Extension of Interim Revised Durability Procedures for Light-Duty
Vehicles and Light-Duty Trucks
Related Material
[Federal Register: August 22, 1997 (Volume 62, Number 163)]
[Rules and Regulations]
[Page 44871-44875]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22au97-38]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 86
[AMS-FRL-5879-2]
Extension of Interim Revised Durability Procedures for Light-Duty
Vehicles and Light-Duty Trucks
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: Today's action extends the applicability of light duty vehicle
and light duty truck durability procedures to beyond the 1998 model
year.
On January 12, 1993, EPA published a final rule establishing
interim durability procedures used for demonstrating compliance with
light duty vehicle and light duty truck emission standards, applicable
in model years 1994-1996 only. On July 18, 1994, EPA published a direct
final rule extending the applicability of the original rule to the end
of the 1998 model year. Today's final rule extends the applicability of
those durability procedures indefinitely. The Agency intends to conduct
a separate rulemaking to implement a long-term durability program;
however, such an action will be linked to other actions as part of a
broad-based streamlining initiative for all vehicle emission compliance
activities. It is difficult to predict with any precision when this
subsequent action will occur. The Agency currently estimates that new
compliance regulations will be promulgated such that they would become
effective no earlier than the 2000 model year. Because the current
durability regulations expire at the end of the 1998 model year,
failure to adopt today's action would result in less effective and
inefficient durability regulations beginning with the 1999 model year.
The Agency believes that it is appropriate to extend indefinitely the
existing interim procedures because so doing addresses lead time
concerns for model year 1999 and beyond, accounts for the uncertainty
of the anticipated revised compliance regulations and adds no new
requirements, but rather simply allows the continuation of the current
program.
DATES: This final rule is effective September 22, 1997.
ADDRESSES: Materials relevant to this final rule have been placed in
Docket No. A-93-46. Additional documents of relevance may be found in
Docket No. A-90-24. The docket is located at the above address in room
M-1500, Waterside Mall, and may be inspected weekdays between 8:30 a.m.
and noon, and between 1:30 p.m. and 3:30 p.m. A reasonable fee may be
charged by EPA for copying docket materials.
FOR FURTHER INFORMATION CONTACT: Linda Hormes, Vehicle Programs and
Compliance Division, U.S. Environmental Protection Agency, National
Vehicle and Fuel Emissions Laboratory, 2565 Plymouth Road, Ann Arbor,
MI 48105. Telephone (313) 668-4502.
SUPPLEMENTARY INFORMATION:
The preamble and regulatory language are also available
electronically from the EPA internet Web site. This service is free of
charge, except for any cost you already incur for internet
connectivity. The electronic version of this final rule is made
available on the day of publication on the primary Web site listed
below. The EPA Office of Mobile Sources also publishes these notices on
the secondary Web site listed below.
Internet (Web)
http://www.epa.gov/fedrgstr/EPA-AIR/ (either select desired date
or use Search feature)
http://www.epa.gov/OMSWWW/ (look in What's New or under the specific
rulemaking topic)
Please note that due to differences between the software used to
develop the document and the software into which the document may be
downloaded, changes in format, page length, etc. may occur.
I. Background
On January 12, 1993, the Agency published interim procedures for
motor vehicle manufacturers to use in demonstrating compliance with
emission standards for light-duty vehicles and light-duty trucks (58 FR
3994). That rule, referred to as the ``RDP I'' rule, made the interim
procedures applicable to model years 1994 through 1996, but not
thereafter. The Agency now plans to revise the RDP I interim procedures
through a separate rulemaking in conjunction with other activities
associated with a compliance initiative currently being undertaken by
the Agency.
The Agency initially planned to promulgate a separate durability
regulation, hereafter referred to as ``RDP II'' which was to become
effective beginning with the 1997 model year. However, that became
impractical due to lead time constraints for manufacturers wishing to
certify vehicles in that model year and the uncertainty that sufficient
lead time existed for implementation in the 1998 model year as well.
Consequently, the Agency promulgated a direct final rule which extended
the applicability of the RDP I interim rulemaking through model year
1998 (59 FR 36368). This was intended to provide manufacturers with
timely notice of the regulations applicable for certifying vehicles
through model year 1998 while EPA continued work on preparing and
finalizing further technical and procedural improvements to the RDP II
program. While work on the RDP II rule proceeded, various new events
and actions precluded the timely completion of this project. In
particular, in 1995 the Agency undertook an initiative to revise the
current vehicle compliance program, including the durability protocols.
The Agency is currently considering promulgating regulations which
would become effective with the 2000 model year. Because, as of today's
date, these regulations are still in the pre-proposal stage, it is not
possible to provide manufacturers with a firm effective date.
