(5) Calculate equivalent fuel consumption values from the emissions CO
(i) Calculate equivalent fuel consumption FCL values for compression-ignition engines and alternative fuel compression-ignition engines. CO
(ii) Calculate equivalent fuel consumption FCL values for spark-ignition engines and alternative fuel spark-ignition engines. CO
(iii) Manufacturers may carryover fuel consumption data from a previous model year if allowed to carry over emissions data for EPA in accordance with 40 CFR 1036.235.
(iv) If a manufacturer uses an alternate test procedure under 40 CFR 1065.10 and subsequently the data is rejected by EPA, NHTSA will also reject the data.
(e) Heavy-duty trailers. This section describes the method for determining the fuel consumption performance rates for trailers. The NHTSA heavy-duty trailers fuel consumption performance rates correspond to the same requirements for EPA as specified in 40 CFR part 1037, subpart F.
(1) Select trailer family configurations that make up each of the manufacturer’s regulatory subcategories of heavy-duty trailers in 40 CFR 1037.230 and § 535.4.
(2) Obtain preliminary approvals for trailer aerodynamic devices from EPA in accordance with 40 CFR 1037.150.
(3) For manufacturers voluntarily complying in model years 2018 through 2020, and for trailers complying with mandatory standards in model years 2021 and later, determine the CO
(4) From the equation results, use the CO
(i) For families containing multiple subfamilies, identify the FELs for each subfamily.
(ii) Calculate equivalent fuel consumption FEL values for trailer families. CO
§ 535.7 Averaging, banking, and trading (ABT) credit program.
(a) General provisions. After the end of each model year, manufacturers must comply with the fuel consumption standards in § 535.5 for averaging, banking and trading credits. Trailer manufacturers are excluded from this section except for those producing full-aero box trailers, which may comply with special provisions in paragraph (e) of this section. Manufacturers comply with standards if the sum of averaged, banked and traded credits generate a “zero” credit balance or a credit surplus within an averaging set of vehicles or engines. Manufacturers fail to comply with standards if the sum of the credit flexibilities generate a credit deficit (or shortfall) in an averaging set. Credit shortfalls must be offset by banked or traded credits within three model years after the shortfall is incurred. These processes are hereafter referenced as the NHTSA ABT credit program. The following provisions apply to all fuel consumption credits.
(1) Credits (or fuel consumption credits (FCCs)). Credits in this part mean a calculated weighted value representing the difference between the fuel consumption performance and the standard of a vehicle or engine family or fleet within a particular averaging set. Positive credits represent cases where a vehicle or engine family or fleets perform better than the applicable standard (the fuel consumption performance is less than the standard) whereas negative credits represent underperforming cases. The value of a credit is calculated according to paragraphs (b) through (e) of this section. FCCs are only considered earned or useable for averaging, banking or trading after EPA and NHTSA have verified the information in a manufacturer’s final reports required in § 535.8. Types of FCCs include the following:
(i) Conventional credits. Credits generated by vehicle or engine families or fleets containing conventional vehicles (i.e., gasoline, diesel and alternative fueled vehicles).
(ii) Early credits. Credits generated by vehicle or engine families or fleets produced for model year 2013. Early credits are multiplied by an incentive factor of 1.5 times.
(iii) Advanced technology credits. Credits generated by vehicle or engine families or subconfigurations containing vehicles with advanced technologies (i.e., hybrids with regenerative braking, vehicles equipped with Rankine-cycle engines, electric and fuel cell vehicles) and incentivized under this ABT credit program in paragraph (f)(1) of this section and by EPA under 40 CFR 86.1819-14(d)(7), 1036.615, and 1037.615.
(iv) Innovative and off-cycle technology credits. Credits can be generated by vehicle or engine families or subconfigurations having fuel consumption reductions resulting from technologies not reflected in the GEM simulation tool or in the FTP chassis dynamometer and that were not in common use with heavy-duty vehicles or engines before model year 2010 that are not reflected in the specified test procedure. Manufacturers should prove that these technologies were not in common use in heavy-duty vehicles or engines before model year 2010 by demonstrating factors such as the penetration rates of the technology in the market. NHTSA will not approve any request if it determines that these technologies do not qualify. The approach for determining innovative and off-cycle technology credits under this fuel consumption program is described in paragraph (f)(2) of this section and by EPA under 40 CFR 86.1819-14(d)(13), 1036.610, and 1037.610.
(2) Averaging. Averaging is the summing of a manufacturer’s positive and negative FCCs for engines or vehicle families or fleets within an averaging set. The principle averaging sets are defined in § 535.4.
(i) A credit surplus occurs when the net sum of the manufacturer’s generated credits for engines or vehicle families or fleets within an averaging set is positive (a zero credit balance is when the sum equals zero).
(ii) A credit deficit occurs when the net sum of the manufacturer’s generated credits for engines or vehicle families or fleets within an averaging set is negative.
(iii) Positive credits, other than advanced technology credits, generated and calculated within an averaging set may only be used to offset negative credits within the same averaging set.
(iv) Manufacturers may certify one or more vehicle families (or subfamilies) to an FEL above the applicable fuel consumption standard, subject to any applicable FEL caps and other provisions allowed by EPA in 40 CFR parts 1036 and 1037, if the manufacturer shows in its application for certification to EPA that its projected balance of all FCC transactions in that model year is greater than or equal to zero or that a negative balance is allowed by EPA under 40 CFR 1036.745 and 1037.745.
(v) If a manufacturer certifies a vehicle family to an FEL that exceeds the otherwise applicable standard, it must obtain enough FCC to offset the vehicle family’s deficit by the due date of its final report required in § 535.8. The emission credits used to address the deficit may come from other vehicle families that generate FCCs in the same model year (or from the next three subsequent model years), from banked FCCs from previous model years, or from FCCs generated in the same or previous model years that it obtained through trading. Note that the option for using banked or traded credits does not apply for trailers.
(vi) Manufacturers may certify a vehicle or engine family using an FEL (as described in § 535.6) below the fuel consumption standard (as described in § 535.5) and choose not to generate conventional fuel consumption credits for that family. Manufacturers do not need to calculate fuel consumption credits for those families and do not need to submit or keep the associated records described in § 535.8 for these families. Manufacturers participating in NHTSA’s FCC program must provide reports as specified in § 535.8.
(3) Banking. Banking is the retention of surplus FCC in an averaging set by the manufacturer for use in future model years for the purpose of averaging or trading.
(i) Surplus credits may be banked by the manufacturer for use in future model years, or traded, given the restriction that the credits have an expiration date of five model years after the year in which the credits are generated. For example, banked credits earned in model year 2014 may be utilized through model year 2019. Surplus credits will become banked credits unless a manufacturer contacts NHTSA to expire its credits.
(ii) Surplus credits become earned or usable banked FCCs when the manufacturer’s final report is approved by both agencies. However, the agencies may revoke these FCCs at any time if they are unable to verify them after reviewing the manufacturer’s reports or auditing its records.
(iii) Banked FCC retain the designation from the averaging set and model year in which they were generated.
(iv) Banked credits retain the designation of the averaging set in which they were generated.
(v) Trailer manufacturers generating credits in paragraph (e) of this section may not bank credits except to resolve credit deficits in the same model year or from up to three prior model years.
(4) Trading. Trading is a transaction that transfers banked FCCs between manufacturers or other entities in the same averaging set. A manufacturer may use traded FCCs for averaging, banking, or further trading transactions.
(i) Manufacturers may only trade banked credits to other manufacturers to use for compliance with fuel consumption standards. Traded FCCs, other than advanced technology credits, may be used only within the averaging set in which they were generated. Manufacturers may only trade credits to other entities for the purpose of expiring credits.
(ii) Advanced technology credits can be traded across different averaging sets.
(iii) The agencies may revoke traded FCCs at any time if they are unable to verify them after reviewing the manufacturer’s reports or auditing its records.
(iv) If a negative FCC balance results from a transaction, both the buyer and seller are liable, except in cases the agencies deem to involve fraud. See § 535.9 for cases involving fraud. EPA also may void the certificates of all vehicle families participating in a trade that results in a manufacturer having a negative balance of emission credits. See 40 CFR 1037.745.
(v) Trailer manufacturers generating credits in paragraph (e) of this section starting in model year 2027 may not bank or trade credits. These manufacturers may only use credits for the purpose of averaging.
(vi) Manufacturers with deficits or projecting deficits before or during a production model year may not trade credits until its available credits exceed the deficit. Manufacturers with a deficit may not trade credits if the deadline to offset that credit deficit has passed.
(5) Credit deficit (or credit shortfall). A credit shortfall or deficit occurs when the sum of the manufacturer’s generated credits for engines or vehicle families or fleets within an averaging set is negative. Credit shortfalls must be offset by an available credit surplus within three model years after the shortfall was incurred. If the shortfall cannot be offset, the manufacturer is liable for civil penalties as discussed in § 535.9.
(6) FCC credit plan. (i) Each model year manufacturers submit credit plan in their certificates of conformity as required in 40 CFR 1036.725(b)(2) and 40 CFR 1037.725(b)(2). The plan is required to contain equivalent fuel consumption information in accordance § 535.8(c). The plan must include:
(A) Detailed calculations of projected emission and fuel consumption credits (positive or negative) based on projected U.S.-directed production volumes. The agencies may require a manufacturer to include similar calculations from its other engine or vehicle families to project its net credit balances for the model year. If a manufacturer projects negative emission and/or fuel consumption credits for a family, it must state the source of positive emission and/or fuel consumption credits it expects to use to offset the negative credits demonstrating how it plans to resolve any credit deficits that might occur for a model year within a period of up to three model years after that deficit has occurred.
(B) Actual emissions and fuel consumption credit balances, credit transactions, and credit trades.
(ii) Manufacturers are required to provide updated credit plans after receiving their final verified reports from EPA and NHTSA after the end of each model year.
(iii) The agencies may determine that a manufacturer’s plan is unreasonable or unrealistic based on a consideration of past and projected use of specific technologies, the historical sales mix of its vehicle models, subsequent failure to follow any submitted plans, and limited expected access to traded credits.
(iv) The agencies may also consider the plan unreasonable if the manufacturer’s credit deficit increases from one model year to the next. The agencies may require that the manufacturers must send interim reports describing its progress toward resolving its credit deficit over the course of a model year.
(v) If NHTSA determines that a manufacturers plan is unreasonable or unrealistic, the manufacturer is deemed as not comply with fuel consumption standards as specified in § 535.10(c) and the manufacturer may be liable for civil penalties.
(7) Revoked credits. NHTSA may revoke fuel consumption credits if unable to verify any information after auditing reports or records or conducting confirmatory testing. In the cases where EPA revokes emissions CO
(8) Transition to Phase 2 standards. The following provisions allow for enhanced use of fuel consumption credits from Phase 1 tractors and vocational vehicles for meeting the Phase 2 standards:
(i) Fuel consumption credits a manufacturer generates for light and medium heavy-duty vocational vehicles in model years 2018 through 2021 may be used through model year 2027, instead of being limited to a five-year credit life as specified in this part.
(ii) The manufacturer may use the off-cycle provisions of paragraph (f) of this section to apply technologies to Phase 1 vehicles as follows:
(A) A manufacturer may apply an improvement factor of 0.988 for tractors and vocational vehicles with automatic tire inflation systems on all axles.
(B) For vocational vehicles with automatic engine shutdown systems that conform with 40 CFR 1037.660, a manufacturer may apply an improvement factor of 0.95.
(C) For vocational vehicles with stop-start systems that conform with 40 CFR 1037.660, a manufacturer may apply an improvement factor of 0.92.
(D) For vocational vehicles with neutral-idle systems conforming with 40 CFR 1037.660, manufacturers may apply an improvement factor of 0.98. Manufacturers may adjust this improvement factor if we approve a partial reduction under 40 CFR 1037.660(a)(2); for example, if the manufacturer’s design reduces fuel consumption by half as much as shifting to neutral, it may apply an improvement factor of 0.99.
(9) Credits for small business manufacturers. Small manufacturers may generate fuel consumption credits for natural gas-fueled vocational vehicles as follows:
(i) Small manufacturers may certify their vehicles instead of relying on the exemption of § 535.3.
(ii) Use Phase 1 GEM to determine a fuel consumption level for vehicle, then multiply this value by the engine’s FCL for fuel consumption and divide by the engine’s applicable fuel consumption standard.
(iii) Use the value determined in paragraph (ii) in the credit equation specified in part (c) of this section in place of the term (Std − FEL).
(iv) The following provisions apply uniquely to small businesses under the custom-chassis standards of § 535.5(b)(6):
(A) Manufacturers may use fuel consumption credits generated under paragraph (c) of this section, including banked or traded credits from any averaging set. Such credits remain subject to other limitations that apply under this part.
(B) Manufacturers may produce up to 200 drayage tractors in a given model year to the standards described in § 535.5(b)(6) for “other buses”. Treat these drayage tractors as being in their own averaging set.
(10) Certifying non-gasoline engines. A manufacturer producing non-gasoline engines complying with model year 2021 or later medium heavy-duty spark-ignition standards may not generate fuel consumption credits. Only manufacturers producing gasoline engines certifying to spark-ignition standards can generate fuel consumption credits under paragraph (d) of this part.
(b) ABT provisions for heavy-duty pickup trucks and vans. (1) Calculate fuel consumption credits in a model year for one fleet of conventional heavy-duty pickup trucks and vans and if designated by the manufacturer another consisting of advance technology vehicles for the averaging set as defined in § 535.4. Calculate credits for each fleet separately using the following equation:
(2) Adjust the fuel consumption performance of subconfigurations with advanced technology for determining the fleet average actual fuel consumption value as specified in paragraph (f)(1) of this section and 40 CFR 86.1819-14(d)(7). Advanced technology vehicles can be separated in a different fleet for the purpose of applying credit incentives as described in paragraph (f)(1) of this section.
(3) Adjust the fuel consumption performance for subconfigurations with innovative technology. A manufacturer is eligible to increase the fuel consumption performance of heavy-duty pickup trucks and vans in accordance with procedures established by EPA set forth in 40 CFR part 600. The eligibility of a manufacturer to increase its fuel consumption performance through use of an off-cycle technology requires an application request made to EPA and NHTSA in accordance with 40 CFR 86.1869-12 and an approval granted by the agencies. For off-cycle technologies that are covered under 40 CFR 86.1869-12, NHTSA will collaborate with EPA regarding NHTSA’s evaluation of the specific off-cycle technology to ensure its impact on fuel consumption and the suitability of using the off-cycle technology to adjust fuel consumption performance. NHTSA will provide its views on the suitability of the technology for that purpose to EPA. NHTSA will apply the criteria in section (f) of this section in granting or denying off-cycle requests.
(4) Fuel consumption credits may be generated for vehicles certified in model year 2013 to the model year 2014 standards in § 535.5(a). If a manufacturer chooses to generate CO
(5) Calculate the averaging set credit value by summing together the fleet credits for conventional and advanced technology vehicles including any adjustments for innovative technologies. Manufacturers may sum conventional and innovative technology credits before adding any advanced technology credits in each averaging set.
(6) For credits that manufacturers calculate based on a useful life of 120,000 miles, multiply any banked credits carried forward for use in model year 2021 and later by 1.25. For credit deficits that a manufacturer calculates based on a useful life of 120,000 miles and that it offsets with credits originally earned in model year 2021 and later, it multiplies the credit deficit by 1.25.
(c) ABT provisions for vocational vehicles and tractors. (1) Calculate the fuel consumption credits in a model year for each participating family or subfamily consisting of conventional vehicles in each averaging set (as defined in § 535.4) using the equation in this section. Each designated vehicle family or subfamily has a “family emissions limit” (FEL) that is compared to the associated regulatory subcategory standard. An FEL that falls below the regulatory subcategory standard creates “positive credits,” while fuel consumption level of a family group above the standard creates a “negative credits.” The value of credits generated for each family or subfamily in a model year is calculated as follows and must be rounded to nearest whole number:
| Regulatory subcategory | Payload (tons) |
|---|---|
| Vocational LHD Vehicles | 2.85 |
| Vocational MHD Vehicles | 5.60 |
| Vocational HHD Vehicles | 7.5 |
| MDH Tractors | 12.50 |
| HHD Tractors, other than heavy-haul Tractors | 19.00 |
| Heavy-haul Tractors | 43.00 |
| Regulatory subcategory | UL (miles) |
|---|---|
| LHD Vehicles | 110,000 (Phase 1). 150,000 (Phase 2). |
| Vocational MHD Vehicles and tractors at or below 33,000 pounds GVWR | 185,000. |
| Vocation HHD Vehicles and tractors at or above 33,000 pounds GVWR | 435,000. |
(i) Calculate the value of credits generated in a model year for each family or subfamily consisting of vehicles with advanced technology vehicles in each averaging set using the equation above and the guidelines provided in paragraph (f)(1) of this section. Manufacturers may generate credits for advanced technology vehicles using incentives specified in paragraph (f)(1) of this section.
