o
US. Department
of Transportation
National Highway
Traffic Safety
Administration
Federal Motor Vehicle
Safety Standards
and Regulations
D 8. 6/2: 992 ■ ^ j j
jderal Hotor Uehicle Safety Standa.
With Amendments and
Interpretations Issued Through
December 1992
^ Federal Motor Vehicle
Safety Standards
and Regulations
us Department
of Transportation
National Highway
Traffic Safety
Administration
With Amendments and
Interpretations Issued Through
December 1992
TD 8. 6/2; 992 " ^ j 3
Federal llotor Uehicle Safety Standi..
Foreword
This reference volume contains Federal Motor Vehicle Safety Standards and
Regulations, including amendments and interpretations, issued through
December 1989.
The volume is divided into three sections. The first section contains
procedural rules and regulations. The second section contains the standards. The
third section contains rulings and additional regulations.
Each section is sub-divided into Parts which correspond to the Part numbers
appearing in the United States Code of Federal Regulations, as shown in the
following examples:
Part 551— Procedural Rules
Part 567— Certification
Part 571 —Motor Vehicle Safety Standards
Part 575— Consumer Information
The arrangement of the Parts within a section consists of preamble material,
followed by the applicable standard or regulation. To simplify the incorporation
of amended material into the text, amendments are issued as full replacement
pages, with each page having the same page number as the page it replaces.
The page numbering system is designed to keep related materials together,
while permitting expansion of the material within a section. Each page number
identifies: the Part to which it belongs, the standard or regulation with which it
is concerned, and the page number. For example, page one of Standard No. 108
is listed as PART 571; S 108-1. Preamble material (which is not amended) has
the same numbering system, except that the abbreviation PRE precedes the
page number (e.g. PART 571; S 108-PRE 1).
New standards, amendments, interpretations and other changes are issued
periodically as supplements to this document. These are loose leaf, pre-punched
and distributed automatically to subscribers to this publication. A sample layout
of a changed page with explanatory annotations appears on page iii.
For sale by the Superintendent of Documents, U.S. Government Printing Office
Washington, D.C. 20402
#
t
Material enclosed in
brackets represents
amendment to
standard
SAMPLE PAGE
MOTOR VEHICLE SAFETY STANDARD NO. 203
Impact Protection for the Driver from the Steering Control System— Passenger Cars
51. Purpose \and scope. This standard speci-
fies requirementsVor steering control systems that
will minimize chestt, neck, and facial injuries to
the driver as a resist of impact.
52. Application. (This standard applies to
passenger cars. However, it does not apply to
vehicles that conform to the frontal barrier crash
requirements (S5.1) of Standard No. 208
(§ 571.208) by means of other than seat belt as-
semblies. (40 F.R. 17992— April 24, 1987. Ef-
fective: 5/27/87 )1 ^
53. Definitions. "St/ering control system'
means the basic steering mechanism and its as-
sociates trim hardware, including any portion
of a sneering column assembly that provides
energy Absorption uyon impact.
54. Requirement/
S4.1 Except asf provided in S4.2, when the
steering control ^ystem is impacted by a body
block in kccordamce with Society of Automotive
Engineers Recommended Practice J944, "Steer-
ing Wheal Assembly Laboratory Test Proce-
dure," Deieniper 1965 or an approved equivalent,
at a relative velocity of 15 miles per hour, the
impact force developed on the chest of the body
block transmitted to the steering control system
shall not exceed 2,500 pounds.
54.2 A Type 2 seat belt assembly that con-
forms to Motor Vehicle Safety Standard No. 209
shall be installed for the driver of any vehicle
with forward control configuration that does not
meet the requirements of S4.1.
54.3 The steering control system shall be so
constructed that no components or attachments,
including horn actuating mechanisms and trim
hardware, can catch the driver's clothing or
jewelry during normal driving maneuvers.
Interpretation
The term "Jewelry" in paragraph S4.3 refers
to watches, rings, and bracelets without loosely
attached or dangling members.
32 F.R. 2414
February 3, 1987
Issue of Federal Register
in which amendment was
issued and effective date
of amendment
Issue of Federal Register
in which Standard was
originally issued
Part of Code of Federal Regulations
in which Standard appears
\ Date of latest revision
(Rev. 1/13/87)
Standard number
Page number
PART 571; S203-1
in
#
Section One
Part 510 — Information Gathering Powers
Part 511 — Adjudicative Procedures
Part 512 — Confidential Business Information
Part 520 — Procedures for Considering Environmental Impacts
Part 523 — Vehicle Classification
Part 525 — Exemptions From Average Fuel Economy Standards
Part 526 — Petitions and Plans for Relief Under the Automobile Fuel Efficiency Act of 1980
Part 527 — Reduction of Passenger Automobile Average Fuel Economy Standards
Part 529 — Manufacturers of Multistage Automobiles
Part 531 — Passenger Automobile Average Fuel Economy Standards
Part 533 — Light Truck Average Fuel Economy Standards
Part 535 — 3-year Carryforward and Carryback of Credits for Light Trucks
Part 537 — Automotive Fuel Economy Reports
Part 538 — Driving Ranges for Dual Energy and Natural Gas Dual Energy Passenger Automobiles
Part 541 — Federal Motor Vehicle Theft Prevention Standard
Part 542 — Procedures for Selecting Lines to Be Covered by the Theft Prevention Standard
Part 543 — Exemption From Vehicle Theft Prevention Standard
Part 544 — Insurer Reporting Requirements
Part 551 — Procedural Rules
Part 552 — Petitions for Rulemaking, Defect, and Non-Compliance Orders
Part 553 — Rulemaking Procedures
Part 554 — Standards Enforcement and Defect Investigation
Part 555 — Temporary Exemption From Motor Vehicle Safety Standards
Part 556 — Exemption for Inconsequential Defect or Non-Compliance
Part 557 — Petitions for Hearings on Notification and Remedy of Defects
Part 565 — Vehicle Identification Number — Content Requirements
Part 566 — Manufacturer Identification
Part 567— Certification
Part 568 — Vehicles Manufactured in Two or More Stages
Part 569 — Regrooved Tires
Part 570 — Vehicle-in-Use Inspection Standard
Part 571 — Federal Motor Vehicle Safety Standards
Part 572 — Anthropomorphic Test Dummies
Part 573 — Defect and Noncompliance Reports
Part 574 — Tire Identification and Recordkeeping
Part 575 — Consumer Information Regulations
Part 576 — Record Retention
Part 577 — Defect and Noncompliance Notification
Part 579 — Defect and Noncompliance Responsibility
Part 580 — Odometer Disclosure Requirements
Part 581 — Bumper Standard
Part 582 — Insurance Cost Information Regulations
Part 585 — Automatic Restraint Phase-in Reporting Requirements
Part 586 — Side Impact Phase-in Reporting Requirements
Part 587 — Side Impact Moving Deformable Barrier
Part 588 — Child Restraint Systems Recordkeeping Requirements (Eff. 3-9-93)
Part 590 — Motor Vehicle Emission Inspections
Part 591 — Importation of Vehicles and Equipment Subject to Federal Safety Bumper and Theft Prevention
Standards
Part 592 — Registered Importers of Vehicles Not Originally Manufactured to Conform to the Federal Motor
Vehicle Safety Standards
Part 593 — Determinations That a Vehicle Not Originally Manufactured to Conform to the Federal Motor
Vehicle Safety Standards Is Eligible for Importation
Part 594 — Schedule of Fees Authorized by the National Traffic and Motor Vehicle Safety Act
#
PREAMBLE TO PART 510— INFORMATION GATHERING POWERS
(Docket No. 78-01; Notice 3)
ACTION: Final rule.
SUMMARY: This notice establishes a final rule
governing the issuance and use of compulsory
process by the National Highway Traffic Safety
Administration (NHTSA) in carrying out its duties
under the National Traffic and Motor Vehicle
Safety Act of 1966, as amended, (the Safety Act),
and the Motor Vehicle Information and Cost
Savings Act, as amended, (the Cost Savings Act).
This final rule was preceded by an interim final
rule, which set forth the procedures the agency
would use in exercising its information gathering
powers, and solicited comments on those
procedures. This rule informs the public of those
procedures, and of the rights which the public has
with respect to those procedures.
EFFECTIVE DATE: This rule will become effective
(45 days after publication in the Federal Register).
FOR FURTHER INFORMATION CONTACT:
Mr. Steve Kratzke,
Office of Chief Counsel,
National Highway Traffic Safety Administration
400 Seventh Street, S.W.,
Washington, D.C. 20590 (202-426-2992)
SUPPLEMENTARY INFORMATION:
A. Background. At 42 FR 64628, December 27,
1977, NHTSA published an interim final rule
establishing 49 CFR Part 510, Information
gathering powers. That regulation set forth the
procedures to be followed by NHTSA in exercising
its information gathering powers. It was issued as
an interim final rule without prior notice or
opportunity for comment. This is permitted by 5
U.S.C. 553 (b) (3) (A), which allows rules which are
strictly procedural to be issued without the
normally required notice and opportunity for
comment. However, because of this agency's
policy of encouraging public participation in all
agency activities, Part 510 was issued as an
interim rule, and comments from interested
members of the public were solicited. On February
2, 1978, the comment period was extended for an
additional 20 days in response to a petition
requesting such an extension; see 43 FR 5516,
February 9, 1978. The agency received many
comments on Part 510 from members of the
automotive industry, automotive associations both
large and small, associations of automobile users
and consumers, and at least one private citizen
who did not indicate any affiliation. All comments
were considered and the most significant ones are
addressed below.
In response to the comments received, several
changes have been made to the interim rule.
However, most of these changes are for the
purpose of clarification or to make explicit what
had been implicit in the interim rule. The most
significant changes are outlined below.
B. Most significant changes. The following are
the most significant differences between the
interim rule and this final rule:
1. The final rule reorganizes the category of
"investigational hearing" contained in the interim
rule into two smaller categories. The first
reorganized category is the "information
gathering hearing", in which the agency can
compel a witness to appear and answer questions
under oath. The agency's rulemaking meetings are
the most common example of this type of
proceeding. Generally, these hearings will be
public, and questioning of the witness will be
limited to the presiding officer and any other
members of a panel. The other reorganized
category, which is derived from the interim rule's
investigational hearing, is the "administrative
deposition". This is used in investigations and is
modeled after a deposition under the Federal Rules
of Civil Procedure.
PART 510; PRE 1
2. The final rule requires that any process issued
under it recite the statutory authority under which
the process is issued.
3. The final rule requires that any process issued
under it contain a brief description of the
investigation or inquiry in connection with which it
is being issued.
4. The final rule adds a form of compulsory
process, the written request for the production of
documents and things. This was implicit in the
concept of the general or special order established
in the interim rule, but has been made explicit in
this final rule to avoid any confusion as to the
availability and proper uses of this form of process.
5. The final rule expands the right to counsel by
deleting the authority for the agency to exclude a
person as counsel if such person were counsel for a
number of other witnesses in the same
investigation or if such person had personally been
subpoenaed to testify.
6. The interim rule had not specifed any time
limitations on the duty to supplement responses to
compulsory process. This final rule includes the
following limitations: with respect to process
issued in connection with a rulemaking action, the
duty to supplement terminates when a final rule is
issued or the action is otherwise ended. With
respect to process issued in connection with an
enforcement investigation, the duty to supplement
responses terminates when the defect
investigation is closed. Finally, with respect to
process not issued in connection with a specific
rulemaking action or enforcement investigation,
the duty to supplement terminates 18 months after
the date of the original response to the process.
C. Discussion of comments.
1. Comments on the procedure followed for
issuing this rule. One commenter suggested that
the interim rule may be void because it was issued
without a prior notice of proposed rulemaking and
opportunity for public comment. Moreover, this
defect might not be cured by the publication of a
final rule after consideration of comments
received, according to this commenter, in which
case the final rule would also be void.
The commenter asserted that any rule which
substantially affects the rights of persons subject
to the authority of an agency must be promulgated
with notice and opportunity for comment, no
matter whether the rule is labeled substantive or
procedural. However, the authority cited by the
commenter does not support that assertion.
Instead, the cases suggest that when it is difficult
to determine whether a rule is substantive or
procedural, the court will consider the impact on
the regulated parties. If that impact is significant,
it is likely that the rule is substantive. Thus, in
Pickus V. United States Board of Parole, 507 F.2d
1107 (D.C. Cir. 1974), the board of parole argued
that its regulation was procedural, but the
regulation also established some criteria for parole
eligibility. In Pharmaceutical Manufacturers
Association v. Finch, 307 F. Supp. 858 (D.
Delaware 1970), the FDA established procedural
regulations which also set up the requirements
with which drug manufacturers would have to
comply to establish that a new drug was safe and
effective. And in National Motor Freight Traffic
Association v. United States, 268 F. Supp. 90
(D.D.C. 1967), aff'd, 393 U.S. 18 (1968), the
Interstate Commerce Commission's procedural
regulations also established a remedy for the
recovery of overcharges. In none of these cases did
the court find the regulation to be purely
procedural.
Numerous cases have upheld the validity of
procedural rules issued without notice and
opportunity for comments, even when the rules
had a major impact on the parties. See Eastern
Kentucky Welfare Rights Organization v. Simon,
506 F2d 1278 (D.C. Cir. 1974) vacated on other
grounds, 436 U.S. 26 (1976); Shell Oil Co. v.
Federal Power Commission, 491 F.2d 82 (5th Cir.
1974); Buckeye Cablevision, Inc. v. United States,
438 F.2d 948 (6th Cir. 1971). The agency believes
that Part 510 is purely procedural, since it does not
even arguably establish any criteria for obtaining
favorable consideration by the agency, nor does it
establish any remedies for violations of substantive
agency rules. Indeed, it appears to NHTSA that
the regulation does not substantially affect the
rights of any parties, since Part 510 only
implements information gathering powers and
remedies for violations of those powers granted to
NHTSA in various statutes, without adding to or
deleting from those powers and remedies in any way.
Furthermore, even if NHTSA accepts arguendo
the commenter's claim that the interim rule should
have been preceded by notice and opportunity for
comment, that failure would be cured by the
agency's solicitation of comments on the interim
rule and the issuance of this final rule in response
to the comments received. The commenter's
position that no "cure" is possible is based on four
PART 510; PRE 2
cited cases. Three of those cases involved a
situation where the agency involved never issued a
notice indicating that there had been any
consideration of the comments received and no
modifications of the rule were ever made. Hence,
the courts in Community Nutrition Institute v.
Butz, 420 F. Supp. 751 (D.D.C. 1976), NLRB v.
Wyman-Gordon Co., 394 U.S. 759 (1969), and
National Motor Freight Traffic Association v.
United States, supra, were not presented with the
issue of whether a defectively issued rule can be
cured by soliciting and considering comments.
The other case cited by the commenter for the
position that no cure is possible was City of New
York V. Diamond, 379 F. Supp. 503 (S.D.N.Y.
1974). In that case, the Department of Labor
published a rule as final without any prior notice or
opportunity for comment. There was a statement
in the rule that any comments received in response
thereto would be acted upon as though the rule
were a notice of proposed rulemaking. No final
rule showing some consideration of comments was
ever published.
The court held that this rule was void for failure
to comply with the requirements of the
Administrative Procedure Act. The rationale for
the decision is explained at 379 F. Supp. 517,
where the court said, "Permitting the submission
of views after the effective date is no substitute for
the right of interested persons to make their views
known in time to influence the rulemaking process
in a meaningful way." The court expressed doubts
that an after-the-fact opportunity to comment
would be meaningful since people would be
unlikely to submit comments and the agency would
be unlikely to consider changes after a fait
accompli.
This reasoning is inapposite in the instant
situation. There has been no claim by this or any
other commenter that they were not allowed to
make their views known in time to influence the
rulemaking process. The doubts that comments
would be submitted can be allayed with regard to
this interim rule. A total of 26 written comments
were submitted in response to the invitation for
comments in the interim rule, and many of these
were long and detailed. The comments have been
considered at length. Changes outlined above have
been made to the interim rule in response to the
comments received.
Further, the remedy for a defectively issued rule
is that the invalidly issued rule is void and the
agency must follow the notice and comment
procedures before promulgating any new rule on
the subject. In this case, voiding the permanent
rule and requiring the agency to solicit comments
is unnecessary. Detailed comments have already
been submitted by representatives of many
different segments of the interested public.
Reissuance of a proposal identical to the interim
rule would serve no useful purpose.
2. General comments. Several commenters
expressed concern that the issuance of Part 510
signalled an end to a relatively cooperative
relationship concerning the agency's information
gathering needs, and a beginning of a new, more
adversarial relationship. NHTSA believes this
concern is unfounded. The agency has always had
the power to compel the production of information,
and has in fact made numerous mandatory
requests for information before the issuance of
Part 510. Part 510 is simply an effort by the
agency to state its authority with regard to
information gathering, and set forth the
procedures it will follow in exercising that
authority, as well as setting forth the rights parties
have when confronted with compulsory process by
this agency.
The existence of this rule will not change the
agency's general reliance on the voluntary
submission of information. For its part, the agency
will continue where feasible to rely on persons and
entities to voluntarily provide the agency with
information if the party will do so. NHTSA
believes that most parties will continue to do so,
since it is in the interest of those persons, as well as
that of the agency and the public, for NHTSA to be
well informed in its activities.
There were also repeated concerns that the
information gathering powers in Part 510 are
potentially oppressive, and could violate the right
to privacy. The information gathering authority of
this agency has been used and will continue to be
used in a responsible manner.
Persons subject to the agency's information
gathering powers have protections more secure
than this agency's assurances of good intent.
Under the provision of Part 510, persons may
informally protest the exercise of the information
gathering powers and seek to informally negotiate
terms of compliance that would not be oppressive.
If the party chooses, there are more formal ways of
PART 510; PRE 3
protesting at the administrative level, such as
filing motions to quash or modify the process
before the Deputy Administrator. Finally, a person
who has been served with compulsory process and
exhausted the available administrative remedies
may raise any available defense in an action
brought by NHTSA to enforce the process in the
appropriate United States District Court.
A number of commenters, particularly those
representing small businesses, stated that
additional Federal paperwork requirements would
be unbearable. This agency is aware of the
problems caused business, especially smaller
businesses, by requirements which cause the
business to prepare more paperwork. As explained
above, issuance of this rule will not lead to a
significant change in the information gathering
practices of this agency.
One commenter inquired whether the agency
would seek out differing opinions in the
information gathering process. NHTSA has
always tried to obtain a variety of views in its
information gathering activities, particularly in
the area of rulemaking, where the policy issues
involved are best considered in the light of
contrasting opinion. The agency has in the past
sought information and views from various
persons and entities. Typically, voluntary requests
and compulsory process are sent to manufacturers,
since they are most likely to possess the type of
information needed by the agency. To inform the
public of these information gathering efforts,
copies of the process and requests are placed in the
dockets. This information gathering has been
supplemented at the notice and comment stage of
rulemaking by such means as inviting public
participation to ensure that a wide range of views
is represented.
Several commenters expressed the view that the
information gathering powers discussed in Part
510 were unnecessary, duplicative of the authority
of the National Transportation Safety Board, and
not contemplated by Congress. It is clear that
Congress has given the agency broad information
gathering powers. Before the 1974 amendments to
the Safety Act, NHTSA's investigative and
information gathering authority under that Act
was relatively circumscribed. In 1974, the
Congress amended the Safety Act to give the
agency broad authority similar to the authority it
already possessed under Title I of the Cost Savings
Act. With respect to the 1974 amendments, the
House Committee stated that the amendments
authorize:
the Secretary to conduct informational hearings
and to obtain evidence from any person who has
information relevant to the implementation of
the Act. Despite the vital importance of
information gathering to successful
implementation of the Act, the Secretary does not
possess general authority for this purpose. This
lack is anomalous in view of the extensive
information gathering authority in the property
damage reduction provisions of the Motor
Vehicle Information and Cost Savings Act. This
paragraph would give the Secretary similar
broad authority in the more important pursuit of
preventing highway deaths and injuries.
(emphasis added) H. Rep. 93-1191, 93rd Cong.,
2d Sess. at 36-37.
In connection with the agency's duties under
Title V of the Cost Savings Act, dealing with
automotive fuel economy. Congress granted
similar broad information gathering authority in
section 505. To assist NHTSA in its duties to
prevent odometer fraud, Congress also granted
the agency broad information gathering powers in
Title IV of the Cost Savings Act at section 414.
NHTSA's information gathering powers
complement, but do not duplicate those of the
National Transportation Safety Board (NTSB).
The functions and information needs of the two
agencies, even in the safety area, differ
significantly. The function of the NTSB is to
investigate significant transportation accidents,
whether on the highways, rails, sea, or air, to
determine the cause of those accidents. NTSB then
publicly reports the results of these investigations.
It also issues general recommendations for
reducing the risks of accidents and publishes
reports on the general transportation safety
consciousness of other government agencies.
The functions of NHTSA include issuing specific
rules to prevent highway deaths and injuries,
reduce property damage in the event of an
accident, increase the average fuel economy of
automobiles, and prevent odometer fraud. Any
validly issued rule which is violated subjects the
violator to civil penalties. These differing functions
illustrate why the two agencies have differing
information needs. Further NTSB does not obtain
PART 510; PRE 4
any information which could be used to assist
NHTSA in its fuel economy, damageability, or
odometer fraud activities. With respect to
NHTSA 's safety activities, this agency is
concerned with more than just the cause of an
accident. NHTSA must also obtain information
which could support the establishment of safety
standards in the area, establish that there has been
some noncompliance with such standards, or show
the existence of a safety-related defect.
3. Specific comments.
a. Recitation of authority. A commented
suggested that Part 510 require that any process
issued thereunder indicate the statute that
authorizes the particular process. The agency
agrees that this is a reasonable requirement, and
§510.3(b) (2) of the final rule includes this
requirement. The agency would like to note that
the practice under the interim rule has been to
indicate the statutory basis for the process issued
thereunder, although the interim rule did not
require this.
b. Statement of purpose. There were also a
number of comments suggesting that Part 510
/ should be amended to require that any compulsory
process contain a brief description of the purpose
and scope of the investigation in connection with
which the process is issued, so that a respondent or
a reviewing court would have a basis for
determining whether the process is reasonably
relevant to that investigation. This agency agrees
to change the interim rule to add a requirement in
§ 510.3 (b) (4) of the final rule that compulsory
process contain a brief description of the purpose
and scope of the agency's investigation. Again, the
agency notes that process issued under the interim
rule has routinely carried a brief description of the
purpose of the agency's investigation.
It must be kept firmly in mind that the agency
need not and will not go into a detailed and specific
discourse about any investigation to support
compulsory process. As stated by the Court of
Appeals for the District of Columbia Circuit in
Federal Trade Commission v. Texaco, 555 F.2d 864
(D.C. Cir.); cert, den., 431 U.S. 974 (1977):
... an investigating agency is under no
obligation to propound a narrowly focused
theory of a possible future case. Accordingly, the
relevance of the agency's subpoena requests may
be measured only against the general purposes
of its investigation. 555 F. 2d at 874 (emphasis in
original)
More recently, the District Court for the District
of Columbia decided a case dealing specifically
with the information gathering powers of NHTSA
m^lJy.ited States v. Firestone Tire and Rubber Co.,
455 F. Supp. 1072 (D.D.C 1978). The court there
addressed this issue saying:
The agency need not narrow its focus from the
beginning, and it is not for this court to
determine whether the information sought is
relevant to whatever eventual action the agency
might take. This court may look only to the
general purpose of the investigation and
determine if the information sought, however
broad, is relevant to that purpose. 455 F. Supp.
at 1083 (emphasis in original)
One commenter suggested that Part 510 be
amended to require that compulsory process
inform the respondent of the identity of the person
or entity under investigation. In most enforcement
investigations the agency now identifies the
persons subject to the investigation in its
information requests and compulsory process. The
agency must be free, however, to gather
information relevant to the general purpose of
investigations which are not yet focused on
potential violations and violators. There may also
be investigations in which nondisclosure of the
identity of those under investigation will be
necessary to prevent harm to the outcome of the
investigations or harm to informants. The
Supreme Court has said that it is a proper purpose
for an administrative subpoena "to discover and
procure evidence, not to prove a pending charge or
complaint, but upon which to make one if, in the
Administrator's judgment, the facts thus
discovered should justify doing so." Oklahoma
Press Publishing Co. v. Walling, 327 U.S. 186, at
201 (1946). In other words, agency investigations
and compulsory process issued in connection with
those investigations need not be focused on a
limited number of persons or entities, but can be
intended simply to determine if there are violations
of any standards; United States v. Morton Salt Co.,
338 U.S. 632 (1950). Adoption of the requirement
urgeu by this commenter in all cases would unduly
hamper NHTSA's ability to conduct these
authorized and proper types of investigations and
the comment is, therefore, rejected.
c. Production of documents. Interim Part 510
listed a subpoena duces tecum as the only form of
compulsory process through which this agency
PART 510; PRE 5
could compel the production of documents.
Although it was not specifically identified as such,
the authority to issue general or special orders
includes the authority to compel the production of
documents.
The agency's authority to issue a type of
compulsory process that required the production of
documents outside the context of a hearing, in
which a subpoena would be issued, was upheld in
United States v. Firestone Tire and Rubber Co.,
supra. In that case, NHTSA issued a special order
to Firestone commanding the company to produce
and provide information about a group of
documents. Firestone specifically challenged the
agency's authority to compel the production of
documents outside the context of a hearing.
NHTSA argued that section 112 (c) (2) of the
Safety Act (15 U.S.C. 1401 (c) (2)) gave the agency
this authority . The court analyzed the legislative
history of this section and found that Congress had
intended to give the agency broad investigatory
powers. In conclusion, the court said:
Following Firestone's argument would
emasculate these newly-granted investigatory
powers. As such, the court must read the
requirements of this Act within the context of
Congressional intent. The Secretary's
investigative power is broad enough to compel
the production of documents and the analysis
thereof. 455 F. Supp. at 1082.
It is clear from this analysis that NHTSA has the
power to compel the production of documents by
the use of general or special orders under the
Safety Act. Sections 104 (a)(2), 204(b), 414 (c) (2),
and 505 (b) (1) (B) of the Cost Savings Act (15
U.S.C. 1914 (a) (2), 1944 (b), 1990d (c) (2), and 2005
(b) (1) (B)) use language identical to that used in
section 112 (c) (2) of the Safety Act. The use of
identical language shows the same intent to give
NHTSA broad authority and necessarily grants
that broad authority.
To make it explicit in this final rule that the
agency may exercise this authority, a form of
compulsory process not specifically set forth in the
interim rule has been added to this rule. The
process is called a written request for the
production of documents and things. This process
may be issued alone or as a part of a general or
special order. A written request for the production
of documents and things is the functional
equivalent of a subpoena deces tecum.
d. Service of process; when and where returnable.
One commenter argued that service of compulsory
process should be effected only by personal
service, rather than allowing the agency the option
of mail service, as is permitted by section 510.3(c).
The reason offered for this requested change is
that personal service is the only permissible service
for process issued by the courts of the United
States in civil matters, as set forth in Rule 45 (c) of
the Federal Rules of Civil Procedure. Personal
service, of course, offers the greatest certainty
that the person named in the process received
actual notice thereof. However, a requirement of
personal service would add a great deal of cost,
time, and burden for the agency in connection with
the issuance of compulsory process.
The commenter cited no authority which would
prohibit the agency from effecting service by mail,
nor is the agency aware of any such authority. In
fact, many Federal agencies use mail service for
their compulsory process. See, e.g. ,16 CFR §4.4 (a)
(Federal Trade Commission); 17 CFR § 201.4(b) (3)
(Securities and Exchange Commission). The
judgment made by these agencies is that the
possibility of a party not receiving notice by mail
service is so slight that the additional expenditure
of taxpayers' money required to effect personal
service would not be justified. This agency concurs
with that determination and will, therefore, permit
service by registered or certified mail. If the
respondent does not receive the process when it is
served by mail, NHTSA will give that fact due
consideration when determining the appropriate
action to be taken in response to the respondent's
failure to comply.
The same commenter raised the question of
issuing compulsory process to foreign citizens or
nationals of foreign countries residing abroad who
are not served with process in the United States,
or who have not appointed an agent for the service
of process in the United States. The commenter
argued that subpoenas to such persons would have
to be considered requests, rather than commands,
because such persons would be beyond the
jurisdiction of the United States. The agency's
compulsory process is bounded by the
jurisdictional limits of the United States courts
where the process is enforceable. The agency has
no doubt, however, that a corporation or perosn
amenable to service can be required to produce
records located outside the territorial limits of the
United States.
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PART 510; PRE 6
Several commenters suggested that when
service is effected by mail, the date of service
should be the date the respondent receives the
process, rather than the date on which the service
is mailed, with three additional days allowed to
perform the required act, as is required by
§ 510.3(d). One commenter urged that the agency
could easily determine the date of receipt by using
return receipt mailing methods. The provision in
the interim rule was adopted directly from Rule 6
(e) of the Federal Rules of Civil Procedure. This
provision has not led to any difficulties or
unfairness in the Federal courts such as some
commenters suggested would result from this
provision in Part 510.
Return receipt mail would add costs for the
agency and could add delay and cause other
difficulties in delivering process. These burdens
would not be outweighed by being able to ensure
absolutely that the respondents actually had
available to them the period to respond to the
process which was stated in the process. The
agency will always entertain motions to extend the
return date of its process, if the respondent can
show that the period available to it was inadequate.
Since these motions can be filed for all process
issued by the agency, the benefit of using return
receipt mailing would be insubstantial.
One commenter suggested that Part 510 should
allow service of compulsory process to a business
to be made upon an agent designated to receive
service, as an alternative to the agent-in-charge.
NHTSA agrees with this suggestion, and the rule
has been modified to reflect this new provision.
Many commenters addressed the issue of the
amount of time which should be permitted to
respond to compulsory process. Generally, the
commenters indicated that compulsory process
should be returnable in a reasonable amount of
time. Although this was not specifically required
by the interim rule, NHTSA intends to continue its
policy of requiring that process be returnable in a
reasonable amount of time. Further, NHTSA
believes that the requirement for reasonable
amount of time to respond to compulsory process
is so fundamental that it need not be explicitly
stated in the final rule.
Some commenters suggested that a certain
period of time, such as 30 days, be presumed by the
agency to be a minimum reasonable time. Other
commenters noted special factors which should
lengthen the amount of time that could be
considered reasonable. Examples of these special
factors were language differences and the size of
the companies to which the process was directed.
NHTSA concurs with the implicit statement in
these latter comments that the determination of
what is a reasonable period of time to respond
must necessarily be an ad hoc one, which will of
necessity consider the facts involved in each
individual case. The agency notes that, in addition
to the burden imposed on the respondents, the
determination of what is a reasonable time period
in which to respond must also consider the
agency's need for the information so that it can
perform its functions in a timely manner.
However, the fact that a determination of what is a
reasonable period of time must, almost by
definition, be made on a case-by-case basis leads
the agency to conclude that the establishment of
even a presumptively reasonable amount of time in
which to respond would unnecessarily limit the
ability to consider the particular facts of each case.
In the past, NHTSA has been willing to grant
extensions of time for responses to compulsory
process where it appeared that such extensions
were necessary and consistent with the public
interest. No departure from that policy is
contemplated.
One commenter inquired where NHTSA's
compulsory process would be returnable. Although
most compulsory process will be returnable at the
offices of NHTSA, situations may arise where the
process would be returned at some other place.
This question of where process must be returned
should also be considered on a case-by -case basis.
e. Investigational hearings. The interim rule set
forth one section which was intended to cover all
agency hearings and which referred to all hearings
as investigational hearings. These hearings were
structured to be a mechanism with which to gather
facts, opinions or other data relevant to an agency
investigation, inquiry or rulemaking and were not
adjudicative or quasi-adjudicative procedures. The
presiding officer at these hearings would have had
the authority to rule on objections, "unless an
immediate ruling would be unwarranted, and
except where a refusal to answer was based upon
the privilege against self-incrimination." This
limitation was necessary because the presiding
officer would not be a judicial officer, and so would
not rule on any legal points.
PART 510; PRE 7
The problem which became apparent with this
formulation was that the differences between
hearings in connection with rulemaking and
hearings in connection with enforcement
proceedings make it impossible to decribe both
hearings in one section. Although the section in the
interim rule dealing with investigational hearings
did set forth all fundamental points of the two
types of hearings which the agency will hold, it was
not an entirely accurate description of either
hearing.
In this final rule, § 510.5 sets forth the
procedures for hearings in connection with
rulemaking, which are called "information
gathering hearings." Section 510.6 sets forth the
procedures for hearings held in connection with
enforcement investigations, and these are now
called "administrative depositions." By separating
these types of hearings, this final rule provides a
more accurate description of each.
The information gathering hearings will
generally be open to the public. Information
gathering hearings include hearings in connection
with pending rulemaking actions, hearings on an
initial determination by the agency of a safety-
related defect or noncompliance with an applicable
Federal motor vehicle safety standard, held
pursuant to the authority of section 152 of the
Safety Act (15 U.S.C. 1412), and hearings on
whether a manufacturer has reasonably met its
obligation to notify and remedy a defect or failure
to comply, which hearings are held pursuant to the
authority of section 156 of the Safety Act (15
U.S.C. 1416). In addition to the presiding officer,
one or more other persons may be designated as
members of the panel. The members of the panel
may question any witness. If any person not a
member of the panel wishes to pose a question to a
witness, that person may write down the question
and submit it to the panel. Any member of the
panel may then pose the question if that member
feels it appropriate to do so. The presiding officer
at an information gathering hearing runs the
hearing, and ensures that it proceeds in an orderly
fashion.
The administrative deposition, which is held in
connection with enforcement investigations, will
generally be closed to the public. This proceeding
has been adapted from the procedures for
deposition procedures set forth in the Federal
Rules of Civil Procedure. An officer authorized to
administer oaths will put the deponent under oath
and record the person's testimony. NHTSA will
examine the witness first and then the witness's
attorney may examine the witness.
A number of commenters argued that the right
to counsel provided in interim Part 510 was too
restrictive. One commenter stated that the
provisions of the interim rule, which allowed any
witness at an investigational hearing to be
accompanied by counsel, to confer with counsel,
and to allow counsel to raise and explain any
objections to any question asked of the witness was
a limitation on the right to counsel guaranteed in
the Administrative Procedure Act at 5 U.S.C. 555,
where a person compelled to appear in person
before an agency is entitled to be "accompanied,
represented and advised" by counsel. This
commenter stated that the words "accompanied",
"represented, " and "advised" have different
shades of meaning signifying varying rights under
the law. NHTSA agrees with this latter statement.
It is not clear to this agency, however, what the
words "accompanied, represented and advised"
mean in addition to the rights to have counsel
present, to confer with that counsel, and to have
that counsel raise and explain objections, which
were granted in the interim rule. Notwithstanding
this point, NHTSA has no objections to modifying
the language of Part 510 in this final rule to track
the language of the Administrative Procedure Act.
Another commenter suggested that the rights of
counsel to state and argue objections should be
expanded. The interim rule provided that counsel
could object to any quetion and state the basis for
that objection on the record. This commenter
believes that the right to counsel consists of, at a
minimum, the right to make objections on the
record and argue briefly the basis for the
objections. NHTSA does not believe that it would
be appropriate to modify the final rule to permit
counsel to argue objections. In the information
gathering hearings, the presiding officer will not
be ruling on legal points, so no useful purpose
would be served by airing legal points at length
during the course of the hearing. With respect to
the administrative depositions, the presiding
officer as set forth in the interim rule has been
replaced in this final rule by an officer authorized
to administer oaths, and this officer will not rule on
any objections. Accordingly, once the objection has
t
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PART 510; PRE 8
been stated and the basis therefor explained, no
purpose, other than delaying the deposition, would
be served by arguing the objection.
Several commenters urged that the final rule
should allow cross-examination of witnesses at
investigational hearings. Since the investigational
hearings in the interim rule have been divided into
information gathering hearings and administrative
depositions in this final rule, the comment has been
considered with respect to both forms of hearings.
At an information gathering hearing, there will be
more than one witness, and these witnesses will be
expressing differing views and opinions. If each of
these witnesses could be cross-examined the
hearing would be lengthened considerably.
Especially since interested persons may submit
questions to be asked by the presiding panel and
are typically permitted a chance to supplement
their comments after these hearings, the agency
concludes that the rule should not be amended to
permit cross-examination of witnesses.
Administrative depositions will focus on one
witness, and the testimony of that witness will be
considered by NHTSA in determining whether an
enforcement action is necessary. If the agency
decides to pursue an enforcement action it will be
important that the testimony of the witness be as
probative and accurate as possible. In this context,
examination of the witnesses will generally be
more administratively workable, because there will
be only a single witness. The final rule has been
accordingly modified to allow the witness's
attorney or representative to examine the witness
after NHTSA finishes its examination of the
witness. Following this examination, NHTSA may
reexamine the witness, and the witness's attorney
may then reexamine the witness, and so forth, as
appropriate.
Many objections were raised to the provision in
the interim rule which excluded persons who were
subpoenaed to testify at an investigational hearing
from acting as counsel or representative for any
other witnesses at that investigational hearing.
One commenter argues that this provision could
easily be abused by NHTSA to improperly exclude
a counsel or representative. After a consideration
of these comments and a reexamination of the
exclusion, the agency has determined that the final
rule should be modified.
The reason for including this authority was to
prevent a situation where a counsel or
representative advising a number of persons in the
same proceeding could interfere with the
investigation by, either consciously or
subconsciously, tailoring testimony to conform
with testimony already given. Several courts have
stated that this general purpose is legitimate, and
could support a decision to exclude a counsel or
representative in these circumstances. SEC v.
Csapo, 553 F.2d 7 (D.C. Cir. 1976); SEC v. Higashi,
359 F.2d 550 (9th Cir 1966). However, both these
cases indicate that authority to exclude counsel
must be kept within permissible limits. The
automatic exclusion of counsel has been deleted for
both the information gathering hearings and the
administrative depositions. For information
gathering hearings § 510.5 (e) of this final rule
retains authority for the Administrator to take
appropriate action if a counsel or representative
refuses to comply with the presiding officer's
directions or to adhere to reasonable standards of
orderly and ethical conduct. Appropriate actions
could include the exclusion of that counsel or
representative from the hearing.