Therefore, the Agency believes today's action of indefinitely extending
the existing RDP I regulations will satisfy the industry's need to plan
its durability programs and will retain the current durability options
which can be improved upon in future actions.
The rule being adopted today was previously promulgated as a direct
final rule (61 FR 58618), but due to adverse comment submitted to EPA,
the DFR was withdrawn (62 FR 11082) and a proposal was simultaneously
published (62 FR 11138).
II. Comments and EPA Response
A. Comments
A total of six written comments were received during the public
comment period for the NPRM. Three were from the automotive
manufacturing industry, one from a group of associations representing
an industry commonly referred to the as the automotive ``aftermarket'',
that is, manufacturers of automotive parts and components to be used as
replacements in existing cars and trucks, one from the Ethyl
Corporation, a manufacturer of fuel additives for use in gasoline, and
one from Envirotest Systems, a provider of centralized vehicle
emissions testing programs for states and municipalities.
The automotive industry comments were from Ford, General Motors and
a joint submission from Association of International Automobile
Manufacturers (AIAM) and American Automobile Manufacturers Association
(AAMA), which represent the majority of automotive manufacturers with
U.S. markets. All of the automotive
[[Page 44873]]
comments were consistently supportive of the extension of the RDP I
regulations. GM and Ford specifically commented that the final rule
should be promulgated as soon as possible due to their plans to utilize
RDP I procedures in the 1999 model year. All automotive comments
supported the indefinite extension of RDP I because of the uncertainty
of the implementation date for the new certification compliance
regulations planned by the Agency.
All automotive comments expressed a concern that the manufacturer-
derived durability processes allowed under the RDP I regulation be held
by EPA as proprietary and confidential, as allowed under section
7542(c) of the Clean Air Act. GM expressed the opinion that their
alternative durability processes constitute trade secrets and
commercial information within the meaning of Section 1905 of Title 18
of the United States Code and is therefore entitled to confidential
treatment pursuant to section 208(c) of the Clean Air Act, Sections
552(b)(4) and 552(c)(4) of the USC (Exemption 4 of the Freedom of
Information Act), and Part 2, of Title 40 of the Code of Federal
Regulations.
Envirotest Systems stated that it did ``not oppose EPA's
proposal''. But it requested that EPA ``provide assurance to the public
that information describing the nature of any undefined test procedures
upon which the Agency's certification decisions are based [be] made
available to the public upon request'', citing EPA's Freedom of
Information Act regulations which require information which is emission
data to not be considered confidential. It also expressed ``strong
reservations'' about any plans the Agency may have for replacing the I/
M 240 Inspection/Maintenance program with a program which inspected the
vehicles' on-board diagnostic (OBD II) systems to determine pass fail
emission status.
Ethyl Corporation, represented by Hunton & Williams, similarly
stated that it did ``not oppose per se reliance upon the range of test
procedures which would be authorized by EPA's proposal''. However, it
presented three arguments for requiring the public release of certain
information which manufacturers may have provided to EPA during the RDP
I process. First, Ethyl argued that any information that EPA relies
upon to support its certification decisions cannot be deemed
confidential, because such decisions are subject to judicial review,
and any information used to make certification decisions which is
relevant to that decision must be subject to public review. Second,
similarly to Envirotest, Ethyl claimed that any information qualifying
as ``emission data'' or a ``standard or limitation'' under the Clean
Air Act is not eligible for confidential treatment, citing the EPA FOIA
regulations at 40 CFR 2.301. The third argument Ethyl presents is that
General Motors, in its comments on this rulemaking, has not stated
valid grounds to support a trade secret claim, under the FOIA
requirements at 40 CFR 2.204(e)(4)(viii).
The consortium of aftermarket parts associations opposed the
proposal because it did not require ``that a description of [certain
manufacturer-specific procedures], including onboard diagnostic-related
information, is made available for public inspection and review.''
Again, FOIA was cited as well as the Clean Air Act sec. 208(c), 202(m),
and 206.
B. EPA Response
EPA is adopting as final the proposed extension of RDP I rules to
beyond the 1998 model year. It is of no benefit to the Agency, to
manufacturers, or to the general public to discontinue the RDP I
regulation and revert back to the outdated 50,000-mile AMA durability
procedures. The automotive industry uniformly and strongly supports the
extension of RDP I. All negative comments center around the
availability of information which manufacturers may have provided EPA
during the RDP I approval process, not the actual process itself. EPA
is not determining in today's rule the confidentiality of any
information submitted by manufacturers. There is already a separate,
well-established procedure for making such determinations. EPA's
information disclosure process, as mandated by the Freedom of
Information Act (FOIA), requires that the submitters of the information
bear the burden of proof for substantiating claims of information
confidentiality. Requests received for information which the
manufacturer has identified as confidential business information are
handled in accordance with the procedures in 40 CFR part 2, subpart B.