(ii) Calculate the value of credits generated in a model year for each family or subfamily consisting of vehicles with off-cycle technology vehicles in each averaging set using the equation above and the guidelines provided in paragraph (f)(2) of this section.
(2) Manufacturers must sum all negative and positive credits for each vehicle family within each applicable averaging set to obtain the total credit balance for the model year before rounding. The sum of fuel consumptions credits must be rounded to the nearest gallon. Calculate the total credits generated in a model year for each averaging set using the following equation:
(3) Manufacturers can sum conventional and innovative technology credits before adding any advanced technology credits in each averaging set.
(4) If a manufacturer chooses to generate CO
(i) Fuel consumption credits may be generated for vehicles certified in model year 2013 to the model year 2014 standards in § 535.5(b) and (c). To do so, a manufacturer must certify its entire U.S.-directed production volume of vehicles. The same production volume restrictions specified in 40 CFR 1037.150(a)(1) relating to when test groups are certified apply to the NHTSA early credit provisions. Credits are calculated as specified in paragraph (c)(11) of this section relative to the standards that would apply for model year 2014. Surplus credits generated under this paragraph (c)(4) may be increased by a factor of 1.5 for determining total available credits for banking or trading. For example, if a manufacturer has 10 gallons of surplus credits for model year 2013, it may bank 15 gallons of credits. Credit deficits for an averaging set prior to model year 2014 do not carry over to model year 2014. These credits may be used to show compliance with the standards of this part for 2014 and later model years. Once a manufacturer opts into the NHTSA program they must stay in the program for all of the optional model years and remain standardized with the same implementation approach being followed to meet the EPA CO
(ii) A tractor manufacturer may generate fuel consumption credits for the number of additional SmartWay designated tractors (relative to its MY 2012 production), provided that credits are not generated for those vehicles under paragraph (c)(4)(i) of this section. Calculate credits for each regulatory sub-category relative to the standard that would apply in model year 2014 using the equations in paragraph (c)(2) of this section. Use a production volume equal to the number of verified model year 2013 SmartWay tractors minus the number of verified model year 2012 SmartWay tractors. A manufacturer may bank credits equal to the surplus credits generated under this paragraph multiplied by 1.50. A manufacturer’s 2012 and 2013 model years must be equivalent in length. Once a manufacturer opts into the NHTSA program they must stay in the program for all of the optional model years and remain standardized with the same implementation approach being followed to meet the EPA CO
(5) If a manufacturer generates credits from vehicles certified for advanced technology in accordance with paragraph (e)(1) of this section, a multiplier of 1.5 can be used, but this multiplier cannot be used on the same credits for which the early credit multiplier is used.
(6) For model years 2012 and later, manufacturers may generate or use fuel consumption credits for averaging to demonstrate compliance with the alternative standards as described in § 535.5(b)(6) of this part. Manufacturers can specify a Family Emission Limit (FEL) for fuel consumption for each vehicle subfamily. The FEL may not be less than the result of emissions and fuel consumption modeling as described in 40 CFR 1037.520 and § 535.6. These FELs serve as the fuel consumption standards for the vehicle subfamily instead of the standards specified in this § 535.5(b)(6). Manufacturers may not use averaging for motor homes, coach buses, emergency vehicles or concrete mixers meeting standards under § 535.5(b)(5).
(7) Manufacturers may not use averaging for vehicles meeting standards § 535.5(b)(6)(iv) through (vi), and manufacturers may not use fuel consumption credits for banking or trading for any vehicles certified under § 535.5(b)(6).
(8) Manufacturers certifying any vehicles under § 535.5(b)(6) must consider each separate vehicle type (or group of vehicle types) as a separate averaging set.
(d) ABT provisions for heavy-duty engines. (1) Calculate the fuel consumption credits in a model year for each participating family or subfamily consisting of engines in each averaging set (as defined in § 535.4) using the equation in this section. Each designated engine family has a “family certification level” (FCL) which is compared to the associated regulatory subcategory standard. A FCL that falls below the regulatory subcategory standard creates “positive credits,” while fuel consumption level of a family group above the standard creates a “credit shortfall.” The value of credits generated in a model year for each engine family or subfamily is calculated as follows and must be rounded to nearest whole number:
| Regulatory subcategory | UL (miles) |
|---|---|
| SI and CI LHD Engines | 120,000 (Phase 1). 150,000 (Phase 2). |
| CI MHD Engines | 185,000. |
| CI HHD Engines | 435,000. |
(i) Calculate the value of credits generated in a model year for each family or subfamily consisting of engines with advanced technology vehicles in each averaging set using the equation above and the guidelines provided in paragraph (f)(1) of this section. Manufacturers may generate credits for advanced technology vehicles using incentives specified in paragraph (f)(1) of this section.
(ii) Calculate the value of credits generated in a model year for each family or subfamily consisting of engines with off-cycle technology vehicles in each averaging set using the equation above and the guidelines provided in paragraph (f)(2) of this section.
(2) Manufacturers shall sum all negative and positive credits for each engine family within the applicable averaging set to obtain the total credit balance for the model year before rounding. The sum of fuel consumptions credits should be rounded to the nearest gallon.
Calculate the total credits generated in a model year for each averaging set using the following equation:
(3) The provisions of this section apply to manufacturers utilizing the compression-ignition engine voluntary alternate standard provisions specified in § 535.5(d)(4) as follows:
(i) Manufacturers may not certify engines to the alternate standards if they are part of an averaging set in which they carry a balance of banked credits. For purposes of this section, manufacturers are deemed to carry credits in an averaging set if they carry credits from advance technology that are allowed to be used in that averaging set.
(ii) Manufacturers may not bank fuel consumption credits for any engine family in the same averaging set and model year in which it certifies engines to the alternate standards. This means a manufacturer may not bank advanced technology credits in a model year it certifies any engines to the alternate standards.
(iii) Note that the provisions of paragraph (d)(10) of this section apply with respect to credit deficits generated while utilizing alternate standards.
(4) Where a manufacturer has chosen to comply with the EPA alternative compression-ignition engine phase-in standard provisions in 40 CFR 1036.150(e), and has optionally decided to follow the same path under the NHTSA fuel consumption program, it must certify all of its model year 2013 compression-ignition engines within a given averaging set to the applicable alternative standards in § 535.5(d)(5). Engines certified to these standards are not eligible for early credits under paragraph (d)(14) of this section. Credits are calculated using the same equation provided in paragraph (d)(11) of this section.
(5) If a manufacturer chooses to generate early CO
(6) Manufacturers may generate fuel consumption credits from an engine family subject to spark-ignition standards for exchanging with other engine families only if the engines in the family are gasoline-fueled.
(7) Engine credits generated for compression-ignition engines in the 2020 and earlier model years may be used in model year 2021 and later only if the credit-generating engines were certified to the tractor standards in § 535.5(d) and 40 CFR 1036.108. Manufacturers may otherwise use fuel consumption credits generated in one model year without adjustment for certifying vehicles in a later model year, even if fuel consumption standards are different.
(8) Engine families manufacturers certify with a nonconformance penalty under 40 CFR part 86, subpart L, and may not generate fuel consumption credits.
(9) Alternate transition option for Phase 2 engine standards. The following provisions allow for enhanced generation and use of fuel consumption credits for manufacturers complying with engines standards in accordance with § 535.7(d)(11):
(i) If a manufacturer is eligible to certify all of its model year 2020 engines within the averaging set to the tractor and vocational vehicle engine standards in § 535.5(d)(11) and the requirements applicable to model year 2021 engines, the banked and traded fuel consumption credits generated for model year 2018 through 2024 engines may be used through model year 2030 as specified in paragraph (d)(9)(ii) of this section or through a five-year credit life, whichever is later.
(ii) Banked and traded fuel consumption credits generated under this paragraph (d)(9) for model year 2018 through 2024 engines may be used through model year 2030 with the extended credit life values shown in the table:
| Model year | Credit life for transition option for phase 2 engine standards (years) |
|---|---|
| 2018 | 12 |
| 2019 | 11 |
| 2020 | 10 |
| 2021 | 9 |
| 2022 | 8 |
| 2023 | 7 |
| 2024 | 6 |
| 2025 and later | 5 |
(e) ABT provisions for trailers. (1) Manufacturers cannot use averaging for non-box trailers, partial-aero trailers, or non-aero trailers or cannot use fuel consumption credits for banking or trading. Starting in model year 2027, full aero box van manufactures may average, credits.
(2) Calculate the fuel consumption credits in a model year for each participating family or subfamily consisting of full aero box trailers (vehicles) in each averaging set (as defined in § 535.4) using the equation in this section. Each designated vehicle family or subfamily has a “family emissions limit” (FEL) which is compared to the associated regulatory subcategory standard. An FEL that falls below the regulatory subcategory standard creates “positive credits,” while fuel consumption level of a family group above the standard creates a “negative credits.” The value of credits generated for each family or subfamily in a model year is calculated as follows and must be rounded to nearest whole number:
(3) Trailer manufacturers may not generate advanced technology credits.
(4) Manufacturers shall sum all negative and positive credits for each vehicle family within the applicable averaging set to obtain the total credit balance for the model year before rounding. Calculate the total credits generated in a model year for each averaging set using the following equation:
(5) Trailer manufacturers may not bank credits within an averaging set but surplus fuel consumption credits from a given model year may be used to offset deficits from earlier model years.
(f) Additional credit provisions – (1) Advanced technology credits. (i) For the Phase 1 program, manufacturers of heavy-duty pickup trucks and vans, vocational vehicles, tractors and the associated engines showing improvements in CO
(A) Heavy-duty pickup trucks and vans. For advanced technology systems (hybrid vehicles with regenerative braking, vehicles equipped with Rankine-cycle engines and fuel cell vehicles), calculate fleet-average performance rates consistent with good engineering judgment and the provisions of 40 CFR 86.1819-14 and 86.1865.
(B) Tractors and vocational vehicles. For advanced technology system (hybrid vehicles with regenerative braking, vehicles equipped with Rankine-cycle engines and fuel cell vehicles), calculate the advanced technology credits as follows:
(1) Measure the effectiveness of the advanced system by conducting A to B testing a vehicle equipped with the advanced system and an equivalent conventional system in accordance with 40 CFR 1037.615.
(2) For purposes of this paragraph (f), a conventional vehicle is considered to be equivalent if it has the same footprint, intended vehicle service class, aerodynamic drag, and other relevant factors not directly related to the advanced system powertrain. If there is no equivalent vehicle, the manufacturer may create and test a prototype equivalent vehicle. The conventional vehicle is considered Vehicle A, and the advanced technology vehicle is considered Vehicle B.
(3) The benefit associated with the advanced system for fuel consumption is determined from the weighted fuel consumption results from the chassis tests of each vehicle using the following equation:
(4) Calculate the benefit in credits using the equation in paragraph (c) of this section and replacing the term (Std-FEL) with the benefit.
(5) For electric vehicles calculate the fuel consumption credits using an FEL of 0 g/1000 ton-mile.
(C) Heavy-duty engines. This section specifies how to generate advanced technology-specific fuel consumption credits for hybrid powertrains that include energy storage systems and regenerative braking (including regenerative engine braking) and for engines that include Rankine-cycle (or other bottoming cycle) exhaust energy recovery systems.
(1) Pre-transmission hybrid powertrains are those engine systems that include features that recover and store energy during engine motoring operation but not from the vehicle wheels. These powertrains are tested using the hybrid engine test procedures of 40 CFR part 1065 or using the post-transmission test procedures.
(2) Post-transmission hybrid powertrains are those powertrains that include features that recover and store energy from braking at the vehicle wheels. These powertrains are tested by simulating the chassis test procedure applicable for hybrid vehicles under 40 CFR 1037.550.
(3) Test engines that include Rankine-cycle exhaust energy recovery systems according to the test procedures specified in 40 CFR part 1036, subpart F, unless EPA approves the manufacturer’s alternate procedures.
(D) Credit calculation. Calculate credits as specified in paragraph (c) of this section. Credits generated from engines and powertrains certified under this section may be used in other averaging sets as described in 40 CFR 1036.740(d).
(ii) There are no separate credit allowances for advanced technology vehicles in the Phase 2 program. Instead, vehicle families containing plug-in battery electric hybrids, all-electric, and fuel cell vehicles certifying to Phase 2 vocational and tractor standards may multiply credits by a multiplier of:
(A) 3.5 times for plug-in hybrid electric vehicles;
(B) 4.5 times for all-electric vehicles; and
(C) 5.5 times for fuel cell vehicles.
(D) Incentivized credits for vehicles equipped with advanced technologies maintain the same credit flexibilities and restrictions as conventional credits specified in paragraph (a) of this section during the Phase 2 program.
(E) For vocational vehicles and tractors subject to Phase 2 standards, create separate vehicle families if there is a credit multiplier for advanced technology; group those vehicles together in a vehicle family if they use the same multiplier.
(F) For Phase 2 plug-in hybrid electric vehicles and for fuel cells powered by any fuel other than hydrogen, calculate fuel consumption credits using an FEL based on equivalent emission measurements from powertrain testing. Phase 2 advanced-technology credits do not apply for hybrid vehicles that have no plug-in capability.
(2) Innovative and off-cycle technology credits. This provision allows fuel saving innovative and off-cycle engine and vehicle technologies to generate fuel consumption credits comparable to CO
(i) For model years 2013 through 2020, manufacturers may generate innovative technology credits for introducing technologies that were not in-common use for heavy-duty tractor, vocational vehicles or engines before model year 2010 and that are not reflected in the EPA specified test procedures. Upon identification and joint approval with EPA, NHTSA will allow equivalent fuel consumption credits into its program to those allowed by EPA for manufacturers seeking to obtain innovative technology credits in a given model year. Such credits must remain within the same regulatory subcategory in which the credits were generated. NHTSA will adopt fuel consumption credits depending upon whether –
(A) The technology has a direct impact upon reducing fuel consumption performance; and
(B) The manufacturer has provided sufficient information to make sound engineering judgments on the impact of the technology in reducing fuel consumption performance.
(ii) For model years 2021 and later, manufacturers may generate off-cycle technology credits for introducing technologies that are not reflected in the EPA specified test procedures. Upon identification and joint approval with EPA, NHTSA will allow equivalent fuel consumption credits into its program to those allowed by EPA for manufacturers seeking to obtain innovative technology credits in a given model year. Such credits must remain within the same regulatory subcategory in which the credits were generated. NHTSA will adopt fuel consumption credits depending upon whether –
(A) The technology meets paragraph (f)(2)(i)(A) and (B) of this section.
(B) For heavy-duty pickup trucks and vans, manufacturers using the 5-cycle test to quantify the benefit of a technology are not required to obtain approval from the agencies to generate results.
(iii) The following provisions apply to all innovative and off-cycle technologies:
(A) Technologies found to be defective, or identified as a part of NHTSA’s safety defects program, and technologies that are not performing as intended will have the values of approved off-cycle credits removed from the manufacturer’s credit balance.
(B) Approval granted for innovative and off-cycle technology credits under NHTSA’s fuel efficiency program does not affect or relieve the obligation to comply with the Vehicle Safety Act (49 U.S.C. Chapter 301), including the “make inoperative” prohibition (49 U.S.C. 30122), and all applicable Federal motor vehicle safety standards issued thereunder (FMVSSs) (49 CFR part 571). In order to generate off-cycle or innovative technology credits manufacturers must state –
(1) That each vehicle equipped with the technology for which they are seeking credits will comply with all applicable FMVSS(s); and
(2) Whether or not the technology has a fail-safe provision. If no fail-safe provision exists, the manufacturer must explain why not and whether a failure of the innovative technology would affect the safety of the vehicle.