For an administrative deposition, the rule does
not specifically provide for any exclusion,
regardless of the behavior or conduct of a counsel
or representative. In the event that it becomes
necessary to prevent annoyance, embarrassment,
oppression, or undue expense or delay to the
witness or the agency, NHTSA will file an action in
a United States District Court to seek an order to
enforce the subpoena and to end the annoyance,
embarrassment, oppression, or undue expense or
delay, pursuant to the provision of § 510.6 (c) (5).
This motion would be analogous to a motion for a
protective order, which could be filed under Rule
26 (c) of the Federal Rules of Civil Procedure.
As an adjunct to this modification, the agency is
changing the requirements of § 510.6(f) to provide
that NHTSA may, in a nonpublic investigation and
for good cause shown, decline to provide a copy of
the transcript of his or her testimony to the
witness. In those cases, the witness will be limited
to an inspection of the transcript of the deposition.
Such a limitation is explicitly authorized by the
Administrative Procedure Act; 5 U.S.C. 555 (c).
The purpose of this change is to prevent witnesses
from tailoring their testimony to conform to
testimony given by previous witnesses.
One commenter suggested that the provision in
Part 510 regarding the time in which a witness is
allowed to sign the transcript of his or her
testimony be made more flexible. The 30-day
PART 510; PRE 9
period included in the interim rule was drawn
directly from Rule 30(e) of the Federal Rules of
Civil Procedure, where experience has not shown
it to be inadequate. Nonetheless, the language in
§ 510.6 (d) has been modified to allow the agency to
designate some period other than 30 days as the
period by which the testimony must be signed. The
agency will allow a longer or shorter period as
appropriate in particular circumstances.
A section has been added to the final rule which
would also permit the agency to correct errors in
the transcript of the deposition. Upon receiving a
copy of the testimony given at the deposition,
NHTSA would note any errors it believed had
occurred in the transcription of the deposition, and
forward notice of the alleged errors to the witness
at the deposition, along with the transcript of the
deposition. This notice would ask the witness to
stipulate that the errors had occurred and agree to
the corrections. If the witness would not make this
stipulation, NHTSA would ask the presiding
officer to have the record of the testimony reflect
the dispute and show the NHTSA's version of the
testimony as well as the version signed by the
witness. The parties could then attempt to get an
affidavit from the stenographer as to which
version was most accurate, or take other steps to
try to verify their version as the most accurate.
f. Subsequent use of testimony. Several
commenters objected to the interim rule insofar as
it provided that testimony obtained pursuant to
NHTSA's information gathering authority may be
"used in any investigation or administrative or
judicial adjudicative proceeding." It was claimed
that that agency could not and should not attempt
to control what a Federal judge or an
administrative law judge would admit into
evidence in a proceeding before the judge. It was
further stated that the absence of certain
procedural rights in the investigational hearings,
such as the right to cross-examine witnesses,
would automatically preclude the use of the
testimony in a subsequent adjudicative proceeding.
NHTSA obviously cannot control, nor did it seek
to control, what a presiding judge will admit into
the record of the proceeding over which he or she
presides. The reason that this language appeared
in the interim rule was to put respondents on
notice that any information obtained under Part
510 could be considered and used by NHTSA in the
manner it deems most appropriate, including
offering such information into the record of an
administrative or judicial proceeding. Whether
such information would be allowed into the record
is, of course, a decision which must be made by the
presiding judge, in accordance with the applicable
rules of evidence.
g. Motions to modify, limit, or quash process. A
number of comments were received addressing
motions to quash compulsory process. After a
review of these comments, the agency has
determined that the interim rule's provisions
should be retained almost in their entirety.
Many commenters argued that the agency
should expand the availability of these motions, so
that a recipient of a general or special order could
file a motion to modify, limit, or quash that
process. Some of these commenters argued that
NHTSA was required to permit these motions for
general and special orders, if it chose to permit
them for subpoenas. This issue was before the
court in United States v. Firestone Tire and Rubber
Co., supra, and the court held that the interim
rule's provisions allowing motions to modify, limit,
or quash subpoenas, but not allowing such motions
for general or special orders, were legally
acceptable. 455 F. Supp. at 1080.
As a practical matter, NHTSA issues general
and special orders and written requests for the
production of documents and things far more
frequently than it does subpoenas. To require the
Deputy Administrator to consider all of the
possible objections to each of these forms of
compulsory process would place an overwhelming
burden on that office. Furthermore, the practice
under interim Part 510 and before of not allowing
formal objections to be filed to these types of
compulsory process has worked very satisfactorily
for both the agency and the respondents to its
compulsory process. Given the acceptability of the
present procedures and the fact that expansion of
motions to quash to include all forms of compulsory
process could readily be abused to delay
compliance for frivolous and insubstantial reasons,
the agency has determined that only subpoenas
should be the subject of motions to modify, limit, or
quash.
One commenter stated that respondents to the
agency's compulsory process should be permitted
to informally negotiate the terms of compliance
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PART 510; PRE 10
with that process. NHTSA believed that the
opportunity for informal negotiation of the terms
of compliance with process was implicit in the
interim rule. However, the agency has no objection
to modifying the final rule to state explicitly that
informal negotiations as to the terms of
compliance are permissible, so § 510.3 (f) now
states that the Chief Counsel is authorized to
negotiate the terms of compliance with any
process issued under Part 510.
As set forth in this final rule, motions requesting
some change to the terms of process will be
decided by the Deputy Administrator. If the
Deputy Administrator is not available, these
motions will be decided by the Associate
Administrator for Administration. In response to a
comment, the final rule makes explicit what the
agency had considered to be implicit in the interim
rule; i.e., the Deputy Administrator is free to
structure relief, through modifications or
limitations of the subpoena, to achieve the
resolution he or she believes is most appropriate.
The final rule has also been modified to require
• that any motions to modify, limit, or quash process
be filed not later than 15 days after service of the
process or five days before the return date of that
process, whichever is earher, except in the rare
event that the return date is less than five days
after the service of the process. This requirement,
similar to time limitations on these motions
suggested in several comments, will eliminate last
minute filings of these motions. The elimination of
last minute filings will serve two important
purposes. First, these motions will not be subject
to abuse as a means of delaying compliance.
Second, the prompt filing of these motions will
facilitate more reasoned responses by the NHTSA
to such motions.
It was suggested by many commenters that the
filing of a motion to modify, limit, or quash should
automatically toll the return date of the process.
NHTSA has not adopted that suggestion, since any
automatic tolling provision would be easily subject
to abuse as a dilatory tactic. However, the agency
will entertain requests to extend the return date of
any process, and will consider such requests on the
basis of the individual set of circumstances. The
pendency of a good faith objection would be given
due consideration.
One commenter suggested that the agency
catalog the grounds upon which process can be
modified, limited, or quashed. The rule has not
been changed in this way, since the agency does
not wish to foreclose any legitimate grounds for
protesting some process. NHTSA will state that it
believes that most objections will be based upon the
alleged burdensomeness of the process, some
assertion of privilege, or a question of the
relevance of the information. However, this is not
an exhaustive list of the possible objections, and
any objections will be considered on their merits.
Many commenters objected to the provision that
would have the Deputy Administrator deciding
motions to quash. These commenters believed that
the Deputy Administrator could not impartially
decide these motions, because the process would
have been issued by that individual, or with the
concurrence of that individual or a superior, such
as the Administrator. This situation was said to
establish an institutional bias in favor of the
validity of the process which, according to those
commenters, violates the due process
requirements of the Fifth Amendment.
NHTSA believes that this comment reflects a
serious misunderstanding of the purpose of this
agency level mechanism for considering objections
to the compulsory process. This mechanism will
not be and is not intended to be an adjudication of
the rights of the affected parties. The due process
rights to an impartial decisionmaker do not apply
outside the context of a determination of the rights
of the affected parties. The sole purpose of having
an agency review of any objections is to provide a
respondent with a means which guarantees that
senior agency officials will consider any objections
raised by respondents to compulsory process
issued by this agency. This ensures that any
position taken on the motion or objection is the
final agency position. Given this purpose, it is
perfectly proper to have an official as senior as the
Deputy Administrator personally consider the
respondent's objections and decide the validity
thereof. Any respondent desiring a hearing which
comports with the due process requirements and
determines the rights of the respective parties can
obtain this by resisting compulsory process and
raising its objections in an enforcement action in a
United States District Court.
h. Duty to supplement responses to process.
Several comments were received relating to the
duty to supplement responses to compulsory
PART 510; PRE 11
process based on after-acquired information. The
language in the interim rule which imposed the
duty to supplement responses was taken almost
verbatim from Rule 26 (e) of the Federal Rules of
Civil Procedure, which requires that a response be
supplemented when after-acquired information
shows that the response was incorrect when made
or the response, though correct when made, is no
longer correct, and the failure to amend the
response is a knowing concealment. Two basic
objections were raised to this requirement. First, it
was asserted that the duty to supplement was not
limited by any time period, and would therefore
impose a perpetual duty to provide the agency with
information. The commenters stated that this
result would be extremely burdensome to
respondents while yielding minimal benefits to the
agency, since much of the amended information
would concern investigations which had been
ended. These commenters pointed out that the
duty imposed by the Federal Rules ends when the
litigation ends.
NHTSA agrees with the commenters that the
duty to supplement should not be open-ended.
Accordingly, the final rule has modified the
requirements of the interim rule to specify a
limitation on the duty to supplement. If process is
issued in connection with a rulemaking action or
enforcement investigation, the duty to supplement
terminates with the issuance of a final rule or
termination of the rulemaking or with the closing
of the investigation, respectively. In the case of
process not issued in connection with a specific
rulemaking action or enforcement investigation,
the duty to supplement expires 18 months after the
date of the response.
It should be noted that this amendment does not
in any way diminish the agency's authority to
specifically require a respondent to update some
response after the duty under this part to
supplement has expired. Further, the authority of
the agency to require specific supplementation of
responses while the general duty to supplement is
in effect is not limited by that general duty.
The second basic objection to the duty to
supplement as set forth in the interim rule
concerned the burden imposed on respondents to
correct "trivial" or "minor" errors. One
commenter urged that the duty to supplement
should be limited to instances where there is a
"significant" change in the information originally
given to NHTSA. The agency has not adopted this
suggestion. Respondents are under a duty to give
accurate responses to compulsory process. Errors
which appear to be trivial or minor to a respondent
exercising the utmost good faith may not be so
judged by the agency in the context of all the
information gathered by the agency. NHTSA
believes that it must determine whether a change
is trivial. This requirement does impose any
significant added burden on respondents, because
it should typically be easier for a respondent to
write down the changed information and send it to
NHTSA than to inform a responsible agency
official of the change and have him or her examine
the change to determine whether it can properly be
deemed trivial. Since there is little additional
burden imposed in requiring the change to be
submitted to the agency and the information is
necessary for NHTSA to properly perform its
function of evaluating the significance of the
change, the final rule does not limit the duty to
supplement as suggested.
One frequent comment of the duty to supplement
was that it would be extremely burdensome for the
respondents to constantly check their responses
for accuracy, even if the requirement were not
open-ended. NHTSA disagrees with this assertion.
The duty to supplement can be wholly satisfied by
checking on a periodic basis with the sources
within respondent having knowledge of the area to
determine whether any new facts or information
have arisen which might trigger a duty to
supplement. If there are such new facts or
information the respondent promptly informs the
agency about them. NHTSA agrees that this
creates some burden for respondents, but does not
agree that the burden is excessive or substantial.
Moreover, NHTSA notes that much of the factual
information which is subject to change, such as
reports of warranty claims, is compiled for the
respondents' own purposes on a regular basis. In
those cases, the duty to supplement will be readily
satisfied by making the update promptly available
to the agency.
i. Confidentiality of information. Great concern
was expressed over the confidentiality of alleged
trade secret and confidential business information
obtained by the agency by using its information
gathering powers. NHTSA has published a notice
of proposed rulemaking on this general subject
entitled Part 512, Confidential business
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PART 510; PRE 12
information; 43 FR 22412, May 25, 1978. That
notice proposes a detailed scheme for the
treatment of confidential business information
received by NHTSA. The agency anticipates that
the final rule on this subject will soon be published.
When Part 512 is published, its requirements will
supersede those set forth in § 510.3 (e). Until that
time, however, NHTSA will follow the procedures
set forth in § 510.3 (e) for handling and evaluating
allegedly confidential information obtained by the
use of compulsory process. That paragraph
provides that any claims for confidentiality must
be made in writing, that information for which
confidential treatment is requested will be kept
confidential until the confidentiality claim is
evaluated, and that the agency will afford
reasonable advance notice to the submitter of the
information of the contemplated release of any
information for which the submitter requested
confidential treatment.
j. Fees. Several comments were received
addressing the issue of compensation by NHTSA
of persons or entities for expenses incurred in
connection with the responses to the agency's
compulsory process. One commenter suggested
that the agency make explicit that the term
"person", as used in the section which provides
reimbursement for the travel expenses of
"persons" subpoenaed to testify at hearings,
includes officers, agents, and employees of
corporations. NHTSA has amended the rule to
state that the term "person" as used in this and all
other sections of the rule includes agents, officers,
and employees of corporations in their individual
capacities.
One commenter stated that a witness compelled
to testify orally before the agency should not be
required to pay for a copy of his or her testimony.
The agency still finds it reasonable to require a
person who wishes to retain a copy of his or her
testimony at either an information gathering
hearing or an administrative deposition to pay for
that copy in most circumstances.
Copies of transcripts will be furnished without
charge or at a reduced charge if the Associate
Administrator for Administration determines that
a waiver or reduction of the fee is in the public
interest because furnishing the information can be
considered as primarily benefitting the general
public.
Any witness has the right to inspect the
transcript of his or her testimony at no charge, and
a provision is made in connection with
administrative depositions for the submission of a
copy of the witness's testimony to that witness for
his or her signature. Hence, NHTSA does not
believe that there is any financial barrier to the
opportunity of any witness to thoroughly review
his or her testimony.
Several commenters stated that respondents to
compulsory process should be reimbursed
completely for their expenses incurred in
complying with the process. The agency does not
believe that complete reimbursement is
appropriate. First, it must be noted that the
provision for reimbursement contained in
NHTSA's authorizing statutes allows the agency
to pay witnesses the same mileage and fees that
can be paid witnesses in the courts of the United
States. See section 112 (c) (5) of the Safety Act, 15
U.S.C. 1401 (c) (5) and sections 104(a) (5), 204 (e),
414 (c) (5), and 505 (b) (3) of the Cost Savings Act,
15 U.S.C. 1914 (a) (5), 1944 (e), 1990d (c) (5), and
2005(b) (3). Part 510.11 of this rule expressly
authorizes the payment of these fees.
NHTSA recognizes that the expense associated
with complying with compulsory process is a major
component of the burdensomeness of that process.
The question, however, is whether an undue
burden is imposed. If respondents believe the
burden to be undue, they can file a motion with
NHTSA to quash the process and can litigate this
issue if the agency does not resolve it to their
satisfaction.
k. Remedies for failure to comply with
compulsory process. Several commenters made
strenuous objection to the provision of the interim
rale which allows the agency to seek civil penalties
against a respondent which fails to comply with
NHTSA's compulsory process. The arguments
made were basically that the availability of civil
penalties for failure to comply was not
contemplated or authorized by the Cost Savings
Act or the Safety Act, and that if the penalties
were authorized, that authorization would be
unconstitutional. NHTSA rejects these
contentions for the reasons set forth below.
There were two primary arguments raised to
support the view that the agency does not have the
authority to seek the imposition of civil penalties
PART 510; PRE 13
for a failure to comply with compulsory process.
First, it was asserted that the authorizing statutes
provide judicial enforcement of compulsory
process in a United States District Court as an
exclusive remedy for the failure to comply with
compulsory process. With respect to Titles I, II,
and IV of the Cost Savings Act, this assertion is
plainly inaccurate. Sections 106 (a) (3), 206(1), and
416 of the Cost Savings Act (15 U.S.C. 1916(a) (3),
1946 (1), and 1990 (f) state that no person shall fail
to provide the information requested by the
agency. A violation of this prohibition subjects the
violator to civil penalties, which shall be assessed
by the agency. Sections 107 (a), 208 (a), and 412 (a)
of the Cost Savings Act; 15 U.S.C. 1917 (a) 1948 (a)
and 1990b (a).
The commenters specifically pointed to the fact
that the Safety Act at section 112 (c) (4), 15 U.S.C.
1401 (c) (4), and Title V of the Cost Savings Act at
section 505 (c) (2), 15 U.S.C. 2005 (c) (2), provide
that the agency may seek judicial enforcement in
the case of a failure to respond to compulsory
process. However, the commenters did not point
out that the respective Acts also authorize the
agency to impose civil penalties for a failure to
comply with any "rule, regulation, or order"
issued under the information gathering authority
contained in that title; section 108 (a) (1) (E) and
109 (a) of the Safety Act, 15 U.S.C. 1397 (a) (4) and
1398 (a), and section 507 (3) and 508 of the Cost
Savings Act, 15 U.S.C. 2007 (3) and 2008. No
commenter cited any language in the statutes
themselves or the relevant legislative history
which states that judicial enforcement was
intended to be the exclusive remedy for a failure to
comply.
NHTSA believes that the availablity of civil
penalties for a failure to comply with compulsory
process is a necessary complement to judicial
enforcement. If judicial enforcement were the sole
remedy for failure to comply with the agency's
compulsory process, a respondent could always fail
to comply with the agency's compulsory process
until such time as the agency began a judicial
enforcement proceeding. Then, at any time before
the court entered its order compelling compliance
with agency process, the respondent could comply
with the order, thereby mooting the enforcement
action. Any respondent would have available to it a
penalty-free mechanism for delaying compliance
with NHTSA's compulsory process. There is no
indication that Congress intended or sanctioned
such a mechanism. Considering "the vital
importance of information gathering to the
successful implementation of the Act," H.R. Rep.
93-1191, 93 Cong., 2d Sess. at 37, and the absence
of any indication whatsoever that judicial
enforcement was to be the sole remedy, NHTSA is
not persuaded by this argument.
The second argument raised to support the view
that the agency lacks authority to impose civil
penalties was that subpoenas and general and
special orders were not "orders" within the
meaning of section 108 (a) (1) (E) of the Safety Act
and section 507 (3) of the Cost Savings Act, the
violation of which can give rise to civil penalties.
The argument is that subpoenas are not "orders",
because both statutes discuss "order" and
"subpoena" in the disjunctive. Since a subpoena is
not an order, the argument concludes that general
and special orders are not "orders" either, because
general and special orders are the functional
equivalent of subpoenas.
This argument is not convincing. It is a well
established and accepted rule of statutory
construction that the words of a statute are to be
given their common meaning, absent some
indication of a contrary legislative intent. 2A
Sutherland, Statutory Construction, § 47.28 and
the cases cited therein (4th ed. 1973). The word
"order" is defined in Webster's Second
International Dictionary as "a rule or regulation
made by competent authority; also a command;
mandate; precept; direction". The Oxford English
Dictionary defines "order" as "an authoritative
direction, injunction, mandate; a command, oral or
written; an instruction." It is obvious that both
subpoenas and general and special orders fall
within this common meaning of the word "order",
and that the Acts must be construed in that
manner unless there is a contrary legislative
intent.
The only authority which has been cited by a
commenter to show a contrary intent is the
language in Section 112 (c) (4) of the Safety Act,
and section 505 (b) (2) of the Cost Savings (called
"the judicial enforcement sections" for the rest of
this discussion) giving the district court of the
United States authority to compel compliance with
any subpoena or order issued by NHTSA. General
and special orders are specifically referred to as
"orders" in these judicial enforcement sections.
t
%
t
PART 510; PRE 14
Sections 108 (a) (1) (E) and 109 of the Safety Act
and 507 (3) and 508 of the Cost Savings Act (called
the civil penalty sections for the rest of this
discussion) give NHTSA authority to impose civil
penalties for the violation of any "rule, regulation,
or order". There is no reason to believe that the
"order" referred to in the civil penalty sections
does not include the forms of process included
within the meaning of "order" in the judicial
enforcement sections. Congress has shown its
intent that the violation of general and special
orders issued by NHTSA would subject the
violator to possible civil penalties.
The reference to subpoenas and orders in the
disjunctive occurs in the judicial enforcement
sections, which provide that compliance with a
subpoena or an order can be mandated by a court.
NHTSA's authority to issue subpoenas and general
and special orders comes from two different grants
of authority, and so it is grammatically necessary
to use the disjunctive to indicate that compliance
with either can be mandated by a court. There is,
however, no indication in the Acts or the
m legislative history that Congress intended for
subpoenas and general and special orders to be
enforced differently. Indeed, the judicial
enforcement sections treat these forms of process
identically for enforcement purposes. Accordingly,
the agency concludes that the use of the disjunctive
in the judicial enforcement sections is not by itself
a sufficient showing of a Congressional intent that
subpoenas not be included within the meaning of
"order" as that term is used in the civil penalty
section, and so Congress intended that the word
"order" as used in the civil penalty sections have
its common meaning. The common meaning
embraces all compulsory process issued by
NHTSA, whether general or special orders,
subpoenas, or written requests for the production
of documents and things.
The commenters raised two Constitutional
arguments in support of the position that the civil
penalties could not be imposed for failure to
comply with the agency's compulsory process. The
first argument was that the agency could not
constitutionally impose civil penalties, since this
self-enforcement would give judicial power to
^ NHTSA, a grant Congress could not make. One
W commenter was concerned that NHTSA was
trying to set up a procedure where the agency
could hold a respondent in contempt. NHTSA has
never intended to hold a non-complying
respondent in contempt of the agency, and the
interim rule contained no such provision. To
enforce and collect any civil penalty will require
the agency to bring an action in a United States
District Court, requesting the court to enforce the
penalty. No question of self-enforcement arises in
connection with this procedure.
A more complex issue was raised by commenters
in the second Constitutional argument, which was
that a party desiring to mount a good faith
challenge to the validity of compulsory process
issued by the agency could do so only by refusing to
comply with that process. If the agency were to
impose a penalty for this refusal, the argument
runs, the respondent would have had a penalty
imposed on it for exercising its right to have a
judicial review of the validity of the process.
NHTSA agrees with the commenters' assertion
that there is a due process right to contest the
validity of a legislative or administrative order
without having to pay substantial penalties if the
suit is lost. However, this right does not mean that
penalties begin to accrue only upon a final
judgment in NHTSA's favor. In St. Regis Paper
Co. V. United States, 368 U.S. 208 (1961), the FTC
had ordered a company to file special reports with
that agency. Section 10 of the Federal Trade
Commission Act, 15 U.S.C. 50, specified a penalty
of $100 for each day a special report was overdue.
The company challenged this provision of the Act,
alleging that it had been denied its day in court to
challenge the validity of the underlying order to
file special reports. The company alleged that, in
effect, the order was not judicially reviewable
except if the company paid the civil penalty, and
that this scheme violated the due process
requirements.
The Supreme Court found this penalty scheme to
be consistent with due process, because the
petitioner had an opportunity for judicial review
without having to pay the penalty. Specifically, the
Court found that the company could have filed an
action for declaratory judgment and a concurrent
motion to stay the effective date of the FTC order
pending a ruling by the court on the validity of the
order. This opportunity for review is sufficient to
satisfy the requirements of due process. 368 U.S. at
225-227.
PART 510; PRE 15
This reasoning has been applied to the civil
penalty provisions for failure to comply with a
NHTSA order requiring a manufacturer to furnish
notification of a defect to owners, purchasers, and
dealers, and to remedy the defect without charge,
as specified in section 152 of the Safety Act (15
U.S.C. 1412). In Ford Motor Co. v. Coleman, 402 F.
Supp. 475 (D.D.C. 1975) affdA25 U.S. 927 (1976);
it was asserted that this statutory provision
violated the due process rights of the manufacturer
by forcing the manufacturer to either comply with
an erroneous order or risk a substantial civil
penalty if it lost its challenge to the order. The
court stated that this statutory provision did not
offend due process rights, since a manufacturer
which could present a substantial, nonfrivolous
challenge to the validity of NHTSA's
determination could obtain a preliminary
injunction against the enforcement of the order.
The court would have jurisdiction to issue a
temporary order restraining the imposition of the
penalties pending its determination of the motion
for preliminary injunction, and to issue a
preliminary injunction that would stay the accrual
of penalties until the completion of the de novo
enforcement proceedings in district court on the
underlying order. The civil penalties would begin
accumulating against the manufacturer only if the
manufacturer could not convince the court to issue
a preliminary injunction, i.e., if the manufacturer
could not show that it had reasonable and
substantial grounds for contesting the order.
According to the opinion, the due process right to a
judicial determination of the validity of the order
does not require that a manufacturer be permitted
to press a frivolous or insubstantial objection
without risk of a penalty.
Several commenters cited Reisman v. Caplin,
375 U.S. 440 (1964) as authority for the proposition
that the civil penalty scheme as set forth in the
interim rule would violate due process rights. That
case involved an order by the Commissioner of
Internal Revenue to a taxpayer to furnish certain
documents. The taxpayer contended that since he
had to risk a large fine and imprisonment for not
complying with the order, he had been effectively
denied the due process right to a judicial review of
the validity of the order. The Court disagreed with
this contention, stating that the statute
authorizing civil and criminal penalties for failure
to comply with an order must be read so as not to
apply while a respondent is making a good faith
challenge to the validity of the order. In this
agency's opinion, this reasoning is identical to that
used in St. Regis, supra, and Ford Motor Co. v.
Coleman, supra. The civil penalty provisions in the
interim rule do not restrict the right of a
respondent to process to obtain a judicial review of
the validity of that process without a civil penalty,
if the challenge is not insubstantial. Since this
complies with the requirements of due process, no
change has been made to the civil penalty section
of this rule from what was set forth in the interim
rule.
In consideration of the foregoing. Chapter V of
Title ,49, Code of Federal Regulations is amended
by adding a new Part 510, Information Gathering
Powers, to read as set forth below.
The attorney principally responsible for the
development of this final rule is Stephen Kratzke.
Issued on April 28, 1980.
Joan Claybrook
Administrator
t
<i
45 F.R. 29032
May 1, 1980
i
PART 510; PRE 16
PREAMBLE TO AN AMENDMENT TO PART 510
INFORMATION GATHERING POWERS
ACTION: Final Rule.
SUMMARY: This Notice incorporates a delegation of
authority to the Deputy Administrator and, in the
absence of the Administrator and the Deputy Admin-
istrator, to the Managing Director to exercise all
authority lawfully vested in the Administrator and
reserved to him or her, except where specifically
limited by law, order, regulation or instruction. This
Notice also makes technical revisions to the agency's
organization and delegation rules, including the correc-
tion of legal citations, updating to reflect recent
statutory enactments, and inclusion of materials which
had been inadvertently omitted in previous printings
of the Code of Federal Regulations.
DATE EFFECTIVE: July 12, 1988.
SUPPLEMENTARY INFORMATION: Due to internal
reorganization, the National Highway Traffic Safety
Administration is amending its delegation of author-
ity to allow the Deputy Administrator to exercise, in
the Administrator's absence, those authorities
previously reserved to the Administrator and to allow
the Managing Director to exercise those authorities
previously reserved to the Administrator in the absence
of both the Administrator and the Deputy
Administrator.
Additionally, because of internal agency reorganiza-
tion, the position of Executive Secretary is retitled the
Director of the Executive Secretariat and is assigned
the functions previously delegated to the Executive
Secretary, with the exception of subpoena authority.
This authority is transferred from the Director of the
Executive Secretariat to the Chief Counsel.
The amendment set forth below relates solely to the
organization and assignment of duties within the
agency, and has no substantive regulatory effect. Thus,
it is not covered by the notice and comment and effec-
tive date requirements of the Administrative Pro-
cedure Act or the requirements of Executive Order
12291 or the Department of Transportation's
regulatory policies and procedures. Notice and public
procedure are, therefore, not required, and the amend-
ment may be made effective in less than thirty days
after pubUcation.
Section 510.4 is revised to read as follows:
510.4 Subpoenas, generally.
NHTSA may issue to any person, sole proprietorship,
partnership, corporation, or other entity a subpoena
requiring the production of docimients or things (sub-
poena duces tecum) and testimony of witnesses (sub-
poena as testificandum), or both, relating to any mat-
ter under investigation or the subject of any inquiry.
Subpoenas are issued by the Chief Counsel. Then a per-
son, sole proprietorship, partnership, corporation, or
other entity is served with a subpoena ad testifican-
dum 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, cor-
poration, 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 person so designated
shall testify as to matters known or reasonably
available to the entity.
Diane K. Steed
Administrator
53 F.R. 26257
July 12, 1988
PART 510-PRE 17-18
(f
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PART 510— INFORMATION GATHERING POWERS
§ 510.1
§ 510.2
§ 510.3
§ 510.4
§ 510.5
§ 510.6
§ 510.7
§ 510.8
§ 510.9
Scope and purpose.
Definitions.
Compulsory process, the service thereof,
claims for confidential treatment, and
terms of compliance.
Subpoenas generally.
Information gathering hearings.
Administrative depositions.
General or special orders.
Written requests for the production of
documents and things
Motions to modify, limit, or quash process.
§ 510.10 Supplementation of responses to process.
§510.11 Fees.
§ 510.12 Remedies for failure to comply with
compulsory process.
§ 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 Adminstration.
(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.
PART 510-1
(e)(1) Any person, sole proprietorship, partner-
ship, corporation, or other entity submitting infor-
mation 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)(A) Except as provided in paragraph (e)(2)(B)
of this section, requests for confidentiality shall be
in writing, and addressed to the Chief Counsel.
(B) Requests for confidentiality made during an
information gathering hearing or an admin-
istrative deposition may be made orally to the
presiding officer. Any oral request for confiden-
tiality 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.
(C) A written request for confidentiality under
paragraph (e) of this section shall specify the infor-
mation, documents, or things which are to be kept
confidential, specify the groimds 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 pro-
cess issued under this part.
§ 510.4 Subpoenas, generally.
NHTSA may issue to any person, sole pro-
prietorship, partnership, corporation, or other
entity a subpoena requiring the production of
documents or things (subpoena duces tecum) and
the testimony of witnesses (subpoena ad testifican-
dum), or both, relating to any matter under in-
vestigation or the subject of an inquiry. Subpoenas
are issued by the [Chief Counsel]. When a person,
sole proprietorship, partnership, corporation, or
other entity is served with a subpoena ad testi-
ficandum 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 proprietor-
ship, partnership, corporation, or other entity so
named shall designate one or more officers, direc-
tors, 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 person so designated
shall testify as to matters known or reasonably
available to the entity. [53 F.R. 26257— July 12, 1988.
Effective: July 12, 1988.]
§ 510.5 Information gathering hearings.
(a) NHTSA may issue a subpoena to compel any
person, sole proprietorship, partnership, corpora-
tion, 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 docu-
ments 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 con-
fidential 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 confidentialify 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 ap-
propriate. If a request for confidential treatment is
made, the release of the record is governed by the
applicable laws or regulations relating to the handl-
ing of allegedly confidential information. To the ex-
tent 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.
«
#
(Rev. 7/12/88)
PART 510-2
(dXl) 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 a
subpoena my 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,
her 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 pubUc.
(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
depostion 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's counsel or
representative may examine the witness. NHTSA
may then reexamine the witness and the
witnesses' 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
PART 510-3
#
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's 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 precribed 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.
(fX2) 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 administrative
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 section 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
«
#
PART 510-4
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 section 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 section 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 section 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
(aXl) of this section—
(A) Deny the motion;
(B) Modify the return date of the subpoena;
(C) Modify, limit or quash the subpoena;
(D) Condition granting the motion upon certain
requirements; or
(E) 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
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.
PART 510-5
(c) This section in no way limits NHTSA's
authority to obtain supplemental information by
specific demands through the means specified in
section 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, United States Code, 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.
45 F.R. 29032
May 1, 1980
#
H
#
PART 510-6
PREAMBLE TO PART 511 -ADJUDICATIVE PROCEDURES
(Docket No. 78-15; Notice 2)
ACTION: Final rule.
SUMMARY: This rule establishes procedures that
will be followed in adjudications to enforce Title V
of the Motor Vehicle Information and Cost Savings
Act (dealing with automotive fuel economy). These
regulations supersede interim regulations estab-
lished in 1978. They are necessary to carry out
the authority vested in the Secretary of Transpor-
tation to enforce the automotive fuel economy
standards, gas mileage guide availability, report-
ing, and other requirements of that title and
regulations established thereunder. These regula-
tions are intended to enable a full, fair, and ex-
peditious hearing in all cases of alleged violations
of these requirements.
DATE: This regulation is effective 30 days after its
publication in the Federal Register.
FOR FURTHER INFORMATION CONTACT:
Roger Fairchild, Office of Chief Counsel,
National Highway Traffic Safety
Administration,
400 Seventh Street, S.W., Washington, D.C.
20590, (202) 426-2992.
SUPPLEMENTARY INFORMATION: On October 6,
1978, in 43 PR 47507, the National Highway Traffic
Safety Administration (NHTSA) established in-
terim procedures for conducting enforcement pro-
ceedings under Title V of the Motor Vehicle Infor-
mation and Cost Savings Act, 15 U.S.C. 2001 et
seq. Because of the anticipated need to have en-
forcement procedures in place as soon as possible
and because of the procedural nature of the rules,
the interim procedures were made effective 30
days after their publication. See 5 U.S.C. 553(b).
Although the use of notice and comment rulemak-
ing procedures was not legally required to estab-
lish these rules, the agency deemed it desirable to
obtain the views of interested individuals and
organizations on the procedures. Therefore,
NHTSA included an invitation in the preamble to
the interim procedures for the public to comment
on those procedures while they were in effect to
assist in developing a final rule.
Only limited comment was received on the inter-
im procedures. The only detailed comments sub-
mitted were those of the Motor Vehicle Manufac-
turers' Assocation (MVMA). Ford Motor Company
and General Motors submitted brief comments
which incorporated and reiterated the comments
of MVMA. No automobile dealers (who are poten-
tially subject to the regulations), dealer organiza-
tions, public interest groups, or other individuals
or organizations commented on the interim pro-
cedures. The comments received expressed
general approval for the interim procedures, sug-
gesting only relatively minor revisions.
Therefore, the agency is establishing final ad-
judicative procedures for fuel economy-related
cases, with only minor differences from the inter-
im procedures. A detailed discussion of the fea-
tures of the selected procedures is contained in the
preamble to the interim procedures and will not be
repeated here. Generally, the rule established full,
trial-type procedures in accordance with sections
554, 556, and 557 of Title V of the United States
Code (the Administrative Procedure Act), due to
the requirement in section 508(a) (2) of the Cost
Savings Act for a hearing "on the record" in fuel
economy enforcement cases. The specific pro-
cedures adopted were based largely on those
employed by the Consumer Product Safety Com-
mission (16 CFR Part 1025) and the Federal Rules
of Civil Procedure. Departures from those models
have been made in certain instances to accom-
modate specific requirements under the Cost Sav-
ings Act.
PART 511 -PRE 1
Most Significant Changes
to the Interim Procedures
The most significant change to the interim pro-
cedures is the deletion of a "two-tier" system (in-
terveners and non-party participants) for partici-
pation in enforcement hearings by individuals or
organizations other than the agency and the
respondent, in favor of a single "participant"
status. Also, some changes are made to the
language used in certain areas of the regulation
(particularly with respect to discovery) to make
the language more consistent with the Federal
Rules of Civil Procedure. The final procedures also
recognize the privileged status of attorney's "work
product" with respect to the discovery process.
Comments Received
on the Interim Procedures
The first point raised by MVMA and GM relates
to the issue of whether the assessment of civil
penalties for each day of violations of section 507(3)
of the Act should run from the time of the alleged
illegal conduct or from the end of the required
hearing on the alleged violation. This issue was not
addressed in the interim procedures. In the case of
a refusal by a manufacturer to respond to a special
order issued under section 505(b) of the Act, for
example, the commenters would argue that civil
penalties of up to the authorized $10,000 per day
should not begin accruing until after the comple-
tion of a hearing, rather than from the date on
which the response to the order was due. MVMA
bases its argument on its interpretation of the
relevant statutory language and on constitutional
due process guarantees. Specifically, MVMA ar-
gues that, under the Act, no violation has occurred
until there has been a complete adjudication.
The agency cannot accept these arguments.
MVMA strains the meaning of the term "violation"
by attempting to make the completion of an adjudi-
cation an element of the unlawful conduct. Section
507(3) specifies the conduct which is to be con-
sidered unlawful as "the failure of any person (A)
to comply with any provision of this part appli-
cable to such person. . . ." The requirement for a
public hearing established in section 508(a)(2) is a
prerequisite to the assessment of civil penalties,
but if, after the completion of the hearing, the
agency's view that a violation has occurred is vin-
dicated, then penalties may properly be assessed
for each day since the violation (i.e., unlawful con-
duct) first occurred. Any other reading of the
statute would encourage those subject to the re-
quirements of the Act to delay in complying with
those requirements.
MVMA's argument is essentially identical to the
one it made with respect to the agency's interim
rule on Information Gathering Powers, 42 FR
64628, December 27, 1977, and rejected at the time
a final rule on that subject was established. See 45
FR 29032. The preamble to that rule discusses
cases decided under statutes with statutory
language similar to Title V of the Act. That discus-
sion concludes that penalties should accrue from
the date of the actual unlawful conduct, and that
legal remedies exist to prevent penalties from add-
ing up during the course of a non-frivolous
challenge to the enforcement action. However, to
remove any ambiguity in the regulations, the time
when civil penalties begin accruing has been
clarified in the final procedures, as requested by
MVMA.
MVMA also raises several objections about the
provisions in the interim procedures for interven-
tion. These objections are generally based on the
concern that interveners might cause "un-
necessary confusion and delay" and thereby
adversely affect the rights of respondents. The
Act permits "any interested person" to participate
in enforcement proceedings, but does not specify
the nature of that "participation" right.
A number of authorities apparently support
limiting the extent of the participation in these en-
forcement proceedings to the "non-intervener"
status established in the interim procedures.
According to the Administrative Conference of the
United States,
Intervention or other participation in enforce-
ment or license revocation proceedings should
be permitted when a significant objective of the
adjudication is to develop and test a new policy
or remedy in a precise factual setting or when
the prospective intervener is the de facto charg-
ing party. Public participation in enforcement
proceedings, license revocations or other adjudi-
cations where the issue is whether the charged
respondent has violated a settled law or policy
should be permitted only after close scrutiny of
the effect of intervention or other participation
on existing parties.