The Agency will continue to follow these procedures to make
confidentiality determinations of manufacturer information. Again, this
process is separate from the certification process, hence the RDP I
regulation will continue to be in effect, and information submitted to
EPA during the RDP I approval process will be handled and disseminated
in accordance with the existing regulations.
The Agency is unable to determine how Envirotest's request that OBD
II not be used to replace the I/M 240 test applies to the RDP I rule
being promulgated today. Envirotest did not submit any information
which tied the I/M 240 test or OBD II regulations to RDP I, other than
stating that some manufacturers have made confidentiality claims on
certain OBD information. OBD (CAA section 202(m)) issues and the
relationship between OBD and I/M requirements have been addressed in
separate rulemakings. See, for example, 61 FR 40940 (August 6, 1996).
Therefore, the Agency is not addressing this comment in today's rule.
As they discussed in their comments, Ethyl has previously requested
manufacturer information held by EPA, which has been claimed as
confidential. Ethyl has appealed this claim, which is currently under
consideration by EPA's Office of General Counsel. Ethyl also takes
issue with the legal arguments presented by GM in their comment
submitted to the Docket for this rulemaking. The purpose of today's
rule is not to make a determination under FOIA if manufacturer
information is or is not confidential or if a manufacturer's
justification for confidentiality is or is not valid. The purpose of
today's rule is to provide effective regulations requiring
manufacturers to demonstrate that the vehicles they make are durable
and will comply with emission standards for their useful lives. As
stated above, EPA will continue to uphold the statutes and regulations
regarding the disclosure of information to the public using the
procedures already established for this purpose. Those opposed to the
determinations made have appeal rights under 40 CFR 2.205 through EPA's
Office of General Counsel.
The aftermarket associations requested that EPA in its RDP I rule
require manufacturers to publicly disclose all information concerning
RDP processes. EPA is not adopting this requirement because it did not
propose to do so, and furthermore believes that the more appropriate
venue to handle public disclosure of information is via the existing
FOIA procedures, not through this rulemaking.
III. Environmental Effects and Economic Impacts
A. Economic Impacts
This action extends an existing program without modification, and
as such, the Agency does not expect any new economic impacts over and
above those described in the interim rulemaking. In general, the RDP-I
interim rulemaking projected annual cost savings with respect to the
previously existing program of approximately $8.6 million, and
[[Page 44874]]
although this number is highly dependent upon the interaction of
several variables, all modeled scenarios resulted in some level of
savings. A complete description of those impacts is contained in 58 FR
3994 (January 12, 1993).
B. Environmental and Cost-Benefit Impacts
The RDP I rulemaking revised testing and administrative procedures
necessary to determine the compliance of light-duty vehicles and light-
duty trucks with the Tier 1 emission standards promulgated in June
1991, and no environmental benefit was claimed over and above that
already accounted for in the Tier 1 rule. Today's action will similarly
claim no environmental benefit. A detailed discussion of the Tier 1
environmental impacts can be found in 56 FR 25734 (June 5, 1991).
IV. Public Participation and Effective Date
This final rule is effective on September 22, 1997.
A public hearing was scheduled, but canceled due to the lack of any
participants.
During the public comment period, six written comments were
received. These are addressed in Section II. above.
V. Statutory Authority
Authority for the actions promulgated in this final rule is granted
to EPA by sections 202, 203, 205, 206, 207, 208, 215, 216, 217, and
301(a), of the Clean Air Act, as amended (42 U.S.C. 7521, 7522, 7524,
7525, 7541, 7542, 7549, 7550, 7552, and 7601(a), and 5 U.S.C. 553(b)).
VI. Administrative Designation
Under Executive Order 12866, the Agency must determine whether the
regulatory action is ``significant'' and, therefore, subject to OMB
review and the requirements of the Executive Order. The order defines a
``significant regulatory action'' as one that is likely to result in a
rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, productivity,
competition, jobs, the environment, public health or safety, or State,
local or tribal governments or communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
It has been determined that this rule is not a ``significant
regulatory action'' under the terms of Executive Order 12866 and is
therefore not subject to OMB review.
VII. Impact on Small Entities
The Regulatory Flexibility Act requires federal agencies to
identify potentially adverse impacts of federal regulations upon small
entities. In instances where significant impacts are possible on a
substantial number of these entities, agencies are required to develop
a proposed Regulatory Flexibility Analysis.