(C) Manufacturers requesting approval for innovative technology credits are required to provide documentation in accordance with 40 CFR 86.1869-12, 1036.610, and 1037.610.
(D) Credits will be accepted on a one-for-one basis expressed in terms of gallons in comparison to those approved by EPA.
(E) For the heavy-duty pickup trucks and vans, the average fuel consumption will be calculated as a separate credit amount (rounded to the nearest whole number) using the following equation:
(F) NHTSA will not approve innovative technology credits for technology that is related to crash-avoidance technologies, safety critical systems or systems affecting safety-critical functions, or technologies designed for the purpose of reducing the frequency of vehicle crashes.
(iv) Manufacturers normally may not calculate off-cycle credits or improvement factors under this section for technologies represented by GEM, but the agencies may allow a manufacturer to do so by averaging multiple GEM runs for special technologies for which a single GEM run cannot accurately reflect in-use performance. For example, if a manufacturer use an idle-reduction technology that is effective 80 percent of the time, the agencies may allow a manufacturer to run GEM with the technology active and with it inactive, and then apply an 80% weighting factor to calculate the off-cycle credit or improvement factor. A may need to perform testing to establish proper weighting factors or otherwise quantify the benefits of the special technologies.
(v) A manufacturer may apply the off-cycle provisions of this paragraph (2) and 40 CFR 1037.610 to trailers as early as model year 2018 as follows:
(A) A manufacturer may account for weight reduction based on measured values instead of using the weight reductions specified in 40 CFR 1037.515. Quantify the weight reduction by measuring the weight of a trailer in a certified configuration and comparing it to the weight of an equivalent trailer without weight-reduction technologies. This qualifies as A to B testing this part. Use good engineering judgment to select an equivalent trailer representing a baseline configuration. Use the calculated weight reduction in the equation specified in 40 CFR 1037.515 to calculate the trailer’s CO
(B) If a manufacturer’s off-cycle technology reduces emissions and fuel consumption in a way that is proportional to measured rates as described in 40 CFR 1037.610(b)(1), multiply the trailer’s CO
(C) If a manufacturer’s off-cycle technology does not yield emission and fuel consumption reductions that are proportional to measured rates, as described in 40 CFR 1037.610(b)(2), calculate an adjusted CO
(vi) Carry-over Approval. Manufacturers may carry-over these credits into future model years as described below:
(A) For model years before 2021, manufacturers may continue to use an approved improvement factor or credit for any appropriate engine or vehicle family in future model years through 2020.
(B) For model years 2021 and later, manufacturers may not rely on an approval for model years before 2021. Manufacturers must separately request the agencies approval before applying an improvement factor or credit under this section for 2021 and later engines and vehicle, even if the agencies approve the improvement factor or credit for similar engine and vehicle models before model year 2021.
(C) The following restrictions also apply to manufacturers seeking to continue to carryover the improvement factor (not the credit value) if –
(1) The FEL is generated by GEM or 5-cycle testing;
(2) The technology is not changed or paired with any other off-cycle technology;
(3) The improvement factor only applies to approved vehicle or engine families;
(4) The agencies do not expect the technology to be incorporated into GEM at any point during the Phase 2 program; and
(D) The documentation to carryover credits that would primarily justify the difference in fuel efficiency between real world and compliance protocols is the same for both Phase 1 and Phase 2 compliance protocols. The agencies must approve the justification. If the agencies do not approve the justification, the manufacturer must recertify.
§ 535.8 Reporting and recordkeeping requirements.
(a) General requirements. Manufacturers producing heavy-duty vehicles and engines applicable to fuel consumption standards in § 535.5, for each given model year, must submit the required information as specified in paragraphs (b) through (h) of this section.
(1) The information required by this part must be submitted by the deadlines specified in this section and must be based upon all the information and data available to the manufacturer 30 days before submitting information.
(2) Manufacturers must submit information electronically through the EPA database system as the single point of entry for all information required for this national program and both agencies will have access to the information. In special circumstances, data may not be able to be received electronically (i.e., during database system development work). The agencies will inform manufacturer of the alternatives can be used for submitting information. The format for the required information will be specified by EPA in coordination with NHTSA.
(3) Manufacturers providing incomplete reports missing any of the required information or providing untimely reports are considered as not complying with standards (i.e., if good-faith estimates of U.S.-directed production volumes for EPA certificates of conformity are not provided) and are liable to pay civil penalties in accordance with 49 U.S.C. 32912.
(4) Manufacturers certifying a vehicle or engine family using an FEL or FCL below the applicable fuel consumption standard as described in § 535.5 may choose not to generate fuel consumption credits for that family. In which case, the manufacturer is not required to submit reporting or keep the associated records described in this part for that family.
(5) Manufacturers must use good engineering judgment and provide comparable fuel consumption information to that of the information or data provided to EPA under 40 CFR 86.1865, 1036.250, 1036.730, 1036.825 1037.250, 1037.730, and 1037.825.
(6) Any information that must be sent directly to NHTSA. In instances in which EPA has not created an electronic pathway to receive the information, the information should be sent through an electronic portal identified by NHTSA or through the NHTSA CAFE database (i.e., information on fuel consumption credit transactions). If hardcopy documents must be sent, the information should be sent to the Associate Administrator of Enforcement at 1200 New Jersey Avenue, NVS-200, Office W45-306, SW., Washington, DC 20590.
(b) Pre-model year reports. Manufacturers producing heavy-duty pickup trucks and vans must submit reports in advance of the model year providing early estimates demonstrating how their fleet(s) would comply with GHG emissions and fuel consumption standards. Note, the agencies understand that early model year reports contain estimates that may change over the course of a model year and that compliance information manufacturers submit prior to the beginning of a new model year may not represent the final compliance outcome. The agencies view the necessity for requiring early model reports as a manufacturer’s good faith projection for demonstrating compliance with emission and fuel consumption standards.
(1) Report deadlines. For model years 2013 and later, manufacturer of heavy-duty pickup trucks and vans complying with voluntary and mandatory standards must submit a pre-model year report for the given model year as early as the date of the manufacturer’s annual certification preview meeting with EPA and NHTSA, or prior to submitting its first application for a certificate of conformity to EPA in accordance with 40 CFR 86.1819-14(d). For example, a manufacturer choosing to comply in model year 2014 could submit its pre-model year report during its precertification meeting which could occur before January 2, 2013, or could provide its pre-model year report any time prior to submitting its first application for certification for the given model year.
(2) Contents. Each pre-model year report must be submitted including the following information for each model year.
(i) A list of each unique subconfiguration in the manufacturer’s fleet describing the make and model designations, attribute based-values (i.e., GVWR, GCWR, Curb Weight and drive configurations) and standards;
(ii) The emission and fuel consumption fleet average standard derived from the unique vehicle configurations;
(iii) The estimated vehicle configuration, test group and fleet production volumes;
(iv) The expected emissions and fuel consumption test group results and fleet average performance;
(v) If complying with MY 2013 fuel consumption standards, a statement must be provided declaring that the manufacturer is voluntarily choosing to comply early with the EPA and NHTSA programs. The manufacturers must also acknowledge that once selected, the decision cannot be reversed and the manufacturer will continue to comply with the fuel consumption standards for subsequent model years for all the vehicles it manufacturers in each regulatory category for a given model year;
(vi) If complying with MYs 2014, 2015 or 2016 fuel consumption standards, a statement must be provided declaring whether the manufacturer will use fixed or increasing standards in accordance with § 535.5(a). The manufacturer must also acknowledge that once selected, the decision cannot be reversed and the manufacturer must continue to comply with the same alternative for subsequent model years for all the vehicles it manufacturers in each regulatory category for a given model year;
(vii) If complying with MYs 2014 or 2015 fuel consumption standards, a statement must be provided declaring that the manufacturer is voluntarily choosing to comply with NHTSA’s voluntary fuel consumption standards in accordance with § 535.5(a)(4). The manufacturers must also acknowledge that once selected, the decision cannot be reversed and the manufacturer will continue to comply with the fuel consumption standards for subsequent model years for all the vehicles it manufacturers in each regulatory category for a given model year;
(viii) The list of Class 2b and 3 incomplete vehicles (cab-complete or chassis complete vehicles) and the method used to certify these vehicles as complete pickups and vans identifying the most similar complete sister- or other complete vehicles used to derive the target standards and performance test results;
(ix) The list of Class 4 and 5 incomplete and complete vehicles and the method use to certify these vehicles as complete pickups and vans identifying the most similar complete or sister vehicles used to derive the target standards and performance test results;
(x) List of loose engines included in the heavy-duty pickup and van category and the list of vehicles used to derive target standards and performance test results;
(xi) Copy of any notices a vehicle manufacturer sends to the engine manufacturer to notify the engine manufacturers that their engines are subject to emissions and fuel consumption standards and that it intends to use their engines in excluded vehicles;
(xii) A fuel consumption credit plan as specified § 535.7(a) identifying the manufacturers estimated credit balances, planned credit flexibilities (i.e., credit balances, planned credit trading, innovative, advanced and early credits and etc.) and if needed a credit deficit plan demonstrating how it plans to resolve any credit deficits that might occur for a model year within a period of up to three model years after that deficit has occurred; and
(xiii) The supplemental information specified in paragraph (h) of this section.
NHTSA may also ask a manufacturer to provide additional information if necessary to verify compliance with the fuel consumption requirements of this section.
(c) Applications for certificate of conformity. Manufacturers producing vocational vehicles, tractors and heavy-duty engines are required to submit applications for certificates of conformity to EPA in accordance with 40 CFR 1036.205 and 1037.205 in advance of introducing vehicles for commercial sale. Applications contain early model year information demonstrating how manufacturers plan to comply with GHG emissions. For model years 2013 and later, manufacturers of vocational vehicles, tractors and engine complying with NHTSA’s voluntary and mandatory standards must submit applications for certificates of conformity in accordance through the EPA database including both GHG emissions and fuel consumption information for each given model year.
(1) Submission deadlines. Applications are primarily submitted in advance of the given model year to EPA but cannot be submitted any later than December 31 of the given model year.
(2) Contents. Each application for certificates of conformity submitted to EPA must include the following equivalent fuel consumption.
(i) Equivalent fuel consumption values for emissions CO
(ii) Equivalent fuel consumption values for emission CO
(iii) Equivalent fuel consumption values for emissions CO
(iv) Report modeling results for ten configurations in terms of CO
(v) Credit plans including the fuel consumption credit plan described in § 535.7(a).
(3) Additional supplemental information. Manufacturers are required to submit additional information as specified in paragraph (h) of this section for the NHTSA program before or at the same time it submits its first application for a certificate of conformity to EPA. Under limited conditions, NHTSA may also ask a manufacturer to provide additional information directly to the Administrator if necessary to verify the fuel consumption requirements of this regulation.
(d) End of the Year (EOY) and Final reports. Heavy-duty vehicle and engine manufacturers participating in the ABT program are required to submit EOY and final reports containing information for NHTSA as specified in paragraph (d)(2) of this section and in accordance with 40 CFR 86.1865, 1036.730, and 1037.730. Only manufacturers without credit deficits may decide not to participate in the ABT or may waive the requirement to send an EOY report. The EOY and final reports are used to review a manufacturer’s preliminary or final compliance information and to identify manufacturers that might have a credit deficit for the given model year. For model years 2013 and later, heavy-duty vehicle and engine manufacturers complying with NHTSA’s voluntary and mandatory standards must submit EOY and final reports through the EPA database including both GHG emissions and fuel consumption information for each given model year.
(1) Report deadlines. (i) For model year 2013 and later, heavy-duty vehicle and engine manufacturers complying with NHTSA voluntary and mandatory standards must submit EOY reports through the EPA database including both GHG emissions and fuel consumption information within 90 days after the end of the given model year and no later than March 31 of the next calendar year.
(ii) For model year 2013 and later, heavy-duty vehicle and engine manufacturers complying with NHTSA voluntary and mandatory standards must submit final reports through the EPA database including both GHG emissions and fuel consumption information within 270 days after the end of the given model year and no later than September 30 of the next calendar year.
(iii) A manufacturer may ask NHTSA and EPA to extend the deadline of a final report by up to 30 days. A manufacturer unable to provide, and requesting to omit an emissions rate or fuel consumption value from a final report must obtain approval from the agencies prior to the submission deadline of its final report.
(iv) If a manufacturer expects differences in the information reported between the EOY and the final year report specified in 40 CFR 1036.730 and 1037.730, it must provide the most up-to-date fuel consumption projections in its final report and identify the information as preliminary.
(v) If the manufacturer cannot provide any of the required fuel consumption information, it must state the specific reason for the insufficiency and identify the additional testing needed or explain what analytical methods are believed by the manufacturer will be necessary to eliminate the insufficiency and certify that the results will be available for the final report.
(2) Contents. Each EOY and final report must be submitted including the following fuel consumption information for each model year. EOY reports contain preliminary final estimates and final reports must include the manufacturer’s final compliance information.
(i) Engine and vehicle family designations and averaging sets.
(ii) Engine and vehicle regulatory subcategory and fuel consumption standards including any alternative standards used.
(iii) Engine and vehicle family FCLs and FELs in terms of fuel consumption.
(iv) Production volumes for engines and vehicles.
(v) A summary as specified in paragraph (g)(7) of this section describing the vocational vehicles and vocational tractors that were exempted as heavy-duty off-road vehicles. This applies to manufacturers participating and not participating in the ABT program.
(vi) A summary describing any advanced or innovative technology engines or vehicles including alternative fueled vehicles that were produced for the model year identifying the approaches used to determinate compliance and the production volumes.
(vii) A list of each unique subconfiguration included in a manufacturer’s fleet of heavy-duty pickup trucks and vans identifying the attribute based-values (GVWR, GCWR, Curb Weight, and drive configurations) and standards. This provision applies only to manufacturers producing heavy-duty pickup trucks and vans.
(viii) The fuel consumption fleet average standard derived from the unique vehicle configurations. This provision applies only to manufacturers producing heavy-duty pickup trucks and vans.
(ix) The subconfiguration and test group production volumes. This provision applies only to manufacturers producing heavy-duty pickup trucks and vans.
(x) The fuel consumption test group results and fleet average performance. This provision applies only to manufacturers producing heavy-duty pickup trucks and vans.
(xi) Manufacturers may correct errors in EOY and final reports as follows:
(A) Manufacturers may correct any errors in their end-of-year report when preparing the final report, as long as manufacturers send us the final report by the time it is due.
(B) If manufacturers or the agencies determine within 270 days after the end of the model year that errors mistakenly decreased he manufacturer’s balance of fuel consumption credits, manufacturers may correct the errors and recalculate the balance of its fuel consumption credits. Manufacturers may not make any corrections for errors that are determined more than 270 days after the end of the model year. If manufacturers report a negative balance of fuel consumption credits, NHTSA may disallow corrections under this paragraph (d)(2)(xi)(B).
(C) If manufacturers or the agencies determine any time that errors mistakenly increased its balance of fuel consumption credits, manufacturers must correct the errors and recalculate the balance of fuel consumption credits.
(xii) Under limited conditions, NHTSA may also ask a manufacturer to provide additional information directly to the Administrator if necessary to verify the fuel consumption requirements of this regulation.
(e) Amendments to applications for certification. At any time, a manufacturer modifies an application for certification in accordance with 40 CFR 1036.225 and 1037.225, it must submit GHG emissions changes with equivalent fuel consumption values for the information required in paragraphs (b) through (e) and (h) of this section.
(f) Confidential information. Manufacturers must submit a request for confidentiality with each electronic submission specifying any part of the for information or data in a report that it believes should be withheld from public disclosure as trade secret or other confidential business information. Information submitted to EPA should follow EPA guidelines for treatment of confidentiality. Requests for confidential treatment for information submitted to NHTSA must be filed in accordance with the requirements of 49 CFR part 512, including submission of a request for confidential treatment and the information for which confidential treatment is requested as specified by part 512. For any information or data requested by the manufacturer to be withheld under 5 U.S.C. 552(b)(4) and 49 U.S.C. 32910(c), the manufacturer shall present arguments and provide evidence in its request for confidentiality demonstrating that –
(1) The item is within the scope of 5 U.S.C. 552(b)(4) and 49 U.S.C. 32910(c);
(2) The disclosure of the information at issue would cause significant competitive damage;
(3) The period during which the item must be withheld to avoid that damage; and
(4) How earlier disclosure would result in that damage.