Recommendations of the Administrative Conference
of the United States 1 CFR 301.71-6. Support for this
i
PART 511 -PRE 2
view is contained in Cramton, "The Why, Where,
and How of Broadened Public Participation in the
Administrative Process," 60 Georgetown Law
Journal 525 (1972) and Gellhorn, "Public Participa-
tion in Administrative Proceedings," 81 Yale Law
Journal 159 (1972). The scope of participation
should depend on "the nature of the issues, the in-
tervener's interests, its ability to present relevant
evidence and arguments, and the number, inter-
ests and capacities of the other parties." Adminis-
trative Conference, id.
The agency concurs with these authorities and
believes that the rights accorded "non-interven-
ers" under the interim procedures are sufficient
for all public participants. The non-interveners
were authorized to make a written or oral state-
ment of position, file proposed findings of fact, con-
clusions of law and a post hearing brief, and file an
appellate brief if an appeal is taken. Typical of the
issues which are likely to be raised in an enforce-
ment proceeding under the Act are questions
relating to the agency's authority to compel the
submission of information. Issues of this type
would likely be resolved on the basis of written
briefs and oral arguments by all parties in the pro-
ceeding, and all participants have the right to
make this type of submission. Issues involving
EPA test procedures and data are expected to be
resolved before that agency, and results of hear-
ings on those issues before EPA would be accepted
by NHTSA. For hearings involving purely factual
disputes, such as whether an automobile dealer
properly displayed gas mileage booklets, it is
unlikely that there will be any great interest in
participation in any capacity, much less as a full
party.
Therefore, the agency is limiting participation in
enforcement proceedings by individuals and
organizations other than the agency and the
respondent to the rights given "participants"
under the interim procedures. .A m?/one who desires
to participate in these proceedings may do so in
this manner.
MVMA also raises several issues relating to set-
tlement of cases involving alleged violations of the
requirements of Title V. Their first objection
relates to the extent to which NHTSA may com-
promise or settle cases involving violations of fuel
economy standards. MVMA interprets the regula-
tions to prohibit settlements even where, after
commencement of a proceeding, a clear error is
discovered in the basis for the action. In such
cases, the agency agrees that completion of the
proceeding on the basis of erroneous information
would be inappropriate. The regulations permit
"confession of error" type settlements through an
amended complaint. See section 511.13.
MVMA also suggests that criteria be added to
section 511.26 of the regulations to provide
guidance about the manner in which the agency
would exercise its discretion to settle non-stand-
ard cases. MVMA suggests that such factors as the
gravity of a violation and any good faith efforts to
comply be considered. The agency agrees that
these are relevant factors to be considered in set-
tling such a case, and the regulations have been
amended accordingly.
MVMA objects to NHTSA's characterization of
the authority to compromise standards-enforce-
ment cases as "discretionary," suggesting rather
that when any of the situations specified in section
508(b)(3) exists (bankruptcy, strike, fire, etc.), an
offset in the amount of the assessed civil penalty
should be automatic. MVMA fails to explain Con-
gress' use of discretionary, rather than mandatory,
language in that provision, however. Therefore,
the agency remains of the view that, when the
public interest so requires, the agency may not ac-
cept an offer of settlement based on one of the
enumerated criteria. In attempting to determine
whether the public interest requires the agency to
accept a particular offer of compromise, the agen-
cy needs, contrary to MVMA's assertion, informa-
tion on any steps a manufacturer has taken to
mitigate the effect of factors such as a fire or a
strike, financial documents assessing the manufac-
turer's ability to pay civil penalties, and the basis
for any FTC certification that payment of penal-
ties would result in a "substantial lessening of
competition." This information would be used by
NHTSA to assess the good faith of the manufactur-
er in seeking the compromise and the probability
that harm would result from payment of penalties.
Similarly, the imposition of conditions on a settle-
ment is specifically authorized by section 508(b)(3),
and the agency has elected to require conditions
(usually some not otherwise specifically required
action to promote improved automotive fuel econ-
omy) in most cases. This is done to help assure that
the settlement is in the public interest and that the
manufacturer has in fact acted in good faith by tak-
ing all reasonable actions to increase the average
PART 511 -PRE 3
#
fuel economy of its fleet of automobiles. Also, sec-
tion 511.26(e) is revised to clarify that the
Presiding Officer is to transmit all settlement
proposals to the Administrator.
MVMA argues that the interim procedures
should be amended to require that the Admin-
istrator provide a discussion of the basis for any
denial of a settlement offer. The regulations cur-
rently require such a discussion whenever a set-
tlement is allowed. The agency agrees that such a
requirement is appropriate to provide the public
with an explanation of the basis for the agency's
refusal to exercise its discretionary authority to
reduce civil penalties.
MVMA raises two points with respect to the
application of earned monetary credits to civil
penalties assessed for violations of fuel economy
standards. First, it is noted that the regulations
fail to acknowledge the existence of the credit
scheme established in section 508 of the Act, and
it is recommended that the regulations be amend-
ed to do so. NHTSA has no objection to making
such an addition to the current procedures.
MVMA and GM also argue that the reduction of
civil penalty liabilities in cases where one of the
events specified in section 508(b)(3)(B) occurs (fire,
strike, act of God) should be made without cor-
responding reduction of a monetary credit which
may exist for that manufacturer in another model
year. The Act authorizes the Secretary of
Transportation to reduce a civil penalty for a par-
ticular model year if that penalty was due in
whole or part to one of the specified fortuitous
events which affected that year's fleet of vehicles.
Nothing in the statute requires that another
year's earned credits would be affected by such a
reduction, and the agency does not contemplate
requiring that credits be used in such a situation.
MVMA's final major objection relates to the
manner in which test related issues will be raised
in enforcement hearings. That organization notes
in its comments that the preamble to the interim
procedures indicated that official notice might be
taken of EPA fuel economy test results in some
circumstances. It was not the agency's intention
to imply that test related issues would not be
challengeable by a manufacturer. Indeed, the
agency recognizes that the main factual questions
involved in a standards-enforcement case may
involve the acceptance or rejection of manufac-
turer-supplied fuel economy data, and other
issues such as the comparability of results of test
procedures used for measuring fuel economy to
results obtained under 1975 test procedures (see
section 503(d) of the Act). However, the agency
anticipates that issues involving aspects of the
fuel economy program which are administered by
EPA will be raised before that agency, not
NHTSA. MVMA suggests that NHTSA adopt
some form of compulsory joinder provision in the
regulations, whereby EPA would be made a party
in any hearing in which test related issues are
implicated. However, NHTSA knows of no prece-
dent for such a provision, and has doubt about the
existence of any authority for one Federal agency
to compel the participation of another agency in
the former's proceedings.
Although the agency is not at this time making
any changes in the regulations dealing with pro-
cedures for resolving test procedure related ques-
tions, it is considering seeking public comment on
an amendment to these rules which would require
that those issues be raised before EPA. EPA cur-
rently has a procedure for resolving disputes on
these matters (see 40 CFR 600.009) which should
satisfy the requirements of the Act for deter-
mination "on the record" of violations of fuel
economy requirements. Further, that agency is
best equipped by reason of its expertise to
resolve these technical issues under the statutory
division of responsibilities within the govern-
ment. Ideally, test related issues would be re-
solved solely before the EPA, with the results of
EPA's hearings being accepted by NHTSA as res
judicata. This approach would avoid any duplica-
tion of effort resulting from hearings on the same
issues before two different agencies.
Also suggested by MVMA are a number of
technical amendments to the regulations, which
are intended to make the language used more con-
sistent with that used in the Federal Rules of
Civil Procedure (FRCP) and the Federal Rules of
Evidence. The main advantage of relying on the
language used in these judicial rules is that
reference can be made to a body of a case law con-
struing that language where it is ambiguous,
while interpreting new language might involve
dealing with a series of cases of first impression.
It was mainly for that reason that the agency
relied in part on the Federal Rules of Civil Pro-
cedure as a model for certain provisions in the
interim procedures. See 49 FR 47508.
i
i
PART 511 -PRE 4
First, MVMA suggests changing the criterion
for permitting joinder of proceedings from the
"similar issues" requirement of the interim pro-
cedures, to a requirement of a "common question
of law or fact," as specified in Rule 42(a) of the
FRCP. Also, MVMA suggests permitting joinder
where to do so would "tend to avoid unnecessary
costs or delay" as required under Rule 42(a),
rather than "to such extent and upon such terms
as may be deemed proper," as the interim pro-
cedures permitted. In addition, MVMA recom-
mends the addition of a provision like that in Rule
42(b) which would permit separate hearings where
doing so would promote economy or convenience
or would avoid prejudice to a party. Since adopting
these suggestions would help clarify the pro-
cedures, the final rule has been amended accord-
ingly.
A number of changes to the interim procedures
in the area of discovery are also suggested by
MVMA. First, MVMA suggests that the discovery
procedures be modeled more closely after Rule 26
of the FRCP, for reasons of ease of application (as
discussed earlier) and fairness. The interim pro-
cedures provided that all relevant material is
discoverable, with the only stated exception being
documents accompanying the agency staffs
recommendation as to whether a complaint should
issue. The Rule 26 procedure would exclude at-
torney's work product, the mental impressions,
conclusions, and opinions of a party's attorney,
and would permit discovery of materials prepared
in anticipation of litigation only on a showing of
need and the inability to obtain the same material
in some other manner. Considerations of fairness
militate in favor of making this change. The factual
portions of documents accompanying the agency
staffs recommendations on a complaint would be
made available to all parties, as part of the com-
plaint, and the opinion portions of that material
would be protected under Rule 26-type procedure.
Further, the privileged status of attorney's work
product is well established in both judicial and ad-
ministrative contexts. Therefore, the final pro-
cedures adopt this recommendation.
MVMA also recommends that only those ex-
perts who may be called to testify should be sub-
ject to discovery. The agency cannot accept this
suggestion. It may be that certain experts within a
corporation may hold opinions which are highly
relevant to a proceeding, but those experts may
not be called as witnesses by the corporation.
Without the opportunity for opposing parties to
obtain information on the identity and views of
these individuals through discovery, it would be
impossible for those parties to determine whether
the experts should be called as witnesses, and
relevant information and qualified opinions could
be lost. Therefore, the provision in the interim
procedures is retained in the final procedures.
The interim procedures could be interpreted to
require that the person who answered each in-
dividual written interrogatory must sign that
answer and MVMA recommends clarifying this
point to permit a single representative of a cor-
porate party to sign. The agency is adopting this
suggestion. MVMA also suggests that the 20 day
period for responding to a request for production
of documents be extended to 30 days. However,
the interim procedures already permit the 20 day
period to be extended, when necessary. Therefore,
in the interest of expediting proceedings, this
recommendation was not adopted in the final pro-
cedures. MVMA's recommendation that testimony
of any party or its representatives be permitted as
soon as an answer is filed has been adopted, to
make that provision consistent with the rest of the
discovery provisions in the regulation. The interim
procedures vested substantial control over such
testimony in the Presiding Officer, and this control
is retained in the final procedures. The Presiding
Officer can assure that parties do not abuse the
right to have such testimony taken to create delay,
or where written forms of discovery would be
more appropriate. The interim procedures have
also been amended to permit parties to preserve
the testimony of any witness, not just the parties'
own witnesses. However, the reference in the
MVMA comments to perpetuation of testimony
pursuant to Rule 27 of the FRCP is not applicable
to the provision found in section 511.35(h). This
provision is intended to permit the taking and
preservation of testimony from a witness who is
expected to be unable to attend the hearing, but
not prior to the commencement of the proceeding
as is permitted by Rule 27. Because administrative
law judges will not ordinarily be appointed until
after proceedings begin, it will be impracticable to
obtain leave of the Presiding Officer to perpetuate
testimony in anticipation of a complaint not yet
issued. Moreover, adjudicative proceedings under
the Act are unlikely to present issues of fact deter-
PART511-PRE 5
minable exclusively upon the testimony of unique
witnesses who might be available to testify only
at times before the commencement of proceed-
ings. Therefore the agency does not perceive a
need for proving a procedure for perpetuation of
testimony fully analogous to that found in Rule 27
of the FRCP.
Also in accord with the decision to conform as
much as practicable with the language of the
FRCP where a similar procedure is intended, the
prescribed uses of deposition testimony found in
511.35(i) are amended to parallel Rule 32 of the
FRCP.
MVMA also argues that some of the sanctions
specified in the interim procedures for failure to
comply with a discovery order are too extreme,
have no counterpart in the FRCP, and should be
eliminated. The cited sanction, excluding all mat-
ter obtained in discovery or excluding the
recalcitrant party, does in fact have a counterpart
in the FRCP (see Rule 37(b)(1)(B) and (C) which
permit prohibitions on introducing "designated
matters in evidence" and "rendering a judgment
by default against the disobedient party") and
would only be applied where "just," as in the
FRCP. Therefore, no change to the interim pro-
cedures is made with respect to this point. Nor
has the agency adopted MVMA's suggestion that
sanctions be imposed immediately or not at all.
The significance of a failure to comply with a
discovery order may not become fully apparent
until well after the failure to comply.
Modifications to the procedure for motions to
quash or limit subpoenas were also suggested by
MVMA. MVMA suggests that provision be made
for extending the time to respond to the subpoena
or the motion to quash, that an appeal procedure
be added, that denials of motions to quash be
made on the record, and that the Presiding Of-
ficer be permitted to modify subpoenas. Section
511.15 of the interim procedures already provides
for time extensions, when necessary. Interlocu-
tory appeals are permitted on these matters
where confidential information is involved or
where compliance with the subpoena somehow in-
volves a controlling question of law or policy. The
time limit for the filing of an application for in-
terlocutory appeal has been clarified to make it
applicable to all such applications and not just
those advancing one of the grounds set forth in
section 511.24(b)(1). Appeals are also permitted
after a final decision under the interim pro-
cedures. Allowing appeals in other cases would
unnecessarily delay the proceeding. The agency
has adopted suggestions by MVMA that reasons
for denials of motions to quash be provided on the
record and that "modifications" of a subpoena be
authorized.
MVMA further suggests elimination of "confu-
sion of issues" as grounds for excluding evidence.
As MVMA notes, this factor appears in the
Federal Rules of Evidence primarily to apply to
jury trials, where jurors might be unable to deal
with certain complex issues. This factor is deleted
in the final procedures since it is not fully rele-
vant and tends to duplicate the criteria of rele-
vance, undue delay, and the needless presenta-
tion of cumulative evidence.
The final group of objections raised by MVMA
involve the handling of in camera or confidential
materials. First, it is argued that certain informa-
tion beyond that protected under the Freedom of
Information Act 5 U.S.C. 552, should be entitled
to in camera treatment in an enforcement hear-
ing. Among this type of material would be
material which might be embarrassing or other-
wise sensitive, but which would not qualify as a
trade secret or fall within any of the other
exempt classes of information in the Freedom of
Information Act. The agency cannot accept this
contention since section 505(d)(1) of the Cost
Savings Act requires the agency to disclose any
fuel economy related information to the public,
except in the case of trade secret information.
The procedures have been clarified to permit
interlocutory appeals of a ruling of the Presiding
Officer denying in camera treatment for infor-
mation claimed to be confidential. The interim
procedures permitted an immediate appeal on
rulings requiring the production of documents
claimed to be confidential, but not explicitly in
the similar situation involving a denial of in
camera treatment. All such rulings are auto-
matically stayed for 10 days, permitting the ag-
grieved party to appeal.
MVMA has suggested that advance determina-
tions of confidentiality be made by the agency
(i.e., a submitter of information would be permit-
ted to withdraw that information if a request for
in camera treatment is denied). The agency will
address this question in detail in its forthcoming
final rule on Confidential Business Information.
f
4
I
PART 511 -PRE 6
Until that rule is issued, the agency will abide by
its proposed procedures which do not provide for
advance determinations (due to concerns about
consistency with the Freedom of Information
Act). See 43 FR 22412 (May 25, 1978).
MVMA requests that criteria and procedures
be established for denying requests for in camera
treatment. The interim procedures specified that
the criteria and procedures to be used are those
for determining whether information is entitled
to confidential treatment under the Freedom of
Information Act, as noted above. Those criteria
and procedures are spelled out in that Act, in the
case law under that Act, and in the agency's pro-
posed confidentiality regulations cited in the
previous paragraph. Therefore, no change to the
interim procedures is being made in this area.
MVMA also argues that reference must be
made in the regulations to 44 U.S.C. 3508, which
provides generally that when an agency receives
confidential information from another govern-
ment agency, employees of the receiving agency
are fully liable for any unauthorized release of
that information. In this regard, MVMA claims
that the provisions of 44 U.S.C. 3508 govern and
"take precedence over" any decision by the agen-
cy to release the information. If the implication of
this comment is that NHTSA is bound by the
determination of the agency that provides the in-
formation that the information is confidential, or
that NHTSA's discretionary authority to release
confidential information does not apply to infor-
mation obtained from another agency, then
NHTSA cannot agree that 44 U.S.C. 3508 compels
that result. NHTSA agrees that the statutory
provision in question applies to an unauthorized
release of confidential information obtained from
another agency, but no conflict between that pro-
vision and the current procedures is apparent.
Therefore, no change to the regulation is required
on this point.
At the request of MVMA, the interim proce-
dures have been clarified to assure that the grant-
ing of motions for access to in camera materials
will be done on the record. This was implicit in
the regulation, since the granting of such a
motion must be accompanied by a protective
order preventing unnecessary disclosure of the
information.
MVMA also recommends that sanctions be
specified in the regulations for the unauthorized
release by a party of in camera materials. Sug-
gested sanctions include denial of the right to con-
tinue as a party of participant and the denial of
access to other in camera materials. Section
511.76 of the interim procedures permits the ex-
clusion of a party, participant, or one of their rep-
resentatives in such a case. The agency agrees
that it is appropriate to add the second sanction
mentioned above to the regulations, and will do so
in the final procedures. However, the agency fails
to see how MVMA's recommendation that per-
sons seeking access to confidential information be
required to agree in writing and in advance to
comply with the terms of a protective order will
have any added impact on a party or other person
who is unwilling to comply with the order.
MVMA's final comment notes that the agency
should not lightly use its discretionary authority
to release confidential information. To date, the
agency has rarely used this authority under sec-
tion 505(d)(1) of the Cost Savings Act, and has
taken steps to minimize the impact of such a
release on the submitter of the information when
the authority has been used. This policy will
continue.
A small number of further minor changes have
been made to the regulations in the interest of
reducing unnecessary burdens on parties or par-
ticipants in proceedings and on the agency itself.
First, the interim procedures imply that a full
scale hearing is held each time a complaint is
issued, whether the respondent wants the full
hearing or not. The final procedures permit
respondents to request a full hearing (and such
requests will always be honored) or permits the
respondent to make its case solely on written sub-
missions or otherwise, if it desires. Also, some
requirements as to the size of paper on which
documents are printed, the size of margins, and
the type of print to be used have been deleted.
Finally, the requirement that a copy of the entire
complaint in every enforcement case (including
dealer-mileage guide cases) be printed in the
Federal Register has been deleted in favor of a
more limited requirement that a notice be pub-
lished generally describing the proceeding and
providing information on public participation in
the proceeding.
The agency has determined that the establish-
PART 511 -PRE 7
f
ment of these procedures does not constitute a Issued on December 3, 1980.
"major Federal Action significantly affecting the
environment," and therefore, an environmental
impact statement is not required. Nor should
these procedures establish any additional costs Z 7^. T T
beyond those imposed by the Cost Savings Act . , ...
•X If mi. r n 1 4. A i ■ • Admmistrator
itself. Therefore, no Regulatory Analysis is re-
quired to be prepared under Executive Order 45 FR 81574
12221. December 11, 1980
I
I
PART 511 -PRE 8
PREAMBLE TO AN AMENDMENT TO PART 511— ADJUDICATIVE PROCEDURES;
AUTOMOTIVE FUEL ECONOMY ENFORCEMENT
ACTION: Final rule; Technical amendment.
SUMMARY: Since the National Highway Traffic
Safety Administration promulgated 49 DFR Part
511, its regulation governing adjudicative proceeding
pursuant to section 508(a) of the Motor Vehicle
Information Cost Savings Act (15 U.S.C. 2008(a)),
there has been established within the Department of
Transportation an Office of Hearings which has the
authority to conduct proceedings under section 508.
The purpose of this rule is to amend Part 511 solely to
reflect the fact that the Office of Hearings in the
Department of Transportation will now be
responsible for the appointment of the Presiding
Officer at such proceedings, and that the Docket
Section of the Office of the Secretary of
Transportation shall be responsible for performing
the duties which Part 511 formerly assigned to the
Executive Secretary of the National Highway Traffic
Safety Administration, and for maintaining the
docket of proceedings brought pursuant to section
508.
EFFECTIVE DATE: May 3, 1988.
SUPPLEMENTARY INFORMATION:
Section 508(a) of the Motor Vehicle Information
and Cost Savings Act (15 U.S.C. 2008(a)) provides
that there is a right to an agency hearing on the
record prior to a determination that a manufacturer
has violated a fuel economy standard or that any
person has violated section 507(a)(3) of the Act. 15
U.S.C. 2007(a)(3). The procedures governing the
conduct of an adjudicative hearing under section
508(a) are set forth at Part 511 of the regulations of
the National Highway Traffic Safety Administration.
49 CFR Part 511.
When NHTSA adopted Part 511, there was no
office within the Department of Transportation with
responsibility for appointment of hearing officers to
conduct adjudicative proceedings, and for carrying
out administrative functions associated with such
hearings. Accordingly, Part 511 provided that the
presiding officer at adjudicative proceedings would be
appointed by the Director of the Office of
Administrative Law Judges, Office of Personnel
Management. 49 CFR 511.3(9). The rule assigned the
various administrative functions, such as the filing of
pleadings and other documents, to the Executive
Secretary of the National Highway Traffic Safety
Administration, and provided that the docket for such
proceedings would be maintained in NHTSA' s docket
section.
There is now within the Department of
Transportation an Office of Hearings, which is
authorized to conduct formal proceedings under the
Motor Vehicle Information and Cost Savings Act.
Therefore, it is no longer necessary to request
appointment of a presiding officer for such a
proceeding through the Office of Administrative Law
Judges of the Office of Personnel Management. In
addition, because the Office of Hearings will be
responsible for appointing the presiding officer that
office should also be responsible for the other
administrative fimctions formerly vested in the
Executive Secretary of NHTSA, and for maintaining
the docket of the proceedings. Centralizing these
functions in one office will best ensure the efficient
conduct of these proceedings.
This technical amendment merely conforms
NHTSA's regulation governing adjudicative
proceedings to a change in the organization of the
Department of Transportation which now permits the
administration of such proceedings to be centralized
in one office within the Department. It affects only
the agency's internal procedures, and imposes no
obligations or responsibilities on any party, nor does
it alter any existing obligations. Accordingly,
NHTSA finds for good cause that notice and
opportunity for comment are unnecessary, and this
technical amendment is effective on the date this
notice is published.
The amendments to Part 511, set forth below,
relate solely to procedures for the conduct of
PART 511-PRE 9
proceedings that are governed by Sections 556 and
557 of Title 5, United States Code, and thus are not
covered by Executive Order 12291 and the
Department of Transportation's regulatory
procedures. For the same reasons, NHTSA has
determined that this technical amendment will not
significantly affect the human environment, after
consideration in accordance with the National
Environmental Policy Act. Likewise, I hereby certify
that this technical amendment will not have a
significant impact on a substantial number of small
entities, after making the evaluations required by the
Regulatory Flexibility Act. Finally, NHTSA has
analyzed this action in accordance with the principles
the criteria contained in Exective Order 12612, and
has determined that the final rule does not have
sufficient preparation of a Federalism Assessment.
List of Subjects in 49 CFR Part 511
Administrative practice and procedure, Investiga-
tions, Penalties.
In consideration of the foregoing, 49 CFR Part 511
is amended as set forth below:
1. The authority citation for Part 511 is revised to
read as follows:
Authority: 15 U.S.C. 2002; delegation of authority at 49
CFR 1.50.
2. Section 511.3(a)(9) and (11) are revised, and
(a)(13) and (14) are added to read as follows:
§511.3 Definitions.
(a) * * *
(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
Hearing, United States Department of Trans-
portation.
Ht * * * *
(11) The term "Office of Hearings" means the
Officer of Hearing, Department of Transportation.
*****
(13) The term "Chief Administrative Law Judge"
means of the Chief Administrative Law Judge of the
Office of Hearings, Department of Transportation.
(14) The term Docket sections means the Docket
Section, Office of the Secretary of Transportation.
3. Section 511.14(a) is revised to read as follows:
§ 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, D.C. 20590. Documents may be
filed in person or by mail and shall be deemed filed on
the day of filing or mailing.
*****
4. Section 511.16(a) is revised to read as follows:
§51 1.1 6(a) 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.
*****
5. Section 511.17 is revised to read as follows:
§ 511.17 Public participation.
Participation 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 proceedings as a nonparty shall be
known as a "participant" and shall have the rights
specified in § 511.41(d).
6. Section 511.26(h) is revised to read as follows:
§511.26 Settlement.
(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.
%
PART 511-PRE 10
7. Section 511.31(h) is revised to read as follows:
§ 511.31 General provisions regarding discovery.
*****
(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.
*****
8. Section 511.35(e)(2) is revised to read as follows:
§511.35 Testimony upon oral examination.
*****
(e) Transcription and filing of testimony—
*****
(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.
*****
9. Section 511.38(b) is revised to read as follows:
§511.38 Subpoenas.
*****
(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
Administrative Law Judge or by the Presiding
Officer. A subpoena duces tecum shall specify the
books, papers, documents or other materials or data-
compilations to the produced.
*****
10. Section 511.42(e) is revised to read as follows:
§511.42 Powers and duties of Presiding Officer.
(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 the 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.
11. Section 511.48 is revised to read as follows:
§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 S.W.,
Washington, D.C. 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),
12. Section 511.67 is revised to read as follows:
§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
PART 511-PRE 11
the Administrator's discretion in allowing the
settlement, including a discussion of comments
received under § 511.65. If the Administrator rejects
a petition and the reasons for the rejection to the
parties and the Presiding Officer.
13. Section 511.73(b) is revised to read as follows:
§511.73 Written appearances.
*****
(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 with five (5) days of the effective date of the
withdrawal of the appearance.
14. Section 511.75(a) is revised to read as follows:
§ 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
applications to appear in the proceedings.
15. Section 511.78 (e)(1), (2)(ii), (3), (4) and (5) are
revised to read as follow:
§ 511.78 Prohibited communications.
maker 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. * * *
(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 communi-
cation 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 its 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.
(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 decision-
Issued on April 29, 1988.
Diane K. Steed,
Administrator
53 F.R. 15782
May 3, 1988
PART 511-PRE 12
PREAMBLE TO AN AMENDMENT TO PART 511— ADJUDICATIVE PROCEDURES;
AUTOMOTIVE FUEL ECONOMY ENFORCEMENT
ACTION: Final rule.
SUMMARY: This Notice incorporates a delegation of
authority to the Deputy Administrator and, in the
absence of the Administrator and the Deputy
Administrator, to the Managing Director to exercise
all authority lawfully vested in the Administrator and
reserved to him or her, except where specifically
limited by law, order, regulation or instruction. This
Notice also makes technical revisions to the agency's
organization and delegation rules, including the
correction of legal citations, updating to reflect
recent statutory enactments, and inclusion of
materials which had been inadvertently omitted in
previous printings of the Code of Federal
Regulations.
EFFECTIVE DATE: July 12, 1988.
SUPPLEMENTARY INFORMATION:
Due to internal reorganization, the National
Highway Traffic Safety Administration is amending
its delegation of authority to allow the Deputy
Administrator to exercise, in the Administrator's
absence, those authorities previously reserved to the
Administrator and to allow the Managing Director to
exercise those authorities previously reserved to the
Administrator in the absence of both the
Administrator and the Deputy Administrator.
Additionally, because of internal agency
reorganization, the position of Executive Secretary is
retitled the Director of the Executive Secretariat and
is assigned the function previously delegated to the
Executive Secretary, with the exception of subpoena
authority. This authority is transferred from the
Director of the Executive Secretariat to the Chief
Counsel.
The amendment set forth below relates solely to the
organization and assignment of duties within the
agency, and has no substantive regulatory effect.
Thus, it is not covered by the notice and comment and
effective date requirements of the Administrative
Procedure Act or the requirements of Executive
Order 12291 or the Department of Transportation's
regulatory policies and procedures. Notice and public
procedure are, therefore, not required, and the
amendment may be made effective in less than thirty
days after publication.
Section 511.38 is revised to read as follows:
(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.
« * * * «
(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.
* * » * *
(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 has been completed.
Issued on May 27, 1988.
Diane K. Steed,
Administrator
53 F.R. 26257
July 12, 1988
PART 511-PRE 13-14
>i
%
PART 511— Adjudicative Procedures
Subpart A— Scope of Rules; Nature of
Adjudicative Proceedings,
Definitions
511.37
511.38
511.39
Sec.
511.1
511.2
511.3
Scope of the rules.
Nature of adjudicative proceedings.
Definitions.
Subpart B— Pleadings; Form; Execution;
511.41
511.42
Service of Documents
511.11 Commencement of proceedings.
511.43
511.44
511.45
511.12 Answer.
511.46
511.13 Amendments and supplemental pleadings.
511.47
511.14 Form and filing of documents.
511.48
511.15 Time.
511.49
511.16 Service.
511.17 Public participation.
511.18 Joinder of proceedings.
511.51
Subpart C— Prehearing Procedures; Motions:
511.52
511.53
Interlocutory Appeals; Summary
511.54
Judgment; Settlement
511.21 Prehearing conferences.
511.55
511.22 Prehearings briefs.
511.56
511.23 Motions.
511.57
511.24 Interlocutory appeals.
511.25 Summary decision and order.
Subpe
511.26 Settlement.
Subpart D— Discovery; Compulsory Process
511.61
511.31 General provisions governing discovery.
511.62
511.32 Written interrogatories to parties.
511.63
511.33 Production of documents and things.
511.64
511.34 Requests for admission.
511.65
511.35 Testimony upon oral examination.
511.66
511.36 Motions to compel discovery.
511.67
PART
511-1
Sanctions for failure to comply with order.
Subpenas.
Orders requiring witnesses to testify or
provide other information and granting
immunity.
Subpart E— Hearings
General rules.
Powers and duties of presiding officer.
Evidence.
Expert witnesses.
In camera materials.
Proposed findings, conclusions, and order.
Record.
Official docket.
Fees.
Subpart F— Decision
Initial decision.
Adoption of initial decision.
Appeal from initial decision.
Review of initial decision in absence of
appeal.
Final decision on appeal or review.
Effective date of order.
Effective date of order.
Subpart G— Settlement Procedure in Cases
of Violation of Average Fuel
Economy Standards
Purpose.
Definitions.
Criteria for settlement.
Petitions for settlement; timing; contents.
Public comment.
Confidential business information.
Settlement order.
Subpart H— Appearances; Standards
of Conduct
[Authority: 15 U.S.C. 2002; delegation of
authority at 49 CFR 1.50.1 (53 F.R. 15782— May 3,
1988. Effective: May 3. 1988)
Subpart A— Scope of Rules; Nature of
Adjudicative Proceedings, Definitions
§ 511.1 Scope of the rules.
This part establishes rules of practice and pro-
cedure for adjudicative proceedings conducted pur-
suant 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, Sec. 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, United States Code, sec-
tions 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 part.
(2) The term "NHTSA" means the National
Highway Safety Administration.
(3) The term "Administrator" means the
Administrator of the National Highway Safety
Administration.
(4) The term "Complaint Counsel" means
prosecuting 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 re-
quest, 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, United States Code,
section 3105 and assigned by the [Chief
Administrative Law Judge, Office of Hearings,
United States Department of Transportation.) (53
F.R. 15782— May 3, 1988. Effective: May 3. 1988)
(10) The term "Respondent" means any per-
son against whom a complaint has been issued.
(11) [The term "Office of Hearings" means
the Officer of Hearings, Department of Transpor-
tation.] (53 F.R. 15782— May 3, 1988. Effective: May
3, 1988)
(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 sections means the
Docket Section, Office of the Secretary of
Transportation.) (53 F.R. 15782— May 3, 1988. Ef-
fective: May 3, 1988)
Subpart B— Pleadings; Form; Execution;
Service of Documents
§ 511.11 Commencement of proceedings.
(a) Notice of institution of an enforcement pro-
ceeding. An adjudicative proceeding under this
part is commenced by the issuance of a complaint
by the NHTSA.
(b) Form and content of complaint. The com-
plaint 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.
#
Rev. 5/3/88
PART 511-2
(2) Identification of each respondent.
(3) A clear and concise statement of the
charges, sufficient to inform each respondent with
reasonable definiteness of the factural 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 in-
terest, 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) and (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 Federal Register for publication. The notice
in the Federal Register shall briefly describe the
nature of the proceeding and state that permits to
participate in the proceeding must be filed no later
than the first prehearing conference.
§ 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) Reqtcest for hearing. Respondent shall
state whether it requests a full, adjudicatory hear-
ing 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 con-
stitute 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 Of-
ficer upon motion, may allow appropriate amend-
ments 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 of Transportation,
Room 4107, 400 Seventh Street, S.W.,
Washington, D.C. 20590. Documents may be filed
in person or by mail and shall be deemed filed on
the day of filing or mailing.l (53 F.R. 15782— May
3, 1988. Effective: May 3. 1988)
(b) Caption. Every document shall contain a
caption setting forth the name of the action in con-
nection 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, pro-
vided that all copies filed are clear and legible.
(d) Signature. (1) The original of each docu-
ment 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, partner-
ship, or association, who files an appearance on
behalf of the party.
(Rev. 5/3/88)
PART 511-3
(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 behef, 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 Simday,
or a legal holiday, in which event the period runs
until the end of the next day which is not a Satur-
day, a Sunday, or a legal holiday. When the period
of time prescribed or allowed is less that 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 Ad-
ministrator, 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 par-
ticipants, and upon the Presiding Officer. (53 F.R.
15782— May 3, 1988. Effective: May 3, 1988)
(b) Service of complaint, ruling, order, decision,
or subpena. Service of a complaint, ruling, order,
decision, or subpena 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 ex-
ecutive 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, cor-
poration, unincorporated association, or author-
ized 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 part-
nership 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
rimning of a prescribed period of time for the sub-
mission of a responsive document or the occur-
rence 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 represen-
tative, service upon that attorney or other represen-
tative shall constitute service on the party.
f
#
(Rev. 5/3/88)
PART 511-4
(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:
Dated at this
day of , 19 .
(Signature)
For
(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. Un-
timely filings will not be accepted absent a deter-
mination by the Presiding Officer that the person
making the request has made a substantial show-
ing of good cause for failure to file on time. Any
person who files a notice to participate in the pro-
ceeding as a nonparty shall be known as a "partici-
pant" and shall have the rights specified in
§ 511.41(d). (53 F.R. 15782— May 3, 1988. Effective:
May 3, 1988)
§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 con-
solidation for purpose of hearing may be filed with
the Presiding Officer by any party to such pro-
ceedings not later than thirty (30) days prior to the
hearing. A motion for consolidation for the pur-
pose 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, approxi-
mately fifty (50) days after publication in the
Federal Register of the complaint, upon ten (10)
days notice to all parties and participants, to con-
sider any or all the following:
(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 subpenas 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) Matter of which official notice will be
taken and matters which may be resolved by
reliance upon findings of other Federal agen-
cies; 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
(Rev. 5/3/88)
PART 511-5
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 Pre-
siding 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 therefore. 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. AU 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 serv-
ice 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 iden-
tifiable 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, the respondents, or is granted as to any part of
the allegations in regard to any or all 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 in-
terlocutory 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 rul-
ings— (\) 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 termina-
tion of the litigation, or that subsequent review
will be an inadequate remedy.
(ii) Form. If the Presiding Officer deter-
mines, in accordance with paragraph (bX3Xi) of
this section that an interlocutory appeal may
(C
i
PART 511-6
proceed a petition for interlocutory appeal may
be filed with and acted upon by the
Administrator in accordance with paragraph
(bX2) of this section.
(c) Proceedings not stayed. A petition for in-
terlocutory 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 pro-
duction 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(bX2).
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 sup-
porting memorandum, for a Summary Decision
and Order in its favor upon all or any of the issues
in controversy. Complaint Coimsel 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 memorandimi.
(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 accord-
ance 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 Sum-
mary 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
opportimity 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 accom-
panied 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 non-
compliance, or violation;
(4) Provisions to the effect that the allegations
of the complaint are resolved by the proposed con-
sent agreement and order;
(5) A listing of the acts or practices from
which the respondent shall refrain;
(6) A detailed statement of the corrective ac-
tion(s) which the respondent shall execute 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
PART 511-7
(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 pro-
posed consent agreement by filing a motion and sup-
porting memorandum with the Administrator.
(f) Stay of proceedings. When an offer of settle-
ment has been agreed to by the parties and has
been transmitted to the Administrator, the pro-
ceedings shall be stayed until the Administrator
has ruled on the offer. When an offer of settlement
has been made and transmitted to the Administra-
tor 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 Adminis-
trator shall issue an appropriate order. The order
shall become effective upon issuance. In deter-
mining whether to accept an offer of settlement, the
Administrator will consider the gravity of the al-
leged 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 resump-
tion of the proceedings, including any modifica-
tions to the schedule resulting from the stay of the
proceedings. (53 F.R. 15782— May 3, 1988. Effec-
tive: May 3, 1988)
(i) Effect of rejected offer. Rejected offers of set-
tlement 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) A-pplicahilty. The discovery rules established
in this subpart are applicable to the discovery of
information among the parties to a proceeding. Par-
ties seeking information from persons not parties
may do so by subpena 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 pro-
duction of documents or things; (3) requests for
admissions; (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 rele-
vant to the subject matter involved in the pro-
ceedings, 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 inad-
missible 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 an 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
•
(Rev. S/3/88)
PART 511-8
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.
If a motion for a protective order is denied in
whole or in part, the Presiding Officer may, on
such terms or conditions as are just, order that any
party provide or permit discovery.
(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 sup-
plement 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 cir-
cumstances 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. (53 F.R. 15782— May 3, 1988.
Effective: May 3, 1988)
(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 inter-
rogatories 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. Inter-
rogatories may, vdthout 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 responsi-
ble representative of the respondent and the objec-
tions signed by the respresentative making them.