EPA has determined that it is not necessary to prepare a regulatory
flexibility analysis in connection with this rule. This rule will not
have a significant adverse economic impact on a substantial number of
small businesses subject to this rulemaking. This rulemaking will
continue to provide regulatory relief to automobile manufacturers by
offering options for durability demonstrations and at the same time by
maintaining consistency with California durability requirements. It
will not have a substantial impact on such entities.
In the absence of the rule, the expiration of the Sec. 86.094-13
provisions for light duty exhaust durability procedures would result in
the need all manufacturers to perform time-consuming, expensive
durability procedures. Manufacturers would also be required to perform
separate durability demonstrations for California.
Therefore, EPA has determined that this regulation does not have a
significant impact on a substantial number of small entities.
VIII. Reporting and Recordkeeping Requirements
Today's action does not impose any new information collection
burden, because this action merely extends the applicability of the
previously existing regulation, including information collection. The
Office of Management and Budget (OMB) has previously approved the
information collection requirements contained in 40 CFR 86.094-13 under
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.
and has assigned ICR No. 2060-0104.
Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a Federal agency. This includes the time
needed to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to be able to respond to a collection of information;
search data sources; complete and review the collection of information;
and transmit or otherwise disclose the information.
Copies of the ICR document(s) may be obtained from Sandy Farmer,
Information Policy Branch; EPA; 401 M St., SW. (mail code 2137);
Washington, DC 20460 or by calling (202) 260-2740. Include the ICR
number in any correspondence.
IX. Submission to Congress and the General Accounting Office
Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business
Regulatory Enforcement Fairness Act of 1996, EPA submitted a report
containing this rule and other required information to the U.S. Senate,
the U.S. House of Representatives and the Comptroller General of the
General Accounting Office prior to publication of the rule in today's
Federal Register. This rule is not a ``major rule'' as defined by 5
U.S.C. 804(2).
X. Unfunded Mandates
Section 202 of the Unfunded Mandates Reform Act of 1995 (signed
into law on March 22, 1995) requires that EPA prepare a budgetary
impact statement before promulgating a rule that includes a federal
mandate that may result in expenditure by state, local and tribal
governments, in aggregate, or by the private sector, of $100 million or
more in any one year. Section 203 of the Unfunded Mandates Reform Act
requires EPA to establish a plan for obtaining input from and
informing, educating and advising any small governments that may be
significantly or uniquely affected by the rule.
Under section 205 of the Unfunded Mandates Act, EPA must identify
and consider a reasonable number of regulatory alternatives before
promulgating a rule for which a budgetary impact statement must be
prepared. EPA must select from those alternatives the least costly,
most cost-effective, or least burdensome alternative that achieves the
objectives of the rule, unless EPA explains why this alternative is not
selected or the selection of this alternative is inconsistent with law.
[[Page 44875]]
Because this final rule is expected to result in the expenditure by
state, local and tribal governments or private sector of less than $100
million in any one year, EPA has not prepared a budgetary impact
statement or specifically addressed selection of the least costly, most
cost-effective or least burdensome alternative. Because small
governments will not be significantly or uniquely affected by this
rule, EPA is not required to develop a plan with regard to small
governments.
List of Subjects in 40 CFR Part 86
Environmental protection, Administrative practice and procedure,
Confidential business information, Labeling, Motor vehicle pollution,
Reporting and recordkeeping requirements.
Dated: August 15, 1997.
Carol M. Browner,
Administrator.
For the reasons set forth in the preamble, part 86 of chapter I,
title 40 of the Code of Federal Regulations is amended as follows:
PART 86--CONTROL OF AIR POLLUTION FROM NEW AND IN-USE MOTOR
VEHICLES AND NEW AND IN-USE MOTOR VEHICLE ENGINES: CERTIFICATION
AND TEST PROCEDURES
1. The authority citation for part 86 is revised to read as
follows:
Authority: 42 U.S.C. 7401-7671q.
Sec. 86.094-13 [Amended]
2. In Sec. 86.094-13, paragraphs (a)(1), (c)(1), (d)(1), (e)(1),
and (f)(1) are amended by revising the words ``1994 through 1998'' to
read ``1994 and beyond''.
Sec. 86.094-26 [Amended]
3. In Sec. 86.094-26, paragraphs (a)(2), (b)(2)(i), and (b)(2)(ii)
are amended by revising the words ``1994 through 1998'' to read ``1994
and beyond''.
[FR Doc. 97-22368 Filed 8-21-97; 8:45 am]
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