(g) Additional required information. The following additional information is required to be submitted through the EPA database. NHTSA reserves the right to ask a manufacturer to provide additional information if necessary to verify the fuel consumption requirements of this regulation.
(1) Small businesses. For model years 2013 through 2020, vehicles and engines produced by small business manufacturers meeting the criteria in 13 CFR 121.201 are exempted from the requirements of this part. Qualifying small business manufacturers must notify EPA and NHTSA Administrators before importing or introducing into U.S. commerce exempted vehicles or engines. This notification must include a description of the manufacturer’s qualification as a small business under 13 CFR 121.201. Manufacturers must submit this notification to EPA, and EPA will provide the notification to NHTSA. The agencies may review a manufacturer’s qualification as a small business manufacturer under 13 CFR 121.201.
(2) Emergency vehicles. For model years 2021 and later, emergency vehicles produced by heavy-duty pickup truck and van manufacturers are exempted except those produced by manufacturers voluntarily complying with standards in § 535.5(a). Manufacturers must notify the agencies in writing if using the provisions in § 535.5(a) to produce exempted emergency vehicles in a given model year, either in the report specified in 40 CFR 86.1865 or in a separate submission.
(3) Early introduction. The provision applies to manufacturers seeking to comply early with the NHTSA’s fuel consumption program prior to model year 2014. The manufacturer must send the request to EPA before submitting its first application for a certificate of conformity.
(4) NHTSA voluntary compliance model years. Manufacturers must submit a statement declaring whether the manufacturer chooses to comply voluntarily with NHTSA’s fuel consumption standards for model years 2014 through 2015. The manufacturers must acknowledge that once selected, the decision cannot be reversed and the manufacturer will continue to comply with the fuel consumption standards for subsequent model years. The manufacturer must send the statement to EPA before submitting its first application for a certificate of conformity.
(5) Alternative engine standards. Manufacturers choosing to comply with the alternative engine standards must notify EPA and NHTSA of their choice and include in that notification a demonstration that it has exhausted all available credits and credit opportunities. The manufacturer must send the statement to EPA before submitting its EOY report.
(6) Alternate phase-in. Manufacturers choosing to comply with the alternative engine phase-in must notify EPA and NHTSA of their choice. The manufacturer must send the statement to EPA before submitting its first application for a certificate of conformity.
(7) Off-road exclusion (tractors and vocational vehicles only). (i) Tractors and vocational vehicles primarily designed to perform work in off-road environments such as forests, oil fields, and construction sites may be exempted without request from the requirements of this regulation as specified in 49 CFR 523.2 and § 535.5(b). Within 90 days after the end of each model year, manufacturers must send EPA and NHTSA through the EPA database a report with the following information:
(A) A description of each excluded vehicle configuration, including an explanation of why it qualifies for this exclusion.
(B) The number of vehicles excluded for each vehicle configuration.
(ii) A manufacturer having an off-road vehicle failing to meet the criteria under the agencies’ off-road exclusions will be allowed to request an exclusion of such a vehicle from EPA and NHTSA. The approval will be granted through the certification process for the vehicle family and will be done in collaboration between EPA and NHTSA in accordance with the provisions in 40 CFR 1037.150, 1037.210, and 1037.631.
(8) Vocational tractors. Tractors intended to be used as vocational tractors may comply with vocational vehicle standards in § 535.5(b). Manufacturers classifying tractors as vocational tractors must provide a description of how they meet the qualifications in their applications for certificates of conformity as specified in 40 CFR 1037.205.
(9) Approval of alternate methods to determine drag coefficients (tractors only). Manufacturers seeking to use alternative methods to determine aerodynamic drag coefficients must provide a request and gain approval by EPA in accordance with 40 CFR 1037.525. The manufacturer must send the request to EPA before submitting its first application for a certificate of conformity.
(10) Innovative and off-cycle technology credits. Manufacturers pursuing innovative and off-cycle technology credits must submit information to the agencies and may be subject to a public evaluation process in which the public would have opportunity for comment if the manufacturer is not using a test procedure in accordance with 40 CFR 1037.610(c). Whether the approach involves on-road testing, modeling, or some other analytical approach, the manufacturer would be required to present a final methodology to EPA and NHTSA. EPA and NHTSA would approve the methodology and credits only if certain criteria were met. Baseline emissions and fuel consumption and control emissions and fuel consumption would need to be clearly demonstrated over a wide range of real world driving conditions and over a sufficient number of vehicles to address issues of uncertainty with the data. Data would need to be on a vehicle model-specific basis unless a manufacturer demonstrated model-specific data was not necessary. The agencies may publish a notice of availability in the
(11) Credit trades. If a manufacturer trades fuel consumption credits, it must send EPA and NHTSA a fuel consumption credit plan as specified in § 535.7(a) and provide the following additional information:
(i) As the seller, the manufacturer must include the following information:
(A) The corporate names of the buyer and any brokers.
(B) A copy of any contracts related to the trade.
(C) The averaging set corresponding to the engine families that generated fuel consumption credits for the trade, including the number of fuel consumption credits from each averaging set.
(ii) As the buyer, the manufacturer or entity must include the following information in its report:
(A) The corporate names of the seller and any brokers.
(B) A copy of any contracts related to the trade.
(C) How the manufacturer or entity intends to use the fuel consumption credits, including the number of fuel consumption credits it intends to apply for each averaging set.
(D) A copy of the contract with signatures from both the buyer and the seller.
(12) Production reports. Within 90 days after the end of the model year and no later than March 31st, manufacturers participating and not-participating in the ABT program must send to EPA and NHTSA a report including the total U.S.-directed production volume of vehicles it produced in each vehicle and engine family during the model year (based on information available at the time of the report) as required by 40 CFR 1036.250 and 1037.250. Trailer manufacturers must include a separate report including the total U.S.-directed production volume of excluded trailers as allowed by § 535.3(e). Each manufacturer shall report by vehicle or engine identification number and by configuration and identify the subfamily identifier. Report uncertified vehicles sold to secondary vehicle manufacturers. Small business manufacturers may omit reporting. Identify any differences between volumes included for EPA but excluded for NHTSA.
(13) Transition to engine-based model years. The following provisions apply for production and ABT reports during the transition to engine-based model year determinations for tractors and vocational vehicles in 2020 and 2021:
(i) If a manufacturer installs model year 2020 or earlier engines in the manufacturer’s vehicles in calendar year 2020, include all those Phase 1 vehicles in its production and ABT reports related to model year 2020 compliance, although the agencies may require the manufacturer to identify these separately from vehicles produced in calendar year 2019.
(ii) If a manufacturer installs model year 2020 engines in its vehicles in calendar year 2021, submit production and ABT reports for those Phase 1 vehicles separate from the reports it submits for Phase 2 vehicles with model year 2021 engines.
(h) Public information. Based upon information submitted by manufacturers and EPA, NHTSA will publish fuel consumption standards and performance results.
(i) Information received from EPA. NHTSA will receive information from EPA as specified in 40 CFR 1036.755 and 1037.755.
(j) Recordkeeping. NHTSA has the same recordkeeping requirements as the EPA, specified in 40 CFR 86.1865-12(k), 1036.250, 1036.735, 1036.825, 1037.250, 1037.735, and 1037.825. The agencies each reserve the right to request information contained in reports separately.
(1) Manufacturers must organize and maintain records for NHTSA as described in this section. NHTSA in conjunction or separately from EPA may review a manufacturers records at any time.
(2) Keep the records required by this section for at least eight years after the due date for the end-of-year report. Manufacturers may not use fuel consumption credits for any engines if it does not keep all the records required under this section. Manufacturers must therefore keep these records to continue to bank valid credits. Store these records in any electronic format and on any media, as long as the manufacturer can promptly send the agencies organized records in English if the agencies ask for them. Manufacturers must keep these records readily available. NHTSA may review them at any time.
(3) Keep a copy of the reports required in § 535.8 and 40 CFR 1036.725,1036.730, 1037.725 and 1037.730.
(4) Keep records of the vehicles and engine identification number (usually the serial number) for each vehicle and engine produced that generates or uses fuel consumption credits under the ABT program. Manufacturers may identify these numbers as a range. If manufacturers change the FEL after the start of production, identify the date started using each FEL/FCL and the range of vehicles or engine identification numbers associated with each FEL/FCL. Manufacturers must also identify the purchaser and destination for each vehicle and engine produced to the extent this information is available.
(5) The agencies may require manufacturers to keep additional records or to send relevant information not required by this section in accordance with each agency’s authority.
(6) If collected separately and NHTSA finds that information is provided fraudulent or grossly negligent or otherwise provided in bad faith, the manufacturer may be liable to civil penalties in accordance with each agency’s authority.
§ 535.9 Enforcement approach.
(a) Compliance. (1) Each year NHTSA will assess compliance with fuel consumption standards as specified in § 535.10.
(i) NHTSA may conduct audits or verification testing prior to first sale throughout a given model year or after the model year in order to validate data received from manufacturers and will discuss any potential issues with EPA and the manufacturer. Audits may periodically be performed to confirm manufacturers credit balances or other credit transactions.
(ii) NHTSA may also conduct field inspections either at manufacturing plants or at new vehicle dealerships to validate data received from manufacturers. Field inspections will be carried out in order to validate the condition of vehicles, engines or technology prior to first commercial sale to verify each component’s certified configuration as initially built. NHTSA reserves the right to conduct inspections at other locations but will target only those components for which a violation would apply to OEMs and not the fleets or vehicle owners. Compliance inspections could be carried out through a number of approaches including during safety inspections or during compliance safety testing.
(iii) NHTSA will conduct audits and inspections in the same manner and, when possible, in conjunction with EPA. NHTSA will also attempt to coordinate inspections with EPA and share results.
(iv) Documents collected under NHTSA safety authority may be used to support fuel efficiency audits and inspections.
(2) At the end of each model year NHTSA will confirm a manufacturer’s fleet or family performance values against the applicable standards and, if a manufacturer uses a credit flexibility, the amount of credits in each averaging set. The averaging set balance is based upon the engines or vehicles performance above or below the applicable regulatory subcategory standards in each respective averaging set and any credits that are traded into or out of an averaging set during the model year.
(i) If the balance is positive, the manufacturer is designated as having a credit surplus.
(ii) If the balance is negative, the manufacturer is designated as having a credit deficit.
(iii) NHTSA will provide notification to each manufacturer confirming its credit balance(s) after the end of each model year directly or through EPA.
(3) Manufacturer are required to confirm the negative balance and submit a fuel consumption credit plan as specified in § 535.7(a) along with supporting documentation indicating how it will allocate existing credits or earn (providing information on future vehicles, engines or technologies), and/or acquire credits, or else be liable for a civil penalty as determined in paragraph (b) of this section. The manufacturer must submit the information within 60 days of receiving agency notification.
(4) Credit shortfall within an averaging set may be carried forward only three years, and if not offset by earned or traded credits, the manufacturer may be liable for a civil penalty as described in paragraph (b) of this section.
(5) Credit allocation plans received from a manufacturer will be reviewed and approved by NHTSA. NHTSA will approve a credit allocation plan unless it determines that the proposed credits are unavailable or that it is unlikely that the plan will result in the manufacturer earning or acquiring sufficient credits to offset the subject credit shortfall. In the case where a manufacturer submits a plan to acquire future model year credits earned by another manufacturer, NHTSA will require a signed agreement by both manufacturers to initiate a review of the plan. If a plan is approved, NHTSA will revise the respective manufacturer’s credit account accordingly by identifying which existing or traded credits are being used to address the credit shortfall, or by identifying the manufacturer’s plan to earn future credits for addressing the respective credit shortfall. If a plan is rejected, NHTSA will notify the respective manufacturer and request a revised plan. The manufacturer must submit a revised plan within 14 days of receiving agency notification. The agency will provide a manufacturer one opportunity to submit a revised credit allocation plan before it initiates civil penalty proceedings.
(6) For purposes of this regulation, NHTSA will treat the use of future credits for compliance, as through a credit allocation plan, as a deferral of civil penalties for non-compliance with an applicable fuel consumption standard.
(7) If NHTSA receives and approves a manufacturer’s credit allocation plan to earn future credits within the following three model years in order to comply with regulatory obligations, NHTSA will defer levying civil penalties for non-compliance until the date(s) when the manufacturer’s approved plan indicates that credits will be earned or acquired to achieve compliance, and upon receiving confirmed CO
(8) In the event that NHTSA fails to receive or is unable to approve a plan for a non-compliant manufacturer due to insufficiency or untimeliness, NHTSA may initiate civil penalty proceedings.
(9) In the event that a manufacturer fails to report accurate fuel consumption data for vehicles or engines covered under this rule, noncompliance will be assumed until corrected by submission of the required data, and NHTSA may initiate civil penalty proceedings.
(10) If EPA suspends or revoke a certificate of conformity as specified in 40 CFR 1036.255 or 1037.255, and a manufacturer is unable to take a corrective action allowed by EPA, noncompliance will be assumed, and NHTSA may initiate civil penalty proceedings or revoke fuel consumption credits.
(b) Civil penalties – (1) Generally. NHTSA may assess a civil penalty for any violation of this part under 49 U.S.C. 32902(k). This section states the procedures for assessing civil penalties for violations of § 535.3(h). The provisions of 5 U.S.C. 554, 556, and 557 do not apply to any proceedings conducted pursuant to this section.
(2) Initial determination of noncompliance. An action for civil penalties is commenced by the execution of a Notice of Violation. A determination by NHTSA’s Office of Enforcement of noncompliance with applicable fuel consumption standards utilizing the certified and reported CO
(3) Numbers of violations and maximum civil penalties. Any violation shall constitute a separate violation with respect to each vehicle or engine within the applicable regulatory averaging set. The maximum civil penalty is not more than $37,500.00 per vehicle or engine. The maximum civil penalty under this section for a related series of violations shall be determined by multiplying $37,500.00 times the vehicle or engine production volume for the model year in question within the regulatory averaging set. NHTSA may adjust this civil penalty amount to account for inflation.
(4) Factors for determining penalty amount. In determining the amount of any civil penalty proposed to be assessed or assessed under this section, NHTSA shall take into account the gravity of the violation, the size of the violator’s business, the violator’s history of compliance with applicable fuel consumption standards, the actual fuel consumption performance related to the applicable standards, the estimated cost to comply with the regulation and applicable standards, the quantity of vehicles or engines not complying, and the effect of the penalty on the violator’s ability to continue in business. The “estimated cost to comply with the regulation and applicable standards,” will be used to ensure that penalties for non-compliance will not be less than the cost of compliance.
(5) NHTSA enforcement report of determination of non-compliance. (i) If NHTSA Enforcement determines that a violation has occurred, NHTSA Enforcement may prepare a report and send the report to the NHTSA Chief Counsel.
(ii) The NHTSA Chief Counsel will review the report prepared by NHTSA Enforcement to determine if there is sufficient information to establish a likely violation.
(iii) If the Chief Counsel determines that a violation has likely occurred, the Chief Counsel may issue a Notice of Violation to the party.
(iv) If the Chief Counsel issues a Notice of Violation, he or she will prepare a case file with recommended actions. A record of any prior violations by the same party shall be forwarded with the case file.
(6) Notice of violation. (i) The Notice of Violation will contain the following information:
(A) The name and address of the party;
(B) The alleged violation(s) and the applicable fuel consumption standard(s) violated;
(C) The amount of the proposed penalty and basis for that amount;
(D) The place to which, and the manner in which, payment is to be made;
(E) A statement that the party may decline the Notice of Violation and that if the Notice of Violation is declined within 30 days of the date shown on the Notice of Violation, the party has the right to a hearing, if requested within 30 days of the date shown on the Notice of Violation, prior to a final assessment of a penalty by a Hearing Officer; and
(F) A statement that failure to either pay the proposed penalty or to decline the Notice of Violation and request a hearing within 30 days of the date shown on the Notice of Violation will result in a finding of violation by default and that NHTSA will proceed with the civil penalty in the amount proposed on the Notice of Violation without processing the violation under the hearing procedures set forth in this subpart.
(ii) The Notice of Violation may be delivered to the party by –
(A) Mailing to the party (certified mail is not required);
(B) Use of an overnight or express courier service; or
(C) Facsimile transmission or electronic mail (with or without attachments) to the party or an employee of the party.