The party upon whom the interrogatories have been
served shall serve a copy of the answers, and objec-
tions if any, within 30 days after service of the inter-
rogatories. The Presiding Officer may allow a
shorter or longer time for response. The party sub-
mitting 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 inter-
rogatory 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 inter-
rogatory 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
the party, to inspect and copy any designated
documents (including writings, drawings, graphs,
(Rev. 5/3/88)
PART 511-9
charts, photographs, phono-records, and any other
data-compOation 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 posses-
sion, 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 objec-
tion 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 ad-
mission, 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 if 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.
The answer shall specifically admit or deny the
matter or set forth in detail the reasons why the
answering party cannot truthfully admit or deny
the matter. A denial shall fairly meet the substance
of the requested admission. When good faith
requires that a party qualify an answer or deny
only a part of the matter as to which an admission
is requested, the party shall specify the portion
that is true and qualify or deny the remainder. An
answering party may not give lack of information
or knowledge as a reason for failure to admit or
deny, unless the party states that he or she has
made reasonable inquiry and that the information
known or readily available to him or her is insuffi-
cient to enable him or her to admit or deny. A party
who considers that a matter as to which an admis-
sion has been requested presents a genuine issue
for hearing may not, on that ground alone, object
to the request but may deny the matter or set forth
reasons why the party cannot admit or deny it. The
party who has requested an admission may move
to determine the sufficiency of the answer or objec-
tion thereto in accordance with § 511.36. If the
Presiding Officer determines that an answer does
not comply with the requirements of this section,
he or she may order that the matter be deemed
admitted or that an amended answer be served.
(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.
(fli
PART 511-10
i^
§ 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, con-
sultants 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
subpena as provided in § 511.38.
(b) Notice of oral examination.— (1) Examina-
tion of a party. A party desiring to examine
another party to the proceeding shall, after obtain-
ing 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 subpena diices tecum is to be served on the
person to be examined, the designation of the
materials to be produced, as set forth in the
subpena, 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
subpena, 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
subpena by the Presiding Officer of 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 therefore. 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 ex-
amination 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 represen-
tative, 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 represen-
tatives may be present and participate in the
examination. Examination and cross-examination
of witnesses may proceed as permitted at the hear-
ing. Questions objected to shall be answered sub-
ject 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 ex-
amination, 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 con-
tained therein to the witness.
(e) Transcription and filing of testimony.— {!)
Transcription. Upon request by any party, the
testimony recorded at an examination shall be tran-
scribed. When the testimony is fully transcribed,
the transcript shall be submitted to the witness for
examination and signing, and shall be read to or
PART 511-11
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 [Docket
Section] shall furnish a copy of the transcript to
any party or to the witness upon payment of
reasonable charges therefor. (53 F.R. 15782— May
3, 1988. Effective: May 3. 1988)
(f) Costs of examination. The party who notices
the examination shall pay for the examination. The
party who requests transcription of the examina-
tion shall pay for the transcription.
(g) Failure to attend or to serve subpena;
expenses. If a party who notices an examination
fails to attend and proceed therewith and another
party attends in person or by a representative pur-
suant 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 subpena 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 ex-
amination 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 perpetua-
tion 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 examina-
tion shall be taken in accordance with the provi-
sions 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 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 or 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.
f
•
(Rev. 5/3/88)
PART 511-12
or imprisonment; or (iv) that the party offering the
deposition has been unable to procure the attend-
ance of the witness by subponea; or (v) upon
application and notice, that such exceptional cir-
cumstances 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 deposi-
tion 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 in-
complete 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 it would have been empowered to make on a
motion pursuant to § 511.31(d). When making oral
examinations, the discovery 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, docu-
ment of other evidence would have been adverse to
the party;
(b) Order that for the purposes of the pro-
ceeding, 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 ad-
mission, 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, con-
cerning 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).
Any such action may be taken by order at any
point in the proceedings.
§ 511.38 Subpenas.
(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-compilation to be produced. (53 F.R.
26257— July 12, 1988. Effective: July 12, 1988)
(c) How obtained— {!) 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 ac-
company 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.
(Rev. 7/12/88)
PART 511-13
(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
be forwarded to the [Chief Counsel) for retention
in the docket of the proceeding. (53 F.R.
26257— July 12, 1988. Effective: July 12, 1988)
(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 sub-
poena 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 accom-
panied by the return of service, shall be returned
forthwith to the [Chief Counsel] after service has
been completed. (53 F.R. 26257— July 12, 1988. Ef-
fective: July 12, 1988)
(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
opinion of the Presiding Officer such relief is in-
sufficient, 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, United States Code,
section 6002, may make a motion to that effect.
The motion shall be made and ruled on in accord-
ance 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 immimity unless he or she deter-
mines 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 imposi-
tion 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 Federal
Register.
i
(Rev. 7/12/88)
PART 511-14
(b) Expedition. Hearings shall proceed with all
reasonable speed, and insofar as practicable and
with due regard to the convenience of the parties
and shall continue without suspension until con-
cluded, 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 objec-
tion, motion, brief, and argument.
(d) Rights of participants. Every participant
shall have the right to make a written or oral state-
ment 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 subpena
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 subpenas;
(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 represen-
tatives 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 order 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,
United States Code, 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, partici-
pant, 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 provi-
sions 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.) (53 F.R. 15782— May 3,
1988. Effective: May 3, 1988)
(2) Whenever, for any reason, any party
shall deem the Presiding Officer to be disquali-
fied 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) set-
ting forth the alleged grounds for disqualification. A
copy of the motion and supporting affidavit(s)
(Rev. 5/3/88)
PART 511-15
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 Admin-
istrator. If the Presiding Officer does not dis-
qualify 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 dis-
qualification take appropriate action, by assigning
another Presiding Officer or requesting loan of
another Administrative Law Judge through the
[Office of Hearings]. (53 F.R. 15782— May 3, 1988.
Effective: May 3, 1988)
§ 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 nonper-
suasion, 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 local conclusions drawn from
those facts. An officially noticed fact or legal con-
clusion 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 permis-
sible 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 prof-
fered 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 knowledge 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.
I
«
(Rev. 5/3/88)
PART 511-16
(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 ex-
amination, 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 Ad-
ministrator, 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 re-
viewing courts to order disclosure of in camera
materials is specifically reserved.
(b) In Camera Treatment of documents and
testimony. The Presiding Officer or the Admin-
istrator, 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 treat-
ment for the specified length of time.
(c) Access and disclosure to parties. (1) The
Administrator and Presiding Officer, and their im-
mediate 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 sec-
tion when:
(i) The in camera materials consist of infor-
mation obtained by the government from per-
sons 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 therefore.
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 un-
necessary disclosure and requiring other necessary
safeguards. The Presiding Officer or the Admin-
istrator, as appropriate, may examine the in camera
materials and excise portions thereof before dis-
closing 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 confi-
dential records of the NHTSA and shall not be
released to the public until the expiration of in
camera treatment.
PART 511-17
(f) Reference to in camera materials. In the sub-
mission 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 "CONFIDEN-
TIAL, 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 facts, conclu-
sions of law and a proposed order, together with
reasons therefore. The Presiding Officer shall
estabhsh 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
liling 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 super-
vision of the Presiding Officer by a reporter ap-
pointed by the Administrator. The original
transcript shall be a part of the record and the of-
ficial transcript. Copies of transcripts are available
from the reporter at a cost not to exceed the max-
imum 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 proceed-
ings will be maintained in the Docket Section, Office
of the Secretary , Room 4107, 400 Seventh Street
S.W., Washington, D.C. 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).1(53 F.R. 15782— May 3, 1988. Effec-
tive: May 3, 1988)
§ 511.49 Fees.
(a) Witnesses. Any person compelled to appear
in person in response to a subpena or notice of oral
examination shall be paid at least the same attend-
ance and mileage fees as are paid witnesses in the
courts of the United States, in accordance with
Title 28, United States Code, 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 therefore, upon the material ques-
tions of fact, material issues of law, or discretion
presented on the record, and should, where prac-
ticable, be accompanied by specific page citations
to the record and to legal and other materials
relied upon.
(2) An appropriate order.
(Rev. 5f3/88)
PART 511-18
(c) By whom made. The Initial Decision shall be
made and filed by the Presiding Officer who pre-
sided 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 Deci-
sion, the Presiding Officer may reopen the pro-
ceedings for the reception of further evidence.
(2) Except for the correction of clerical errors,
the jurisdiction of the Presiding Officer is ter-
minated 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 Adminis-
trator 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 arguments, 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 Adminis-
trator'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 ques-
tion 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 forms,
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 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 Admin-
istrator 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 ac-
cordance with § 511.53(b), (c), (d), (e), and (f) except
that the Administrator may, in his or her discretion,
PART 511-19
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 Deci-
sion, 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 it could have exercised if he or she
had made the Initial Decision.
(b) In rendering his or her decision, the Admin-
istrator shall adopt, modify, or set aside the find-
ings, conclusions, and order contained in the Initial
Decision, and shall include in his or her Final Deci-
sion 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 recon-
sideration 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 settle-
ment in accordance with § 511.26 becomes effec-
tive 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, United States Code
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) and (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 ex-
penses when due.
"Settlement" means a compromise, modifica-
tion, 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. sec.
2008(b)(4)).
§ Petitions for settlement; timing, contents.
(a) A petition seeking settlement under this sub-
part must be filed within 30 days after the issuance
of a final order assessing a civil penalty for a viola-
tion of an average fuel economy standard.
PART 511-20
(b)(1) A petition for settlement should be suffi-
cient 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,
auditors 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 correc-
tive 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. Sec. 2008(b)(4)), and materials sup-
porting 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 con-
tain 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 other-
wise 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 develop-
ment programs, or making public the results of
privately performed studies, surveys, or research
activities.
§ 511.65 Public comment.
Notice and opportunity for comment are pro-
vided 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 Federal
Register, and a copy of such petitions and any
supporting information is placed in a public docket.
Any settlement agreed to by the Administrator
shall be placed in the public docket for 30 days so
that interested persons may comment thereon. No
settlement is binding until the completion of that
thirty day period.
§ 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 peti-
tion for settlement which has been determined to
be confidential business information. The provi-
sions of 15 U.S.C. 2005(d) pertaining to discre-
tionary 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 [Ad-
ministrator] shall give written notice of the rejec-
tion and the reasons for the rejection to the parties
and the Presiding Officer. (53 F.R. 15782— May 3,
1988. Effective: May 3, 1988)
(Rev. 5/3/88)
PART 511-21
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 partici-
pant, or by or with counsel or other duly qualified
representative, in any proceeding under the 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 of appearance 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 effec-
tive 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. (53 F.R. 15782— May 3, 1988.
Effective: May 3, 1988)
§ 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 suffi-
cient 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 pro-
ceeding if that person files proof to the satisfaction
of the Presiding Officer that he or she possesses
the necessary legal, technical, or other qualifica-
tions 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
[. . .1 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 pro-
ceedings. The application shall set forth in detail
the applicant's qualifications to appear in the pro-
ceedings. (53 F.R. 15782— May 3, 1988. Effective:
May 3, 1988)
(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
NH'TSA 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 trans-
acted before and with the NHTSA shall be in good
faith.
(b) To maintain orderly proceedings, the
Presiding Officer or the Administrator, as appro-
priate under this part, may exclude parties, par-
ticipants, 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.
(Rev. S/3/88)
PART 511-22
Il
(c) An excluded party, participant, or represen-
tative thereof may petition the Administrator to
entertain an interlocutory appeal in accordance
with § 511.24. If, after such appeal, the represen-
tative of a party or participant, is excluded, the
hearing shall, at the request of the party or partici-
pant, 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 communications" 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 re-
quest 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 persent.
(c) Prohibited ex parte communications. Any
oral or written ex parte communication relative to
the merits of a proceeding under this part is a pro-
hibited 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 pro-
hibited 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. (53 F.R. 15782— May 3,
1988. Effective: May 3, 1988)
(2) Prohibited oral ex parte communication.
(i) If a prohibited oral ex parte communica-
tion 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 for-
ward to the [Docket Section) a dated statement
containing such of the following information as
is known to him/her: (53 F.R. 15782— May 3,
1988. Effective: May 3, 1988)
(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 communica-
tion, 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 com-
munication persisted in doing so after being
advised that the communication was prohibited.
(Rev. 5/3/88)
PART 511-23
(3) Filing. All communications and state-
ments forwarded to the [Docket Section] under
this section shall be placed in a public file which
shall be associated with, but not made a part of, the
record of the proceedings, to which the com-
munication or statement pertains. (53 F.R.
15782— May 3, 1988. Effective: May 3, 1988)
(4) Service on parties. The lAdministratorJ
shall serve a copy of each communication and
statement forwarded under this section on all par-
ties 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 in-
spection and copying. (53 F.R. 15782— May 3, 1988.
Effective: May 3, 1988)
(5) Service on maker. The [Administrator!
shall forward to the person who made the pro-
hibited ex parte communication a copy of each
communication and /or statement filed under this
section. (53 F.R. 15782— May 3, 1988. Effective:
May 3, 1988)
(f) Effect of ex parte communications. No pro-
hibited 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 proceeding and
adverse rulings on the issues which are the subject
of the prohibited communication.
(Rev. 5/3/88)
PART 511-24
APPENDIX I— Final Prehearing Order
Case Caption
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:
For the Administration staff:
For the Respondent(s):
Others:
1. NATURE OF ACTION AND JURISDICTION.
This is an action for
and the jurisdiction of the Administration is involved
under Section of Title
U.S.C. The jurisdiction of the Administration is
(not) disputed. The questions of jurisdiction was
decided as follows:
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 com-
plained 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.
The foregoing were modified, at the pretrial con-
ference as follows:
(To be completed at the conference itself. If none,
recite "none")
3. COMPLAINT COUNSEL'S EVIDENCE.
3.1 The following exhibits were offered by Com-
plaint Counsel, received in evidence, and marked
as follows:
(Identification number and brief description of
each exhibit)
The authenticity of these exhibits has been
stipulated.
PART 511-25
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:
(Identification number and brief description of
each exhibit. State briefly ground of objection,
e.g., competency, relevancy, materiality)
4. RESPONDENT'S EVIDENCE.
4.1 The following exhibits were offered by the
respondent(s), received in evidence, and marked as
herein indicated:
(Identification number and brief description of
each exhibit)
The authenticity of these exhibits has been
stipulated.
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:
(Identification number and brief description of
each exhibit. State briefly ground of objection,
e.g., competency, relevancy, materiality)
5. ADDITIONAL ACTIONS.
The following additional action was taken:
(Amendments to pleadings, agreements of the
parties, disposition of motions, separation of issues
of liability and remedy, etc., if necessary)
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
The hearings will be commenced on the _
, 19 , at o'clock — M. at
(location)
_ days.
. day of
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 ad-
missibility 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.
(Presiding Officer's Name)
(Presiding Officer's Title)
APPROVED AS TO FORM AND SUBSTANCE
Date:
Complaint Counsel.
Attorney for Respondent(s).
Note: Where intervenors appear pursuant to § 511.17
the prehearing order may be suitably modified; the inital
page may be modified to reflect the intervention.
45 F.R. 81574
December 11, 1980
PART 511-26
PREAMBLE TO AMENDMENT TO PART 512
Confidential Business Information
(Docket No. 78-10; Notice 3)
ACTION: Final rule.
SUMMARY: This notice establishes the procedures
by which the National Highway Traffic Safety Ad-
ministration (NHTSA) considers claims for the
confidential treatment of business information.
Proposed procedures were published May 25,
1978. This notice sets forth the procedures for
asserting a claim for confidentiality and specifies
the circumstances under which the agency may
disclose information which is claimed to be con-
fidential. The notice further establishes several
presumptive class determinations relating to con-
fidentiality. This notice clarifies and expedites the
processing of confidentiality determinations and
responds to the problems posed by the increasing
number of confidentiality requests.
DATE: The regulation becomes effective April 9,
1981.
FOR FURTHER INFORMATION CONTACT:
Roger Tilton, Office of Chief Counsel,
National Highway Traffic Safety
Administration, 400 Seventh Street, S.W.,
Washington, D.C. 20590, (202-426-9511)
SUPPLEMENTARY INFORMATION: The NHTSA has
determined that the increasing number of re-
quests for confidentiality necessitate the publica-
tion of the procedures under which the agency will
determine the confidentiality of business informa-
tion. This regulation responds to that need by mak-
ing public procedures for submitting requests for
confidential treatment of business information.
The regulation also details the content of the sub-
missions that are required to substantiate a con-
fidentiality request. This regulation imposes re-
quirements upon the submitters of the information
and upon the agency to respond to those requests
in the time and manner established herein. Fur-
ther, the regulation explains those limited in-
stances in which confidential information will be
released. Through this regulation, submitters of
information will be better able to ensure that their
confidentiality requests are properly substan-
tiated, thus facilitating confidentiality determina-
tions. This improvement of the existing handling
of the requests will benefit both the agency and
the submitter.
The notice proposing the confidential informa-
tion regulation was published May 25, 1978 (43 FR
22412). In response to that notice, the agency
received many comments from vehicle and equip-
ment manufacturers, their representatives, and
public interest groups.
General Comments
Several commenters objected to the provision in
the confidehtiality procedures requiring initial
determinations relating to confidentiality to be
made prior to an actual Freedom of Information
Act (FOIA) request. These commenters alleged
that the agency would be overburdened by the
necessary review of material to ascertain its con-
fidentiality when, in fact, the information might
never be required to be released. Commenters
pointed with approval to the confidentiality regu-
lations of the Environmental Protection Agency
(EPA) which allow the determination of confiden-
tiality to be made at the time of an FOIA request
(40 CFR 2.205). These same commenters also cited
the Congressional Report of the Committee on
Government Operations concerning FOIA re-
quests (FOIA Report) (H. Rept. No. 95-1382) as
discouraging advance determinations of confiden-
tiality. In summation, it was suggested that the
agency assume the confidentiality of information
submitted to it, when a claim for confidentiality is
concurrently submitted, until such time as release
PART 512 - PRE 1
of the information is requested or required for
agency purposes.
The NHTSA disagrees with arguments indi-
cating that the issuance of immediate determina-
tions of confidentiality are burdensome and con-
trary to existing procedures in other agencies. In
fact, the agency considers immediate determina-
tions of confidentiality to be within accepted
governmental practice and to be beneficial to both
the submitter of the information and the agency.
The commenters cited EPA regulations as in-
dicative of a governmental reluctance toward the
use of immediate determinations of confidentiality.
However, the Securities and Exchange Commis-
sion (17 CFR 250.24b-2) and the Nuclear
Regulatory Commission (10 CFR 2.790) both have
procedures for the immediate determination of
confidentiality. Therefore, government agencies
have developed and are continuing to implement
different approaches to the treatment of confiden-
tial information dependent upon the nature of the
individual agency and its programs. The NHTSA
considers the immediate determination approach
to be, for the most part, the approach best suited
to this agency given its function and need for infor-
mation.
The submitter of confidential information will
be aided by the policy of immediate determina-
tions. A determination of confidentiality made
upon receipt of information will automatically
result in the protection of the confidential informa-
tion. Confidential information will be clearly iden-
tified within the agency and will be accorded treat-
ment designed to preserve its confidentiality. The
agency believes that this should improve the abili-
ty of the NHTSA to maintain the confidentiality of
information that merits such treatment. Without
making an immediate determination, the agency
might be deluged with information for which con-
fidentiality determinations have been requested
and which the submitter would have the NHTSA
presume confidential. Such massive quantities of
information are difficult to control and are more
susceptible to accidental disclosure. The NHTSA
is confident that the immediate determination pro-
cedure will reduce the amount of confidential in-
formation. With this more manageable amount of
information, the agency can better ensure its
protection.
The public is also benefited by immediate deter-
minations of confidentiality. These determinations
result in immediate public access to information
that is not confidential. The public should not be
denied access to information that is "presumed
confidential," but which is in fact not confidential.
Commenters citing the FOIA Report have mis-
interpreted the recommendations of that report as
it pertains to the immediate determination of con-
fidential information. The Report indicates that it
is the opinion of the Committee that immediate
determinations of confidentiality might not be the
most efficient way to handle confidential informa-
tion. However, the FOIA Report at page 38 with-
holds comment on any recommendation with
respect to this aspect of confidentiality pro-
cedures. In reviewing the proposed regulations of
the FTC, the Committee indicated their intention
to await the outcome of those new regulations
before reaching a definitive recommendation with
respect to the issue.
The FOIA Report should also be considered in
its proper perspective. This Report is the prelimi-
nary thinking of the Congressional Committee. As
such, the agency considers it a useful tool in the
development of confidentiality regulations. How-
ever, this report is very preliminary and some of
its recommendations could change before legisla-
tion, if any, can be produced affecting the status of
confidential information. Therefore, the agency
cannot rely entirely upon the Committee state-
ments in this report for the development of con-
fidentiahty regulations and must exercise its own
judgment given the statutory mandates under
which it operates.
The allegations that immediate review will
overload the agency with unnecessary work are
unfounded. There are compelling reasons for mak-
ing determinations upon receipt of information
beyond those mentioned above. For the most part,
information is submitted to the agency in connec-
tion with rulemaking or investigations, or is sub-
mitted under a reporting requirement. With
respect to information furnished pursuant to
rulemaking, the Administrative Procedure Act (5
U.S.C. 101 et seq.) requires that informal rulemak-
ing be conducted in the notice and comment for-
mat. To provide adequate information upon which
comments can be based, the agency must make
public the information upon which a decision is
made unless that information comes under some
confidentiality provision. Accordingly, rulemaking
is facilitated by making confidentiality determina-
PART 512 -PRE 2
tions upon receipt of the information. This pro-
cedure has been used in the past, and this regula-
tion merely incorporates an ongoing procedure. As
such, it will not increase the workload of the
agency.
Information submitted pursuant to an investiga-
tion or through required reports to the agency also
can have confidential determinations made upon
submission without overtaxing the resources of
the agency. Information gathered pursuant to
either of these devices is usually made public at
some point. Accordingly, a confidentiality determi-
nation will be required at that time. This regula-
tion merely requires that the determination be
made upon receipt of the information.
The instances when immediate determinations
are to be made were carefully selected on the basis
of the eventual likelihood that the information
would customarily be made public if not deter-
mined to be confidential. The agency concluded
that it is received. Further, immediate determina-
tions result in early public access to information
that is rightfully in the public domain. Information
that is not likely to be made public in the future
will not have an immediate determination made
concerning its confidentiality (§512.6(d)). Accord-
ingly, the agency concludes that the comments in-
dicating that the NHTSA will be overburdened by
confidentiality determinations are without merit
and that the agency will, in fact, be making approx-
imately the same number of determinations as are
made under existing practices.
The Freedom of Information Clearinghouse
stated that they supported the regulation but in-
dicated that they considered it necessary to
review information again when a FOIA request is
submitted to ensure that information previously
determined to be confidential still falls within the
parameters defining confidential information. The
agency agrees that it will be necessary to briefly
review the information at the time a FOIA request
is submitted, but this review should be made sig-
nificantly easier by the earlier confidentiality
determination and would merely require updating
a previous determination.
Several commenters disagreed with the
NHTSA's policy relating to the use of confidential
information. Volkwagen indicated that the
agency's statutes require the agency to protect
confidential information more than this regulation
contemplates. Other commenters recommended
that the agency return confidential information
when it is through with it and return all voluntari-
ly submitted information if the agency determines
that it is not confidential.
In response to Volkswagen's comments on the
statutory protection of confidential information,
the agency agrees that the statutes do provide
protection for confidential business information.
The agency has recognized that protection in this
regulation and intends by this regulation to
achieve that statutory mandate. The statutes also
provide, however, for limited disclosure of con-
fidential information when such disclosure is in the
public interest. This regulation balances a submit-
ter's interest in the confidentiality of its informa-
tion with the public's need for the information. It
should be remembered that the agency has
historically had the right to make confidentiality
determinations, and to release confidential infor-
mation as allowed by the National Traffic and
Motor Vehicle Safety Act (15 U.S.C. 1381 et seq.)
and Titles I and V of the Motor Vehicle and Cost
Savings Act (15 U.S.C. 1901 et seq.) (the Acts). The
agency has exercised both of these rights in the
past.
The NHTSA has not routinely released confi-
dential information. Release has occurred only
when the public interest so demanded. This policy
is unchanged by this regulation. The NHTSA fully
intends to honor the confidentiality of appropriate
information unless circumstances compel its dis-
closure. In such disclosure instances, all efforts
will be made to make disclosure in a manner to
minimize any adverse effects while still serving
the public interest. The commenters who sug-
gested the return of confidential information after
its use and the return of voluntarily submitted con-
fidential information base this approach on the
practices of some other agencies. The NHTSA con-
siders it inappropriate to return information upon
which agency decisions may have been based even
if the agency is otherwise finished with that infor-
mation. Agency decisions are subject to challenge
and change as time passes, and frequently it is
necessary to have all of the information upon
which the initial decision was based either to sup-
port that decision or to aid in the justification of its
change.
The suggested return of voluntarily submitted
information that is determined not to be confiden-
tial presents another question. The NHTSA
PART 512 -PRE 3
realizes that some agencies, the EPA is one,
return such voluntarily submitted information
after an adverse confidentiality determination.
The agency notes, however, that the FOIA Report
was skeptical about the advisability of this prac-
tice. That Report indicated that denial of FOIA re-
quests for this information during presubmission
review may be illegal. The NHTSA is concerned
about the potential legal problems involved with
presubmission review and concludes that this ap-
proach is not appropriate for the NHTSA.
Several commenters indicated that the agency
would be hindered in obtaining voluntary informa-
tion if it refuses to return it when the agency
determines that it is not confidential. The NHTSA
disagrees. Information is voluntarily submitted
frequently because the submitter has something to
gain through its submission. For example, a sub-
mitter might be requesting an exemption from a
requirement or might be attempting to alter
rulemaking in its favor by its submission. The
agency has always received such information even
though the NHTSA has never returned it. The ex-
isting procedure had a negligible effect upon the
ability of the agency to secure voluntary informa-
tion. Moreover, the ability of the agency to secure
much information through compulsory process
acts as a final encouragement to the voluntary sub-
mission of information. Accordingly, the agency
disagrees with arguments indicating that volun-
tarily submitted information should be returned to
the submitter and will continue to retain this infor-
mation.
Volkswagen indicated that the agency should
consider the issuance of this regulation with the
promulgation of the regulation on compulsory
process. Their major argument was that the com-
pulsory process regulation imposes very short
time limits on the production of information pur-
suant to a subpoena or special order. The problems
with a short response time, they argued, would be
further exacerbated by requiring elaborate sub-
stantiation of confidentiality requests.
The agency acknowledges that its compulsory
process devices are usually issued with a limited
response time. Time limits may sometimes be
short because the agency has an immediate need
for information. The NHTSA concludes that there
is sufficient time, however, to substantiate a confi-
dentiality request. The amount of information re-
quired for that substantiation is significant, but
not overwhelming as some commenters have
argued. The specific requirements for substantiat-
ing confidentiality requests are discussed later in
this preamble. In establishing the reasonable time
period for responding to compulsory process
orders, the agency considers the amount of time
necessary to substantiate confidentiality requests.
The Motor and Equipment Manufacturers
Association (MEMA) commented that the agency
had not done a sufficient analysis of the costs
resulting from this regulation. The agency has con-
sidered the potential costs of the regulation and
concluded that they are so minimal as not to war-
rant a full evaluation.
Several equipment manufacturers indicated
that the regulation does not address the problems
of the equipment manufacturer. They indicated,
for example, that the regulation developed classes
of information that are presumed confidential but
that those classes applied only to vehicle manufac-
turers. It is true that the existing classes of
presumed confidential information do not apply to
equipment manufacturers. This does not mean
that as time goes by that such classes will not be
developed. It simply means that at this time the
agency has insufficient information upon which to
base specific classes applicable to equipment
manufacturers. Equipment manufacturers, none-
theless, can avail themselves of the processes
existing in the remainder of the rule for confiden-
tiality determinations. Further, equipment manu-
facturers are free to suggest additional classes
they regard to be appropriate.
In a final general comment, it was suggested
that the agency wait until the outcome of the
Supreme Court decision in Chrysler Corp. v.
Schlesinger, 565 F.2d 1172 (3rd Cir. 1977), which
was being argued this term. The Supreme Court
decided the Chrysler case on April 18, 1979
(Chrysler v. Brownj. That decision has little impact
upon the procedures established by the regulation,
and to the extent it does affect this regulation, it
confirms the agency's positions.
Information Supporting a
Claim for Confidentiality
Several commenters complained generally
about the amount of information that the agency
requires to be filed in support of a request for con-
fidential treatment of information. These com-
menters argued that the NHTSA's requirements
PART 512 -PRE 4
go beyond the regulations of other agencies that
require support for confidentiality requests and go
beyond existing case law with respect to proving
the confidentiality of information.
Suggestions were made that the NHTSA pat-
tern its regulation after that of the U.S. Inter-
national Trade Commission (USITC) (19 CFR
201.6(b)(3)). That regulation provides for the sub-
stantiation of confidentiality by specifying the pro-
vision of three pieces of information: (1) description
of the confidential information, (2) justification for
confidential treatment, and (3) a written certifica-
tion under oath that the information is not avail-
able to the public. Although this regulation is less
detailed than the NHTSA's, it essentially requires
similar submissions. The NHTSA's regulation
merely states in more detail the information that
is required to justify confidential treatment. The
agency has incorporated into its regulation the
latest court test for substantiating confidentiality.
Although the USITC regulation does not spe-
cifically refer to this test, the NHTSA believes
that it would be necessary for a submitter to make
a similar showing to them in support of confiden-
tial treatment of information.
The Motor Vehicle Manufacturers Association
(MVMA) alleged that the agency's regulation ex-
ceeded the requirement of existing judicial preced-
ent that governs this area. It suggested that the
information required by section 512.4(b) para-
graphs (2), (3), and (4) requiring submitters to sup-
port the fact that they have not released informa-
tion goes beyond the test in Natiovul Parks and
Conservation Association v. Morton, 498 F.2d 765
(D.C. Cir. 1974). National Parks requires, in part,
that confidential information be that which is not
customarily released. MVMA alleges that this
does not require NHTSA to mandate by regulation
that a company check every possible source of pub-
lication of information claimed to be confidential.
Although quoted in National Parks, the "cus-
tomarily not released to the public" language is
not the only test imposed by the court in National
Parks. That language is an excerpt of the Senate
Report on the Freedom of Information Act (5
U.S.C. 552) (S. Rep. No. 813, 89th Cong. 1st. Sess. 9
(1965)). The courts have attempted to use and fur-
ther refine this Congressional language. The Na-
tional Parks case in particular illustrates the
court's dissatisfaction with the "customarily not
released" test when it stated that a finding that
information is not customarily released would not
alone justify confidential treatment. Rather, the
court imposed a two-pronged test that measures
the substantial competitive harm resulting from
disclosure of information or the impairment of the
Government's ability to obtain future information
if similar information is released.
It is axiomatic that the "customarily not re-
leased" test in and of itself could never be con-
clusive of information's confidentiality absent
other considerations. The fact that information is
customarily not made public does not mean that
the specific information for which confidentiality is
requested has not been made public. If that infor-
mation has in fact been made public, it does not
merit confidential status under the National Parks
test. Accordingly, some showing that information
for which confidential treatment is requested has
not been previously made public is a prerequisite
to determining confidentiality.
Assuming the validity of the above- re-
quirements, the MVMA and others argue,
nonetheless, that it is too burdensome, because it
requires companies to investigate all possible in-
stances where information may have been made
public. They suggest that a submitter will be re-
quired to interview every employee to ensure that
information has not been leaked.
The agency has imposed a reasonable burden
upon a manufacturer to take some limited steps to
check that its so-called confidential information
has not been disclosed. As the preamble to the
notice of proposed rulemaking indicated, it is not
the intention of the agency that submitters ensure
that information has never been accidentally
disclosed. Rather, the agency demands that a sub-
mitter ensure that to its knowledge there have
been no accidental or purposeful disclosures of the
information. This requires only that a diligent ef-
fort be made by the submitter to take minimal
steps ensuring that its information is actually con-
fidential. The agency concludes that this is not a
major burden upon a submitter of information.
With respect to the requirements of paragraphs
(2) and (3) of section 512.4 (b), Wagner Electric Co.
suggested that disclosures of information to par-
ent companies or to wholly owned subsidiaries not
fall within those groups to whom disclosures must
be reported to the agency. The NHTSA disagrees
with this position. The agency wants to know of
such a disclosure, but a disclosure to a parent or
PART 512 -PRE 5
wholly owned subsidiary does not necessarily
mean that the information has been made public,
which might deny the information confidential
treatment. A submitter can explain, under the pro-
visions of paragraph (3), that disclosure to a parent
or subsidiary does not compromise the confidential
nature of the information.
General Motors (GM) indicated that it consid-
ered overly burdensome the requirement that it
indicate what steps had been taken to assure the
confidentiality of the submitted information in its
possession (512.4(b) (2)). It argued that this require-
ment would require it to detail its plant security
system or other security measures that could in
turn jeopardize its future security.
The NHTSA has no interest in the specific inter-
nal security devices of any manufacturer's facili-
ties. The NHTSA simply wants the manufacturer
to briefly indicate, pursuant to paragraph (2), that
proper precautions were taken to preserve the
confidentiality of this information. The objective of
this paragraph is to make sure that the submitter
has treated this information differently from the
ordinary information in its possession. If, on the
other hand, the submitter has taken no measures
to safeguard its own information, its claim for con-
fidential treatment by the Government is some-
what diminished.
The MVMA asserted that the requirement of
documenting every possible authorized and
unauthorized disclosure of information would be
burdensome. Such documentation, it argued,
would require submitters to interview every per-
son that might have access to the information to
ascertain possible disclosures as well as monitor
the press for possible unauthorized leaks.
The NHTSA does not consider it unreasonable
to ask the submitter of information to list all of the
recipients of information other than the submitter.
In most instances, truly confidential information
will not have been supplied to excessive numbers
of individuals or entities beyond the submitter.
The NHTSA concludes that information that is
really confidential will be protected by the submit-
ter. The agency is confident that any submitter
with such information would know to whom, out-
side its organization, it has given that information.
In fact, most submitters should have this informa-
tion readily available. Any submitter that is
unaware of outside organizations in possession of
its confidential information may have to do more
extensive research, but the need for such research
itself may be indicative of meager internal controls
of so-called confidential information and may imply
that the information is really not confidential.
As to the allegations that submitters must
monitor all trade newspapers to discover possible
unauthorized disclosures, these are exaggerations
of the effects of this rule. Paragraph (4) of Part
512.4(b) requires notification to the agency of
known authorized and unauthorized public
disclosures. Submitters are under no obligation to
ensure that there have been no unauthorized
releases of their information. Their duty is simply
to report those instances of disclosure of which
they are aware. The NHTSA believes that most
unauthorized disclosures of confidential informa-
tion that are subsequently reported in trade
papers or newspapers are likely to be brought to
the submitter's attention.
Several commenters complained about the re-
quirement in paragraph (5) of section 512.4(b).
That paragraph requires submitters of informa-
tion to notify the agency of existing confidentiality
determinations made by the NHTSA, other agen-
cies, or the courts relating to the confidentiality of
the information or similar information. Submitters
of information complained that the NHTSA was in
better position to canvass court decisions relating
to confidentiality and to review all of the decisions
of other agencies. They argued that it was overly
burdensome for submitters to do all of this
research.
These comments indicate a misunderstanding of
the requirements of this section. The agency does
not intend that the submitter of information pro-
vide the agency with the latest judicial and agency
opinions regarding the confidentiality of similar in-
formation of other submitters. This paragraph
simply requires the submitter of information to
supply the NHTSA with determinations respect-
ing the confidentiality of its own similar or identi-
cal information. A submitter of information should
be aware of these determinations without need to
do any research whatsoever. Accordingly, the
burden of this requirement upon the submitter of
information is minimal. To clarify the agency's
intention with respect to this paragraph, the
NHTSA is modifying the language somewhat to
make it clear that a submitter is responsible only
for determinations relating to its own information.
The Motor Vehicle Equipment Manufacturers
i
PART 512 -PRE 6
Association (MEMA) suggested that paragraph (8)
was unnecessary. That paragraph requires infor-
mation as to the effect of a disclosure of voluntari-
ly submitted confidential information upon the
ability of the NHTSA to obtain future voluntary
information. The MEMA indicated that it could see
no reason to raise this inquiry since it is the
manufacturers' interests in confidentiality that
will be harmed by disclosure not necessarily the
agency's. The paragraph (8) requirement was in-
cluded to provide information as to the potential
harm that disclosure might impose upon the abili-
ty of the NHTSA to obtain information through
voluntary means. This inquiry is one of the two
pronged tests employed in National Parks, supra.
and is frequently cited as being the appropriate
test for confidentiality of voluntarily submitted
information. Therefore, the agency does not agree
with the MEMA's comments that this information
is unnecessary.
Paragraph (9) requires a submitter of informa-
tion to indicate the amount of time for which con-
fidentiality is requested. The MEMA complained
that in the instance of trade secrets no time limit is
appropriate. The agency does not agree that trade
secrets are always permanently confidential. Some
trade secrets may become common knowledge
within a certain amount of time. Nonetheless,
paragraph (9) permits a submitter of information
to request and justify an indefinite time period for
maintaining the confidentiality of its information.
Many commenters suggested that the informa-
tion submitted in support of their confidentiality
requests would in turn be confidential and, if
released, could cause them competitive harm.
They suggested that submitters might fear to sup-
port their claims for confidentiahty since the sup-
port information could in some instances be even
more harmful, if disclosed, than would the disclo-
sure of the originally submitted information. Com-
menters, therefore, argued that the agency should
at least return any information submitted in sup-
port of a confidentiality request if that request is
subsequently denied.
The agency intends by this regulation to
establish a procedure where specious requests for
confidentiality are discouraged while those re-
quests that are meritorious can be handled effi-
ciently. The agency concludes that a submitter of
information who believes that disclosure of its in-
formation will result in competitive harm will sup-
port its request with necessary information. Infor-
mation submitted in support of a claim of confiden-
tiality can also be requested for confidential treat-
ment. Consequently, the agency does not expect
that this provision will discourage appropriate
confidentiality requests. For the reasons stated
earlier in this preamble, the agency disagrees with
arguments favoring the return of information sub-
mitted to the NHTSA and will not undertake such
an approach.
Paragraph (h) of Part 512.4 requires submitters
to update their confidentiality requests if inter-
vening events would change the confidentiality
determination. Commenters objected to this re-
quirement as being unnecessary and costly. For
example, they argued that since decisions are
made immediately with respect to confidentiality,
updating the information is unnecessary.
Not all decisions respecting confidentiality are
made immediately. As stated earlier, most con-
fidential information that would otherwise subse-
quently be made public will have an immediate
determination of confidentiahty. However, infor-
mation that is not customarily made public by the
agency pursuant to one of the agency's established
procedures will not have a confidentiality deter-
mination made with respect to it until such time as
a FOIA request is received. For this reason, it is
necessary that information submitted by manufac-
turers for which confidentiality is requested be up-
dated when circumstances change that request. If,
for example, a company voluntarily disclosed infor-
mation in the interim before the agency deter-
mined confidentiality, the NHTSA should be made
aware of this fact since the disclosure would make
the confidentiality determination moot.
Updating of previous confidentiality requests
also applies even after confidentiality has been
granted. In certain instances, termination of con-
fidentiality is conditioned upon the occurrence of a
particular event. In such cases, the agency should
be informed that the event has occurred so that
the confidential status of the information can be
discontinued. Moreover, there are times when in-
formation will become disclosed or other events
will make its continued confidentiality unnec-
essary. In these instances, the agency should be
informed of the disclosure in order to correct its
determination. In conclusion, the agency does not
agree that the updating provision is unnecessary.
The agency concludes that the updating provi-
PART512-PRE7
sion will not be costly. The requirement merely
states that a company shall inform the agency of
any changes pertaining to the information. The up-
dating responsibility is triggered when the submit-
ter knows that the initial submission is incorrect
or the information given in that submission has
changed. It is not required that a submitter con-
stantly monitor all information submitted pursu-
ant to a confidentiality determination as suggested
by GM. A submitter is only charged with the
responsibility of an update when it knows that the
information previously submitted was erroneous.
If by accident or mistake, the submitter does not
know or realize the initial error or changed cir-
cumstances, there is no duty upon it to make the
amendment. Therefore, the agency concludes that
this is a reasonable burden to place upon the sub-
mitter of information.
Commenters objected to paragraph (it of Part
512.4 which states that a submitter may lose its
claim of confidentiality through failure to comply
with the requirements of paragraph (b). Paragraph
(i) establishes times when a noncompliance may be
deemed a waiver of the confidentiality claim and
times when a noncompliance will waive the con-
fidentiality request. The times when confidentiali-
ty will be lost are few: (1) failure to file the re-
quired certificate, (2) failure to request confidential
treatment, and (3) failure to establish the necessity
for confidentiality. These failures will result in the
loss of confidential treatment for the information.
In other instances where technical insufficiencies
in the required submissions exist, the agency may
deem a claim of confidentiality to have been
waived. On the other hand, the agency may allow
the submitter to perfect its submission.
The discretionary waiver aspect of paragraph (i)
allows the agency the necessary latitude to deal
with all possible circumstances. For example, if a
submitter is knowingly delaying or otherwise in-
terfering with the determination process by fail-
ure to supply complete information, and the agen-
cy needs that information immediately, the
NHTSA must have the authority to deny the claim
of confidentiality. To do otherwise would jeopard-
ize the public welfare while permitting submitters
to avoid the agency's regulations. In most in-
stances, however, where a submitter merely
neglects to include a minor part of the required
material and the oversight is not deemed to be
intentional, the agency would normally grant the
submitter additional time to substantiate its claim. .
The agency will exercise reasonable discretion in
determining whether a submitter's confidentiality
request has been waived.
Commenters disagreed with the regulation in
section 512.4(i) to the extent that it allows the use
of criminal and civil penalties for failure to amend
confidentiality requests when the initial informa-
tion has changed or an error has been discovered
in the initial filing. These commenters challenged
the authority and the wisdom of invoking either of
these penalties.
The NHTSA has the authority to enforce its
regulations through civil penalties (15 U.S.C,
1917, 1948, 1989, and 2008). This authority is nec-
essary to encourage adherence to the agency's
regulations. The NHTSA will retain the civil pen-
alty provision of this paragraph. However, the
agency has considered the comments submitted to
it and concludes that the imposition of criminal
penalties is unnecessary in the enforcement of this
requirement.
Determining Confidentiality
The Automobile Importers Association (AIA)
complained that Part 512.5 was very complex and
should be clarified. For example, the AIA indi-
cated that the lengthy set of phrases connected by
disjunctives and conjunctives was beyond easy
comprehension. Further, the AIA indicated that
the definition of "voluntarily submitted informa-
tion" in this section should be amended. Currently,
the section defines "voluntarily submitted infor-
mation" as that information that could not be com-
pelled by compulsory process. The AIA would
have the agency define voluntarily submitted in-
formation as all information submitted to the agen-
cy voluntarily regardless of the fact the informa-
tion could have been compelled by the NHTSA.
Responding first to the comment that the
language is confusing, the agency has concluded
that the language of this provision is somewhat
unclear. Proposed paragraphs (1) through (4) state
that information is accorded confidential treat-
ment if it is a trade secret or commercial or finan-
cial information that has not been previously
disclosed and whose disclosure would likely result
in substantial competitive harm to the submitter.
Proposed paragraph (5) establishes a somewhat
different test for voluntarily submitted informa
tion that is a trade secret or confidential business
PART 512 -PRE 8
information. These two tests conform to the
guidelines established by the National Parks case.
The agency is amending this section by con-
solidating several of the paragraphs to clarify the
tests for determining confidentiality.
The AIA also recommended that the agency
adopt a different definition of "voluntarily submit-
ted information." The purpose of proposed para-
graph (a) (5) was to establish a test for preserv-
ing the confidentiality of information that the
agency could not compel by compulsory process. If
the agency were to release such information and
such release were to discourage the submission of
information that the agency could not otherwise
obtain, then the NHTSA might be hindered in
fulfilling its mandate. Accordingly, the agency
needs to be sure that it does not discourage the
flow of this information. The AIA suggestion
would expand the category of voluntarily submit-
ted information to include even that which could
be produced by compulsory process but which a
submitter has decided to submit voluntarily. The
NHTSA disagrees with the AIA's suggestion.
Since the NHTSA can compel much of the informa-
tion currently submitted voluntarily, the real
distinction in information submitted to the agency
is whether or not it can be compelled. The agency
continues to believe that information that can be
compelled by it should not be subject to the same
standards as that information which is freely given
to the agency and which the agency could not
compel.
The AIA objected to the requirements of section
512.6(d) that allow the NHTSA to delay confiden-
tiality determinations for some information until
10 days after the receipt of a FOIA request. The
AIA believed that this requirement would overly
burden submitters of information since they would
be required under Part 512.4(h) to update their
confidentiality requests if changes occur even
though in these instances confidentiality deter-
minations would not be made upon receipt of the
information, but upon the receipt of a FOIA re-
quest. Earlier in this preamble, the agency stated
that the burden of updating information for which
confidentiality was requested is reasonable and
necessary, particularly when responding to FOIA
requests. It would be improper under the FOIA for
the agency to withhold information that should be
made available. If information previously deter-
mined to be confidential subsequently loses its con-
fidentiality, that information might be subject to
release under FOIA. Accordingly, the agency must
require that submitters update this information
when necessary to ensure full compliance with ex-
isting laws relating to the release of information.
With respect to the other time periods for deter-
mining confidentiality, the agency is increasing
them from 10 to 30 days as a result of the increased
volume of confidentiality requests.
The AIA complained that the provision in sec-
tion 512.6(e) that permits the agency to extend the
time periods applicable to making determinations
under various sections of the regulation render
those time limits meaningless. It suggested that
the NHTSA only has to prove good cause to itself
that an extension is warranted.
The purpose of this provision is to provide for
those instances in which a determination cannot
occur within the normally established time frame.
It is the intention of the agency to conform to the
time requirements imposed upon it unless unusual
circumstances prohibit timely determinations. For
example, in certain rulemaking actions manufac-
turers wait until the last day before submitting
comments. If many comments arrived simultane-
ously with confidentiality requests, the agency
might be unable to make all the determinations
with the specified time limits. Therefore, the agen-
cy needs some discretion to extend time limits.
Paragraph (e) places a burden upon the agency to
establish "good cause" for an extension. These
reasons must be set out in writing and provided to
the submitter. Therefore, the submitter will have
the opportunity of contesting the agency's "good
cause" determination. As a further safeguard
against abuse of the extension provision, the agen-
cy has indicated in this section that the extension
as it applies to FOIA requests will be done in com-
pliance with 5 U.S.C. 552. The NHTSA has deter-
mined that these procedures will preserve the
necessary latitude required by the agency to deal
with all possible contingencies while preventing
routine abuse of the extension provision.
Several commenters objected to paragraph (f) of
section 512.6 which specifies that the NHTSA will
notify a submitter of the determination respecting
its confidentiality request. The regulation in-
dicates that this notification will provide, in the
case of denials, that the information will be made
public not less than 10 working days after the sub-
mitter of the information has received notice. The
PART 512 -PRE 9
provision further states that the 10-working day
requirement can be modified if it is in the public
interest that the information be made available
earlier. Commenters objected to the 10-working
day requirement some indicating that foreign sub-
mitters are particularly disadvantaged by such a
short time period.
The time periods provided for the release of in-
formation are short for a number of reasons. First,
in the cases of FOIA requests, the agency must
respond to the request within a relatively short
time frame. The agency cannot, as some com-
menters suggest, permit submitters of information
extensive periods of time to react to the agency's
determinations in FOIA cases. Second, informa-
tion frequently will be needed for rulemaking or
other agency needs that would otherwise be
delayed by a lengthy interval between a confiden-
tiality determination and release of the informa-
tion. The agency also must have the authority to
reduce the time periods even further if the cir-
cumstances indicate that the public interest
demands the immediate release of this informa-
tion. Even under emergency release conditions,
however, a submitter will be given some notifica-
tion of the pending release of its information even
though such notice might be short. Within even an
abbreviated time frame, a submitter would have
the opportunity to seek whatever judicial remedy
is available to it. Accordingly, the agency con-
cludes that the time provisions of this section meet
the needs of the agency for making information
available in the shortest possible time while still
permitting the submitter of the information to
seek whatever recourse it chooses when its con-
fidentiality request has been denied.
The AIA pointed out that nothing in paragraph
(f) indicates that the notification of the determina-
tion will be made immediately. They were con-
cerned that the NHTSA might make a determina-
tion in some instances and not notify a submitter
for some time. To prevent this from occurring, the
AIA suggested some modification in the language
of the provision to ensure that the agency is re-
quired to give immediate notification of a deter-
mination. Since this has always been the intention
of the NHTSA, the agency agrees with the modifi-
cation suggested by the AIA and changes this pro-
vision accordingly.
General Motors stated that section 512.6(f) (2)
was insufficient because, although it indicates that
a submitter of information will receive notice of
some sort, it does not indicate that the notice of
denial will state the reasons for such a denial. The
section states that the submitter will be notified in
writing of the denial of its confidentiality request.
The agency intends that this written notice will
state the reasons for the denial. To clarify this, the
NHTSA is modifying this section to indicate that a
statement of the reasons for denial will be part of
the written notice.
A few commenters were troubled by paragraph
(g) of section 512.6. This paragraph allows submit-
ters whose requests for confidentiality have been
denied to petition for a reconsideration of that
denial. Dunlop Tire and Rubber Co. indicated that
a petition for reconsideration was a waste of effort
since the same office would be making a deter-
mination of the reconsideration petition as had
made the initial denial. Accordingly, Dunlop pro-
posed that a submitter be permitted to go directly
to court without recourse to the reconsideration
process.
The NHTSA disagrees with the Dunlop position
that reconsideration is a futile effort. A petition
for reconsideration allows a submitter of informa-
tion to further emphasize a portion of its request
that it may feel has been insufficiently considered
by the agency. The reconsideration process allows
all parties the opportunity to discover and rectify
possible errors without recourse to costly and
time-consuming litigation. The agency notes that it
has used petitions for reconsideration in the area
of rulemaking for many years and those petitions
have frequently resulted in amendments of agency
rulemaking actions. Therefore, the NHTSA con-
cludes that the reconsideration process is a mean-
ingful check upon the agency's actions and will con-
tinue to allow it when making confidentiality
determinations. However, the regulation states
that a submitter may petition for reconsideration.
A submitter is not required to file such a petition
and may instead seek judicial review.
Volkswagen argued that the petition for recon-
sideration process was rendered meaningless
since it was possible that the information for which
confidentiality was claimed could be released
pending a determination on the petition for recon-
sideration. The paragraph states that the Chief
Counsel may postpone the release of information
pending a decision on the petition for reconsidera-
tion. This implies, however, that release may not
#
#
(#
PART 512 -PRE 10
be postponed in some cases. It is contemplated
that in the majority of instances material will not
be released until a final determination on the issue
of confidentiality is made. Therefore, material
generally will not be made public during the recon-
sideration process. In exigent circumstances, how-
ever, the agency does retain the discretion to
release information if the public interest so dic-
tates. Even in these unusual circumstances, a sub-
mitter of the information would be informed of the
pending release of the information and would be
able to then seek an immediate judicial interven-
tion prior to the release of the information.
The AIA suggested that the agency adopt a
review procedure for the denials of requests for
confidentiality that would allow a submitter to
petition someone in the Office of the Secretary of
the Department of Transportation for a review of
the confidentiality request. The NHTSA has estab-
lished its own internal review of denials through
the petition for reconsideration process. A sub-
mitter that is still dissatisfied with the agency's
action can seek a judicial remedy. Although the
Secretary of the Department has authority over
agency functions, that office does not review
routine agency decisionmaking and does not have
sufficient resources to act as a review board for
every agency action. The NHTSA notes that the
need for Secretarial review of these decisions is
not apparent. Accordingly, the agency declines to
adopt AIA's suggested modification.
General Motors objected to section 512.7(a) (2)
which indicates that a confidentiality determina-
tion remains in effect until, among other things, a
change occurs in applicable law. GM suggested
that this was impermissibly vague. It stated that
some remote lower court might make an adverse
ruling on an issue of confidentiality while the
Supreme Court may have decided otherwise in
another case. It feared the NHTSA would follow
the rule of the lower court.
The agency disagrees with GM that this provi-
sion is impermissibly vague. A change in applica-
ble law might include a statutory change or a
change in judicial interpretation of existing
statutes. However, as GM must well know, the
Supreme Court is the ultimate authority with
respect to judicial interpretation of statutes.
Accordingly, the agency would not terminate a
confidentiality determination when a lower court
issued a decision that might be in conflict with
existing pronouncements from the Supreme
Court. The agency does not consider every lower
court decision to indicate a change in the appli-
cable law, but it does consider the pronouncements
of major courts as indicative of changes in the
status of the law and may review confidentiality
determinations in the light of those pronounce-
ments. In any event, if the agency responded to a
change in law by determining to reverse a previ-
ous finding of confidentiality, it would provide
notice of that determination and the reason there-
for before releasing the information in question.
Disclosure of Confidential Information
Sections 512.8 and 512.10 of this regulation
elicited many comments that were for the most
part opposed to the release of information that has
been determined to be confidential. Many com-
menters suggested that these two provisions be
deleted entirely or, in the alternative, modified to
limit severely the right of the agency to release
confidential information. Commenters expressed
the erroneous belief that these provisions would
combine to undermine the confidentiality of infor-
mation that is normally classified as confidential.
The comments indicate a need for explanation of
the agency's intentions, its statutory powers and
limitations, and the judicial precedents that gov-
ern the area of discretionary release of informa-
tion determined to be confidential.
In section 512.8, the agency established separate
criteria for the release of different types of confi-
dential information. These criteria are recitations
of the various statutory sections which permit the
agency to disclose such information. Section 113 of
the National Traffic and Motor Vehicle Safety Act
of 1966 (the Act) (15 U.S.C. 1401) states that "in-
formation received pursuant to Title I of the Act
relating to trade secrets or other matters referred
to in 18 U.S.C. 1905 shall be confidential but may
be disclosed when relevant in any proceeding
under this title." This statutory language is incor-
porated into section 512.8 (a) (1).
Section 158(a) (2) (B) of the Act (15 U.S.C. 1419)
specifies that confidential information obtained
under Part B of the Act may be released if "nec-
essary to carry out the purposes of this title."
This language is adopted in section 512.8(a) (2).
Finally, section 512.8(a) (3) permits the release of
confidential information obtained under Parts I
and V of the Motor Vehicle and Cost Savings Act
PART 512 -PRE 11
i
(15 U.S.C. 1901 et seq.) if the information is rele-
vant to any proceeding under the title under which
the information was obtained. The authority for
this release is found in 15 U.S.C. 1914 and 2005.
Accordingly, comments to the agency that any
release of confidential information is contrary to
the agency's statutory authority are entirely
without merit.
Commenters argued that regardless of any pos-
sible statutory authority granted to the agency in
its various Acts to release confidential informa-
tion, 18 U.S.C. 1905 states that information
relating to trade secrets and other areas of
business confidentiality cannot be released. This
comment indicates a misunderstanding of section
1905. Section 1905 states that certain information
should be confidential and not released. However,
section 1905 further states that the information
outlined in that section shall not be released
"except as provided by law." Any release of con-
fidential information made pursuant to the
agency's validly enacted enabling Acts is a release
provided by law and, therefore, permissible under
section 1905. Therefore, the agency declines to
delete the discretionary release provisions of the
regulation that permit the release of information
under the tests established by the Act and incor-
porated in Part 512.8.
Some commenters argued that although the
release of confidential information might be per-
missible under existing legal authority, the agency
should not release the information. They sug-
gested that such release will jeopardize future
cooperation between the agency and the industry.
Further, they argued release will invite litigation
increasing the adversarial relationship between
the agency and the industry.
When considering the consequences of the
release of confidential information, the submitters
of that information should examine existing
agency practice. The agency for years has been
operating under the statutory provisions permit-
ting release of confidential information. This
regulation simply formalizes the release proce-
dures used by the agency but does not increase the
existing authority of the agency to release infor-
mation. During the time that the agency has ope-
rated with this authority, some releases of con-
fidential information have been made when the
agency determined such releases to fall within the
parameters prescribed by the applicable statutory
authority. However, for the most part, confidential
information has not been released. The NHTSA
does not intend by this regulation to alter this
practice. The agency realizes the importance to
the competitive process of maintaining the con-
fidentiality of business information. Accordingly,
the agency will not release confidential informa-
tion unless the release of such information meets
all of the statutory requirements for release and is
deemed to be in the public interest.
Commenters suggested that when the release of
confidential information is necessary it should be
made in the least offensive form. For example,
they suggested that aggregate information or
unidentified information might sometimes meet
the need for public release. The agency agrees
with these comments and will try to release as
little information as is necessary and will attempt
to do it in an inoffensive manner. The NHTSA
believes that such an approach reflects existing
judicial decisions such as Penmoil v. FPC, 534 F.2d
627 (5th Cir. 1976) which indicated that agencies
should examine alternative, less damaging meth-
ods of public disclosure.
Most commenters suggested that the 10-work-
ingday discretionary release requirement was un-
necessarily short. Many suggested longer time
periods prior to release to permit the submitter
time to take action to preserve the confidentiality
of its information. Further, commenters objected
to the provision that allows the administrator to
waive the 10-day notice requirement if the public
interest will be served by such waiver. At the
least, they argued, a 10-day minimum is required.
Some even suggested that any time period less
than 10 days would violate due process.
The existing notice provision is in accordance
with other notification provisions in this regula-
tion. As stated earlier in this preamble, the agency
has concluded that this time period provides an
adequate opportunity for submitters of informa-
tion to seek whatever recourse they feel may be
necessary to preserve their rights. Accordingly, to
prevent the possibility of delay in the release of in-
formation that the agency considers necessary to
its functions, the NHTSA will not amend the
10-day notification provision.
With respect to the Administrator's discretion
to waive the notification provision when the public
interest demands, the agency concludes that this
discretion is necessary. The exigencies of the
#
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PART 512 -PRE 12
agency's regulatory activities may, on rare occa-
sions, necessitate such waiver. For example, the
Acts under which the agency operates grant the
agency broad powers to protect the public safety.
These powers include the right to act quickly to
save lives. If the agency were to establish an in-
flexible minimum 10-day notice provision, it would
be restricting its validly granted statutory
authority. This would undesirably limit our ability
to meet our responsibilities to the public as stated
in the Acts, and in their legislative histories.
Accordingly, the agency will not limit the Ad-
ministrator's discretionary powers to respond to
emergencies. Further, the agency notes that the
courts and the FOIA Report substantiate the
agency's position that minimum time limits must
be flexible. The agency concludes that allegations
of a due process violation when minimum time
limits are not established are without merit and do
not reflect current judicial thinking. The agency
will always seek to provide lO-working days
notification to the submitter of information. In
those instances where this notice is not practicable
the agency will provide sufficient time for the sub-
mitter to seek judicial recourse if it so desires.
The MVMA went so far as to suggest that prior
to the release of confidential information the
agency is required to have a formal adversarial
hearing. For their support, they cited Mathews v.
Eldridge, 424 U.S. 319 (1976). This case held only
that some form of reasonable opportunity to be
heard must be granted prior to the deprivation of a
property right. The court, however, stated that
full adversarial proceeding was unnecessary and
that "[t]he judicial model of an evidentiary hearing
is neither a required, nor even the most effective
method of decisionmaking in all circumstances"
(424 U.S. at 348). In fact, only in the rarest of cir-
cumstances have the courts required a full adver-
sarial hearing prior to the termination of property
rights. Goldberg v. Kelly, (397 U.S. 254 (1970)). In
that case, the court required a hearing prior to the
termination of welfare benefits since to do other-
wise would impose an undue hardship upon the
recipient which might, in fact, endanger the recip-
ient's life. In many similar cases that are less life-
threatening courts have not required formal pre-
termination hearings. Certainly the release of con-
fidential information does not pose the danger to
life itself that warranted the Goldberg approach,
and accordingly, its release does not require
formal hearings. The NHTSA concludes that its
provision allowing the opportunity to comment
prior to any release provides ample opportunity to
be heard in compliance with existing judicial deter-
minations.
The MVMA further argued that if the agency
intends to continue with its informal procedures
as outlined above it should at least indicate that it
will consider the comments received and a writ-
ten determination as to why the release is being
made and upon what grounds the public interest
is served. As stated earlier, the reasons for the
release will be supplied in the first notice to the
submitter. Responding to the MVMA's concern
that the comments received may not be con-
sidered, all timely submitted comments will be
considered prior to release of the information.
Volkswagen and several other commenters
suggested that the agency better define the term
"public interest." They suggested that the agency
adopt a definition similar to that of the EPA (40
CFR 2.205(g)) which permits the EPA to act ex-
peditiously when it determines that it "would be
helpful in alleviating a situation posing an immi-
nent danger to public health or safety. . . "
The NHTSA considers that the existing
wording of the regulation adequately details the
necessary findings of the agency that permit the
immediate disclosure of confidential information
when it is in the public interest. The agency con-
siders it unnecessary to further define by regula-
tion what constitutes the public interest. At-
tempts to define terms such as public interest are
usually unsuccessful, because these terms em-
brace very broad, diverse, and often-changing
concepts. Public interest is something than can
only be determined in the context of specific facts
and their potential ramifications.
Although the agency will not define "public in-
terest" in the regulation, submitters can be
assured that the agency will release information
only after making some showing that such release
truly benefits the public. Existing case law
clearly reflects the fact that certain findings must
be made by an agency more than the mere recita-
tion that the release of information is in the
public interest. For example, in Pennzoil v. FPC,
534 F.2d 627 (5th Cir. 1976), the Court did not in-
validate the public interest test, but stated that
the FPC had not examined all of the relevant
criteria that should go into the making of the
PART 512 -PRE 13
public interest determination. The court sug-
gested that the agency consider whether: (1) the
disclosure would aid the agency, (2) the disclosure
would harm the public, and (3) there are alter-
natives to disclosure that will work equally well
(i.e., disclosure of aggregated or summarized infor-
mation). Agency discretion exercised pursuant to a
general public interest authority has been upheld
in many other instances. Administrator, FAA et
al V.Robertson, 422 U.S. 255 (1975); Westinghouse
Electric Corp. v. NRC, 555 F.2d 82 (3rd Cir. 1977).
The AIA suggested that Part 512.8(b) should
specify more than just the reasons for the need for
release of confidential information. They sug-
gested that the agency require more specific infor-
mation to be stated in the Administrator's notice
to the submitter. The agency realizes that releases
of confidential information may be contested by
the submitter. Accordingly, the NHTSA will en-
sure that the record of the decisionmaking process
and reasons for the final determination are fully
established to facilitate judicial review. However,
for purposes of this regulation, the agency con-
cludes that it is sufficient to indicate that the Ad-
ministrator will clearly establish all of the reasons
for releasing information.
Several commenters objected to the possible
releases of information under section 512.10 of this
regulation. As proposed, this section permitted
the disclosure of confidential information (1) to the
Congress or the Comptroller General, (2) pursuant
to court order, (3) to the Office of Secretary of the
Department of Transportation (DOT), (4) with the
consent of the submitter, (5) to other Federal agen-
cies in accordance with applicable law, and (6) to
contractors if necessary.
The agency does not fully understand the theory
on which the objectors to this provision base their
claims. Generally, NHTSA does not have authority
to withhold information of any sort from the Con-
gress, review or oversight offices within the Exec-
utive branch, or the courts pursuant to a court
order. Nor can the NHTSA deny information to
the Secretary of the DOT, since the agency derives
its authority from that official. Further, the
agency is not at liberty to interfere with any other
law that would expressly or impliedly require the
agency to yield information to another Federal
agency. The only provisions of this section that the
agency can really affect are those relating to the
release of information with the consent of the
submitter, with which the agency assumes no one
argues, and to the submission of information to
contractors. In the latter case, the agency has in-
dicated in the regulation that the contractors will
be required to maintain the confidentiality of the
information or be responsible to the parties for the
consequences of its release. Therefore, in this sec-
tion of the regulation, the agency has merely in-
dicated the two instances when it will release in-
formation and has indicated that there will be
safeguards for the information in those instances.
The other parts of this section indicate those occa-
sions when the NHTSA is obliged to disclose infor-
mation pursuant to higher authorities. With
respect to the release of information to higher
authorities, the NPRM neglected to include the
release of information to offices in the Executive
branch that have review or oversight authority.
The regulation has been amended to correct this
omission, and has been reorganized for clarity.
The MEMA argued that any release of informa-
tion under this section should only be made as re-
quired by law. As stated previously, that is mostly
what this section does. Further, the MEMA sug-
gested that the agency impose regulations that
would safeguard the secrecy of the information in
the hand of another agency or the Congress that is
the recipient of the information.
The agency can not impose requirements upon
the Congress or other administrative agencies.
The NHTSA cannot require the Congress, for
example, to promise to keep information confiden-
tial. It is assumed that the Congress or any other
agency will treat confidential information with the
care that it deserves. The agency, however, at-
tempts to safeguard the information to the extent
possible by ensuring that the requests for con-
fidential information are valid and authorized and
by indicating to the recipient at the time the infor-
mation is released that it is confidential and should
be treated accordingly. Further, the agency
typically obtains a written agreement from a re-
questing agency that it will release the informa-
tion only if required by law to do so and will con-
sult with NHTSA regarding any FOIA requests
that the requesting agency receives for the infor-
mation. The agency has amended this section of
the regulation to effect some of these practices.
Some commenters criticized the provision in the
regulation that permits the agency to supply con-
fidential information obtained pursuant to the
i
#
f
PART 512 -PRE 14
agency's compulsory process devices to other
agencies that do not have such powers to compel
information. These commenters indicated that
they thought that such a transfer of information
would be contrary to the rights of a submitter.
The NHTSA agrees that access by other agen-
cies to such confidential information possessed by
the agency should be limited. However, some ac-
cess to confidential information by other agencies
is legitimate and necessary. When the agency is
expressly or impliedly required to provide infor-
mation pursuant to applicable law, the NHTSA
must supply the information. Other requests for
information will be closely scrutinized by the
NHTSA. The NHTSA will only release informa-
tion that it has received through compulsory proc-
ess to agencies that can compel the information
directly from the submitter or that are otherwise
authorized by law to obtain it. The agency con-
cludes that such a transfer of information is in the
best interest of the government and the submitter.
Through this sharing of information, a submitter is
spared the expense of compiling and submitting in-
formation that is already available to the govern-
ment. However, agencies that are not expressly or
impliedly authorized to obtain information from
the NHTSA and that cannot obtain information
from the submitter directly will not be able to ob-
tain information from the NHTSA that the agency
has received through compulsory process. If Con-
gress had intended those agencies to have the
right to such information, it would have given
them the right to receive it from other agencies or
the power to obtain it.
The MEMA requested that a submitter be given
notice of the government's release of information
pursuant to this section. The agency cannot always
give advance notice of releases in these cir-
cumstances because to do so could put the agency
in the position of interfering with a valid and ex-
igent investigation by the Congress, with a court
proceeding, or with other Executive branch
review or oversight of agency actions. The Con-
gress has the authority, for example, to demand
some information immediately. Accordingly, the
agency might not be able to provide advance
notice to a submitter that its information is being
disclosed. In a recent case, EXXON et al v. FTC,
589 F.2d 582 (D.C. Cir. 1978) the court indicated
that a mandatory advance notice of release of con-
fidential information to Congress was not required
unless the agency promised to give such a notice.
The agency concludes that this recent decision con-
firms its position that releases of information in
these instances that are required by law and which
do not constitute the public disclosure of informa-
tion are not the type of releases requiring advance
notification.
The NHTSA has reviewed the existing law with
respect to the disclosure of information to other
government agencies and contractors and con-
cludes that the question of whether advance notice
of such disclosures is required remains unsettled.
The agency believes that providing advance notice
to submitters in these cases is not presently re-
quired by law nor always in the best interest of the
agency, but will do so where appropriate. In the
case of contractors, the agency notes that informa-
tion will not be released to contractors if it would
result in a conflict of interest for that contractor.
The AIA in a general comment about the release
of confidential information expressed their con-
cern that such a release might be considered a tak-
ing of private property for public use entitling the
submitter of the information to compensation.
They base this argument on the Constitution's
Fifth Amendment protection of property rights
from uncompensated public takings. In support of
their argument, AIA cited two cases. Continental
Oil Company v. FPC, 519 F.2d 31 (5th Cir. 1975),
cert den'd sub nom. Superior Oil v. FPC, 425 U.S.
971 (1976); and Westinghouse Electric Corp. v.
Nuclear Regulatory Commission, 555 F.2d 82 (3rd
Cir. 1977), in which the issue of a compensable tak-
ing has been mentioned involving the release of
confidential information. Unfortunately, neither of
these judicial pronouncements have yet clarified
this area of the law.
In Continental Oil, the court never reached the
question of compensation, deciding the case on
other issues. In Westinghouse, the court reached
the issues of taking but determined that a taking
could not occur where the information had been
voluntarily given to the government. In dictum,
the court indicated that a compelled production of
confidential information which was subsequently
released might result in a compensable taking.
This issue was before the courts again in Polaroid
Corp. V. Costk (Civil Action No. 78-113-S) in the
U.S. District Court of the District of Massachu-
setts. However, that case was settled prior to
reaching the merits of this issue. Therefore, there
PART 512 -PRE 15
is no legal precedent of which the NHTSA is aware
indicating that such a release would constitute a
taking, and the agency concludes that a taking will
not occur as a result of such a release.
Miscellaneous Comments
A few commenters considered the affidavit
requirement unnecessary. The MVMA alleged
that it served no useful purpose and that its aim
was to force people into compliance with the
requirements. The MVMA further asserted that
the requirement to state that the person has con-
tacted those in authority to release confidential in-
formation and ascertained that the information
had not been released necessitated the person's
giving hearsay.
The above comments to this section are unwar-
ranted by the relatively innocuous provisions of
the affidavit. The affidavit simply requires a
responsible official of the submitter of information
to attest under oath to the accuracy of certain
statements. First, the official attests to his
authority. Second, the official attests to the
confidentiality of the information. Since the sub-
mitter is asking the agency to make a confidential-
ity determination, it is proper to ask that the sub-
mitter attest to the fact that the information is
confidential. Third, the authorized official must at-
test that he or she has contacted responsible of-
ficials who in the normal course of business may
release information to determine whether the in-
formation has been released. This is the provision
that the MVMA characterizes as requiring "use-
less hearsay." The purpose of this provision is not
to prove conclusively that information was never
released. This provision simply requires that the
official attest to the fact that he or she has checked
with the officials to discover any such disclosure.
Since the provision goes to proving that the official
checked with responsible personnel not to the
truth of the statements of those personnel, it does
not require hearsay. When the previous require-
ment is coupled with paragraph (4) of the affidavit,
it is clear that the attesting official only attests to
the fact that to the best of his knowledge informa-
tion has not been released. In sum, the require-
ments of this provision are minimal and simply
assure that the official has complied with the in-
quiry provisions of the regulation and has pro-
vided the agency with the information acquired
through the inquiry.
The NHTSA received numerous comments sug-
gesting additional classes of information that the
industry would have the agency include within the
classes of information presumed to be confidential.
Almost every commenter suggested some classes
for inclusion within the existing list. The effect of
these comments, if adopted, would be to make
almost every piece of information submitted to the
agency presumptively confidential. Such an out-
come would not serve the public interest nor
would it comply with existing statutes granting
the public access to governmental information.
The agency chose the existing classes because
they were narrow enough to include only the infor-
mation that the agency customarily finds confiden-
tial. The NHTSA concludes that such classes of
information presumed to be confidential must be
very limited and must not include information that
is not normally considered confidential.
The NHTSA concludes that the existing list of
classes of presumptively confidential information
is sufficient for the present. The agency is experi-
menting with the class determination approach as
a means to reduce the workload in making con-
fidentiality determinations. At this time, however,
the NHTSA does not have sufficient experience in
the use of these classes to warrant an expansion of
them. As soon as the agency becomes more famil-
iar with this process, changes to the classes might
be made increasing the information presumed to
be confidential. This can only be done, however,
after the agency evaluates the class determination
procedure and further reviews the other types of
information for which confidentiality is requested
and which normally deserves confidential treat-
ment. Accordingly, the agency declines to adopt
the classes suggested by the manufacturers and
other commenters at this time, but it will retain
these comments for possible future inclusion
within the regulation when experience indicates
that such inclusion would be appropriate.
This regulation was reviewed under Executive
Order 12044 and determined to be significant
based upon the anticipated public comments on the
proposed version of the regulation. However,
voluntary implementation of the regulation during
the past two years has demonstrated that initial
concerns about having to submit significantly
increased justification to support confidentiality
requests and about increases in the release of con-
fidential information have not been borne out.
#
PART 512 -PRE 16
Further discussion of these issues is provided
above in this notice. No regulatory analysis or
evaluation has been prepared for this notice since
it imposes little or no additional cost on persons
making confidentiality claims. The primary effect
of the regulation is to codify existing agency prac-
tices in implementing statutory and case law
regarding confidential information.
The principal author of this regulation is Roger
Tilton of the Office of Chief Counsel.
In consideration of the foregoing, Title 49 of the
Code of Federal Regulations is amended by the ad-
dition of a new Part 512, Confidential Business
Information.
(Sec. 9, Pub. L. 89-670, 80 Stat. 931 (49 U.S.C.
1657); sec. 112, Pub. L. 89-563, 80 Stat. 725, amend-
ed Pub. L. 91-265, 84 Stat. 262 (15 U.S.C.
1401); sec. 119, Pub. 89-563, 86 Stat. 950 (15 U.S.C.
1914); sec. 204, Pub. 92-513, 86 Stat. 957; (15 U.S.C.
1944); sec. 408, Pub. L. 92-513 as added Pub. L.
94-364, 90 Stat. 985 (15 U.S.C. 1990d), sec. 505 Pub.
L. 94-163, 89 Stat. 908 (15 U.S.C. 2005), delegation
of authority at 49 CFR 1.50.)
Issued on December 30, 1980.
Joan Claybrook
Administrator
46 FR 2049
January 8, 1981
PART 512-PRE 17-18
•
#
PREAMBLE TO AN AMENDMENT TO PART 512
Confidential Business Information
(Docket No. 78-10; Notice 10)
RIN 2127-AC95
ACTION: Final Rule.
SUMMARY: This notice revises and reissues the
existing regulation contained in 49 CFR Part 512—
Confidential Business Information. Revisions to the
existing regulation are necessary to ensure efficient
processing and proper protection of business infor-
mation received by the National Highway Traffic
Safety Administration (NHTSA). This action is in-
tended to clarify certain provisions, to revise certain
sections to conform to statutory and case law, to
include additional class determinations and to add a
presumptive class determination.
EFFECTIVE DATE: November 28, 1989. "Confi-
dential Business Information," as a final rule on
June 7, 1982, 47 FR 24587. This regulation has not
been amended or revised since that time. The agency
% believes that the procedures for submitting confiden-
tial business information have generally worked
well since 1982, but practical experience in process-
ing this information has shown that some improve-
ments and clarifications are advisable. The proposed
modifications were published in the Federal Register
on July 7, 1989 (54 FR 28696) (the NPRM).
Six organizations responded to the agency's solic-
itation for public comments. Although five minor
revisions have been made in the final regulation in
response to comments, the comments generally re-
flect approval of the proposed changes. NHTSA has
also modified Appendices A and B and §5 12.5(b) to
make clarifications in response to comments.
Discussion of Comments
The agency's proposals for which commenters ex-
pressed support or no opinion have not been included
in the Discussion of Comments. The explanation of
such proposals contained in the NPRM is incorpo-
rated by reference for the purposes of this Notice.
Impairment of Protectable Government Interests
The revision in §512.5 relating to the impairment
of protectable government interests attracted the
attention of Ford Motor Company. While basically
^^ agreeing with need for a change, Ford suggested
^^ expanding this section to include the concept that
confidentiality should be granted if disclosure was
likely to impair a "private interest." Ford proposed
to accomplish this by inserting the words "or pri-
vate" after "government" in §512.4(bX3Xviii) and
§5 12.5(c) in recognition of dicta in cases cited in the
NPRM. The agency is reluctant to make this change
in the absence of clear judicial decisions which
determine that the disclosure of confidential infor-
mation causes a private harm other than a substan-
tial harm to the competitive position of the submit-
ter. The addition of §512.5(c) and §512.4(bX3Xviii) in
the NPRM responds to a genuine need for protection
of government interests that are not otherwise rec-
ognized, i.e., the impairment of program effective-
ness or compliance. However, the agency believes
that the regulation sufficiently covers private inter-
ests in §5 12.4(g) and §5 12.5(a), and therefore will not
incorporate Ford's proposed amendment.