(iii) At any time after the Notice of Violation is issued, NHTSA and the party may agree to reach a compromise on the payment amount.
(iv) Once a penalty amount is paid in full, a finding of “resolved with payment” will be entered into the case file.
(v) If the party agrees to pay the proposed penalty, but has not made payment within 30 days of the date shown on the Notice of Violation, NHTSA will enter a finding of violation by default in the matter and NHTSA will proceed with the civil penalty in the amount proposed on the Notice of Violation without processing the violation under the hearing procedures set forth in this subpart.
(vi) If within 30 days of the date shown on the Notice of Violation a party fails to pay the proposed penalty on the Notice of Violation, and fails to request a hearing, then NHTSA will enter a finding of violation by default in the case file, and will assess the civil penalty in the amount set forth on the Notice of Violation without processing the violation under the hearing procedures set forth in this subpart.
(vii) NHTSA’s order assessing the civil penalty following a party’s default is a final agency action.
(7) Hearing Officer. (i) If a party timely requests a hearing after receiving a Notice of Violation, a Hearing Officer shall hear the case.
(ii) The Hearing Officer will be appointed by the NHTSA Administrator, and is solely responsible for the case referred to him or her. The Hearing Officer shall have no other responsibility, direct or supervisory, for the investigation of cases referred for the assessment of civil penalties. The Hearing Officer shall have no duties related to the light-duty fuel economy or medium- and heavy-duty fuel efficiency programs.
(iii) The Hearing Officer decides each case on the basis of the information before him or her.
(8) Initiation of action before the Hearing Officer. (i) After the Hearing Officer receives the case file from the Chief Counsel, the Hearing Officer notifies the party in writing of –
(A) The date, time, and location of the hearing and whether the hearing will be conducted telephonically or at the DOT Headquarters building in Washington, DC;
(B) The right to be represented at all stages of the proceeding by counsel as set forth in paragraph (b)(9) of this section; and
(C) The right to a free copy of all written evidence in the case file.
(ii) On the request of a party, or at the Hearing Officer’s direction, multiple proceedings may be consolidated if at any time it appears that such consolidation is necessary or desirable.
(9) Counsel. A party has the right to be represented at all stages of the proceeding by counsel. A party electing to be represented by counsel must notify the Hearing Officer of this election in writing, after which point the Hearing Officer will direct all further communications to that counsel. A party represented by counsel bears all of its own attorneys’ fees and costs.
(10) Hearing location and costs. (i) Unless the party requests a hearing at which the party appears before the Hearing Officer in Washington, DC, the hearing may be held telephonically. In Washington, DC, the hearing is held at the headquarters of the U.S. Department of Transportation.
(ii) The Hearing Officer may transfer a case to another Hearing Officer at a party’s request or at the Hearing Officer’s direction.
(iii) A party is responsible for all fees and costs (including attorneys’ fees and costs, and costs that may be associated with travel or accommodations) associated with attending a hearing.
(11) Hearing procedures. (i) There is no right to discovery in any proceedings conducted pursuant to this subpart.
(ii) The material in the case file pertinent to the issues to be determined by the Hearing Officer is presented by the Chief Counsel or his or her designee.
(iii) The Chief Counsel may supplement the case file with information prior to the hearing. A copy of such information will be provided to the party no later than three business days before the hearing.
(iv) At the close of the Chief Counsel’s presentation of evidence, the party has the right to examine respond to and rebut material in the case file and other information presented by the Chief Counsel. In the case of witness testimony, both parties have the right of cross-examination.
(v) In receiving evidence, the Hearing Officer is not bound by strict rules of evidence. In evaluating the evidence presented, the Hearing Officer must give due consideration to the reliability and relevance of each item of evidence.
(vi) At the close of the party’s presentation of evidence, the Hearing Officer may allow the introduction of rebuttal evidence that may be presented by the Chief Counsel.
(vii) The Hearing Officer may allow the party to respond to any rebuttal evidence submitted.
(viii) After the evidence in the case has been presented, the Chief Counsel and the party may present arguments on the issues in the case. The party may also request an opportunity to submit a written statement for consideration by the Hearing Officer and for further review. If granted, the Hearing Officer shall allow a reasonable time for submission of the statement and shall specify the date by which it must be received. If the statement is not received within the time prescribed, or within the limits of any extension of time granted by the Hearing Officer, it need not be considered by the Hearing Officer.
(ix) A verbatim transcript of the hearing will not normally be prepared. A party may, solely at its own expense, cause a verbatim transcript to be made. If a verbatim transcript is made, the party shall submit two copies to the Hearing Officer not later than 15 days after the hearing. The Hearing Officer shall include such transcript in the record.
(12) Determination of violations and assessment of civil penalties. (i) Not later than 30 days following the close of the hearing, the Hearing Officer shall issue a written decision on the Notice of Violation, based on the hearing record. This may be extended by the Hearing officer if the submissions by the Chief Counsel or the party are voluminous. The decision shall address each alleged violation, and may do so collectively. For each alleged violation, the decision shall find a violation or no violation and provide a basis for the finding. The decision shall set forth the basis for the Hearing Officer’s assessment of a civil penalty, or decision not to assess a civil penalty. In determining the amount of the civil penalty, the gravity of the violation, the size of the violator’s business, the violator’s history of compliance with applicable fuel consumption standards, the actual fuel consumption performance related to the applicable standard, the estimated cost to comply with the regulation and applicable standard, the quantity of vehicles or engines not complying, and the effect of the penalty on the violator’s ability to continue in business. The assessment of a civil penalty by the Hearing Officer shall be set forth in an accompanying final order. The Hearing Officer’s written final order is a final agency action.
(ii) If the Hearing Officer assesses civil penalties in excess of $1,000,000, the Hearing Officer’s decision shall contain a statement advising the party of the right to an administrative appeal to the Administrator within a specified period of time. The party is advised that failure to submit an appeal within the prescribed time will bar its consideration and that failure to appeal on the basis of a particular issue will constitute a waiver of that issue in its appeal before the Administrator.
(iii) The filing of a timely and complete appeal to the Administrator of a Hearing Officer’s order assessing a civil penalty shall suspend the operation of the Hearing Officer’s penalty, which shall no longer be a final agency action.
(iv) There shall be no administrative appeals of civil penalties assessed by a Hearing Officer of less than $1,000,000.
(13) Appeals of civil penalties in excess of $1,000,000. (i) A party may appeal the Hearing Officer’s order assessing civil penalties over $1,000,000 to the Administrator within 21 days of the date of the issuance of the Hearing Officer’s order.
(ii) The Administrator will review the decision of the Hearing Officer de novo, and may affirm the decision of the hearing officer and assess a civil penalty, or
(iii) The Administrator may –
(A) Modify a civil penalty;
(B) Rescind the Notice of Violation; or
(C) Remand the case back to the Hearing Officer for new or additional proceedings.
(iv) In the absence of a remand, the decision of the Administrator in an appeal is a final agency action.
(14) Collection of assessed or compromised civil penalties. (i) Payment of a civil penalty, whether assessed or compromised, shall be made by check, postal money order, or electronic transfer of funds, as provided in instructions by the agency. A payment of civil penalties shall not be considered a request for a hearing.
(ii) The party must remit payment of any assessed civil penalty to NHTSA within 30 days after receipt of the Hearing Officer’s order assessing civil penalties, or, in the case of an appeal to the Administrator, within 30 days after receipt of the Administrator’s decision on the appeal.
(iii) The party must remit payment of any compromised civil penalty to NHTSA on the date and under such terms and conditions as agreed to by the party and NHTSA. Failure to pay may result in NHTSA entering a finding of violation by default and assessing a civil penalty in the amount proposed in the Notice of Violation without processing the violation under the hearing procedures set forth in this part.
(c) Changes in corporate ownership and control. Manufacturers must inform NHTSA of corporate relationship changes to ensure that credit accounts are identified correctly and credits are assigned and allocated properly.
(1) In general, if two manufacturers merge in any way, they must inform NHTSA how they plan to merge their credit accounts. NHTSA will subsequently assess corporate fuel consumption and compliance status of the merged fleet instead of the original separate fleets.
(2) If a manufacturer divides or divests itself of a portion of its automobile manufacturing business, it must inform NHTSA how it plans to divide the manufacturer’s credit holdings into two or more accounts. NHTSA will subsequently distribute holdings as directed by the manufacturer, subject to provision for reasonably anticipated compliance obligations.
(3) If a manufacturer is a successor to another manufacturer’s business, it must inform NHTSA how it plans to allocate credits and resolve liabilities per 49 CFR part 534.
§ 535.10 How do manufacturers comply with fuel consumption standards?
(a) Pre-certification process. (1) Regulated manufacturers determine eligibility to use exemptions or exclusions in accordance with § 535.3.
(2) Manufacturers may seek preliminary approvals as specified in 40 CFR 1036.210 and 40 CFR 1037.210 from EPA and NHTSA, if needed. Manufacturers may request to schedule pre-certification meetings with EPA and NHTSA prior to submitting approval requests for certificates of conformity to address any joint compliance issues and gain informal feedback from the agencies.
(3) The requirements and prohibitions required by EPA in special circumstances in accordance with 40 CFR 1037.601 and 40 CFR part 1068 apply to manufacturers for the purpose of complying with fuel consumption standards. Manufacturers should use good judgment when determining how EPA requirements apply in complying with the NHTSA program. Manufacturers may contact NHTSA and EPA for clarification about how these requirements apply to them.
(4) In circumstances in which EPA provides multiple compliance approaches manufacturers must choose the same compliance path to comply with NHTSA’s fuel consumption standards that they choose to comply with EPA’s greenhouse gas emission standards.
(5) Manufacturers may not introduce new vehicles into commerce without a certificate of conformity from EPA. Manufacturers must attest to several compliance standards in order to obtain a certificate of conformity. This includes stating comparable fuel consumption results for all required CO
(6) Manufacturers apply the fuel consumption standards specified in § 535.5 to vehicles, engines and components that represent production units and components for vehicle and engine families, sub-families and configurations consistent with the EPA specifications in 40 CFR 86.1819, 1036.230, and 1037.230.
(7) Only certain vehicles and engines are allowed to comply differently between the NHTSA and EPA programs as detailed in this section. These vehicles and engines must be identified by manufacturers in the ABT and production reports required in § 535.8.
(b) Model year compliance. Manufacturers are required to conduct testing to demonstrate compliance with CO
(c) End-of-the-year process. Manufacturers comply with fuel consumption standards after the end of each model year, if –
(1) For heavy-duty pickup trucks and vans, the manufacturer’s fleet average performance, as determined in § 535.6, is less than the fleet average standard; or
(2) For truck tractors, vocational vehicles, engines and box trailers the manufacturer’s fuel consumption performance for each vehicle or engine family (or sub-family), as determined in § 535.6, is lower than the applicable regulatory subcategory standards in § 535.5.
(3) For non-box and non-aero trailers, a manufacturer is considered in compliance with fuel consumption standards if all trailers meet the specified standards in § 535.5(e)(1)(i).
(4) NHTSA will use the EPA final verified values as specified in 40 CFR 86.1819, 40 CFR 1036.755, and 1037.755 for making final determinations on whether vehicles and engines comply with fuel consumption standards.
(5) A manufacturer fails to comply with fuel consumption standards if its final reports are not provided in accordance with § 535.8 and 40 CFR 86.1865, 1036.730, and 1037.730. Manufacturers not providing complete or accurate final reports or any plans by the required deadlines do not comply with fuel consumption standards. A manufacturer that is unable to provide any emissions results along with comparable fuel consumption values must obtain permission for EPA to exclude the results prior to the deadline for submitting final reports.
(6) A manufacturer that would otherwise fail to directly comply with fuel consumption standards as described in paragraphs (c)(1) through (3) of this section may use one or more of the credit flexibilities provided under the NHTSA averaging, banking and trading program, as specified in § 535.7, but must offset all credit deficits in its averaging sets to achieve compliance.
(7) A manufacturer failing to comply with the provisions specified in this part may be liable to pay civil penalties in accordance with § 535.9.
(8) A manufacturer may also be liable to pay civil penalties if found by EPA or NHTSA to have provided false information as identified through NHTSA or EPA enforcement audits or new vehicle verification testing as specified in § 535.9 and 40 CFR parts 86, 1036, and 1037.
PART 536 – TRANSFER AND TRADING OF FUEL ECONOMY CREDITS
§ 536.1 Scope.
This part establishes regulations governing the use and application of CAFE credits up to three model years before and five model years after the model year in which the credit was earned. It also specifies requirements for manufacturers wishing to transfer fuel economy credits between their fleets and for manufacturers and other persons wishing to trade fuel economy credits to achieve compliance with prescribed fuel economy standards.
§ 536.2 Application.
This part applies to all credits earned (and transferable and tradable) for exceeding applicable average fuel economy standards in a given model year for domestically manufactured passenger cars, imported passenger cars, and light trucks.
§ 536.3 Definitions.
(a) Statutory terms. All terms defined in 49 U.S.C. § 32901(a) are used pursuant to their statutory meaning.
(b) Other terms.
Above standard fuel economy means, with respect to a compliance category, that the automobiles manufactured by a manufacturer in that compliance category in a particular model year have greater average fuel economy (calculated in a manner that reflects the incentives for alternative fuel automobiles per 49 U.S.C. 32905) than that manufacturer’s fuel economy standard for that compliance category and model year.
Adjustment factor means a factor used to adjust the value of a traded or transferred credit for compliance purposes to ensure that the compliance value of the credit when used reflects the total volume of oil saved when the credit was earned.
Below standard fuel economy means, with respect to a compliance category, that the automobiles manufactured by a manufacturer in that compliance category in a particular model year have lower average fuel economy (calculated in a manner that reflects the incentives for alternative fuel automobiles per 49 U.S.C. 32905) than that manufacturer’s fuel economy standard for that compliance category and model year.
Compliance means a manufacturer achieves compliance in a particular compliance category when
(1) The average fuel economy of the vehicles in that category exceed or meet the fuel economy standard for that category, or
(2) The average fuel economy of the vehicles in that category do not meet the fuel economy standard for that category, but the manufacturer proffers a sufficient number of valid credits, adjusted for total oil savings, to cover the gap between the average fuel economy of the vehicles in that category and the required average fuel economy. A manufacturer achieves compliance for its fleet if the above conditions (1) or (2) are simultaneously met for all compliance categories.
Compliance category means any of three categories of automobiles subject to Federal fuel economy regulations. The three compliance categories recognized by 49 U.S.C. 32903(g)(6) are domestically manufactured passenger automobiles, imported passenger automobiles, and non-passenger automobiles (“light trucks”).
Credit holder (or holder) means a legal person that has valid possession of credits, either because they are a manufacturer who has earned credits by exceeding an applicable fuel economy standard, or because they are a designated recipient who has received credits from another holder. Credit holders need not be manufacturers, although all manufacturers may be credit holders.
Credits (or fuel economy credits) means an earned or purchased allowance recognizing that the average fuel economy of a particular manufacturer’s vehicles within a particular compliance category and model year exceeds that manufacturer’s fuel economy standard for that compliance category and model year. One credit is equal to
Expiry date means the model year after which fuel economy credits may no longer be used to achieve compliance with fuel economy regulations. Expiry Dates are calculated in terms of model years: for example, if a manufacturer earns credits for model year 2011, these credits may be used for compliance in model years 2008-2016.
Fleet means all automobiles that are manufactured by a manufacturer in a particular model year and are subject to fuel economy standards under 49 CFR parts 531 and 533. For the purposes of this regulation, a manufacturer’s fleet means all domestically manufactured and imported passenger automobiles and non-passenger automobiles (“light trucks”). “Work trucks” and medium and heavy trucks are not included in this definition for purposes of this regulation.
Light truck means the same as “non-passenger automobile,” as that term is defined in 49 U.S.C. 32901(a)(17), and as “light truck,” as that term is defined at 49 CFR 523.5.
Originating manufacturer means the manufacturer that originally earned a particular credit. Each credit earned will be identified with the name of the originating manufacturer.
Trade means the receipt by NHTSA of an instruction from a credit holder to place one of its credits in the account of another credit holder. A credit that has been traded can be identified because the originating manufacturer will be a different party than the current credit holder. Traded credits are moved from one credit holder to the recipient credit holder within the same compliance category for which the credits were originally earned. If a credit has been traded to another credit holder and is subsequently traded back to the originating manufacturer, it will be deemed not to have been traded for compliance purposes.