Submitter's Supporting Certification
Volkswagen of America, Inc., and Ford requested
changes to the certification in Appendix A. Volkswa-
gen wanted Appendix A to include both the form of
the affidavit and the form of the certification if the
agency was truly willing to accept either format. By
expressing willingness in the NPRM to accept affi-
davits which contain the statements contained in
the proposed Appendix A, the agency did not intend
to formally create an optional format. NHTSA is
satisfied with one format, but a certification in that
format, that is also notarized, will not be rejected as
insufficient.
Ford asserted that the qualifying words "to the
best of my information, knowledge and belief,"
which were deleted from paragraph (6) of the certi-
fication, should be retained. Ford also questioned
whether it was possible for a busy company execu-
tive to make the "personal inquiry" indicated in
paragraph (3) of the certification without the use of
such qualifying language. NHTSA agrees to correct
this oversight by adding the words "information and
belief," after "knowledge" in paragraph (4). The
agency believes that this will adequately address
Ford's concern for fairness to the declarant who may
PART 512; PRE 19
use subordinates to aid him in his inquiries, and yet,
not interfere with the statutory requirements of 28
use §1746 and 18 USC §1001 concerning unsworn
declarations to the government under penalty of
perjury.
New Class Determinations
All of the commenters provided suggestions con-
cerning the class determinations listed and proposed
for listing in Appendix B. If the agency determines
that public release of a particular class of informa-
tion typically would result in substantial competi-
tive harm and publishes that determination in Ap-
pendix B, a rebuttable presumption is created about
the likelihood of such harm if information of that
type were publicly released. This presumption has
the effect of eliminating the requirement that the
submitter initially demonstrate the elements con-
tained in §512.4(bX3Xvi).
The commenting automobile manufacturers gener-
ally supported the General Motors Corporation's peti-
tion for the agency to make a class determination
about cost information. General Motors offered an
amendment to its original draft limiting "cost" to
"manufacturer's cost." Volkswagen suggested that the
presumptive determination include "future actual as
well as estimated cost." Ford asked that the agency
craft a presumption that includes the kinds of cost
data that the agency generally has withheld. Chrysler
Motors Corporation asserted that no distinction should
be made between general cost estimates, ranges of
costs and specific actual cost data relating to a product
because all could be damaging if disclosed.
However, these suggestions do not adequately ad-
dress the concern of the agency that a highly inclu-
sive presumption may erroneously encompass costs
that under certain circumstances are not entitled to
confidential protection. Public Citizen and the Free-
dom of Information Clearinghouse echoed this con-
cern, stating that it is difficult to draft a determina-
tion relating to cost that is not overbroad. While the
presumption would be rebuttable, NHTSA wants to
avoid confusion, misunderstanding and wasteful ef-
fort considering claims involving, for example,
meaninglessly overbroad estimates of future costs or
cost elements which may have inadvertently been
introduced into the public domain. NHTSA does not
believe that it will suffer an impaired ability to
obtain cost information without the presumption, as
one commenter suggested, nor does it believe that
the evidence on cost submissions is clear enough to
permit the drafting of a sufficiently narrow provi-
sion at this time. The agency therefore has decided
that a new class determination relating to costs is
not advisable. General Motors' suggested class de-
termination is, therefore, not adopted.
Three companies made comments on NHTSA's
proposed amendments to paragraphs (2) and (3) of
the current class determinations in Appendix B.
General Motors and Volkswagen suggested that
"model year" be clarified to mean the vehicle pro-
duction period. Ford proposed that product plans be ^k
protected until the date on which the last of the !■
specific models to which the product plans pertain is
first offered for sale.
All of these comments demonstrate the necessity
for clarification of the terminology "product plans"
and "model year." The phrase "first offered for sale"
is more precise than "the beginning of the model
year" in paragraph (2). Also the concept of "pro-
duction period" is better suited for explaining the
presumption in paragraph (3). NHTSA believes that
paragraphs (2) and (3) have been simplified and more
correctly stated by the adoption of these changes.
In addition, Volkswagen wanted model plans pro-
tected to the end of the production period, not the
beginning, because certain specific products or fea-
tures are scheduled for introduction some time after
such period begins. The agency does not agree with
Volkswagen's suggestion to protect model plans until
the end of the model production period. If there is a
specific change that is scheduled to take place relating
to a certain model vehicle after production of such
model begins, it should be pointed out by the submitter
when such change will be offered to the public. The
specific change can then be protected until it is offered
to the public, while the remainder of the information ^
pertaining to that vehicle will be released when the W^
vehicle is first offered to the public.
Miscellaneous Provisions
The amendment relating to voluntary submis-
sions in §512.5 was the subject of comments from
both Ford and General Motors. Ford suggested that
this section be expanded to include the concept that
confidentiality should be granted if disclosure was
likely to impair the ability of NHTSA to obtain
necessary similar information in the future, even
though NHTSA could compel disclosure of such
information. General Motors made the point that
material that is ostensibly obtainable via compul-
sory process might be considered, in some instances,
the equivalent of a voluntary submission. However,
as was stated in the NPRM on page 28698 and by
General Motors in its comments, whether future
submissions of information could be compelled is
only a factor to be considered in deciding if govern-
mental access to information will be impaired by
disclosure, but it is not necessarily dispositive. Pub-
lic Citizen Health Research Group v. FDA, 704 F.2d
1280, 1291 n. 29 (D.C. Cir 1983); Washington Post
Ca V. HHS, 690 F2d 252 (D.C. Cir. 1982). Moreover,
the agency recognizes that courts have given great ^^
weight to agency determinations that the release of ^^
PART 512; PRE 20
information will not cause impairment. General
Electric Ca v. NRC, 750 F.2d 1394, 1402 (7th Cir.
1984); AT&T Information Systems v. GSA 627 F.
Supp. 1396, 1401 (D.D.C. 1986), reversed and re-
manded on procedural grounds, 810 F.2d 1233 (D.C.
Cir. 1987).
The changes proposed in the NPRM were intended
to reflect more accurately the established case law
but not to enumerate every factor to be considered
when deciding whether information should be pro-
tected from disclosure. Furthermore, this regulation
is intended to be procedural, and not substantive.
Because of these factors, the agency believes that it
is inappropriate to attempt to amend the regulation
according to the ongoing judicial development of
highly specific disclosure exceptions under the Free-
dom of Information Act. Consequently, the agency is
satisfied that the regulation should provide broad
categories and a flexible framework based upon well
established judicial precedent. In order to respond to
the concerns expressed by Ford and General Motors
and to avoid future confusion about voluntary sub-
missions of information as outlined in recent judicial
decisions, the regulation has been modified to delete
entirely the references to voluntary submissions in
§512. 5(b). The agency will, however, make no change
to §512.4(bX3Xvii) which permits the submitter to
explain impairment when the information is submit-
ted voluntarily. This modification of the proposal
also accommodates precisely the issues raised by
General Motors and Ford, reflects accurately the
established case law and maintains a broad, flexible
framework for submitters using the regulation.
Public Citizen and the Freedom of Information
Clearinghouse expressed concern about the timing
of NHTSA's confidentiality determinations. On this
point, the NPRM did not propose any substantive
changes from the original regulation. Nevertheless,
these commenters suggested that the agency should
decide on and publish a date certain by which
confidentiality determinations will be made. Tten
days were recommended to be a reasonable period of
time. The commenters said that without further
clarification, §512. 6(b), which requires placing in
the public file copies of documents from which infor-
mation claimed to be confidential or privileged has
been deleted pending resolution of such claim, is
likely to mislead the public.
The agency does not agree that the procedures in
§512. 6(b) are misleading. All persons having an
interest in files from which information has been
redacted, may, and frequently do, make further in-
quiries about additional information pursuant to the
Freedom of Information Act. In these situations,
NHTSA's practical experience with the regulation
has been excellent, as explained below, and the
agency is satisfied that the public has pursued
information under this statute in instances where
more information was wanted. In such instances, as
noted in §512.6(c), the agency must respond within
the statutory time periods. It is also important to
point out that because of practical manpower re-
straints, the agency would not always be able to
meet a self-imposed deadline for redacted informa-
tion about which there was no expressed public
interest and also fulfill its obligations to persons
requesting information under statutory deadlines.
Moreover, the agency believes that the processing of
voluminous files for which confidential treatment
has been requested has been expeditious and orderly
under the applicable provisions of the existing reg-
ulation. Accordingly, the agency declines to make
the suggested changes.
Public Citizen and the Freedom of Information
Clearinghouse also objected to the proposed change
in §512.4(j) (currently §512.4(i)). In this section, the
agency proposed to replace the provision requiring
the denial of confidential claims when information is
submitted without the certification required by
§512. 4(e) with a provision making it discretionary to
deny or accept such claims. General Motors com-
mented in support of the change, noting that the
automatic denial of confidential treatment is "an
unnecessarily harsh penalty for what may be an
inadvertent omission."
The provisions of §512.4(e) mandate that the sub-
mitter's certification be included with every request
to the agency for the confidential protection of infor-
mation. The agency continues to believe that the
certification is the best method by which a submitter
can demonstrate compliance with the requirements
of the Freedom of Information Act. Furthermore,
NHTSA is prepared to deny claims which do not
reasonably comply with §512.4(e). However, it is not
justifiable for the agency to be compelled to deny a
claim for confidential treatment which includes no
certification but which is clearly exempt from disclo-
sure pursuant to the Freedom of Information Act, 5
U.S.C. 552(bX4). In circumstances where the agency
is absolutely satisfied that a submitter has made a
serious claim for confidential protection of informa-
tion, the information has not been released to the
public, and the information is properly protectable
under Exemption 4, the agency should not require
itself to disclose the information. The proposed mod-
ification realistically retains the certification re-
quirement without creating the potentially im-
proper technical conflict between the regulation's
procedures and the demands of the Freedom of
Information Act. For this reason, NHTSA believes
that this comment lacks merit. Accordingly, the
proposed change has been adopted.
General Motors questioned whether documents
submitted under a claim of confidentiality would be
PART 512; PRE 21
adequately protected until the Chief Counsel has
made a determination and suggested that the regu-
lation provide appropriate safeguards to prevent
inadvertent disclosure of documents. NHTSA is sat-
isfied that this concern is covered by the regulation
in §512.6(h) which provides that no information will
be released prior to the time that the Chief Counsel
makes a decision under the regulation. Further-
more, the purpose of this rule is to establish proce-
dures to consider claims of confidentiality and not to
specify internal agency procedures for document
protection. Consequently, no change is being made
in the Final Rule.
Ford raised an issue relating to the whether
§512.4(jXl) should reference paragraph (a) or sub-
paragraphs (aXl), (aX2) and (aX3) of this section. The
agency considered this suggestion, but believes that
all of the subparagraphs of paragraph (a) are suffi-
ciently inter-related to justify the reference to the
entire paragraph. The agency believes that the sub-
mitter should be responsible for providing a cor-
rectly sanitized second copy of information in accor-
dance with subparagraphs (aX4) and (aX5), or suffer
the consequences of waiver arising out of an inad-
vertent disclosure. NHTSA cannot agree to be re-
sponsible for finding errors in such second copies,
and believes that waiver of the claim is fair and is
the proper result of such submitter error.
Finally, Ford suggested that in §5 12.9(a) the word
"and" be replaced with "or" in the series "§§512.4,
512.6 and 512.7" because such sections would never
be invoked simultaneously in claiming or determin-
ing confidentiality. The agency agrees with this
comment and has adopted it in this Final Rule.
In consideration of the foregoing, 49 C.F.R. Part
512 is revised to read as follows:
PART 512— CONFIDENTIAL BUSINESS
INFORMATION
Sec.
512.1 Purpose and scope.
512.2 Applicability.
512.3 Definitions.
512.4 Asserting a claim for confidential treatment of
information.
512.5 Substantive standards for affording confiden-
tial treatment.
512.6 Determination of confidential treatment.
512.7 Petitions for reconsideration upon denial of a
request for confidential treatment.
512.8 Modification of confidentiality determinations.
512.9 Release of confidential business information.
512.10 Class determinations.
Appendix A to P&rt 512— Certificate In Support of
Request for Confidentiality.
Appendix B to Part 512— Class Determinations.
Appendix C to Part 512-OMB Clearance.
Authority: 49 U.S.C. 322; 5 U.S.C. 552; 15 U.S.C.
1401; 15 U.S.C. 1402; 15 U.S.C. 1407; 15 U.S.C.
1418; 15 U.S.C. 1914; 15 U.S.C. 1944; 15 U.S.C.
1990d; 15 U.S.C. 2005; 15 U.S.C. 2029; delegation of
authority at 49 C.FR. 1.50. ^
§512.1 Purpose and scope.
The purpose of this part is to establish the proce-
dvu-e by which NHTSA will consider claims that
information submitted to the agency, or which the
agency otherwise obtains, is confidential business
information, as described in 5 U.S.C. 552(bX4).
§512.2 Applicability.
(a) This part applies to all information which is
submitted to NHTSA, or which NHTSA otherwise
obtains, except as provided in paragraph 0)) of this
section.
(b) Information received as part of the procure-
ment 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 Acquisi-
tion Regulation and this part, the provisions of the
Federal Acquisition Regulation prevail.
§512.3 Definitions.
"Administrator" means the Administrator of the
National Highway Traffic Safety Administration.
"Chief Counsel" means the Chief Counsel of the
National Highway Traffic Safety Administration. ^
"Confidential business information" means infor- t^
mation described in 5 U.S.C. 552(bX4).
"NHTSA" means the National Highway Traffic
Safety Administration.
"Substantial competitive harm" encompasses
"significant competitive damage" under Title V of
the Motor Vehicle Information and Cost Savings Act,
15 U.S.C. 2001 et seq.
§512.4 Asserting a claim for confidential treatment
of information.
(a) Any person submitting information to NHTSA
and requesting that the information be withheld
from public disclosure as confidential business infor-
mation shall:
(1) Stamp or mark "confidential," or some other
term which clearly indicates the presence of informa-
tion claimed to be confidential, on the top of each page
containing information claimed to be confidential.
(2) On each page marked in accordance with
paragraph (aXD of this section, mark each item of
information which is claimed to be confidential with
brackets "[ ]".
(3) If an entire page is claimed to be confidential,
indicate clearly that the entire page is claimed to be
confidential. ^k
(4) Submit two copies of the documents containing ^^
PART 512; PRE 22
allegedly confidential information (except only one
copy of blueprints) and one copy of the documents
from which information claimed to be confidential
has been deleted to the Office of Chief Counsel,
National Highway Traffic Safety Administration,
Room 5219, 400 Seventh Street, S.W., Washington,
D.C. 20590. Include the name, address, and tele-
phone number of a representative for receipt of a
response from the Chief Counsel under this part.
(5) If a document containing information claimed
to be confidential is submitted in connection with an
investigation or proceeding, a rulemaking action, or
pursuant to a reporting requirement, for which there
is a public file or docket, simultaneously submit to
the appropriate NHTSA official a copy of the docu-
ment from which information claimed to be confi-
dential has been deleted. This copy will be placed in
the public file or docket pending the resolution of the
claim for confidential treatment.
(bXl) When submitting each item of information
marked confidential in accordance with paragraph
(a) of this section, the submitter shall also submit to
the Office of the Chief Counsel information support-
ing the claim for confidential treatment in accor-
dance with paragraph (bX3) and paragraph (e) of this
section.
(2) If submission of the supporting information is
not possible at the time the allegedly confidential
information is submitted, a request for an extension
of time in which to submit the information, accom-
panied by an explanation describing the reason for
the extension and the length of time needed, must be
submitted. The Chief Counsel shall determine the
length of the extension. The recipient of an exten-
sion shall submit the supporting information in
accordance with the extension determination made
by the Chief Counsel and subparagraph (3) of this
section.
(3) The supporting information must show:
(i) That the information claimed to be confidential
is a trade secret, or commercial or financial informa-
tion that is privileged or confidential.
(ii) Measures taken by the submitter of the infor-
mation to ensure that the information has not been
disclosed or otherwise made available to any person,
company, or organization other than the submitter
of the information.
(iii) Insofar as is known by the submitter of the
information, the extent to which the information has
been disclosed, or otherwise become available, to per-
sons other than the submitter of the information, and
why such disclosure or availability does not compro-
mise the confidential nature of the information.
(iv) Insofar as is known by the submitter of the
information, the extent to which the information has
appeared publicly, regardless of whether the submit-
ter has authorized that appearance or confirmed the
accuracy of the information. The submitter must
include citations to such public appearances, and an
explanation of why such appearances do not compro-
mise the confidential nature of the information.
(v) Prior determinations of NHTSA or other Fed-
eral agencies or Federal courts relating to the confi-
dentiality of the submitted information, or similar
information possessed by the submitter including
class determinations under this part. The submitter
must include any written notice or decision con-
nected with any such prior determination, or a
citation to any such notice or decision, if published
in the Federal Register.
(vi) Whether the submitter of the information
asserts that disclosure would be likely to result in
substantial competitive harm, what the harmful
effects of disclosure would be, why the effects should
be viewed as substantial, and the causal relationship
between the effects and disclosure.
(vii) If information is voluntarily submitted, why
disclosure by NHTSA would be likely to impair
NHTSA's ability to obtain similar information in the
future.
(viii) Whether the submitter of the information
asserts that disclosure would be likely to impair
other protectable government interests, what the
effect of disclosure is likely to be and why disclosure
is likely to impair such interests.
(ix) The period of time for which confidentiality is
claimed (permanently or until a certain date or until
the occurrence of a certain event) and why earlier
disclosure would result in the harms set out in
paragraph (bX2Xvi), (vii) or (viii) of this section.
(c) If any element of the showing to support a claim
for confidentiality required under paragraph (bX3) of
this section is presumptively established by a class
determination, as issued pursuant to §512.10, affect-
ing the information for which confidentiality is
claimed, the submitter of information need not es-
tablish that element again.
(d) Information in support of a claim for confiden-
tiality submitted to NHTSA under paragraph (b) of
this section must consist of objective data to the
maximum extent possible. To the extent that opin-
ions are given in support of a claim for confidential
treatment of information, the submitter of the infor-
mation shall submit in writing to NHTSA the basis
for the opinions, and the name, title and credentials
showing the expertise of the person supplying the
opinion.
(e) The submitter of information for which confi-
dential treatment is requested shall submit to
NHTSA with the request a certification in the form
set out in Appendix A from the submitter or an
agent of the submitter that a diligent inquiry has
been made to determine that the information has
not been disclosed, or otherwise appeared publicly,
PART 512; PRE 23
except as indicated in accordance with paragraphs
(bX3Xiii) and (iv) of this section.
(f) A single submission of supporting information, in
accordance with paragraph (b) of this section, may be
used to support a claim for confidential treatment of
more than one item of information claimed to be
confidential. However, general or nonspecific asser-
tions or analysis may be insufficient to form an ade-
quate basis for the agency to find that information
may be afforded confidential treatment, and may re-
sult in the denial of a claim for confidentiality.
(g) Where confidentiality is claimed for informa-
tion obtained by the submitter from a third party,
such as a supplier, the submitter of the information
is responsible for obtaining all information and a
certification from the third party necessary to com-
ply with paragraphs (b), (d) and (e) of this section.
(h) Information received by NHTSA that is identi-
fied as confidential and whose claim for confidenti-
ality is submitted in accordance with this section
will be kept confidential until a determination of its
confidentiality is made under section 512.6 of this
part. Such information will not be publicly disclosed
except in accordance with this part.
(i) A submitter of information shall promptly
amend supporting information provided under para-
graphs (b) or (e) of this section 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, is no
longer correct and the circumstances are such that a
failure to amend the supporting information is in
substance a knowing concealment.
(j) Noncompliance with this section may result in a
denial of a claim for confidential treatment of infor-
mation. Noncompliance with paragraph (i) of this
section may subject a submitter of information to
civil penalties.
(1) If the submitter fails to comply with paragraph
(a) of this section at the time the information is
submitted to NHTSA so that the agency is not aware of
a claim for confidentiality, or the scope of a claim for
confidentiality, the claim for confidentiality may be
waived unless the agency is notified of the claim before
the information is disclosed to the public. Placing the
information in a public docket or file is disclosure to
the public within the meaning of this part, and any
claim for confidential treatment of information dis-
closed to the public may be precluded.
(2) If the submitter of the information does not
provide all of the supporting information required in
paragraphs (bX3) and (e) of this section, or if the
information is insufficient to establish that the
information may be afforded confidential treatment
under the substantive tests set out in §512.5, a
request that such information be afforded confiden-
tial protection may be denied. The Chief Counsel
may notify a submitter of information of inadequa-
cies in the supporting information, and may allow
the submitter additional time to supplement the
showing, but is under no obligation to provide either
notice or additional time to supplement the showing.
§512.5 Substantive standards for affording confi-
dential treatment.
Information submitted to or otherwise obtained by
NHTSA may be afforded confidential treatment if it
is a trade secret, or commercial or financial informa-
tion that is privileged or confidential. Information is
considered to be confidential when:
(a) Disclosure of the information would be likely to
result in substantial competitive harm to the sub-
mitter of the information; or
(b) Failure to afford the information confidential
treatment would impair the ability of NHTSA to
obtain similar information in the future; or
(c) Disclosure of the information would be likely to
impair other protectable government interests.
§512.6 Determination of confidential treatment.
(a) The decision as to whether an item of informa-
tion shall be afforded confidential treatment under
this part is made by the Office of Chief Counsel.
(b) Copies of documents submitted to NHTSA
under §512.4(aX5), from which information claimed
to be confidential or privileged has been deleted, are
placed in the public file or docket pending the
resolution of the claim for confidential treatment.
(c) When information claimed to be confidential or
privileged is requested under the Freedom of Infor-
mation Act, the determination of confidentiality is
made within ten working days after NHTSA receives
such a request, or within twenty working days in
unusual circumstances as provided under 5 U.S.C.
552(aX6).
(d) For information not requested pursuant to the
Freedom of Information Act, the determination of
confidentiality is made within a reasonable period of
time at the discretion of the Chief Counsel.
(e) The time periods prescribed in paragraph (c) of
this section may be extended by the Chief Counsel
for good cause shown on the Chief Counsel's own
motion, or on request from any person. An extension
is made only in accordance with 5 U.S.C. 552, and is
accompanied by a written statement setting out the
reasons for the extension.
(0 If the Chief Counsel believes that information
which a submitter of information asserts to be
within a class of information set out in Appendix B
is not within that class, the Chief Counsel:
(1) Notifies the submitter of the information that
the information does not fall within the class as
claimed, and briefly explains why the information
does not fall within the class; and
PART 512; PRE 24
(2) Renders a determination of confidentiality in
accordance with paragraph (g) of this section.
(g) A person submitting information to NHTSA
with a request that the information be withheld
from public disclosure as confidential or privileged
business information is given notice of the Chief
Counsel's determination regarding the request as
soon as the determination is made.
(1) If a request for confidentiality is granted, the
submitter of the information is notified in writing of
that determination and of any appropriate limitations.
(2) If a request for confidentiality is denied in
whole or in part, the submitter of the information is
notified in writing of that decision, and is informed
that the information will be made available to the
public not less than ten working days after the
submitter of the information has received notice of
the denial of the request for confidential treatment,
if practicable, or some earlier date if the Chief
Counsel determines in writing that the public inter-
est requires that the information be made available
to the public on such earlier date. The written
notification of a denial specifies the reasons for
denying the request.
(h) There will be no release of information proc-
essed pursuant to this section until the Chief Coun-
sel advises the appropriate office(s) of NHTSA that
the confidentiality decision is final according to this
section, §512.7 or §512.9.
§512.7 Petitions for reconsideration upon denial of
a request for confidential treatment.
(a) A submitter of information whose request for
confidential treatment is denied may petition for
reconsideration of that denial. Petitions for reconsid-
eration must be addressed to and received by the
Office of Chief Counsel prior to the date on which
the information would otherwise be made available
to the public. The determination by the Chief Coun-
sel upon such petition for reconsideration shall be
administratively final.
(b) If submission of a petition for reconsideration is
not feasible by the date on which the information
would otherwise be made available to the public, a
request for an extension of time in which to submit
a petition, accompanied by an explanation describ-
ing the reason for the request and the length of time
needed, must be received by the Office of Chief
Counsel by that date. The Chief Counsel determines
whether to grant or deny the extension and the
length of the extension.
(c) Upon receipt of a petition or request for an
extension, the Chief Counsel shall postpone making
the information available to the public in order to
consider the petition, unless the Chief Counsel de-
termines in writing that disclosure would be in the
public interest.
(d) If a petition for reconsideration is granted, the
petitioner is notified in writing of that determina-
tion and of any appropriate limitations.
(e) If a petition for reconsideration is denied in
whole or in part or a request for an extension for
additional time to submit a petition for reconsider-
ation is denied, the petitioner is notified in writing
of that denial, and is informed that the information
will be made available to the public not less than ten
working days after the petitioner has received notice
of the denial of the petition, if practicable, or some
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
earlier date. The written notification of a denial
specifies the reasons for denying the petition.
§512.8 Modification of confidentiality determinations.
(a) A determination that information is confiden-
tial or privileged business information remains in
effect in accordance with its terms, unless modified
by a later determination based upon:
(1) Newly discovered or changed facts,
(2) A change in the applicable law,
(3) A class determination under §512.10, or
(4) A finding that the prior determination is
clearly erroneous.
(b) If NHTSA believes that an earlier determina-
tion of confidentiality should be modified based on
one or more of the factors listed in paragraphs (aXD
through (aX4) of this section, the submitter of the
information is notified in writing that NHTSA has
modified its earlier determination and of the reasons
for that modification, and is informed that the
information will be made available to the public in
not less than ten working days from the date of
receipt of notice under this paragraph. The submit-
ter may seek reconsideration of the modification
pursuant to §512.7.
§512.9 Release of confidential business information.
(a) Information that has been claimed or deter-
mined to be confidential business information under
§§512.4, 512.6 or 512.7 may be disclosed to the
public by the Administrator notwithstanding such
determination or claim if disclosure would be in the
public interest as follows:
(1) Information obtained under Part A, Subchapter
I of the National Traffic and Motor Vehicle Safety
Act, relating to the establishment, amendment, or
modification of Federal motor vehicle safety stan-
dards, may be disclosed when relevant to a proceed-
ing under that part.
(2) Information obtained under Part B, Subchapter
I of the National Traffic and Motor Vehicle Safety
PART 512; PRE 25
Act, relating to motor vehicle safety defects, and
failures to comply with applicable motor vehicle
safety standards, may be disclosed if the Adminis-
trator determines that disclosure is necessary to
carry out the purposes of the Act.
(3) Information obtained under Title I, V or VI of
the Motor Vehicle Information and Cost Savings Act
may be disclosed when that information is relevant
to a proceeding under the title under which the
information was obtained.
(b) No information is disclosed under this section
unless the submitter of the information is given
written notice of the Administrator's intention to
disclose information under this section. Written no-
tice is normally given at least ten working days
before the day of release, although the Administra-
tor may provide shorter notice if the Administrator
finds that such shorter notice is in the public inter-
est. The notice under this paragraph includes a
statement of the Administrator's reasons for deter-
mining to disclose the information, and affords the
submitter of the information an opportunity to com-
ment on the contemplated release of information.
The Administrator may also give notice of the con-
templated release of information to other persons,
and may allow these persons the opportunity to
comment. When a decision is made to release infor-
mation pursuant to this section, the Administrator
will consider ways to make the release with the least
possible adverse effects to the submitter.
(c) Notwithstanding any other provision of this
part, information which has been determined or
claimed to be confidential business information,
may be released:
(1) lb Congress;
(2) Pursuant to an order of a court with valid
jurisdiction;
(3) To the Office of the Secretary, United States
Department of Transportation and other Executive
branch offices or other Federal agencies in accord-
ance with applicable laws;
(4) With the consent of the submitter of the
information;
(5) lb contractors, if necessary for the performance
of a contract with the Administration. In such in-
stances, the contract limits further release of the
information to named employees of the contractor
with a need to know and provides that unauthorized
release constitutes a breach of the contract for which
the contractor may be liable to third parties.
§512.10 Class determinations.
(a) The Chief Counsel may issue a class determi-
nation relating to confidentiality under this section
if the Chief Counsel determines that one or more
characteristics common to each item of information
in that class will in most cases necessarily result in
identical treatment of each item of information
under this part, and that it is appropriate to treat all
such items as a class for one or more pxuT)oses under
this part. The Chief Counsel obtains the concurrence
of the Office of the General Counsel, United States ^
Department of Transportation, for any class deter- ™
mination that has the effect of raising the presump-
tion that all information in that class is eligible for
confidential treatment. Class determinations are
published in the Federal Register.
(b) A class determination clearly identifies the
class of information to which it pertains.
(c) 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 under this part.
(2) Fails to satisfy one or more of the applicable
substantive criteria, and is therefore ineligible for
confidential treatment,
(3) Satisfies one or more of the applicable substan-
tive criteria, and is therefore eligible for confidential
treatment, or
(4) Satisfies one of the substantive criteria during
a certain period of time, but will be ineligible for
confidential treatment thereafter.
(d) Class determinations will have the effect of
establishing rebuttable presumptions, and do not
conclusively determine any of the factors set out in
paragraph (c) of this section.
Appendix A to Part 512— Certificate in Support
of Request for Confidentiality
Certificate in Support of Request for Confidentiality
I, , pursuant to the provi-
sions of 49 C.F.R. 512, state as follows:
(1)1 am (official) and I am authorized by (company)
to execute documents on behalf of (company):
(2) The information contained in (pertinent docu-
ment[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(bX4)
(as incorporated by reference in and modified by
the statute under which the information is being
submitted.)
(3) I have personally inquired of the responsible
(company) personnel who have authority in the nor-
mal 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).
(4) Based upon such inquiries, to the best of my
knowledge, information and belief the information
for which (company) has claimed confidential treat-
ment has never been released or become available
outside (company) except as hereinafter specified:
(5) I make no representations beyond those con-
#
#
PART 512; PRE 26
tained in this certificate and in particular I make no
representations as to whether this information may
become available outside (company) because of un-
authorized or inadvertent disclosure except as stated
in Paragraph 4; and
(6) I certify under penalty of perjury that the
foregoing is true and correct. Executed on this the
. (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)
only until the date on which the specific model to
which the plan pertains is first offered for sale);
(3) Future vehicle production or sales figures for
specific models (to be protected only until the termi-
nation of the production period for the model year
vehicle to which the information pertains).
Appendix C to Part 512— 0MB Clearance
The 0MB Clearance number for this regulation is
2127-0025.
Issued on November 21, 1989.
Appendix B to Part 512— Class Determinations.
The Administration has determined that the fol-
lowing types of information would presumptively be
likely to result in substantial competitive harm if
disclosed to the public:
(1) Blueprints and engineering drawings contain-
ing process of production data where the subject
could not be manufactured without the blueprints or
engineering drawings except after significant re-
verse engineering;
(2) Future specific model plans (to be protected
Jeffrey R. Miller
Acting Administrator
National Highway Traffic
Safety Administration
54 F.R. 48892
November 28, 1989
PART 512; PRE 27-28
#
I
PART 512— CONFIDENTIAL BUSINESS INFORMATION
(Docket No. 78-10; Notice 3)
§512.1 Purpose and Scope.
The purpose of this part is to establish the pro-
cedure by which NHTSA will consider claims that
information submitted to the agency, or which the
agency otherwise obtains, is confidential business in-
formation, as described in 5 U.S.C. 552(b)(4).
§512.2 Applicability.
(a) This part applies to all information which is
submitted to NHTSA, or which NHTSA otherwise
obtains, except as provided in paragraph (b) of this
section.
(b) Information received as part of the procure-
ment process, is subject to the Federal Acquisition
Regulations, 48 CFR, Chapter 1, as well as this part.
In any case of conflict between the Federal Acquisi-
tion Regulations and this part, the provisions of the
Federal Acquistion Regulations prevail.
§ 512.3 Definitions.
"Administrator" means the Administrator of the
National Highway Traffic Safety Administration.
"Chief Counsel" means the Chief Counsel of the
National Highway Traffic Safety Administration.
"Confidential business information" means infor-
mation described in 5 U.S.C. 552(b)(4).
"NHTSA" means the National Highway Traffic
Safety Administration.
("Substantial competitive harm" encompasses
"significant competitive damage" under Title V of
the Motor Vehicle Information and Cost Savings Act
15 U.S.C 2001 et seq. (54 F.R. 48892— November 28,
1989. Effective: November 28, 1989)1
§ 512.4 Asserting a claim for confidential treatment
of information.
(a) Any person submitting information to NHTSA
and requesting that the information be withheld
from public disclosure as confidential business infor-
mation shall—
(1) Stamp or mark "confidential" or some other
term which clearly indicates the presence of informa-
tion claimed to be confidential, on the top of each page
containing information claimed to be confidential.
(2) On each page marked in accordance with
paragraph (a)(1) on this section, mark each item of
information which is claimed to be confidential with
brackets "[ ]".
(3) If an entire page is claimed to be confidential,
indicate clearly that the entire page is claimed to be
confidential.
(4) [Submit two copies of the documents contain-
ing allegedly confidential information (except only one
copy of blueprints) and one copy of the documents
from which information claimed to be confidential has
been deleted to the Office of Chief Counsel, National
Highway Traffic Safety Administration, Room 5219.
400 Seventh Street, S.W., Washington, D.C. 20590.
Include the name, address, and telephone number of
a representative for receipt of a response from the
Chief Counsel under this part. (54 F.R. 48892—
November 28, 1989. Effective: November 28, 1989)1
[(5) If a document containing information claim-
ed to be confidential is submitted in connection with
an investigation or proceeding, a rulemaking action,
or pursuant to a reporting requirement, for which
there is a public file or docket, simultaneously sub-
mit to the appropriate NHTSA official a copy of the
document from which information claimed to be con-
fidential has been deleted. This copy will be placed
in the public file or docket pending the resolution of
the claim for confidential treatment.
(b)(1) When submitting each item of information
marked confidential in accordance with paragraph (a)
of this section, the submitter shall also submit to the
Office of the Chief Counsel information supporting
the claim for confidential treatment in accordance
with paragraph (bX3) and paragraph (e) of this section.
(2) If submission of the supporting information
is not possible at the time the allegedly confidential
information is submitted, a request for an extension
of time in which to submit the information, accom-
panied by an explanation describing the reason for
(Rev. 11/28/89)
PART 512-1
the extension and the length of time needed, must
be submitted. The Chief Counsel shall determine the
length of the extension. The recipient of an exten-
sion shall submit the supporting information in ac-
cordance with the extension determination made by
the Chief Counsel and subparagraph (3) of this
section.
(3) The supporting information must show:
(i) That the information claimed to be con-
fidential is a trade secret, or commercial or finan-
cial information that is privileged or confidential.
(ii) Measures taken by the submitter of the in-
formation to ensure that the information has not
been disclosed or otherwise made available to any
person, company, or organization other than the sub-
mitter of the information.
(iii) Insofar as is known by the submitter of
the information, the extent to which the informa-
tion has been disclosed, or otherwise become
available, to persons other than the submitter of the
information, and why such disclosure or availabil-
ity does not compromise the confidential nature of
the information.
(iv) Insofar as is known by the submitter of
the information, the extent to which the informa-
tion has appeared publicly, regardless of whether the
submitter has authorized that appearance or con-
firmed the accuracy of the information. The submit-
ter must include citations to such public ap-
pearances, and an explanation of why such ap-
pearances do not compromise the confidential nature
of the information.
(v) Prior determinations of NHTSA or other
Federal agencies or Federal courts relating to the
confidentiality of the submitted information, or
similar information possessed by the submitter in-
cluding class determinations under this part. The
submitter must include any written notice or deci-
sion connected with any such prior determination,
or a citation to any such notice or decision, if pub-
lished in the Federal Register.
(vi) Whether the submitter of the information
asserts that disclosure would be likely to result in
substantial competitive harm, what the harmful
effects of disclosure would be, why the effects should
be viewed as substantial, and the causal relationship
between the effects and disclosure.
(vii) If information is voluntarily submitted,
why disclosure by NHTSA would be likely to impair
NHTSA's ability to obtain similar information in the
future.
(viii) Whether the submitter of the informa-
tion asserts that disclosure would be likely to impair
other protectable government interests, what the
effect of disclosure is likely to be and why disclosure
is likely to impair such interests.
(ix) The period of time for which confidential-
ity is claimed (permanently or until a certain date
or until the occurrence of a certain event) and why
earlier disclosure would result in the harms set out
in paragraph (b)(2Xvi), (vii) or (viii) of this section.
(c) If any element of the showing to support a
claim for confidentiality required under paragraph
(b)(3) of this section is presumptively established by
a class determination, as issued pursuant to
§ 512.10, affecting the information for which con-
fidentiality is claimed, the submitter of information
need not establish that element again.
(d) Information in support of a claim for confiden-
tiality submitted to NHTSA under paragraph (b) of
this section must consist of objective data to the
maximum extent possible. To the extent that opi-
nions are given in support of a claim for confiden-
tial treatment of information, the submitter of the
information shall submit in writing to NHTSA the
basis for the opinions, and the name, title and
credentials showing the expertise of the person sup-
plying the opinion.
(e) The submitter of information for which con-
fidential treatment is requested shall submit to
NHTSA with the request a certification in the form
set out in Appendix A from the submitter or an
agent of the submitter that a diligent inquiry has
been made to determine that the information has not
been disclosed, or otherwise appeared publicly,
except as indicated in accordance with paragraphs
(b)(3)(iii) and (iv) of this section.
(f) A single submission of supporting information,
in accordance with paragraph (b) of this section, may
be used to support a claim for confidential treatment
of more than one item of information claimed to be
confidential. However, general or nonspecific asser-
tions or analysis may be insufficient to form an ade-
quate basis for the agency to find that information
may be afforded confidential treatment, and may
result in the denial of a claim for confidentiality.
(g) Where confidentiality is claimed for informa-
tion obtained by the submitter from a third party,
such as a supplier, the submitter of the information
is responsible for obtaining all information and a cer-
tification from the third party necessary to comply
with paragraphs (b), (d) and (e) of this section.
#
t
PART 512-2
(h) Information received by NHTSA that is iden-
tified as confidential and whose claim for confiden-
tiality is submitted in accordance with this section
will be kept confidential until a determination of its
confidentiality is made under section 512.6 of this
part. Such information will not be publicly disclosed
except in accordance with this part.