Transfer means the application by a manufacturer of credits earned by that manufacturer in one compliance category or credits acquired be trade (and originally earned by another manufacturer in that category) to achieve compliance with fuel economy standards with respect to a different compliance category. For example, a manufacturer may purchase light truck credits from another manufacturer, and transfer them to achieve compliance in the manufacturer’s domestically manufactured passenger car fleet. Subject to the credit transfer limitations of 49 U.S.C. 32903(g)(3), credits can also be transferred across compliance categories and banked or saved in that category to be carried forward or backwards later to address a credit shortfall.
Vintage means, with respect to a credit, the model year in which the credit was earned.
§ 536.4 Credits.
(a) Type and vintage. All credits are identified and distinguished in the accounts by originating manufacturer, compliance category, and model year of origin (vintage).
(b) Application of credits. All credits earned and applied are calculated, per 49 U.S.C. 32903(c), in tenths of a mile per gallon by which the average fuel economy of vehicles in a particular compliance category manufactured by a manufacturer in the model year in which the credits are earned exceeds the applicable average fuel economy standard, multiplied by the number of vehicles sold in that compliance category. However, credits that have been traded between credit holders or transferred between compliance categories are valued for compliance purposes using the adjustment factor specified in paragraph (c) of this section, pursuant to the “total oil savings” requirement of 49 U.S.C. 32903(f)(1).
(c) Adjustment factor. When traded or transferred and used, fuel economy credits are adjusted to ensure fuel oil savings is preserved. For traded credits, the user (or buyer) must multiply the calculated adjustment factor by the number of shortfall credits it plans to offset in order to determine the number of equivalent credits to acquire from the earner (or seller). For transferred credits, the user of credits must multiply the calculated adjustment factor by the number of shortfall credits it plans to offset in order to determine the number of equivalent credits to transfer from the compliance category holding the available credits. The adjustment factor is calculated according to the following formula:
§ 536.5 Trading infrastructure.
(a) Accounts. NHTSA maintains “accounts” for each credit holder. The account consists of a balance of credits in each compliance category and vintage held by the holder.
(b) Who may hold credits. Every manufacturer subject to fuel economy standards under 49 CFR parts 531 or 533 is automatically an account holder. If the manufacturer earns credits pursuant to this regulation, or receives credits from another party, so that the manufacturer’s account has a non-zero balance, then the manufacturer is also a credit holder. Any party designated as a recipient of credits by a current credit holder will receive an account from NHTSA and become a credit holder, subject to the following conditions:
(1) A designated recipient must provide name, address, contacting information, and a valid taxpayer identification number or social security number;
(2) NHTSA does not grant a request to open a new account by any party other than a party designated as a recipient of credits by a credit holder;
(3) NHTSA maintains accounts with zero balances for a period of time, but reserves the right to close accounts that have had zero balances for more than one year.
(c) Automatic debits and credits of accounts. (1) To carry credits forward, backward, transfer credits, or trade credits into other credit accounts, a manufacturer or credit holder must submit a credit instruction to NHTSA. A credit instruction must detail and include:
(i) The credit holder(s) involved in the transaction.
(ii) The originating credits described by the amount of the credits, compliance category and the vintage of the credits.
(iii) The recipient credit account(s) for banking or applying the originating credits described by the compliance category(ies), model year(s), and if applicable the adjusted credit amount(s) and adjustment factor(s).
(iv) For trades, a contract authorizing the trade signed by the manufacturers or credit holders or by managers legally authorized to obligate the sale and purchase of the traded credits.
(2) Upon receipt of a credit instruction from an existing credit holder, NHTSA verifies the presence of sufficient credits in the account(s) of the credit holder(s) involved as applicable and notifies the credit holder(s) that the credits will be debited from and/or credited to the accounts involved, as specified in the credit instruction. NHTSA determines if the credits can be debited or credited based upon the amount of available credits, accurate application of any adjustment factors and the credit requirements prescribed by this part that are applicable at the time the transaction is requested.
(3) After notifying the credit holder(s), all accounts involved are either credited or debited, as appropriate, in line with the credit instruction. Traded credits identified by a specific compliance category are deposited into the recipient’s account in that same compliance category and model year. If a recipient of credits as identified in a credit instruction is not a current account holder, NHTSA establishes the credit recipient’s account, subject to the conditions described in § 536.5(b), and adds the credits to the newly-opened account.
(4) NHTSA will automatically delete unused credits from holders’ accounts when those credits reach their expiry date.
(5) Starting in model year 2021, manufacturers or credit holders issuing credit instructions or providing credit allocation plans as specified in § 536.5(d), must use the NHTSA Credit Template fillable form (OMB Control No. 2127-0019, NHTSA Form 1475). The NHTSA Credit Template is available for download on NHTSA’s website. If a credit instruction includes a trade, the NHTSA Credit Template must be signed by managers legally authorized to obligate the sale and/or purchase of the traded credits from both parties to the trade. The NHTSA Credit Template signed by both parties to the trade serves as an acknowledgement that the parties have agreed to trade credits, and does not dictate terms, conditions, or other business obligations of the parties. All parties trading credits must also provide NHTSA the price paid for the credits including a description of any other monetary or non-monetary terms affecting the price of the traded credits, such as any technology exchanged or shared for the credits, any other non-monetary payment for the credits, or any other agreements related to the trade. Manufacturers must submit this information to NHTSA in a PDF document along with the Credit Template through the CAFE email, [email protected]. NHTSA reserves the right to request additional information from the parties regarding the terms of the trade.
(6) NHTSA will consider claims that information submitted to the agency under this section is entitled to confidential treatment under 5 U.S.C. 552(b) and under the provisions of part 512 of this chapter if the information is submitted in accordance with the procedures of that part.
(d) Compliance. (1) NHTSA assesses compliance with fuel economy standards each year, utilizing the certified and reported CAFE data provided by the Environmental Protection Agency for enforcement of the CAFE program pursuant to 49 U.S.C. 32904(e). Credit values are calculated based on the CAFE data from the EPA. If a particular compliance category within a manufacturer’s fleet has above standard fuel economy, NHTSA adds credits to the manufacturer’s account for that compliance category and vintage in the appropriate amount by which the manufacturer has exceeded the applicable standard.
(2) If a manufacturer’s vehicles in a particular compliance category have below standard fuel economy, NHTSA will provide written notification to the manufacturer that it has failed to meet a particular fleet target standard. The manufacturer will be required to confirm the shortfall and must either: submit a plan indicating how it will allocate existing credits or earn, transfer and/or acquire credits; or pay the appropriate civil penalty. The manufacturer must submit a plan or payment within 60 days of receiving agency notification.
(3) Credits used to offset shortfalls are subject to the three and five year limitations as described in § 536.6.
(4) Transferred credits are subject to the limitations specified by 49 U.S.C. 32903(g)(3) and this regulation.
(5) The value, when used for compliance, of any credits received via trade or transfer is adjusted, using the adjustment factor described in § 536.4(c), pursuant to 49 U.S.C. 32903(f)(1).
(6) Credit allocation plans received from a manufacturer will be reviewed and approved by NHTSA. Starting in model year 2021, use the NHTSA Credit Template (OMB Control No. 2127-0019, NHTSA Form 1475) to record the credit transactions requested in the credit allocation plan. The template is a fillable form that has an option for recording and calculating credit transactions for credit allocation plans. The template calculates the required adjustments to the credits. The credit allocation plan and the completed transaction template must be submitted to NHTSA. NHTSA will approve the credit allocation plan unless it finds that the proposed credits are unavailable or that it is unlikely that the plan will result in the manufacturer earning sufficient credits to offset the subject credit shortfall. If the plan is approved, NHTSA will revise the respective manufacturer’s credit account accordingly. If the plan is rejected, NHTSA will notify the respective manufacturer and request a revised plan or payment of the appropriate fine.
(e) Reporting. (1) NHTSA periodically publishes the names and credit holdings of all credit holders. NHTSA does not publish individual transactions, nor respond to individual requests for updated balances from any party other than the account holder.
(2) NHTSA issues an annual credit status letter to each party that is a credit holder at that time. The letter to a credit holder includes a credit accounting record that identifies the credit status of the credit holder including any activity (earned, expired, transferred, traded, carry-forward and carry-back credit transactions/allocations) that took place during the identified activity period.
§ 536.6 Treatment of credits earned prior to model year 2011.
(a) Credits earned in a compliance category before model year 2008 may be applied by the manufacturer that earned them to carryback plans for that compliance category approved up to three model years prior to the year in which the credits were earned, or may be applied to compliance in that compliance category for up to three model years after the year in which the credits were earned.
(b) Credits earned in a compliance category during and after model year 2008 may be applied by the manufacturer that earned them to carryback plans for that compliance category approved up to three years prior to the year in which the credits were earned, or may be held or applied for up to five model years after the year in which the credits were earned.
(c) Credits earned in a compliance category prior to model year 2011 may not be transferred or traded.
§ 536.7 Treatment of carryback credits.
(a) Carryback credits earned in a compliance category in any model year may be used in carryback plans approved by NHTSA, pursuant to 49 U.S.C. 32903(b), for up to three model years prior to the year in which the credit was earned.
(b) For purposes of this regulation, NHTSA will treat the use of future credits for compliance, as through a carryback plan, as a deferral of penalties for non-compliance with an applicable fuel economy standard.
(c) If NHTSA receives and approves a manufacturer’s carryback plan to earn future credits within the following three model years in order to comply with current regulatory obligations, NHTSA will defer levying fines for non-compliance until the date(s) when the manufacturer’s approved plan indicates that credits will be earned or acquired to achieve compliance, and upon receiving confirmed CAFE data from EPA. If the manufacturer fails to acquire or earn sufficient credits by the plan dates, NHTSA will initiate compliance proceedings.
(d) In the event that NHTSA fails to receive or approve a plan for a non-compliant manufacturer, NHTSA will levy fines pursuant to statute. If within three years, the non-compliant manufacturer earns or acquires additional credits to reduce or eliminate the non-compliance, NHTSA will reduce any fines owed, or repay fines to the extent that credits received reduce the non-compliance.
(e) No credits from any source (earned, transferred and/or traded) will be accepted in lieu of compliance if those credits are not identified as originating within one of the three model years after the model year of the confirmed shortfall.
§ 536.8 Conditions for trading of credits.
(a) Trading of credits. If a credit holder wishes to trade credits to another party, the current credit holder and the receiving party must jointly issue an instruction to NHTSA, identifying the quantity, vintage, compliance category, and originator of the credits to be traded. If the recipient is not a current account holder, the recipient must provide sufficient information for NHTSA to establish an account for the recipient. Once an account has been established or identified for the recipient, NHTSA completes the trade by debiting the transferor’s account and crediting the recipient’s account. NHTSA will track the quantity, vintage, compliance category, and originator of all credits held or traded by all account-holders.
(b) Trading between and within compliance categories. For credits earned in model year 2011 or thereafter, and used to satisfy compliance obligations for model year 2011 or thereafter:
(1) Manufacturers may use credits originally earned by another manufacturer in a particular compliance category to satisfy compliance obligations within the same compliance category.
(2) Once a manufacturer acquires by trade credits originally earned by another manufacturer in a particular compliance category, the manufacturer may transfer the credits to satisfy its compliance obligations in a different compliance category, but only to the extent that the CAFE increase attributable to the transferred credits does not exceed the limits in 49 U.S.C. 32903(g)(3). For any compliance category, the sum of a manufacturer’s transferred credits earned by that manufacturer and transferred credits obtained by that manufacturer through trade must not exceed that limit.
(c) Changes in corporate ownership and control. Manufacturers must inform NHTSA of corporate relationship changes to ensure that credit accounts are identified correctly and credits are assigned and allocated properly.
(1) In general, if two manufacturers merge in any way, they must inform NHTSA how they plan to merge their credit accounts. NHTSA will subsequently assess corporate fuel economy and compliance status of the merged fleet instead of the original separate fleets.
(2) If a manufacturer divides or divests itself of a portion of its automobile manufacturing business, it must inform NHTSA how it plans to divide the manufacturer’s credit holdings into two or more accounts. NHTSA will subsequently distribute holdings as directed by the manufacturer, subject to provision for reasonably anticipated compliance obligations.
(3) If a manufacturer is a successor to another manufacturer’s business, it must inform NHTSA how it plans to allocate credits and resolve liabilities per 49 CFR Part 534, Rights and Responsibilities of Manufacturers in the Context of Corporate Relationships.
(d) No short or forward sales. NHTSA will not honor any instructions to trade or transfer more credits than are currently held in any account. NHTSA will not honor instructions to trade or transfer credits from any future vintage (i.e., credits not yet earned). NHTSA will not participate in or facilitate contingent trades.
(e) Cancellation of credits. A credit holder may instruct NHTSA to cancel its currently held credits, specifying the originating manufacturer, vintage, and compliance category of the credits to be cancelled. These credits will be permanently null and void; NHTSA will remove the specific credits from the credit holder’s account, and will not reissue them to any other party.
(f) Errors or fraud in earning credits. If NHTSA determines that a manufacturer has been credited, through error or fraud, with earning credits, NHTSA will cancel those credits if possible. If the manufacturer credited with having earned those credits has already traded them when the error or fraud is discovered, NHTSA will hold the receiving manufacturer responsible for returning the same or equivalent credits to NHTSA for cancellation.
(g) Error or fraud in trading. In general, all trades are final and irrevocable once executed, and may only be reversed by a new, mutually-agreed transaction. If NHTSA executes an erroneous instruction to trade credits from one holder to another through error or fraud, NHTSA will reverse the transaction if possible. If those credits have been traded away, the recipient holder is responsible for obtaining the same or equivalent credits for return to the previous holder.
§ 536.9 Use of credits with regard to the domestically manufactured passenger automobile minimum standard.
(a) Each manufacturer is responsible for compliance with both the minimum standard and the attribute-based standard.
(b) In any particular model year, the domestically manufactured passenger automobile compliance category credit excess or shortfall is determined by comparing the actual CAFE value against either the required standard value or the minimum standard value, whichever is larger.
(c) Transferred or traded credits may not be used, pursuant to 49 U.S.C. 32903(g)(4) and (f)(2), to meet the domestically manufactured passenger automobile minimum standard specified in 49 U.S.C. 32902(b)(4) and in 49 CFR 531.5(d).
(d) If a manufacturer’s average fuel economy level for domestically manufactured passenger automobiles is lower than the attribute-based standard, but higher than the minimum standard, then the manufacturer may achieve compliance with the attribute-based standard by applying credits.
(e) If a manufacturer’s average fuel economy level for domestically manufactured passenger automobiles is lower than the minimum standard, then the difference between the minimum standard and the manufacturer’s actual fuel economy level may only be relieved by the use of credits earned by that manufacturer within the domestic passenger car compliance category which have not been transferred or traded. If the manufacturer does not have available earned credits to offset a credit shortage below the minimum standard then the manufacturer can submit a carry-back plan that indicates sufficient future credits will be earned in its domestic passenger car compliance category or will be subject to penalties.
§ 536.10 Treatment of dual-fuel and alternative fuel vehicles – consistency with 49 CFR part 538.
(a) Statutory alternative fuel and dual-fuel vehicle fuel economy calculations are treated as a change in the underlying fuel economy of the vehicle for purposes of this regulation, not as a credit that may be transferred or traded. Improvements in alternative fuel or dual fuel vehicle fuel economy as calculated pursuant to 49 U.S.C. 32905 and limited by 49 U.S.C. 32906 are therefore attributable only to the particular compliance category and model year to which the alternative or dual-fuel vehicle belongs.
(b) If a manufacturer’s calculated fuel economy for a particular compliance category, including any statutorily-required calculations for alternative fuel and dual fuel vehicles, is higher or lower than the applicable fuel economy standard, manufacturers will earn credits or must apply credits or pay civil penalties equal to the difference between the calculated fuel economy level in that compliance category and the applicable standard. Credits earned are the same as any other credits, and may be held, transferred, or traded by the manufacturer subject to the limitations of the statute and this regulation.
(c) For model years up to and including MY 2019, if a manufacturer builds enough dual fuel vehicles (except plug-in hybrid electric vehicles) to improve the calculated fuel economy in a particular compliance category by more than the limits set forth in 49 U.S.C. 32906(a), the improvement in fuel economy for compliance purposes is restricted to the statutory limit. Manufacturers may not earn credits nor reduce the application of credits or fines for calculated improvements in fuel economy based on dual fuel vehicles beyond the statutory limit.
(d) For model years 2020 and beyond, a manufacturer must calculate the fuel economy of dual fueled vehicles in accordance with 40 CFR 600.510-12(c).
PART 537 – AUTOMOTIVE FUEL ECONOMY REPORTS
§ 537.1 Scope.
This part establishes requirements for automobile manufacturers to submit reports to the National Highway Traffic Safety Administration regarding their efforts to improve automotive fuel economy.
§ 537.2 Purpose.
The purpose of this part is to obtain information to aid the National Highway Traffic Safety Administration in valuating automobile manufacturers’ plans for complying with average fuel economy standards and in preparing an annual review of the average fuel economy standards.
§ 537.3 Applicability.
This part applies to automobile manufacturers, except for manufacturers subject to an alternate fuel economy standard under section 502(c) of the Act.
§ 537.4 Definitions.
(a) Statutory terms. (1) The terms average fuel economy standard, fuel, manufacture, and model year are used as defined in section 501 of the Act.
(2) The term manufacturer is used as defined in section 501 of the Act and in accordance with part 529 of this chapter.
(3) The terms average fuel economy, fuel economy, and model type are used as defined in subpart A of 40 CFR part 600.
(4) The terms automobile, automobile capable of off-highway operation, and passenger automobile are used as defined in section 501 of the Act and in accordance with the determinations in part 523 of this chapter.
(b) Other terms. (1) The term loaded vehicle weight is used as defined in subpart A of 40 CFR part 86.
(2) The terms axle ratio, base level, body style, car line, combined fuel economy, engine code, equivalent test weight, gross vehicle weight, inertia weight, transmission class, and vehicle configuration are used as defined in subpart A of 40 CFR part 600.
(3) The term light truck is used as defined in part 523 of this chapter and in accordance with determinations in that part.
(4) The terms approach angle, axle clearance, brakeover angle, cargo carrying volume, departure angle, passenger carrying volume, running clearance, and temporary living quarters are used as defined in part 523 of this chapter.
(5) The term incomplete automobile manufacturer is used as defined in part 529 of this chapter.
(6) As used in this part, unless otherwise required by the context:
(i) Act means the Motor Vehicle Information and Cost Savings Act (Pub. L. 92-513), as amended by the Energy Policy and Conservation Act (Pub. L. 94-163).
(ii) Administrator means the Administrator of the National Highway Traffic Safety Administration or the Administrator’s delegate.
(iii) Current model year means:
(A) In the case of a pre-model year report, the full model year immediately following the period during which that report is required by § 537.5(b) to be submitted.
(B) In the case of a mid-model year report, the model year during which that report is required by § 537.5(b) to be submitted.
(iv) Average means a production-weighted harmonic average.
(v) Total drive ratio means the ratio of an automobile’s engine rotational speed (in revolutions per minute) to the automobile’s forward speed (in miles per hour).
§ 537.5 General requirements for reports.
(a) For each current model year, each manufacturer shall submit a pre-model year report, a mid-model year report, and, as required by § 537.8, supplementary reports.
(b)(1) The pre-model year report required by this part for each current model year must be submitted during the month of December (e.g., the pre-model year report for the 1983 model year must be submitted during December, 1982).
(2) The mid-model year report required by this part for each current model year must be submitted during the month of July (e.g., the mid-model year report for the 1983 model year must be submitted during July 1983).
(3) Each supplementary report must be submitted in accordance with § 537.8(c).
(c) Each report required by this part must:
(1) Identify the report as a pre-model year report, mid-model year report, or supplementary report as appropriate;
(2) Identify the manufacturer submitting the report;
(3) State the full name, title, and address of the official responsible for preparing the report;
(4) Be submitted on CD-ROM for confidential reports provided in accordance with Part 537.12 and by email for non-confidential (i.e., redacted) versions of reports. The content of reports must be provided in a pdf or MS Word format except for the information required in 537.7 which must be provided in a MS Excel format. Submit 2 copies of the CD-ROM to: Administrator, National Highway Traffic Administration, 1200 New Jersey Avenue SW., Washington, DC 20590, and submit reports electronically to the following secure email address: [email protected];
(5) Identify the current model year;
(6) Be written in the English language; and
(7)(i) Specify any part of the information or data in the report that the manufacturer believes should be withheld from public disclosure as trade secret or other confidential business information.
(ii) With respect to each item of information or data requested by the manufacturer to be withheld under 5 U.S.C. 552(b)(4) and 15 U.S.C. 2005(d)(1), the manufacturer shall:
(A) Show that the item is within the scope of sections 552(b)(4) and 2005(d)(1);
(B) Show that disclosure of the item would result in significant competitive damage;
(C) Specify the period during which the item must be withheld to avoid that damage; and
(D) Show that earlier disclosure would result in that damage.
(d) Beginning with model year 2023, each manufacturer shall generate reports required by this part using the NHTSA CAFE Projections Reporting Template (OMB Control No. 2127-0019, NHTSA Form 1474). The template is a fillable form.
(1) Select the option to identify the report as a pre-model year report, mid-model year report, or supplementary report as appropriate;
(2) Complete all required information for the manufacturer and for all vehicles produced for the current model year required to comply with CAFE standards. Identify the manufacturer submitting the report, including the full name, title, and address of the official responsible for preparing the report and a point of contact to answer questions concerning the report.
(3) Use the template to generate confidential and non-confidential reports for all the domestic and import passenger cars and light truck fleet produced by the manufacturer for the current model year. Manufacturers must submit a request for confidentiality in accordance with part 512 of this chapter to withhold projected production sales volume estimates from public disclosure. If the request is granted, NHTSA will withhold the projected production sales volume estimates from public disclose until all the vehicles produced by the manufacturer have been made available for sale (usually one year after the current model year).
(4) Submit confidential reports and requests for confidentiality to NHTSA on CD-ROM in accordance with Part 537.12. Email copies of non-confidential (i.e., redacted) reports to NHTSA’s secure email address: [email protected]. Requests for confidentiality must be submitted in a PDF or MS Word format. Submit 2 copies of the CD-ROM to: Administrator, National Highway Traffic Administration, 1200 New Jersey Avenue SE, Washington, DC 20590, and submit emailed reports electronically to the following secure email address: [email protected];
(5) Confidentiality Requests. Manufacturers can withhold information on projected production sales volumes under 5 U.S.C. 552(b)(4) and 15 U.S.C. 2005(d)(1). In accordance, the manufacturer must:
(i) Show that the item is within the scope of sections 552(b)(4) and 2005(d)(1);
(ii) Show that disclosure of the item would result in significant competitive damage;
(iii) Specify the period during which the item must be withheld to avoid that damage; and
(iv) Show that earlier disclosure would result in that damage.
(e) Each report required by this part must be based upon all information and data available to the manufacturer 30 days before the report is submitted to the Administrator.
§ 537.6 General content of reports.
(a) Pre-model year and mid-model year reports. Except as provided in paragraph (c) of this section, each pre-model year report and the mid-model year report for each model year must contain the information required by § 537.7(a).
(b) Supplementary report. Except as provided in paragraph (c) of this section, each supplementary report for each model year must contain the information required by § 537.7(a)(1) and (a)(2), as appropriate for the vehicle fleets produced by the manufacturer, in accordance with § 537.8(b)(1), (2), (3), and (4) as appropriate.
(c) Exceptions. The pre-model year report, mid-model year report, and supplementary report(s) submitted by an incomplete automobile manufacturer for any model year are not required to contain the information specified in § 537.7 (c)(4) (xv) through (xviii) and (c)(5). The information provided by the incomplete automobile manufacturer under § 537.7(c) shall be according to base level instead of model type or carline.
§ 537.7 Pre-model year and mid-model year reports.
(a)(1) Provide a report with the information required by paragraphs (b) and (c) of this section for each domestic and import passenger automobile fleet, as specified in part 531 of this chapter, for the current model year.
(2) Provide a report with the information required by paragraphs (b) and (c) of this section for each light truck fleet, as specified in part 533 of this chapter, for the current model year.
(3) For model year 2023 and later, provide the information required by paragraphs (a)(1) and (2) of this section for pre-model and mid-model year reports in accordance with the NHTSA CAFE Projections Reporting Template (OMB Control No. 2127-0019, NHTSA Form 1474). The required reporting template can be downloaded from NHTSA’s website.
(b) Projected average and required fuel economy. (1) State the projected average fuel economy for the manufacturer’s automobiles determined in accordance with § 537.9 and based upon the fuel economy values and projected sales figures provided under paragraph (c)(2) of this section.
(2) State the projected final average fuel economy that the manufacturer anticipates having if changes implemented during the model year will cause that average to be different from the average fuel economy projected under paragraph (b)(1) of this section.
(3) State the projected required fuel economy for the manufacturer’s passenger automobiles and light trucks determined in accordance with §§ 531.5(c) and 533.5 of this chapter and based upon the projected sales figures provided under paragraph (c)(2) of this section. For each unique model type and footprint combination of the manufacturer’s automobiles, provide the information specified in paragraph (b)(3)(i) and (ii) of this section in tabular form. List the model types in order of increasing average inertia weight from top to bottom down the left side of the table and list the information categories in the order specified in paragraphs (b)(3)(i) and (ii) of this section from left to right across the top of the table. Other formats, such as those accepted by the EPA, which contain all the information in a readily identifiable format are also acceptable. For model year 2023 and later, for each unique model type and footprint combination of the manufacturer’s automobiles, provide the information specified in paragraph (b)(3)(i) and (ii) of this section in accordance with the CAFE Projections Reporting Template (OMB Control No. 2127-0019, NHTSA Form 1474).
(i) In the case of passenger automobiles:
(A) Beginning model year 2013, base tire as defined in § 523.2 of this chapter,
(B) Beginning model year 2013, front axle, rear axle, and average track width as defined in § CFR 523.2 of this chapter,
(C) Beginning model year 2013, wheelbase as defined in § 523.2 of this chapter, and
(D) Beginning model year 2013, footprint as defined in § 523.2 of this chapter.
(E) The fuel economy target value for each unique model type and footprint entry listed in accordance with the equation provided in part 531 of this chapter.
(ii) In the case of light trucks:
(A) Beginning model year 2013, base tire as defined in § 523.2 of this chapter,
(B) Beginning model year 2013, front axle, rear axle, and average track width as defined in § 523.2 of this chapter,
(C) Beginning model year 2013, wheelbase as defined in § 523.2 of this chapter, and
(D) Beginning model year 2013, footprint as defined in § 523.2 of this chapter.
(E) The fuel economy target value for each unique model type and footprint entry listed in accordance with the equation provided in part 533 of this chapter.
(4) State the projected final required fuel economy that the manufacturer anticipates having if changes implemented during the model year will cause the targets to be different from the target fuel economy projected under paragraph (b)(3) of this section.
(5) State whether the manufacturer believes that the projections it provides under paragraphs (b)(2) and (b)(4) of this section, or if it does not provide an average or target under those paragraphs, the projections it provides under paragraphs (b)(1) and (b)(3) of this section, sufficiently represent the manufacturer’s average and target fuel economy for the current model year for purposes of the Act. In the case of a manufacturer that believes that the projections are not sufficiently representative for those purposes, state the specific nature of any reason for the insufficiency and the specific additional testing or derivation of fuel economy values by analytical methods believed by the manufacturer necessary to eliminate the insufficiency and any plans of the manufacturer to undertake that testing or derivation voluntarily and submit the resulting data to the Environmental Protection Agency under 40 CFR 600.509.
(c) Model type and configuration fuel economy and technical information. (1) For each model type of the manufacturer’s automobiles, provide the information specified in paragraph (c)(2) of this section in tabular form. List the model types in order of increasing average inertia weight from top to bottom down the left side of the table and list the information categories in the order specified in paragraph (c)(2) of this section from left to right across the top of the table. For model year 2023 and later, CAFE reports required by part 537 of this chapter, shall for each model type of the manufacturer’s automobiles, provide the information in specified in paragraph (c)(2) of this section in accordance with the NHTSA CAFE Projections Reporting Template (OMB Control No. 2127-0019, NHTSA Form 1474) and list the model types in order of increasing average inertia weight from top to bottom.
(2)(i) Combined fuel economy; and
(ii) Projected sales for the current model year and total sales of all model types.
(3) (Pre-model year reports only through model year 2022.) For each vehicle configuration whose fuel economy was used to calculate the fuel economy values for a model type under paragraph (c)(2) of this section, provide the information specified in paragraph (c)(4) of this section in accordance with the NHTSA CAFE Projections Reporting Template (OMB Control No. 2127-0019, NHTSA Form 1474).
(4) (i) Loaded vehicle weight;
(ii) Equivalent test weight;
(iii) Engine displacement, liters;
(iv) SAE net rated power, kilowatts;
(v) SAE net horsepower;
(vi) Engine code;
(vii) Fuel system (number of carburetor barrels or, if fuel injection is used, so indicate);
(viii) Emission control system;
(ix) Transmission class;
(x) Number of forward speeds;
(xi) Existence of overdrive (indicate yes or no);
(xii) Total drive ratio (N/V);
(xiii) Axle ratio;
(xiv) Combined fuel economy;
(xv) Projected sales for the current model year;
(xvi) (A) In the case of passenger automobiles:
(1) Interior volume index, determined in accordance with subpart D of 40 CFR part 600;
(2) Body style;
(B) In the case of light trucks:
(1) Passenger-carrying volume;
(2) Cargo-carrying volume;
(xvii) Frontal area;
(xviii) Road load power at 50 miles per hour, if determined by the manufacturer for purposes other than compliance with this part to differ from the road load setting prescribed in 40 CFR 86.177-11(d);
(xix) Optional equipment that the manufacturer is required under 40 CFR parts 86 and 600 to have actually installed on the vehicle configuration, or the weight of which must be included in the curb weight computation for the vehicle configuration, for fuel economy testing purposes.
(5) For each model type of automobile which is classified as a non-passenger vehicle (light truck) under part 523 of this chapter, provide the following data:
(i) For an automobile designed to perform at least one of the following functions in accordance with 523.5 (a) indicate (by “yes” or “no” for each function) whether the vehicle can:
(A) Transport more than 10 persons (if yes, provide actual designated seating positions);
(B) Provide temporary living quarters (if yes, provide applicable conveniences as defined in 523.2);
(C) Transport property on an open bed (if yes, provide bed size width and length);
(D) Provide, as sold to the first retail purchaser, greater cargo-carrying than passenger-carrying volume, such as in a cargo van and quantify the value which should be the difference between the values provided in (4)(xvi)(B)(1) and (2) above; if a vehicle is sold with a second-row seat, its cargo-carrying volume is determined with that seat installed, regardless of whether the manufacturer has described that seat as optional; or
(E) Permit expanded use of the automobile for cargo-carrying purposes or other non-passenger-carrying purposes through:
(1) For non-passenger automobiles manufactured prior to model year 2012, the removal of seats by means installed for that purpose by the automobile’s manufacturer or with simple tools, such as screwdrivers and wrenches, so as to create a flat, floor level, surface extending from the forward-most point of installation of those seats to the rear of the automobile’s interior; or
(2) For non-passenger automobiles manufactured in model year 2008 and beyond, for vehicles equipped with at least 3 rows of designated seating positions as standard equipment, permit expanded use of the automobile for cargo-carrying purposes or other nonpassenger-carrying purposes through the removal or stowing of foldable or pivoting seats so as to create a flat, leveled cargo surface extending from the forward-most point of installation of those seats to the rear of the automobile’s interior.
(ii) For an automobile capable of off-highway operation, identify which of the features below qualify the vehicle as off-road in accordance with 523.5 (b) and quantify the values of each feature:
(A) 4-wheel drive; or
(B) A rating of more than 6,000 pounds gross vehicle weight; and
(C) Has at least four of the following characteristics calculated when the automobile is at curb weight, on a level surface, with the front wheels parallel to the automobile’s longitudinal centerline, and the tires inflated to the manufacturer’s recommended pressure. The exact value of each feature should be quantified:
(1) Approach angle of not less than 28 degrees.
(2) Breakover angle of not less than 14 degrees.