(i) A submitter of information shall promptly
amend supporting information provided under
paragraphs (b) or (e) of this section if the submitter
obtains information upon the basis of which the sub-
mitter knows that the supporting information was
incorrect when provided, or that the supporting in-
formation, though correct when provided, is no
longer correct and the circumstances are such that
a failure to amend the supporting information is in
substance a knowing concealment.
(j) Noncompliance with this section may result in
a denial of a claim for confidential treatment of in-
formation. Noncompliance with paragraph (i) of this
section may subject a submitter of information to
civil penalties.
(1) If the submitter fails to comply with
paragraph (a) of this section at the time the infor-
mation is submitted to NHTSA so that the agency
is not aware of a claim for confidentiality, or the
scope of a claim for confidentiality, the claim for con-
fidentiality may be waived unless the agency is
notified of the claim before the information is dis-
closed to the public. Placing the information in a
public docket or file is disclosure to the public within
the meaning of this part, and any claim for confiden-
tial treatment of information disclosed to the public
may be precluded.
(2) If the submitter of the information does not
provide all of the supporting information required
in paragraphs (b)(3) and (e) of this section, or if the
information is insufficient to establish that the in-
formation may be afforded confidential treatment
under the substantive tests set out in § 512.5, a
request that such information be afforded confiden-
tial protection may be denied. The Chief Counsel
may notify a submitter of information of inade-
quacies in the supporting information, and may allow
the submitter additional time to supplement the
showing, but is under no obligation to provide either
notice or additional time to supplement the showing.
54 F.R. 48892— November 28. 1989. Effective:
November 28, 1989)1
§ 512.5 Substantive standards for affording
confidential treatment.
Ilnformation submitted to or otherwise obtained
by NHTSA may be afforded confidential treatment
if it is a trade secret, or commercial or financial
information that is privileged or confidential.
Information is considered to be confidential when:
(a) Disclosure of the information would be likely
to result in substantial competitive harm to the sub-
mitter of the information; or
(b) Failure to afford the information confidential
treatment would impair the ability of NHTSA to
obtain similar information in the future; or
(c) Disclosure of the information would be likely
to impair other protectable government interests.
(54 F.R. 48892— November 28, 1989. Effective:
November 28, 1989)1
§ 512.6 Determination of confidential treatment.
[(a) The decision as to whether an item of infor-
mation shall be afforded confidential treatment
under this part is made by the Office of Chief
Counsel.
(b) Copies of documents submitted to NHTSA
under § 512.4(a)(5) from which information claimed
to be confidential or privileged has been deleted, are
placed in the public file or docket pending the resolu-
tion of the claim for confidential treatment.
(c) When information claimed to be confidential
or privileged is requested under the Freedom of In-
formation Act, the determination of confidentiality
is made within ten working days after NHTSA
receives such a request, or within twenty working
days in unusual circumstances as provided under 5
U.S.C. 552(aK6).
(d) For information not requested pursuant to the
Freedom of Information Act, the determination of
confidentiality is made within a reasonable period
of time at the discretion of the Chief Counsel.
(e) The time periods prescribed in paragraph (c)
of this section may be extended by the Chief Counsel
for good cause shown on the Chief Counsel's own
motion, or on request from any person. An exten-
sion is made only in accordance with 5 U.S.C. 552,
and is accompanied by a written statement setting
out the reasons for the extension.
(f) If the Chief Counsel believes that information
which a submitter of information asserts to be within
a class of information set out in Appendix B is not
within that class, the Chief Counsel:
(1) Notifies the submitter of the information
that the information does not fall within the class
as claimed, and briefly explains why the information
does not fall within the class; and
(2) Renders a determination of confidentiality
in accordance with paragraph (g) of this section.
(Rev. 11/28/89)
PART 512-3
(g) A person submitting information to NHTSA
with a request that the information be withheld from
pubHc disclosure as confidential or privileged
business information is given notice of the Chief
Counsel's determination regarding the request as
soon as the determination is made.
(1) If a request for confidentiality is granted, the
submitter of the information is notified in writing
of that determination and of any appropriate
limitations.
(2) If a request for confidentiality is denied in
whole or in part, the submitter of the information
is notified in writing of that decision, and is informed
that the information will be made available to the
public not less than ten working days after the sub-
mitter of the information has received notice of the
denial of the request for confidential treatment, if
practicable, or some earlier date if the Chief Counsel
determines in writing that the public interest re-
quires that the information be made available to the
public on such earlier date. The written notification
of a denial specifies the reasons for denying the
request.
(h) There will be no release of information pro-
cessed pursuant to this section until the Chief
Counsel advises the appropriate office(s) of NHTSA
that the confidentiality decision is final according to
this section, § 512.7 or § 512.9. (54 F.R.
48892— November 28, 1989. Effective: November 28,
1989)]
§ 512.7 [Petitions for reconsideration upon denial
of a request for confidential treatment.
(a) A submitter of information whose request for
confidential treatment is denied may petition for
reconsideration of that denial. Petitions for recon-
sideration must be addressed to and received by the
Office of 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 submission of a petition for reconsideration
is not feasible by the date on which the information
would otherwise be made available to the public, a
request for an extension of time in which to submit
a petition, accompanied by an explanation describ-
ing the reason for the request and the length of time
needed, must be received by the Office of Chief
Counsel by that date. The Chief Counsel determines
whether to grant or deny the extension and the
length of the extension.
(c) Upon receipt of a petition or request for an ex-
tension, the Chief Counsel shall postpone making the
information available to the public in order to con-
sider the petition, unless the Chief Counsel deter-
mines in writing that disclosure would be in the
public interest.
(d) If a petition for reconsideration is granted, the
petitioner is notified in writing of that determina-
tion and of any appropriate limitations.
(e) If a petition for reconsideration is denied in
whole or in part or a request for an extension for
additional time to submit a petition for reconsidera-
tion is denied, the petitioner is notified in writing
of that denial, and is informed that the information
will be made available to the public not less than ten
working days after the petitioner has received notice
of the denial of the petition, if practicable, or some
earlier date if the Chief Counsel determines in
writing that the public interest requires that the in-
formation be made available to the public on such
earlier date. The written notification of a denial
specifies the reasons for denying the petition. (54
F.R. 48892— November 28, 1989. Effective: November
28, 1989)1
§ 512.8 {IVIodification of confidentiality
determinations.
(a) A determination that information is confiden-
tial or privileged business information remains in ef-
fect in accordance with its terms, unless modified
by a later determination based upon:
(1) Newly discovered or changed facts,
(2) A change in the applicable law,
(3) A class determination under § 512.10, or
(4) A finding that the prior determination is
clearly erroneous.
(b) If NHTSA believes that an earlier determina-
tion of confidentiality should be modified based on
one or more of the factors listed in paragraphs (a)(1)
through (aX4) of this section, the submitter of the
information is notified in writing that NHTSA has
modified its earlier determination and of the reasons
for that modification, and is informed that the in-
formation will be made available to the public in not
less than ten working days from the date of receipt
of notice under this paragraph. The submitter may
seek reconsideration of the modification pursuant
to § 512.7. 54 F.R. 48892— November 28, 1989. Effec-
tive: November 28, 1989.)]
I
#
(Rev. 11/28/89)
PART 512-4
§ 512.9 [Release of confidential business
information.
(a) Information that has been claimed or deter-
mined to be confidential business information under
§ 512 4. 512 6 or 512.7 may be disclosed to the public
by the Administrator notwithstanding such deter-
mination or claim if disclosure would be in the public
interest as follows:
(1) Information obtained under Part A, Sub-
chapter I of the National Traffic and Motor Vehicle
Safety Act, relating to the establishment, amend-
ment, or modification of Federal motor vehicle
safety standards, may be disclosed when relevant
to a proceeding under that part.
(2) Information obtained under Part B, Sub-
chapter I of the National Traffic and Motor Vehicle
Safety Act, relating to motor vehicle safety defects,
and failures to comply with applicable motor vehi-
cle safety standards, may be disclosed if the
Administrator determines that disclosure is
necessary to carry out the purposes of the Act.
(3) Information obtained under Title 1, V or VI
of the Motor Vehicle Information and Cost Savings
Act may be disclosed when that information is rele-
vant to a proceeding under the title under which the
information was obtained.
(b) No information is disclosed under this section
unless the submitter of the information is given writ-
ten notice of the Administrator's intention to
disclose information under this section. Written
notice is normally given at least ten working days
before the day of release, although the Admin-
istrator may provide shorter notice if the Admin-
istrator finds that such shorter notice is in the public
interest. The notice under this paragraph includes
a statement of the Administrator s reasons for deter-
mining to disclose the information, and affords the
submitter of the information an opportunity to com-
ment on the contemplated release of information.
The Administrator may also give notice of the con-
templated release of information to other persons,
and may allow these persons the opportunity to com-
ment. When a decision is made to release informa-
tion pursuant to this section, the Administrator will
consider ways to make the release with the least
possible adverse effects to the submitter.
(c) Notwithstanding any other provision of this
part, information which has been determined or
claimed to be confidential business information, may
be released:
(1) To Congress;
(2) Pursuant to an order of a court with valid
jurisdiction;
(3) To the Office of the Secretary, United States
Department of Transportation and other Executive
branch offices or other Federal agencies in accor-
dance with applicable laws;
(4) With the consent of the submitter of the
information;
(5) To contractors, if necessary for the perfor-
mance of a contract with the Administration. In such
instances, the contract limits further release of the
information to named employees of the contractor
with a need to know and provides that unauthorized
release constitutes a breach of the contract for which
the contractor may be liable to third parties. (54 F.R.
November 28,1989. Effective: November 28, 1989)1
§ 512.10 [Class determinations.
(a) The Chief Counsel may issue a class determina-
tion relating to confidentiality under this section if
the Chief Counsel determines that one or more
characteristics common to each item of information
in that class will in most cases necessarily result in
identical treatment of each item of information
under this part, and that it is appropriate to treat
all such items as a class for one or more purposes
under this part. The Chief Counsel obtains the con-
currence of the Office of the General Counsel,
United States Department of Transportation, for
any class determination that has the effect of rais-
ing the presumption that all information in that class
is eligible for confidential treatment. Class deter-
minations are published in the Federal Register.
(b) A class determination clearly identifies the
class of information to which it pertains.
(c) 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 under this part.
(2) Fails to satisfy one or more of the applicable
substantive criteria, and is therefore ineligible for
confidential treatment,
(3) Satisfies one or more of the applicable
substantive criteria, and is therefore eligible for con-
fidential treatment, or
(4) Satisfies one of the substantive criteria dur-
ing a certain period of time, but will be ineligible for
confidential treatment thereafter.
(d) Class determinations will have the effect of
establishing rebuttable presumptions, and do not
conclusively determine any of the factors set out in
paragraph (c) of this section. (54 F.R.
48892— November 28, 1989. Effective: November 28,
1989)1
PART 512-5-6
#
I
I
APPENDIX A
Certificate in Support of Request for
Confidentiality
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.)
I,
pursuant to the
provicions of 49 C.F.R. 512 state as follows:
(1) I am (official) and I am authorized by (com-
pany) to execute documents on behalf of (company).
(2) The information contained in (pertinent
document/ s J) 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 a modified by
§ 505(d)(1) of Title 5 of Motor Vehicle Information
and Cost Savings Act.]
(3) I have personally inquired of the responsi-
ble (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.
(4) Based upon such inquires, to the best of my
knowledge, informaton for which (company) has
claimed confidential treatment has never beem
release or become available outside (company) ex-
cept as hereinafter specified.
(5) I make no representation beyond those con-
tained in this certificate and in particular I make no
representations as to whether this information may
become available outside (company) because of
unatuhorized or inadvertent disclosure except as
stated in Paragraph 4; and
(6) [I certify under penalty of perjury that the
foregoing is true and correct. Executed on this the
. (If executed outside of the
(Official)
APPENDIX B
Class Determination
The Administration has determined that the
following types of information would presumptively
result in significant competitive damage or would
presumptively be likely to result in substantial com-
petitive harm if desclosed to the public—
[(1) Blueprints and engineering drawings con-
taining process of production data where the sub-
ject 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);
(3) Future vehicle production or sales figures
for specific models (to be protected only until the ter-
mination of the production period for the model year
vehicle to which the information pertains). (54 F.R.
48892— November 28, 1989. Effective 28, 1989.)]
APPENDIX C
0MB Clearance
The 0MB clearance number for this regulation is
2127-10025].
(Rev. 11/2S/89)
PART 512-7-8
I
€
Effective: November 4, 1975
PREAMBLE TO PART 520— PROCEDURES FOR CONSIDERING
ENVIRONMENTAL IMPACTS
[Docket No. 73-32; Notice 2]
The purpose of this amendment to Title 49 of
the Code of Federal Regulations is to add a new
Part 520 establishing procedures for considering
environmental impacts.
A notice of proposed procedures on this sub-
ject was published on December 21, 1973 (38
FR 35018). Two comments were received on the
proposed procedures : one, from the United States
Environmental Protection Agency, supported
the proposal and considered it to be responsive
to the National Environmental Policy Act of
1969 (NEPA) and the NEPA guidelines pre-
pared by the Council on Environmental Quality ;
the second, from General Motors Corporation,
had some objections which have been carefully
considered in this issuance of final procedures.
In view of some of GM's comments, the issuance
of the Department of Transportation (DOT)
Order 5610.1B, "Procedures for Considering
Environmental Impacts," (39 FR 35234), and
further consideration within the NHTSA, the
final procedures have been slightly modified.
Defiiitions. In order to differentiate a written
environmental analysis submitted to the agency
by its grantees or contractoi-s from that under-
taken by the agency itself, the meaning of the
term "environmental assessment" has been
changed from an internal agency evaluation pro-
cess to an evaluation process external to the
agency, and the term "environmental review" has
been added to denote the written environmental
analysis undertaken by the agency.
Applicability. "Consolidation of statements,"
section 520.4(f), allowing actions which have sub-
stantially similar environmental impacts to be
covered by a single impact statement or environ-
mental review culminating in a negative declara-
tion is included in this final issuance.
GM commented that the increase in costs illus-
tration used as an example for the project
amendments exception in section 520.4(d)(5)
(herein renumbered as 520.4(e) (5) ) is ambiguous
and could also permit a circumvention of the
initial environmental evaluation process. In re-
sponse to this, the section has been revised to
make it clear that only project amendments with
no environmental consequences are excepted from
the review process. The criteria for determining
which project amendments are excepted is in-
tended to match that for excepting minor agency
actions (§ 520.4)e) (6)).
Section 520.4(d)(6) of the proposed proce-
dures was erroneously included and is accord-
ingly deleted.
Guidelines. The general guidelines have been
reworded, upon GM's request, to clarify that an
environmental impact statement or negative de-
claration is to be prepared for any of the three
situations enumerated under this general cate-
gory.
Section 520.5(b), Specif c guidelines, has been
modified to reflect GM's comments, revised DOT
Order 5640.1, and further determinations within
the NHTSA. Subparagraphs (7)-(12) have
been added and the original subparagraph (7)
has been renumbered as (13). The agency has
determined that these additional classes of actions
should be enumerated in order to better identify
those typical areas of environmental concern the
NHTSA's activities may impact.
Research activities. In accordance with section
4 of final DOT Order 5610.1B, proposed imple-
menting instructions for assessing the environ-
mental consequences of research activities will be
prepared by the Assistant Secretary of Systems
Development and Technology', with the concur-
rence of the NHTSA. Until these final proce-
PART 520— PRE 1
Effective November 4, 1975
dures are promulgated, however, the guidelines
set forth on this subject in the proposed proce-
dures will be followed.
Procedures. The procedures subpart includes
a number of additions and modifications. With
respect to certain actions enumerated in Subpart
A which may have an environmental significance,
the official responsible for the action will prepare
reviews that are much more comprehensive than
the assessments proposed by the previous notice.
He will conclude his review with a brief written
report, to be included in the proposed or ongo-
ing action, in which he will either recommend
that a draft environmental impact statement
(DEIS) be prepared to determine the environ-
mental impact involved, or declare that the action
would not have a significant effect on the quality
of the environment. A review report that
concludes with a "negative declaration" is not
required to go through the extensive comment
and review process provided for the DEIS, but
it will be retained by the agency and made avail-
able to the public upon request.
Once an Associate Administrator, the Chief
Counsel, or a Regional Administrator (in con-
sultation with his Governor's Representative)
determines, that an agency action under his juris-
diction requires the preparation of a DEIS, he
will transmit a "notice of intent" to prepare the
DEIS to the appropriate Federal, State, and
local agencies and publish the notice in the
Federal Register. In addition, a schedule of
procedures and review will be developed in each
case to assure completion of the DEIS before
the first significant point of decision in the pro-
gram or project development process. Once the
I
DEIS is circulated for review and comment, not
less than 45 days in any case will be allowed for
comment. A public hearing on a DEIS will be
held when appropriate, and notice of the hearing
will be issued in the Federal Register at least
30 days before the hearing. Final environmental
impact statements (FEIS) will be prepared and
distributed as soon as practicable after the ex-
piration of the comment and hearing process.
In accordance with the final DOT order
5610.1B, a new section 520.34 has been added,
establishing procedures for the review of environ-
mental statements prepared by other agencies.
Four attachments having a direct bearing on
the preparation of impact statements have been
added to this issuance of the final rule and will
be followed by this agency.
Effective date: November 4, 1975.
In consideration of the foregoing, a new Part
520, "Procedures for Considering Environmental
Impacts," is added as § 520 of Title 49, Code of
Federal Regulations. . . .
(Sees. 102(2) (A), 102(2) (C), Public Law 91-
190, 83 Stat. 853 (42 U.S.C. 4332); sees. 2(b),
4(f), Public Law 89-670, 80 Stat. 931 (49 U.S.C.
1651(b), 1653(f)); Executive Order 11514, 35
FR 4247; 40 CFR Part 1500; DOT Order
5610.1B, 39 FR 35234; delegations of authority
at 49 CFR 1.45, 1.51.)
Issued on Nov. 4, 1975.
James B. Gregory
Administrator
40 F.R. 52395
November 10, 1975
I
t
PART 520— PRE 2
PART 520— PROCEDURES FOR CONSIDERING ENVIRONMENTAL IMPACTS
Sec.
520.1
520.2
520.3
520.4
520.5
520.21
SUBPART A-GENERAL
Purpose and scope.
Policy.
Definitions.
Applicability.
Guidelines for identifying major actions
significantly affecting the environment.
SUBPART B— PROCEDURES
Preparation of environmental reviews,
negative declarations, and notices of
intent.
520.22 IVIaintenance of list of actions.
520.23 Preparation of draft environmental im-
pact statements.
520.24 Internal processing of draft environmental
impact statements.
520.25 External review of draft environmental
impact statements.
520.26 Public hearings.
520.27 Legislative actions.
520.28 Preparation of final environmental impact
statements.
520.29 Internal review of final environmental
impact statements.
520.30 Availability of final environmental im-
pact statements.
520.31 Amendments or supplements.
520.32 Emergency action procedures.
520.33 Timing of proposed NHTSA actions.
520.34 Review of environmental statements pre-
pared by other agencies.
Attachment 1 — Form and content of statement.
Attachment 2— Areas of environmental impact
and Federal agencies and Fed-
eral-State agencies with jurisdic-
tion by law or special expertise
to comment thereon.
Attachment 3— Offices within Federal Agencies
and Federal-State agencies for in-
formation regarding the agencies'
NEPA activities and for receiving
other agencies' impact statements
for which comments are requested.
Attachment 4— State and local agency review of
impact statements.
SUBPART A— GENERAL
§ Purpose and scope.
(a) Section 102(2) (C) of the National En-
vironmental Policy Act of 1969 (83 Stat. 853;
42 U.S.C. 4332(2) (C)), as implemented by Ex-
ecutive Order 11514 (3 CFR, 1966-1970 Comp.,
p. 902) and the Council on Environmental
Quality's Guidelines of April 23, 1971 (36 F.R.
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 en-
vironmental aspects of proposed actions.
(b) This part specifies National Highway
Traffic Safety Administration (NHTSA) pro-
cedures for conducting environmental assess-
ments and reviews, and for the preparation of
environmental impact statements on proposals
for -iegislation and other major agency actions
significantly affecting the quality of the human
environment.
§ 520.0 Policy.
The agency will strive to carry out the full
intent and purpose of the National Environ-
mental Policy Act of 1969 and related orders and
statutes, and take positive steps to avoid any
PART 520-1
f
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 evalu-
ation undertaken by the agency, culminating in
a brief document (the environmental review re-
port), to determine whether a proposed or on-
going NHTSA action may have a significant
impact on the environment. The review docu-
ment will be included in the proposed or ongoing
agency action, and either support a negative de-
claration 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, pur-
suant to section 102(2) (C) of the National En-
vironmental Policy Act, identifies and analyzes
the anticipated environmental impact of a pro-
posed 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
subparagraph (e) below, this part applies to the
following agency actions and such actions and
proposals as may be sponsored jointly with an-
other agency:
(1) New and continuing programs and proj-
ects; budget proposals; legislative proposals
by the agency; requests for appropriations; re-
ports 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 demonstra-
tion projects; formal approvals of work plans;
and associated contracts;
(3) Rulemaking and regulatory actions, in-
cluding 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; opera-
tion of Federal facilities; and
(7) Any other activity, project, or action
likely to have a significant effect on the en-
vironment.
(c) Continuing actions. This part applies to
any action enumerated in subsection (b) above,
even though such action 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 assessement of such proposed
action to be included in his submission to the
agency.
(e) Excerptions.
(1) Assistance in the form of general reve-
nue 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., gen-
eral supplies) and contracts for personal serv-
ices;
(4) Legislative proposals originating in
another agency and relating to matters not
#
#
PART 520-2
within NHTSA's primary areas of responsi-
bility;
(5) Project amendments (e.g., increases in
costs) which have no environmental signifi-
cance; and
(6) Minor agency actions that are deter-
mined 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 sub-
tantially similar environmental impacts may be
covered by a single environmental review and
environmental impact statement or negative de-
claration.
§ 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 pre-
pared 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 con-
sequences.
(b) Specific guidelines. While a precise defini-
tion of environmental significance that is valid
in all contexts is not possible, any of the follow-
ing 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), re-
quiring 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 build-
ing included in the National Register of
Historic Preservation to comment on such
action;
(3) Any action that is likely to affect the
preservation and enhancement of sites of his-
torical, architectural, or archaeological signifi-
cance;
(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 inconsis-
tency with any Federal, State, or local law or
administrative determination relating to the en-
vironmental; (ii) has a significantly detri-
mental 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 sedimenta-
tion;
(7) Any action that may directly or indi-
rectly 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 indi-
rectly result in a significant increase in the
energy or fuel necessary to operate a motor
vehicle, including but not limited to the follow-
ing: (i) actions which may directly or indi-
rectly 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 affect upon the aerodymanic
drag of a motor vehicle;
PART 520-3
(9) Any action that may directly or indi-
rectly 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 indi-
rectly 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 indi-
rectly 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 indi-
rectly result in a significant depletion of scarce
natural resources associated with the manu-
facture 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 im-
pacts on the environment.
(c) Research activities.
(1) In accordance with DOT Order 5610. IB,
the Assistant Secretary for Systems Develop-
ment and Technology (TST) will prepare,
with the concurrence of the NHTSA, proposed
procedures for assessing the environmental con-
sequences of research activities. Until final
procedures are promulgated, the following
factors are to be considered for periodic evalua-
tion to determine when an environmental state-
ment is required for such programs:
(i) The magnitude of Federal invest-
ment in the program;
(ii) The likelihood of widespread appli-
cation 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 invest-
ment 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 en-
vironmental impact statement may ultimately
be required but its preparation is still pre-
mature, the office shall prepare a publicly avail-
able 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
siginificant new information becomes available
concerning the potential environmental impact
of the program. In any case, a statement or
environmental review culminating in a nega-
tive 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 tech-
nology research and development programs
shall include an analysis not only of alterna-
tive 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 prepara-
tion 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 determin-
ing, in accordance with Subpart A, whether
the projects and activities under his jurisdic-
tion require an environmental review, and for
preparing all such reviews, negative declara-
tions, and notices of intent.
f
€
PART 520-4
(2) Regional Administrators. Each Re-
gional 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 prepa-
ration of all such reviews, negative declara-
tions, 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 envi-
ronmental review or environmental impact
statement for any proposed or continuing
NHTSA action, or comment on any environ-
mental statement prepared by other agencies.
(b) Coordination. Coordination with appro-
priate 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 (0MB) Revised Cir-
cular 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 sub-
mit, with the original application, an environ-
mental assessment of the proposed project.
(2) Under 0MB 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 assist-
ance. The notification must solicit comments
on the project and its impacts from appro-
priate 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 pre-
pare an environmental impact statement, and
(ii) their comments on the environmental
effects of the proposed Federal action are soli-
cited at an early stage in the preparation of
the draft impact statement, this early notifica-
tion requirement may be met by a grant appli-
cant 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 state-
ment for which the NHTSA takes responsibilty.
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 con-
sultant may expect further contracts, based on
the outcome of the environmental decision.
(e) Environmental review report. The en-
vironmental 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 im-
plemented or the action continued;
(3) Assesses the alternatives to the proposed
or ongoing action and their potential environ-
mental impact.
(4) Evaluates the cumulative and long-term
environmental effects of the proposed or on-
going action;
(5) Describes the irreversible and irretriev-
able commitments of resources involved in the
proposal's implementation or the action's con-
tinuance;
(6) Identifies any known or potential con-
flicts 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
PART 520-5
(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 on-
going 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:
"It is the judgment of this agency, based on
available information, that no significant en-
vironmental impact will result from execu-
tion of this action."
(2) A DEIS may be changed to a negative
declaration if the public review process indi-
cates that the proposal or ongoing action will
not have a significant effect upon the environ-
ment.
(3) An index of all negative declarations
and a copy of each environmental review re-
port 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 en-
vironmental impact statement. If the responsible
official under whose jurisdiction an environ-
mental review is prepared determines that the
proposed or ongoing action could have a poten-
tially significant effect on the quality of the
environment, he shall: coordinate with the Asso-
ciate Administrator for Planning and Evaluation
and the Chief Counsel, transmit to appropriate
Federal, State and local agencies and have pub-
lished in the Federal Register a notice of intent
to prepare an environmental statement as soon
as is practicable after the determination to pre-
pare such a statement.
§ 520.22 Maintenance of a list of actions.
(a) The Associate Administrator for Planning
and Evaluation shall be responsible for the prep-
aration and maintenance of a list of actions for
which draft or final environmental impact state-
ments have been or are to be prepared. This
list shall be on file with the Associate Admin-
istrator 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
the Assistant Secretary of Transportation for
Environmental and Safety (TES) and to CEQ.
(b) If a determination is made that an en-
vironmental statement is not necessary for a pro-
posed action (1) which has been identified as
normally requiring preparation of a statement,
(2) which is similar to actions for which a sig-
nificant number of statements have been pre-
pared, (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 pur-
suant to § 520.21 which conclude that preparation
of a statement is not yet timely shall be prepared
by the responsible official, submitted to the Asso-
ciate Administrator for Planning and Evalua-
tion, 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 prep-
aration.
§ 520.23 Preparation of draft environmental im-
pact 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 consulta-
tion 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 concur-
rently 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 pro-
gams affecting the environment. To assure
that all environmental impacts are identified
f
PART 520-6
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. Attach-
ment 1 of this order prescribes the form and con-
tent requirements to be followed for each draft
and final environmental impact statement. The
DEIS must fulfill and satisfy, to the fullest ex-
tent possible at the time it is prepared, the re-
quirements 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 in-
volved 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 pre-
paring one statement for all the Federal actions
involved. Agencies in such cases should consider
the designation of a single "lead agency" to as-
sume supervisory responsibility for preparation
of a joint statement. Where a lead agency pre-
pares the statement, the other agencies involved
should provide assistance with respect to their
areas of jurisdiction and expertise. The state-
ment 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 partici-
pating agencies. Some relevant factors in deter-
mining 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 appro-
priate 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 re-
quired, and (2) in all cases make his own evalua-
tion 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 environ-
mental impact statements. Before circulating a
DEIS for external review, the official responsible
for the DEIS shall (1) receive the concurrence
of the Associate Administrator for Planning and
Evaluation and the Chief Counsel; and (2) pre-
pare a memorandum for approval by the Admin-
istrator which shall—
(a) Set forth the basis on which is was deter-
mined that a potentially significant environ-
mental effect exists;
(b) Attach the DEIS;
(c) Identify the Federal, State, and local agen-
cies and private sources from which comments
on the DEIS are proposed to be solicited (see
Attachment 2); and
(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 jurisdic-
tion by law or special expertise with respect
to the possible environmental impact involved,
and from the public (see Attachment 2); and
PART 520-7
(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 follow-
ing receipt of the draft impact statement by
CEQ. Requests for extensions shall be granted
whenever possible, and particularly when war-
ranted by the magnitude and complexity of
the statement or the extent of citizen interest.
(b) Procedures.
(1) Federal and Federal-State agency re-
view.
(i) The DEIS shall be circulated for re-
view to the Federal and Federal-State
agencies with special expertise or jurisdic-
tion by law with regard to the potential
environmental impact involved. These agen-
cies 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 en-
vironmental standards 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 de-
vevelopment projects, and of projects assisted
under programs listed in Attachment D to
revised 0MB Circular A-95 (as imple-
mented by DOT 4600.4B "Evaluation, Re-
view 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 com-
ments shall be attached to the draft state-
ment when it is circulated for review and
copies of the draft shall be sent to those
who commented. A-95 clearinghouses or
other agencies designated by the (jovernor
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 des-
ignated 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 muni-
cipalities and counties on all projects located
therein.
(iii) State and local review of NHTSA
procedures, regulations, and policies for ad-
ministering Federal progams of assistance
to State and local governments shall be ob-
tained pursuant to procedures established by
0MB Circular No. A-85.
(iv) Generally, environmental statements
on legislative and budget proposals may be
excluded from State and local review.
(3) General public receive.
At the time the DEIS is circulated to
Federal, State, and local agencies, pubHc
availability of the DEIS for comment and
review will be announced by the CEQ in the
Federal Register. Copies of the DEIS
should be sent to known interested parties,
and press releases should be sent to local
news media advising where the DEIS is
available and how copies may be obtained.
The Office of Public Affairs and Consumer
Services shall maintain a list of groups, in-
cluding conservation organizations and
motor vehicle manufacturers, known to be
interested in the agency's activities, and di-
rectly notify such groups of the availability
of the DEIS or send them a copy as soon
as it has been prepared.
I
(I
PART 520-8
(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 5108, 400 Seventh Street, S.W., Wash-
ington, D.C. 20590, and, where appropriate,
NHTSA Regional Offices, at the offices of
any applicants of grantees, at appropriate
State, regional, and metropolitan clearing
houses, and local public libraries, and fur-
nished to public and private organizations
and individuals with special expertise with
respect to the potential environmental im-
pact 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 repro-
ducing 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 de-
claration 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.
hearing is appropriate, the responsible official
should consider—
(1) The magnitude of the proposal in terms
of economic costs, the geographic area in-
volved, and the uniqueness or size of the com-
mitment 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 respon-
siblities 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 com-
ments 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 inter-
ested parties, and clearinghouses, and cause a
notice to be issued in the Federal Register at
least 30 days prior to the time of such hearing—
(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 appro-
priate, for public inspection at one or more
locations in the area affected by the action.
§ 520.26 Public hearings.
(a) A public hearing on a proposed or on-
going 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
§ 520.27 Legislative actions.
(a) A DEIS on both legislative proposals and
reports for which NHTSA either develops the
Departmental position or originates the legis-
lation 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.
PART 520-9
Effective: November 4, 1975
(b) The preparation, circulation, and filing of
the environmental statement shall be in accord-
ance with 0MB Bulletin 72-6, "Proposed Fed-
eral 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 Con-
gress 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 decla-
ration, as soon as practicable after the expira-
tion 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 re-
ceived 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 con-
currence. Unless other notification is provided
within 2 weeks after receipt in TES, the state-
ment 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 Sec-
retary for Environment, Safety, and Consumer
Affairs, the General Counsel, and the Deputy
Secretary, and for the approval of the Secre-
tary or Deputy Secretary.
(2) TES, in conjunction with the Executive
Secretary, is responsble 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 in-
volved, 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 (to-
gether with comments) to the CEQ; individual
copies with comments attached to the EPA and
all Federal, State, and local agencies and mem-
bers 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 avail-
able in the NHTSA Docket Section, Room 5109,
400 Seventh Street, S.W., Washington, D.C.
20590, and, where appropriate, NHTSA Regional
Offices, at the offices of any applicants or grantees,
and at appropriate State, regional, and metro-
politan clearinghouses and, where the impact is
localized, public libraries.
PART 520-10
t
(d) The official responsible for the action
shall, upon request, make available copies of the
FEIS and substantive comments received on the
DEIS w^ithout charge to the extent practicable,
or at a fee which is not more than the actual cost
or 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 substan-
tial 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 informa-
tion becomes available concerning its environ-
mental aspects. In such cases, the supplement
or amendment shall be processed in consultation
with TES with respect to the need for, or desir-
ability 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 require-
ments 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 abbre-
viated. 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 Trimming of proposed NHTSA actions. To
the maximum extent practicable, no administra-
tive 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 tue 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
Federal Register of the list of weekly filings of
environmental impact statements with the CEQ,
but the 30-day period is computed from the date
of receipt by the CEQ.
§ 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 environ-
mental review by another agency will be trans-
mitted 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 Asso-
ciate 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 en-
vironmentally related to the proposed action
under review should be identified so interrela-
tionships may receive due consideration.
(c) Copies of NHTSA's comments on environ-
mental statements prepared by other agencies
shall be distributed as follows:
(1) The original and 1 copy to the request-
ing 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 state-
ment.
PART 520-11
ATTACHMENT 1
FORM AND CONTENT OF STATEMENT
1. Form. a. Each statement will be headed as
follows:
DEPARTMENT OF
TRANSPORTATION
NATIONAL HIGHWAY TRAFFIC
SAFETY ADMINISTRATION
(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 modi-
fied 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, con-
tain sections corresponding to paragraph 3
herein, supplemented as necessary to cover
other matters provided in this Attachment.
d. The format for the summary to accom-
pany draft and final environmental statements
is as follows:
SUMMARY
(Check one) ( ) Draft ( ) Final
Department of Transportation, National High-
way Traffic Safety Administration. Name,
address, and telephone number of individual
who can be contacted for additional informa-
tion about the proposed action or the statement.
(Note: DOT Order 2100.2 prescribed proce-
dure for reporting public contacts in rulemak-
ing.)
(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 re-
ceived.
(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 sup-
plemented by research reports, guidance on
methodology, and other material from the litera-
ture 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 con-
struct * * *"), a statement of its purpose, and
a description of the environment affected, in-
cluding information, summary technical data,
and maps and diagrams where relevant, ade-
quate 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 appro-
priately summarized in the body of the en-
vironmental statement and attached as
appendices or footnoted with adequate biblio-
graphic references.
(2) The statement should succinctly de-
scribe the environment of the area affected
as it exists prior to a proposed action, includ-
ing other related Federal activities in the
area, their interrelationships, and cumulative
environmental impact. The amount of de-
tail 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, feasi-
bility, design, etc.). In order to insure ac-
PART 520-12
curate descriptions and environmental con-
siderations, site visits should be made where
appropriate.
(3) The statement should identify, as
appropriate, population and growth char-
acteristics of the affected area and any
population and growth assumptions used to
justify the project or program or to deter-
mine 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 Depart-
ment of Commerce and the Economic Re-
search Service of the Department of Agri-
culture (the OBERS projection).
(4) The sources of data used to identify,
quantify, or evaluate any or all environ-
mental 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 as it affects both na-
tional 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 poten-
ial effect of the action on such aspects of the
environment as those listed in Attachment 2,
and in section 520.5(b), supra. Primary atten-
tion should be given in the statement to discus-
sing those factors most evidently impacted by
the proposed action.
(2) Secondary and other foreseeable ef-
fects, as well as primary consequences for the
environment, should be included in the anal-
ysis. 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 ac-
tion.
d. Alternatives to the proposed action, in-
cluding, 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 recommend
courses concerning alternative uses of available
resources.." A rigorous exploration and an ob-
jective evaluation of the environmental impacts
of all reasonable alternative actions, particu-
larly 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 environ-
mental benefits, costs, and risks should accom-
pany the proposed action through the review
process in order not to foreclose prematurely
options which might enhance environmental
quality or have less detrimental effects. Ex-
amples of such alternatives include: the al-
ternative of not taking action or of postponing
action pending further study; alternatives re-
quiring 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; alterna-
tives 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 al-
ternative. 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 ef-
fects which cannot be avoided (such as water
or air pollution, noise, undesirable land use
PART 520-13
patterns, or impacts on public parks and recrea-
tion areas, wildlife and waterfowl refuges, or
on historic sites, damage to life systems, traffic
congestion, threats to health, or other conse-
quences 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 contract
should be a clear statement of how all adverse
effects will be mitigated. Where mitigating
steps are included in the statement, the respon-
sible 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 in-
volves tradeoffs between short-term environ-
mental 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 commit-
ments of resources that would be involved in
the proposed action should it be implemented.
This requires identification of unavoidable im-
pacts and the extent to which the action irre-
versibly 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 sub-
paragraphs (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 al-
ternatives to the proposed action (as identified
in subparagraph (d) of this paragraph) that
would avoid some or all of the adverse environ-
mental 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 en-
vironmental 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 com-
ments, public hearings, and other citizens
involvement proceedings.
(2) Any unresolved environmental issues
and efforts to resolve them, through further
consultations or otherwise, should be iden-
tified in the final statement. For instance,
where an agency comments that the state-
ment has inadequate analysis or that the
agency has reservations concerning the im-
pacts, or believes that the impacts are too
adverse for approval, either the issue should
be resolved or the final statement should re-
flect 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 alterna-
tives in the draft statement. However, where
opposing professional views and responsible
opinion have been overlooked in the draft
statement and are raised through the com-
menting 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 ex-
istence 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
•
#
PART 520-14
voluminious) should oe attached to the final
statement, whether or not such comment is
thought to merit individual discussion in the
text of the statement.
j. Draft statements should indicate at appro-
priate points in the text any underlying studies,
reports, and other irformation obtained and
considered in preparing the statement, includ-
ing any cost-benefit analyses prepared. In the
case of documents not likely to be easily acces-
sible (such as internal studies or reports), the
statement should indicate how such informa-
tion may be obtained. If such information is
attached to the statement, care should be taken
to insure that the statement remains an essen-
tially 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 of wild-
life 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 his-
toric areas, and changes in vehicular or pedes-
trian 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 juris-
diction 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 re-
view 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 alterna-
tive designs and locations, including detailed
cost estimates (with figures showing percentage
differences in total project costs) and technical
feasibility, and appropriate analyses of the al-
ternatives, including any unique problems
present and evidence that the cost or com-
munity disruptions resulting from alternative
routes reach extra-ordinary 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 para-
mount 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 result-
ing from alternative routes reached extraordinary
magnitudes. If the statutes are to have any
meaning, the Secretary cannot approve the de-
struction of parkland unless he finds that alterna-
tive routes present unique problems. 401 U.S.