(3) Departure angle of not less than 20 degrees.
(4) Running clearance of not less than 20 centimeters.
(5) Front and rear axle clearances of not less than 18 centimeters each.
(6) The fuel economy values provided under paragraphs (c) (2) and (4) of this section shall be determined in accordance with § 537.9.
(7) Identify any air-conditioning (AC), off-cycle and full-size pick-up truck technologies used each model year to calculate the average fuel economy specified in 40 CFR 600.510-12.
(i) Provide a list of each air conditioning efficiency improvement technology utilized in your fleet(s) of vehicles for each model year. For each technology identify vehicles by make and model types that have the technology, which compliance category those vehicles belong to and the number of vehicles for each model equipped with the technology. For each compliance category (domestic passenger car, import passenger car, and light truck), report the air conditioning fuel consumption improvement value in gallons/mile in accordance with the equation specified in 40 CFR 600.510-12(c)(3)(i).
(ii) Provide a list of off-cycle efficiency improvement technologies utilized in your fleet(s) of vehicles for each model year that is pending or approved by the EPA. For each technology identify vehicles by make and model types that have the technology, which compliance category those vehicles belong to, the number of vehicles for each model equipped with the technology, and the associated off-cycle credits (grams/mile) available for each technology. For each compliance category (domestic passenger car, import passenger car, and light truck), calculate the fleet off-cycle fuel consumption improvement value in gallons/mile in accordance with the equation specified in 40 CFR 600.510-12(c)(3)(ii).
(iii) Provide a list of full-size pickup trucks in your fleet that meet the mild and strong hybrid vehicle definitions. For each mild and strong hybrid type, identify vehicles by make and model types that have the technology, the number of vehicles produced for each model equipped with the technology, the total number of full-size pickup trucks produced with and without the technology, the calculated percentage of hybrid vehicles relative to the total number of vehicles produced, and the associated full-size pickup truck credits (grams/mile) available for each technology. For the light truck compliance category, calculate the fleet pickup truck fuel consumption improvement value in gallons/mile in accordance with the equation specified in 40 CFR 600.510-12(c)(3)(iii).
§ 537.8 Supplementary reports.
(a)(1) Except as provided in paragraph (d) of this section, each manufacturer whose most recently submitted semiannual report contained an average fuel economy projection under § 537.7(b)(2) or, if no average fuel economy was projected under that section, under § 537.7(b)(1), that was not less than the applicable average fuel economy standard and who now projects an average fuel economy which is less than the applicable standard shall file a supplementary report containing the information specified in paragraph (b)(1) of this section.
(2) Except as provided in paragraph (d) of this section, each manufacturer that determines that its average fuel economy for the current model year as projected under § 537.7(b)(2) or, if no average fuel economy was projected under that section, as projected under § 537.7(b)(1), is less representative than the manufacturer previously reported it to be under § 537.7(b)(3), this section, or both, shall file a supplementary report containing the information specified in paragraph (b)(2) of this section.
(3) For model years through 2022, each manufacturer whose pre-model or mid-model year report omits any of the information specified in § 537.7(b) or (c) shall file a supplementary report containing the information specified in paragraph (b)(3) of this section. Starting model year 2023, each manufacturer whose pre-model or mid-model year report omits any of the information shall resubmit the information with other information required in accordance with the NHTSA CAFE Projections Reporting Template (OMB Control No. 2127-0019, NHTSA Form 1474).
(b)(1) The supplementary report required by paragraph (a)(1) of this section must contain:
(i) Such revisions of and additions to the information previously submitted by the manufacturer under this part regarding the automobiles whose projected average fuel economy has decreased as specified in paragraph (a)(1) of this section as are necessary –
(A) To reflect the decrease and its cause;
(B) To indicate a new projected average fuel economy based upon these additional measures.
(ii) An explanation of the cause of the decrease in average fuel economy that led to the manufacturer’s having to submit the supplementary report required by paragraph (a)(1) of this section.
(2) The supplementary report required by paragraph (a)(2) of this section must contain:
(i) A statement of the specific nature of and reason for the insufficiency in the representativeness of the projected average fuel economy;
(ii) A statement of specific additional testing or derivation of fuel economy values by analytical methods believed by the manufacturer necessary to eliminate the insufficiency; and
(iii) A description of any plans of the manufacturer to undertake that testing or derivation voluntarily and submit the resulting data to the Environmental Protection Agency under 40 CFR 600.509.
(3) The supplementary report required by paragraph (a)(3) of this section must contain:
(i) All of the information omitted from the pre-model year report under § 537.6(c)(2); and
(ii) Such revisions of and additions to the information submitted by the manufacturer in its pre-model year report regarding the automobiles produced during the current model year as are necessary to reflect the information provided under paragraph (b)(3)(i) of this section.
(4) The supplementary report required by paragraph (a)(4) of this section must contain:
(i) All information omitted from the pre-model or mid-model year reports under § 537.6(c)(2); and
(ii) Such revisions of and additions to the information submitted by the manufacturer in its pre-model or mid-model year reports regarding the automobiles produced during the current model year as are necessary to reflect the information provided under paragraph (b)(4)(i) of this section.
(c)(1) Each report required by paragraphs (a)(1), (2), (3), or (4) of this section must be submitted in accordance with § 537.5(c) not more than 45 days after the date on which the manufacturer determined, or could have determined with reasonable diligence, that the report was required.
(2) [Reserved]
(d) A supplementary report is not required to be submitted by the manufacturer under paragraph (a) (1) or (2) of this section:
(1) With respect to information submitted under this part before the most recent semiannual report submitted by the manufacturer under this part, or
(2) When the date specified in paragraph (c) of this section occurs:
(i) During the 60-day period immediately preceding the day by which the mid-model year report for the current model year must be submitted by the manufacturer under this part, or
(ii) After the day by which the pre-model year report for the model year immediately following the current model year must be submitted by the manufacturer under this part.
(e) Reporting compliance option in model years 2008-2010. For model years 2008, 2009, and 2010, each manufacturer of light trucks, as that term is defined in 49 CFR 523.5, shall submit a report, not later than 45 days following the end of the model year, indicating whether the manufacturer is opting to comply with 49 CFR 533.5(f) or 49 CFR 533.5(g).
§ 537.9 Determination of fuel economy values and average fuel economy.
(a) Vehicle configuration fuel economy values. (1) For each vehicle configuration for which a fuel economy value is required under paragraph (c) of this section and has been determined and approved under 40 CFR part 600, the manufacturer shall submit that fuel economy value.
(2) For each vehicle configuration specified in paragraph (a)(1) of this section for which a fuel economy value approved under 40 CFR part 600, does not exist, but for which a fuel economy value determined under that part exists, the manufacturer shall submit that fuel economy value.
(3) For each vehicle configuration specified in paragraph (a)(1) of this section for which a fuel economy value has been neither determined nor approved under 40 CFR part 600, the manufacturer shall submit a fuel economy value based on tests or analyses comparable to those prescribed or permitted under 40 CFR part 600 and a description of the test procedures or analytical methods used.
(b) Base level and model type fuel economy values. For each base level and model type, the manufacturer shall submit a fuel economy value based on the values submitted under paragraph (a) of this section and calculated in the same manner as base level and model type fuel economy values are calculated for use under subpart F of 40 CFR part 600.
(c) Average fuel economy. Average fuel economy must be based upon fuel economy values calculated under paragraph (b) of this section for each model type and must be calculated in accordance with subpart F of 40 CFR part 600, except that fuel economy values for running changes and for new base levels are required only for those changes made or base levels added before the average fuel economy is required to be submitted under this part.
§ 537.10 Incorporation by reference.
(a) A manufacturer may incorporate by reference in a report required by this part any document other than a report, petition, or application, or portion thereof submitted to any Federal department or agency more than two model years before the current model year.
(b) A manufacturer that incorporates by references a document not previously submitted to the National Highway Traffic Safety Administration shall append that document to the report.
(c) A manufacturer that incorporates by reference a document shall clearly identify the document and, in the case of a document previously submitted to the National Highway Traffic Safety Administration, indicate the date on which and the person by whom the document was submitted to this agency.
§ 537.11 Public inspection of information.
Except as provided in § 537.12, any person may inspect the information and data submitted by a manufacturer under this part in the docket section of the National Highway Traffic Safety Administration. Any person may obtain copies of the information available for inspection under this section in accordance with the regulations of the Secretary of Transportation in part 7 of this title.
§ 537.12 Confidential information.
(a) Information made available under § 537.11 for public inspection does not include information for which confidentiality is requested under § 537.5(c)(7), is granted in accordance with section 505 of the Act and section 552(b) of Title 5 of the United States Code and is not subsequently released under paragraph (c) of this section in accordance with section 505 of the Act.
(b) Denial of confidential treatment. When the Administrator denies a manufacturer’s request under § 537.5(c)(7) for confidential treatment of information, the Administrator gives the manufacturer written notice of the denial and reasons for it. Public disclosure of the information is not made until after the ten-day period immediately following the giving of the notice.
(c) Release of confidential information. After giving written notice to a manufacturer and allowing ten days, when feasible, for the manufacturer to respond, the Administrator may make available for public inspection any information submitted under this part that is relevant to a proceeding under the Act, including information that was granted confidential treatment by the Administrator pursuant to a request by the manufacturer under § 537.5(c)(7).
PART 538 – MANUFACTURING INCENTIVES FOR ALTERNATIVE FUEL VEHICLES
§ 538.1 Scope.
This part establishes minimum driving range criteria to aid in identifying passenger automobiles that are dual-fueled automobiles. It also establishes gallon equivalent measurements for gaseous fuels other than natural gas.
§ 538.2 Purpose.
The purpose of this part is to specify one of the criteria in 49 U.S.C. chapter 329 “Automobile Fuel Economy” for identifying dual-fueled passenger automobiles that are manufactured in model years 1993 through 2019. The fuel economy of a qualifying vehicle is calculated in a special manner so as to encourage its production as a way of facilitating a manufacturer’s compliance with the Corporate Average Fuel Economy standards set forth in part 531 of this chapter. The purpose is also to establish gallon equivalent measurements for gaseous fuels other than natural gas.
§ 538.3 Applicability.
This part applies to manufacturers of automobiles.
§ 538.4 Definitions.
(a) Statutory terms. (1) The terms alternative fuel, alternative fueled automobile, and dual fueled automobile, are used as defined in 49 U.S.C. 32901(a).
(2) The terms automobile and passenger automobile, are used as defined in 49 U.S.C. 32901(a), and in accordance with the determinations in part 523 of this chapter.
(3) The term manufacturer is used as defined in 49 U.S.C. 32901(a)(13), and in accordance with part 529 of this chapter.
(4) The term model year is used as defined in 49 U.S.C. 32901(a)(15).
(b)(1) Other terms. The terms average fuel economy, fuel economy, and model type are used as defined in subpart A of 40 CFR part 600.
(2) The term EPA means the U.S. Environmental Protection Agency.
§ 538.5 Minimum driving range.
(a) The minimum driving range that a passenger automobile must have in order to be treated as a dual fueled automobile pursuant to 49 U.S.C. 32901(c) is 200 miles when operating on its nominal useable fuel tank capacity of the alternative fuel, except when the alternative fuel is electricity or compressed natural gas. Beginning model year 2016, a natural gas passenger automobile must have a minimum driving range of 150 miles when operating on its nominal useable fuel tank capacity of the alternative fuel to be treated as a dual fueled automobile, pursuant to 49 U.S.C. 32901(c)(2).
(b) The minimum driving range that a passenger automobile using electricity as an alternative fuel must have in order to be treated as a dual fueled automobile pursuant to 49 U.S.C. 32901(c) is 7.5 miles on its nominal storage capacity of electricity when operated on the EPA urban test cycle and 10.2 miles on its nominal storage capacity of electricity when operated on the EPA highway test cycle.
§ 538.6 Measurement of driving range.
The driving range of a passenger automobile model type not using electricity as an alternative fuel is determined by multiplying the combined EPA urban/highway fuel economy rating when operating on the alternative fuel, by the nominal usable fuel tank capacity (in gallons), of the fuel tank containing the alternative fuel. The combined EPA urban/highway fuel economy rating is the value determined by the procedures established by the Administrator of the EPA under 49 U.S.C. 32904 and set forth in 40 CFR part 600. The driving range of a passenger automobile model type using electricity as an alternative fuel is determined by operating the vehicle in the electric-only mode of operation through the EPA urban cycle on its nominal storage capacity of electricity and the EPA highway cycle on its nominal storage capacity of electricity. Passenger automobile types using electricity as an alternative fuel that have completed the EPA urban cycle after recharging and the EPA highway cycle after recharging shall be deemed to have met the minimum range requirement.
§ 538.7 Petitions for reduction of minimum driving range.
(a) A manufacturer of a model type of passenger automobile capable of operating on both electricity and either gasoline or diesel fuel may petition for a reduced minimum driving range for that model type in accordance with paragraphs (b) and (c) of this section.
(b) Each petition shall:
(1) Be addressed to: Administrator, National Highway Traffic Safety Administration, 1200 New Jersey Avenue, SE., Washington, DC 20590.
(2) Be submitted not later than the beginning of the first model year in which the petitioner seeks to have the model type treated as an electric dual fueled automobile.
(3) Be written in the English language.
(4) State the full name, address, and title of the official responsible for preparing the petition, and the name and address of the petitioner.
(5) Set forth in full data, views, and arguments of the petitioner, including the information and data specified in paragraph (c) of this section, and the calculations and analyses used to develop that information and data. No documents may be incorporated by reference in a petition unless the documents are submitted with the petition.
(6) Specify and segregate any part of the information and data submitted under this section that the petitioner wishes to have withheld from public disclosure in accordance with part 512 of this chapter.
(c) Each petitioner shall include the following information in its petition:
(1) Identification of the model type or types for which a lower driving range is sought under this section.
(2) For each model type identified in accordance with paragraph (c)(1) of this section:
(i) The driving range sought for that model type.
(ii) The number of years for which that driving range is sought.
(iii) A description of the model type, including car line designation, engine displacement and type, electric storage capacity, transmission type, and average fuel economy when operating on:
(A) Electricity; and
(B) Gasoline or diesel fuel.
(iv) An explanation of why the petitioner cannot modify the model type so as to meet the generally applicable minimum range, including the steps taken by the petitioner to improve the minimum range of the vehicle, as well as additional steps that are technologically feasible, but have not been taken. The costs to the petitioner of taking these additional steps shall be included.
(3) A discussion of why granting the petition would be consistent with the following factors:
(i) The purposes of 49 U.S.C. chapter 329, including encouraging the development and widespread use of electricity as a transportation fuel by consumers, and the production of passenger automobiles capable of being operated on both electricity and gasoline/diesel fuel;
(ii) Consumer acceptability;
(iii) Economic practicability;
(iv) Technology;
(v) Environmental impact;
(vi) Safety;
(vii) Driveability; and
(viii) Performance.
(d) If a petition is found not to contain the information required by this section, the petitioner is informed about the areas of insufficiency and advised that the petition will not receive further consideration until the required information is received.
(e) The Administrator may request the petitioner to provide information in addition to that required by this section.
(f) The Administrator publishes in the
(g) In reaching a determination on a petition submitted under this section, the Administrator takes into account:
(1) The purposes of 49 U.S.C. chapter 329, including encouraging the development and widespread use of alternative fuels as transportation fuels by consumers, and the production of alternative fuel powered motor vehicles;
(2) Consumer acceptability;
(3) Economic practicability;
(4) Technology;
(5) Environmental impact;
(6) Safety;
(7) Driveability; and
(8) Performance.
(h) If the Administrator grants the petition, the petitioner is notified in writing, specifying the reduced minimum driving range, and specifying the model years for which the reduced driving range applies. The Administrator also publishes a notice of the grant of the petition in the
(i) If the Administrator denies the petition, the petitioner is notified in writing. The Administrator also publishes a notice of the denial of the petition in the
§ 538.8 Gallon Equivalents for Gaseous Fuels.
The gallon equivalent of gaseous fuels, for purposes of calculations made under 49 U.S.C. 32905, are listed in Table I:
Table I – Gallon Equivalent Measurements for Gaseous Fuels per 100 Standard Cubic Feet
| Fuel | Gallon equivalent measurement |
|---|---|
| Compressed Natural Gas | 0.823 |