402, 412 (1971).
d. If there is no feasible and prudent alterna-
tive, a description of all planning undertaken to
minimize harm to the protected area and state-
ment of actions taken or to be taken to imple-
ment this planning, including measures to main-
tain or enhance the natural beauty of the lands
traversed.
(1) Measures to minimize harm may in-
clude replacement of land and facilities, pro-
viding land or facilities, provisions for func-
tional 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, screen-
ing, maintenance of pedestrian or bicycle
paths and noise mitigation measures all re-
flecting utilization of appropriate interdis-
ciplinary design personnel.
e. Evidence of concurrence or description of
efforts to obtain concurrence of Federal, State
or local officials having jurisdiction over the
PART 520-15
section 4(f) property regarding the action
proposed and the measures planned to minimize
harm.
f. If Federally-owned properties are in-
volved 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 appro-
priate 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 sec-
tion 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 alterna-
tive 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 ac-
tions taken to preserve and enhance districts, sites,
buildings, structures, and objects of historical,
architectural, archeological, or cultural signifi-
cance affected by the action.
a. Draft environmental statements should in-
clude identification, through consulting the
National Register and applying the National
Register Criteria (36 CFR Part 800), of prop-
erties that are included in or eligible for inclu-
sion in the National Register of Historic Places
that may be affected by the project. The Na-
tional Register is published in its entirety each
February in the Federal Register. Monthly
additions and listings of eligible properties are
published in the Federal Register the first
Tuesday of each month. The Secretary of the
Interior will advise, upon request, whether
properties are eligible for the National Reg-
ister.
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 in-
cluded in or eligible for inclusion in the Na-
tional 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 preser-
vation 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 in-
clusion 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 Memo-
randum 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 cul-
tural significance not included in or eligible for
inclusion in the National Register, the respon-
sible official should consult with the State His-
toric 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 his-
toric properties of Federal, State and local sig-
nificance as determined by the official having
jurisdiction thereof involves section 4(f) of
the DOT Act and documentation should in-
clude information necessary to consider a 4(f)
determination (see paragraph 4).
•
#
PART 520-16
6. Impacts of the proposed action on the hu-
man environment involving community disrup-
include a description.
a. The statement should include a descrip-
tion of probable impact sufficient to enable an
understanding of the extent of the environ-
mental and social impact of the project alter-
natives 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 commu-
nity 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 estab-
lished community, including where pertinent,
the effect of displacement on types of fam-
ilies and individuals affected, effect of streets
cut off, separation of residences from com-
munity facilities, separation of residential
areas.
(3) Impact on the neighborhood and hous-
ing to which relocation is likely to take place
(e.g., lack of sufficient housing for large fam-
ilies, 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 in-
sufficient to meet the estimated displacement
needs, a description of the actions proposed
to remedy this situation including, if neces-
sary, use of housing of last resort.
(6) Results of consultation with local offi-
cials and community groups regarding the
impacts to the community affected. Reloca-
tion agencies and staff and other social agen-
cies can help to describe probable social
impacts of this proposed action.
(7) Where necessary, special relocation ad-
visory services to be provided the elderly,
handicapped and illiterate regarding inter-
pretations 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 relo-
cation housing as required by DOT 5620.1, Re-
placement 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 pedes-
trian 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 pro-
posed action should be identified in the statement
including the following:
a. Particular effects of a proposal on the
elderly, handicapped, non-drivers, transit de-
pendent, or minorities should be described to
the extent reasonably predictable.
b. How the proposal will facilitate or inhibit
their access to jobs, educational facilities, re-
ligious institutions, health and welfare services,
recreational facilities, social and cultural fa-
cilities, pedestrian movement facilities, and
public transit services.
9. Standards as to noise, air, and water pollu-
tion. The statement shall reflect sufficient analysis
of the effects of the proposed action on attain-
ment and maintenance of any environmental
standards established by law or administrative
determination (e.g., noise, ambient air quality,
water quality) including the following docu-
mentation:
a. With respect to water quality, there
should be consultation with the agency respon-
sible 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
PART 520-17
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 de-
velopment. 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 alterna-
tive under consideration encroaches on a flood
plain, the statement should include evidence that
studies have been made and evidence of consulta-
tions with agencies with expertise have been
carried out. Necessary measures to handle flood
hazard problems should be described. In com-
pliance with Executive Oder 11296, and Flood
Hazard Guidelines for Federal Executive Agen-
cies, promulgated by the Water Resources Coun-
cil, 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 wild-
life, 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, set-
ting forth his views on the impacts of the
project on the wetlands, the worth of the
particular wetlands areas involved to the com-
munity and to the Nation, and recommendations
as to whether the proposed action should pro-
ceed, 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 im-
portance than long-term impacts of a proposal.
Nonetheless, statements should appropriately ad-
dress 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 state-
ment should include, to the extent relevant and
predictable:
a. The effect of the project on land use, de-
velopment patterns, and urban growth.
b. Where significant land use and develop-
ment 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 com-
ments of agencies that would provide these
facilities.
^
PART 520-18
ATTACHMENT 2
AREAS OF ENVIRONMENTAL IMPACT AND FED-
ERAL AGENCIES AND FEDERAL-STATE AGENCIESi
WITH JURISDICTION BY LAW OR SPECIAL EXPER-
TISE TO COMMENT THEREON^
AIR
Air Quality
Department of Agriculture-
Forest Service (effects on vegetation)
Atomic Energy Commission (radioactive sub-
stances)
Department of Health, Education, and Welfare
Environmental Protection Agency
Department of the Interior-
Bureau of Mines (fossil and gaseous fuel com-
bustion)
Bureau of Sport Fisheries and Wildlife (effect
on wildlife)
Bureau of Outdoor Recreation (effect on recrea-
tion)
Bureau of Land Management (public lands)
Bureau of Indian Affairs (Indian lands)
National Aeronautics and Space Administration
(remote sensing, aircraft emissions)
Department of Transportation-
Assistant Secretary for Systems Development
and Technology (auto emissions)
Coast Guard (vessel emissions)
Federal Aviation Administration (aircraft
emissions)
' River Basin Commissions (Delaware, Great Lakes,
Missouri, New England, Ohio, Pacific Northwest, Souris-
Red-Rainy, Susquehanna, Upper Mississippi) and similar
Federal-State agencies should be consulted on actions
affecting the environment of their specific geographic
jurisdictions.
^ In all cases where a proposed action will have sig-
nificant international environmental effects, the Depart-
ment of State should be consulted, and should be sent a
copy of any draft and final impact statement which
covers such action.
Weather Modification
Department of Agriculture-
Forest Service
Department of Commerce
National Oceanic and Atmospheric Administra-
tion
Department of Defense-
Department of the Air Force
Department of the Interior
Bureau of Reclamation
Water Resources Council
WATER
Water Quality
Department of Agriculture-
Soil Conservation Service
Forest Service
Atomic Energy Commission (radioactive sub-
stances)
Department of the Interior-
Bureau of Reclamation
Bureau of Land Management (public lands)
Bureau of Indian Affairs (Indian lands)
Bureau of Sport Fisheries and Wildlife
Bureau of Outdoor Recreation
Geological Survey
Office of Saline Water
Environmental Protection Agency
Department of Health, Education, and Welfare
Department of Defense-
Army Corps of Engineers
Department of the Navy (ship pollution con-
trol)
National Aeronautics and Space Administration
(remote sensing)
Department of Transportation-
Coast Guard (oil spills, ship sanitation)
Department of Commerce-
National Oceanic and Atmospheric Administra-
tion
Water Resources Council
River Basin Commissions (as geographically ap-
propriate)
PART 520-19
Marine Pollution, Commercial Fishery
Conservation, and Shellfish Sanitation
Department of Commerce-
National Oceanic and Atmospheric Administra-
tion
Department of Defense-
Army Corps of Engineers
Office of the Oceanographer of the Navy
Department of Health, Education, and Welfare
Department of the Interior—
Bureau of Sport Fisheries and Wildlife
Bureau of Outdoor Recreation
Bureau of Land Management (outer conti-
nental shelf)
Geological Survey (outer continental shelf)
Department of Transportation-
Coast Guard
Environmental Protection Agency
National Aeronautics and Space Administration
(remote sensing)
Water Resources Council
River Basin Commissions (as geographically ap-
propriate)
Waterway Regulation and Stream
Modification
Department of Agriculture-
Soil Conservation Service
Department of Defense-
Bureau of Reclamation
Army Corps of Engineers
Department of the Interior-
Bureau of Sport Fisheries and Wildlife
Bureau of Outdoor Recreation
Geological Survey
Department of Transportation—
Coast Guard
Environmental Protection Agency
National Aeronautics and Space Administration
(remote sensing)
Water Resources Council
River Basin Commissions (as geographically ap-
propriate)
FISH AND WILDLIFE
Department of Agriculture
Forest Service
Soil Conservation Service
Department of Commerce-
National Oceanic and Atmospheric Administra-
tion (marine species)
Department of the Interior-
Bureau of Sport Fisheries and Wildlife
Bureau of Land Management
Bureau of Outdoor Recreation
Environmental Protection Agency
SOLID WASTE
Atomic Energy Commission (radioactive waste)
Department of Defense-
Army Corps of Engineers
Department of Health, Education, and Welfare
Department of the Interior—
Bureau of Mines (mineral waste, mine acid
waste, municipal solid waste, recycling)
Bureau of Land Management (public lands)
Bureau of Indian Affairs (Indian lands)
Geological Survey (geologic and hydrologic
effects
Office of Saline Water (demineralization)
Department of Transportation-
Coast Guard (ship sanitation)
Environmental Protection Agency
River Basin Commissions (as geographically ap-
propriate)
Water Resources Council
NOISE
Department of Commerce-
National Bureau of Standards
Department of Health, Education, and Welfare
Department of Housing and Urban Development
(land use and building materials aspects)
Department of Labor-
Occupational Safety and Health Administra-
tion
•
#
I
PART 520-20
Department of Transportation-
Assistant Secretary for Systems Development
and Technology
Environmental Protection Agency
Federal Aviation Administration, Office of
Noise Abatement
National Aeronautics and Space Administration
RADIATION
Atomic Energy Commission
Department of Commerce-
National Bureau of Standards
Department of Health, Education, and Welfare
Department of the Interior-
Bureau of Mines (uranium mines)
Mining Enforcement and Safety Administra-
tion (uranium mines)
Environmental Protection Agency
HAZARDOUS SUBSTANCES
Toxic Materials
Atomic Energy Commission (radioactive sub-
stances)
Department of Agriculture-
Agricultural Research Service
Consumer and Marketing Service
Department of Commerce-
National Oceanic and Atmospheric Administra-
tion
Department of Defense
Department of Health, Education, and Welfare
Environmental Protection Agency
Food Additives and Contamination of
Foodstuffs
Department of Agriculture-
Consumer and Marketing Service (meat and
poultry products)
Department of Health, Education, and Welfare
Environmental Protection Agency
Pesticides
Department of Agriculture-
Agricultural Research Service (biological con-
trols, food and fiber production)
Consumer and Marketing Service
Forest Service
Department of Commerce-
National Oceanic and Atmospheric Administra-
tion
Department of Health, Education, and Welfare
Department of the Interior-
Bureau of Sport Fisheries and Wildlife (fish
and wildlife effects)
Bureau of Land Management (public lands)
Bureau of Indian Affairs (Indian lands)
Bureau of Reclamation (irrigated lands)
Environmental Protection Agency
Transportation and Handling of Hazardous
Materials
Atomic Energy Commission (radioactive sub-
stances)
Department of Commerce-
Maritime Administration
National Oceanic and Atmospheric Administra-
tion (effects on marine life and the coastal
zone)
Department of Defense-
Armed Services Explosive Safety Board
Army Corps of Engineers (navigable water-
ways)
Department of Transportation
Federal Highway Administration, Bureau of
Motor Carrier Safety
Coast Guard
Federal Railroad Administration
Federal Aviation Administration
Assistant Secretary for Systems Development
and Technology
Office of Hazardous Materials
Office of Pipeline Safety
Environmental Protection Agency
PART 520-21
ENERGY SUPPLY AND NATURAL RESOURCES
DEVELOPMENT
Electric Energy Development, Generation,
and Transmission, and Use
Atomic Energy Commission (nuclear)
Department of Agriculture-
Rural Electrification Administration (rural
areas)
Department of Defense-
Army Corps of Engineers (hydro)
Department of Health, Education, and Welfare
(radiation effects)
Department of Housing and Urban Development
(urban areas)
Department of the Interior-
Bureau of Indian Affairs (Indian lands)
Bureau of Land Management (public lands)
Bureau of Reclamation
Power Marketing Administrations
Geological Survey
Bureau of Sport Fisheries and Wildlife
Bureau of Outdoor Recreation
National Park Service
Environmental Protection Agency
Federal Power Commission (hydro, transmission,
and supply)
River Basin Commissions (as geographically ap-
propriate)
Tennessee Valley Authority
Water Resources Council
Petroleum Development, Extraction,
Refining, Transport, and Use
Department of the Interior-
Office of Oil and Gas
Bureau of Mines
Geological Survey
Bureau of Land Management (public lands
and outer continental shelf)
Bureau of Indian Affairs (Indian lands)
Bureau of Sport Fisheries and Wildlife (effects
on fish and wildlife)
Bureau of Outdoor Recreation
National Park Service
Department of Transportation (Transport and
Pipeline Safety)
Environmental Protection Agency
Interstate Commerce Commission
Natural Gas Development, Production,
Transmission, and Use
Department of Housing and Urban Development
(urban areas)
Department of the Interior-
Office of Oil and Gas
Geological Survey
Bureau of Mines
Bureau of Land Management (public lands)
Bureau of Indian Affairs (Indian lands)
Bureau of Sport Fisheries and Wildlife
Bureau of Outdoor Recreation
National Park Service
Department of Transportation (transport and
safety)
Environmental Protection Agency
Federal Power Commission (production, trans-
mission, and supply)
Interstate Commerce Commission
Coal and Minerals Development, Mining,
Conversion, Processing, Transport, and Use
Appalachian Regional Commission
Department of Agriculture-
Forest Service
Department of Commerce
Department of Interior-
Office of Coal Research
Mining Enforcement and Safety Administra-
tion
Bureau of Mines
Geological Survey
Bureau of Indian Affairs (Indian lands)
Bureau of Land Management (public lands)
Bureau of Sport Fisheries and Wildlife
Bureau of Outdoor Recreation
National Park Service
Department of Labor-
Occupational Safety and Health Administra-
tion
Department of Transportation
Environmental Protection Agency
Interstate Commerce Commission
Tennessee Valley Authority
•
PART 520-22
Renewable Resource Development, Production,
Management, Harvest, Transport, and Use
Department of Agriculture-
Forest Service
Soil Conservation Service
Department of Commerce
Department of Housing and Urban Development
(building materials)
Department of the Interior-
Geological Survey
Bureau of Land Management (public lands)
Bureau of Indian Affairs (Indian lands)
Bureau of Sport Fisheries and Wildlife
Bureau of Outdoor Recreation
National Park Service
Department of Transportation
Environmental Protection Agency
Interstate Commerce Commission (freight rates)
Energy and Natural Resources Conservation
Department of Agriculture-
Forest Service
Soil Conservation Service
Department of Commerce-
National Bureau of Standards (energy effi-
ciency)
Department of Housing and Urban Develop-
ment-
Federal Housing Administration (housing
standards)
Department of the Interior-
Office of Energy Conservation
Bureau of Mines
Bureau of Reclamation
Geological Survey
Power Marketing Administration
Department of Transportation
Environmental Protection Agency
Federal Power Commission
General Services Administration (design and op-
eration of buildings)
Tennessee Valley Authority
Federal Energy Administration
LAND USE AND MANAGEMENT
Land Use Changes, Planning and Regulation
or Land Development
Department of Agriculture-
Forest Service (forest lands)
Agricultural Research Service (agricultural
lands)
Department of Housing and Urban Development
Department of the Interior-
Office of Land Use and Water Planning
Bureau of Land Management (public lands)
Bureau of Indian Affairs (Indian lands)
Bureau of Sport Fisheries and Wildlife (wild-
life refuges)
Bureau of Outdoor Recreation (recreation
lands)
National Park Service (NPS units)
Department of Transportation
Environmental Protection Agency (pollution
effects)
National Aeronautics and Space Administration
(remote sensing)
River Basins Commissions (as geographically ap-
propriate)
PuJ)lic Land Management
Department of Agriculture-
Forest Service (forests)
Department of Defense
Department of the Interior-
Bureau of Land Management
Bureau of Indian Affairs (Indian lands)
Bureau of Sport Fisheries and Wildlife (wild-
life refuges)
Bureau of Outdoor Recreation (recreation
lands)
National Park Service (NPS units)
Federal Power Commission (project lands)
General Services Administration
National Aeronautics and Space Administration
(remote sensing)
Tennessee Valley Authority (project lands)
PART 520-23
#
Protection of Environmentally Critical Areas
Dunes, Unstable Soils, Steep Slopes,
Aquifer Recharge Areas, etc.
Department of Agriculture-
Agricultural Stabilization and Conservation
Service
Soil Conservation Service
Forest Service
Department of Commerce-
National Oceanic and Atmospheric Admin-
istration (coastal areas)
Department of Defense-
Army Corps of Engineers
Department of Housing and Urban Development
(urban and floodplain areas)
Department of the Interior-
Office of Land Use and Water Planning
Bureau of Outdoor Recreation
Bureau of Reclamation
Bureau of Sport Fisheries and Wildlife
Bureau of Land Management
Geological Survey
Environmental Protection Agency (pollution ef-
fects)
National Aeronautics and Space Administration
(remote sensing)
River Basins Commissions (as geographically ap-
propriate)
Water Resources Council
Land Use in Coastal Areas
Department of Agriculture-
Forest Service
Soil Conservation Service (soil stability, hy-
drology)
Department of Commerce-
National Oceanic and Atmospheric Administra-
tion (impact on marine life and coastal zone
management)
Department of Defense-
Army Corps of Engineers (beaches, dredge and
fill permits. Refuse Act permits)
Department of Housing and Urban Develop-
ment (urban areas)
Department of the Interior-
Office of Land Use and Water Planning
Bureau of Sport Fisheries and Wildlife
National Park Service
Geological Survey
Bureau of Outdoor Recreation
Bureau of Land Management (public lands)
Department of Transportation-
Coast Guard (bridges, navigation)
Environmental Protection Agency (pollution ef-
fects)
National Aeronautics and Space Administration
(remote sensing)
Redevelopment and Construction in
Built-Up Areas
Department of Commerce-
Economic Development Administration (desig-
nated areas)
Department of Housing and Urban Development
Department of the Interior-
Office of Land Use and Water Planning
Department of Transportation
Environmental Protection Agency
General Services Administration
Office of Economic Opportunity
Density and Congestion Mitigation
Department of Health, Education, and Welfare
Department of Housing and Urban Development
Department of the Interior-
Office of Land Use and Water Planning
Bureau of Outdoor Recreation
Department of Transportation
Environmental Protection Agency
Neighborhood Character and Continuity
Department of Health, Education, and Welfare
Department of Housing and Urban Development
National Endowment for the Arts
Office of Economic Opportunity
i
♦
PART 520-24
Impacts on Low-Income Populations
Department of Commerce-
Economic Development Administration (desig-
nated areas)
Department of Health, Education, and Welfare
Department of Housing and Urban Development
Office of Economic Opportunity
Historic, Architectural, and Archeological
Preservation
Advisory Council on Historic Preservation
Department of Housing and Urban Development
Department of the Interior-
National Park Service
Bureau of Land Management (public lands)
Bureau of Indian Affairs (Indian lands)
General Services Administration
National Endowment for the Arts
Soil and Plant Conservation and
Hydrology
Department of Agriculture-
Soil Conservation Service
Agriculture Service
Forest Service
Department of Commerce-
National Oceanic and Atmospheric Administra-
tion
Department of Defense-
Army Corps of Engineers (dredging, aquatic
plants)
Department of Health, Education, and Welfare
Department of the Interior
Bureau of Land Management
Bureau of Sport Fisheries and Wildlife
Geological Survey
Bureau of Reclamation
Environmental Protection Agency
National Aeronautics and Space Administration
(remote sensing)
River Basin Commissions (as geographically ap-
propriate)
Water Resources Council
outdoor recreation
Department of Agriculture
Forest Service
Soil Conservation Service
Department of Defense-
Army Corps of Engineers
Department of Housing and Urban Development
(urban areas)
Department of the Interior-
Bureau of Land Management
National Park Service
Bureau of Outdoor Recreation
Bureau of Sport Fisheries and Wildlife
Bureau of Indian Affairs
Environmental Protection Agency
National Aeronautics and Space Administration
(remote sensing)
River Basin Commissions (as geographically ap-
propriate)
Water Resources Council
PART 520-25
ATTACHMENT 3
ENVIRONMENTAL PROTECTION AGENCY^
OFFICES WITHIN FEDERAL AGENCIES AND FED-
ERAL-STATE AGENCIES FOR INFORMATION RE-
GARDING THE AGENCIES' NEPA ACTIVITIES
AND FOR RECEIVING OTHER AGENCIES' IM-
PACT STATEMENTS FOR WHICH COMMENTS
ARE REQUESTED
ADVISORY COUNCIL ON HISTORIC PRESERVATION
Office of Architectural and Environmental Pres-
ervation, Advisory Council on Historic Pres-
ervation, Suite 430, 1522 K Street N.W., Wash-
ington, D.C. 20005 254-3974.
Regional Administrator, I, U.S. Environmental
Protection Agency, Room 2303, John F. Ken-
nedy Federal Bldg., Boston, Mass. 02203 (617)
223-7210.
Regional Administrator, II, U.S. Environmental
Protection Agency, Room 908, 26 Federal
Plaza, New York, New York 10007 (212) 264-
2525.
Regional Administrator, III, U.S. Environ-
mental Protection Agency, Curtis Bldg., 6th &
Walnut Sts., Philadelphia, Pa. 19106 (215)
597-9801.
Regional Administrator, IV, U.S. Environmental
Protection Agency, 1421 Peachtree Street, N.E.,
Atlanta, Ga. 30309 (404) 526-5727.
Regional Administrator, V, U.S. Environmental
Protection Agency, 1 N. Wacker Drive, Chi-
cago, Illinois 60606 (312) 353-5250.
Regional Administrator, VI, U.S. Environmental
Protection Agency, 1600 Patterson Street, Suite
1100, Dallas, Texas 75201 (214) 749-1962.
Regional Administrator, VII, U.S. Environ-
mental Protection Agency, 1735 Baltimore Ave-
nue, Kansas City, Missouri 64108 (816) 374-
5493.
Regional Administrator, VIII, U.S. Environ-
mental Protection Agency, Suite 900, Lincoln
Tower, 1860 Lincoln Street, Denver, Colorado
80203 (303) 837-3895.
Regional Administrator, IX, U.S. Environmental
Protection Agency, 100 California Street, San
Francisco, California 94111 (415) 556-2320.
Regional Administrator, X, U.S. Environmental
Protection Agency, 1200 Sixth Avenue, Seattle,
Washington 98101 (206) 442-1220.
Connecticut, Maine, Massachusetts, New Hamp-
shire, Rhode Island, Vermont
New Jersey, New York, Puerto Rico, Virgin
Islands
Delaware, Maryland, Pennsylvania, Virginia,
West Virginia, District of Columbia
Alabama, Florida, Georgia, Kentucky, Missis-
sippi, North Carolina, South Carolina, Ten-
nessee
Illinois, Indiana, Michigan, Minnesota, Ohio
Wisconsin
Arkansas, Louisiana, New Mexico, Texas, Okla-
homa
Iowa, Kansas, Missouri, Nebraska
Colorado, Montana, North Dakota, South Dakota,
Utah, Wyoming
Arizona, California, Hawaii, Nevada, American
Samoa, Guam, Trust Territories of Pacific Is-
lands, Wake Island
Alaska, Idaho, Oregon, Washington
DEPARTMENT OF AGRICULTURE^
Office of the Secretary, Attn: Coordinator, En-
vironmental Quality Activities, U.S. Depart-
ment of Agriculture, Washington, D.C. 20250
447-3965.
' Contact the Office of Federal Activities for environ-
mental statements concerning legislation, regulations,
national program proposals, or other major policy issues.
For all other EPA consultation, contact the Regional
Administrator in whose area the proposed action (e.g.,
highway or water resource construction projects) will
take place. The Regional Administrators will coordinate
the EPA review. Addresses of the Regional Admin-
istrators, and the areas covered by their regions are as
follows:
Director, Office of Federal Activities, Environmental
Protection Agency, 401 M Street, S.W., Washington,
D.C. 20460 755-0777.
^ Requests for comments or information from indi-
vidual units of the Department of Agriculture, e.g.. Soil
Conservation Service, Forest Service, etc. should be sent
to the Office of the Secretary, Department of Agriculture,
at the address given above.
(#
I
PART 520-26
APPALACHIAN REGIONAL COMMISSION
Office of the Alternate Federal Co-Chairman,
Appalachian Regional Commission, 1666 Con-
necticut Avenue, N.W., Washington, D.C. 20235
967-4103.
DEPARTMENT OF THE ARMY (CORPS OF ENGINEERS)
Executive Director of Civil Works, Office of the
Chief of Engineers, U.S. Army Corps of En-
gineers, Washington, D.C. 20314 693-7168.
ATOMIC ENERGY COMMISSION
For nonregulatory matters: Office of Assistant
General Manager for Biomedical and Environ-
mental Research and Safety Programs, Atomic
Energy Commission, Washington, D.C. 20345
973-3208.
For regulatory matters: Office of the Assistant
Director for Environmental Projects, Atomic
Energy Commission, Washington, D.C. 20545
973-7531.
DEPARTMENT OF COMMERCE
Office of the Deputy Assistant Secretary for En-
vironmental Affairs, U.S. Department of Com-
merce, Washington, D.C. 20230 967-4335.
DEPARTMENT OF DEFENSE
Office of the Assistant Secretary for Defense
(Health and Environment), U.S. Department
of Defense, Room 3E172, The Pentagon, Wash-
ington, D.C. 20301 697-2111.
DELAWARE RIVER BASIN COMMISSION
Office of the Secretary, Delaware River Basin
Commission, Post Office Box 360, Trenton, N.J.
08603 (609) 883-9500.
FEDERAL POWER COMMISSION
Commission's Advisor on Environmental Quality,
Federal Power Commission, 825 N. Capitol
Street, N.E. Washington, D.C. 20426 386-6084.
GENERAL SERVICES ADMINISTRATION
Office of Environmental Affairs, Office of the
Deputy Administrator for Special Projects,
General Services Administration, Washington,
D.C. 20405 343-4161.
GREAT LAKES BASIN COMMISSION
Office of the Chairman, Great Lakes Basin Com-
mission, 3475 Plymouth Road, P.O. Box 999,
Ann Arbor, Michigan 48105 (313) 769-7431.
DEPARTMENT OF HEALTH, EDUCATION
AND WELFARE 3
For information with respect to HEW actions
occurring within the jurisdiction of the Depart-
ments' Regional Directors, contact the appro-
priate Regional Environmental Officer:
Office of Environmental Affairs, Office of the As-
sistant Secretary for Administration and Man-
agement, Department of Health, Education
and Welfare, Washington, D.C. 20202 963-4456.
Region I, Regional Environmental Officer, U.S.
Department of Health, Education and Welfare,
Room 2007B, John F. Kennedy Center, Boston,
Massachusetts 02203 (617) 223-6837.
Region H, Regional Environmental Officer, U.S.
Department of Health, Education and Welfare,
Federal Building, 26 Federal Plaza, New York,
New York 10007 (212) 264-1308.
Region HI, Regional Environmental Officer, U.S.
Department of Health, Education and Welfare,
P.O. Box 13716, Philadelphia, Pennyslvania
19101 (215) 597-6498.
Region IV, Regional Environmental Officer, U.S.
Department of Health, Education and Welfare,
Room 404, 50 Seventh Street, N.E. Atlanta,
Georgia 30323 (404) 526-5817.
Region V, Regional Environmental Officer, U.S.
Department of Health, Education and Welfare,
433 West Van Buren Stret, Chicago, Illinois
60607 (312) 353-1644.
DEPARTMENT OF HOUSING AND URBAN
DEVELOPMENT*
Regional Administrator II, Environmental Clear-
ance Officer, U.S. Department of Housing and
Urban Development, 26 Federal Plaza, New
York, New York 10007 (212) 264-8068.
5 Contact the Office of Environment Affairs for in-
formation on HEW's environmental statements concern-
ing legislation, regulations, national program proposals
or other major policy issues, and for all requests for
HEW comment on impact statements of other agencies.
" Contact the Director with regard to environmental
impacts of legislation, policy statements, program regula-
tions and procedures, and precedent-making project deci-
sions. For all other HUD consultation, contact the HUD
Regional Administrator in whose jurisdiction the project
lies, as follows:
Regional Administrator I, Environmental Clearance Of-
ficer, U.S. Department of Housing and Urban Develop-
PART 520-27
Regional Administrator III, Environmental
Clearance Officer, U.S. Department of Housing
and Urban Development, Curtis Building,
Sixth and Walnut Street, Philadelphia, Penn-
sylvania 19106 (215) 597-2560.
Regional Administrator IV, Environmental
Clearance Officer, U.S. Department of Housing
and Urban Development, Peachtree-Seventh
Building, Atlanta, Georgia 30323 (404) 526-
5585.
Regional Administrator V, Environmental Clear-
ance Officer, U.S. Department of Housing and
Urban Development, 360 North Michigan Ave-
nue, Chicago, Illinois 60601 (312) 353-5680.
Director, Office of Community and Environ-
mental Standards, Department of Housing and
Urban Development, Room 7206, Washington,
D.C. 20410 755-5980.
DEPARTMENT OF THE INTERIOR^
Director, Office of Environmental Project Review,
Department of the Interior, Interior Building,
Washington, D.C. 20240 343-3891.
INTERSTATE COMMERCE COMMISSION
Office of Proceedings, Interstate Commerce Com-
mission, Washington, D.C. 20423 343-6167.
ment, Room 405, John F. Kennedy Federal Building,
Boston, Mass 02203 (617) 223-4066.
Region VI, Regional Environmental Officer, U.S. Depart-
ment of Health, Education and Welfare, 1114 Com-
merce Street, Dallas, Texas 75202 (214) 749-2236.
Region VII, Regional Environmental Officer, U.S. De-
partment of Health, Education and Welfare, 601 East
12th Street, Kansas City, Missouri 64106 (816) 374-
3584.
Region VIII, Regional Environmental Officer, U.S. De-
partment of Health, Education and Welfare, 9017
Federal Building, 19th and Stout Streets, Denver,
Colorado 80202 (303) 837-4178.
Region IX, Regional Environmental Officer, U.S. De-
partment of Health, Education and Welfare, 50 Fulton
Street, San Francisco, California 94102 (415) 556-1970.
Region X, Regional Environmental Officer, U.S. Depart-
ment of Health, Education and Welfare, Arcade Plaza
Building, 1321 Second Street, Seattle, Washington
98101 (206) 442-0490.
^ Requests for comments or information from indi-
vidual units of the Department of the Interior should
be sent to the Office of Environmental Project Review at
the address given above.
DEPARTMENT OF LABOR
Assistant Secretary for Occupational Safety and
Health, Department of Labor, Washington,
D.C. 20210 961-3405.
MISSOURI RIVER BASINS COMMISSION
Office of the Chairman, Missouri River Basins
Commission, 10050 Regency Circle, Omaha,
Nebraska 68114 (402) 397-5714.
NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION
Office of the Comptroller, National Aeronautics
and Space Administration, Washington, D.C.
20546 755-8440.
NATIONAL CAPITAL PLANNING COMMISSION
Office of Environmental Affairs, Office of the
Executive Director, National Capital Planning
Commission, Washington, D.C. 20576 382-7200.
NATIONAL ENDOWMENT FOR THE ARTS
Office of Architecture and Environmental Arts
Program, National Endowment for the Arts,
Washington, D.C. 20506 382-5765.
NEW ENGLAND RIVER BASINS COMMISSION
Office of the Chairman, New England River
Basins Commission, 55 Court Street, Boston,
Mass. 02108 (617) 223-6244.
Regional Administrator VI, Environmental
Clearance Officer, U.S. Department of Housing
and Urban Development, Federal Office Build-
ing, 819 Taylor Street, Fort Worth, Texas
76102 (817) 334-2867.
Regional Administrator VII, Environmental
Clearance Officer, U.S. Department of Housing
and Urban Development, 911 Walnut Street,
Kansas City, Missouri 64106 (816) 374-2661.
Regional Administrator VIII, Environmental
Clearance Officer, U.S. Department of Housing
and Urban Development, Samsonite Building,
1051 South Broadway, Denver Colorado 80209
(303) 837-4061.
Regional Administrator IX, Environmental
Clearance Officer, U.S. Department of Housing
and Urban Development, 450 Golden Gate
Avenue, Post Office Box 36003, San Francisco,
California 94102 (415) 556-4752.
#
#
#
PART 520-28
Regional Administrator X, Environmental
Clearance Officer, U.S. Department of Housing
and Urban Development, Room 226, Arcade
Plaza Building, Seattle, Washington 98101
(206) 583-5415.
OFFICE OF ECONOMIC OPPORTUNITY
Office of the Director, Office of Economic Oppor-
tunity, 1200 19th Street, N.W., Washington,
D.C. 20506 254-6000.
OHIO RIVER BASIN COMMISSION
Office of the Chairman, Ohio River Basin Com-
mission, 36 East 4th Street, Suite 208-20, Cin-
cinnati, Ohio 45202 (513) 684-3831.
PACIFIC NORTHWEST RIVER BASINS
COMMISSION
Office of the Chairman, Pacific Northwest River
Basins Commission, 1 Columbia River, Van-
couver, Washington 98660 (206) 695-3606.
SOURIS-RED-RAINY RIVER BASINS COMMISSION
Office of the Chairman, Souris-Red-Rainy River
Basins Commission, Suite 6, Professional
Building, Holiday Mall, Moorhead, Minnesota
56560 (701) 237-5227.
DEPARTMENT OF STATE
Office of the Special Assistant to the Secretary
for Environmental Affairs, Department of
State, Washington, D.C. 20520 632-7964.
SUSQUEHANNA RIVER BASIN COMMISSION
Office of the Executive Director, Susqhehanna
River Basin Commission, 5012 Lenker Street,
Mechanicsburg, Pa. 17055 (717) 737-0501.
TENNESSEE VALLEY AUTHORITY
Office of the Director of Environmental Re-
search and Development, Tennessee Valley Au-
thority, 720 Edney Building, Chattanooga,
Tennessee 37401 (615) 755-2002.
DEPARTMENT OF TRANSPORTATION^
Director, Office of Environmental Quality, Office
of the Assistant Secretary for Environment,
* Contact the Office of Environmental Quality, Depart-
ment of Transportation, for information on DOT's en-
vironental statements concerning legislation, regula-
tions, national program proposals, or other major policy
issues.
Safety, and Consumer Affairs, Department of
Transportation, Washington, D.C. 20590 426-
4357.
For information regarding the Department of
Transportation's other environmental statements,
contact the national office for the appropriate ad-
ministration:
U.S. Coast Guard
Office of Marine Environment and Systems, U.S.
Coast Guard, 400 7th Street, S.W., Washing-
ton, D.C. 20590 426-2007.
Federal Aviation Administration
Office of Environmental Quality, Federal Avia-
tion Administration, 800 Independence Avenue,
S.W., Washington, D.C. 20591 426-8406.
Federal Highway Administration
Office of Environmental Policy, Federal High-
way Administration, 400 7th Street, S.W.,
Washington, D.C. 20590 426-0351.
Federal Railroad Administration
Office of Policy and Plans, Federal Railroad
Administration, 400 7th Street, S.W., Wash-
ington, D.C. 20590 426-1567.
Urban Mass Transportation Administration
Office of Program Operations, Urban Mass Trans-
portation Administration, 400 7th Street, S.W.,
Washington, D.C. 20590 426-4020.
For other administration's not listed above,
contact the Office of Environmental Quality, De-
partment of Transportation, at the address given
above.
For comments on other agencies' environmental
statements, contact the appropriate adminis-
tration's regional office. If more than one
administration within the Department of Trans-
portation is to be requested to comment, contact
the Secretarial Representative in the appropriate
Regional Office for coordination of the Depart-
ment's comments:
SECRETARIAL REPRESENTATIVE
Region I Secretarial Representative, U.S. De-
partment of Transportation, Transportation
Systems Center 55 Broadway, Cambridge,
Massachusetts 02142 (617) 494-2709.
PART 520-29
Region II Secretarial Representative, U.S. De-
partment of Transportation, 26 Federal Plaza,
Room 1811, New York, New York 10007 (212)
264-2672.
Region III Secretarial Representative, U.S. De-
partment of Transportation, Mall Building,
Suite 1214, 325 Chestnut Street, Philadelphia,
Pennsylvania 19106 (215) 597-0407.
Region IV Secretarial Representative, U.S. De-
partment of Transportation, Suite 515, 1720
Peachtree Rd., N.W., Atlanta, Georgia 30309
(404) 526-3738.
Region V Secretarial Representative, U.S. De-
partment of Transportation, 17th Floor, 300 S.
Wacker Drive, Chicago, Illinois 60606 (312)
353-4000.
Region VI Secretarial Representative, U.S. De-
partment of Transportation, 9-C-18 Federal
Center, 1100 Commerce Street, Dallas, Texas
75202 (214) 749-1851.
Region VII Secretarial Representative, U.S. De-
partment of Transportation, 601 E. 12th Street,
Room 634, Kansas City, Missouri 64106 (816)
374-2761.
Region VIII Secretarial Representative, U.S.
Department of Transportation, Prudential
Plaza, Suite 1822, 1050 17th Street, Denver,
Colorado 80225 (303) 837-3242.
Region IX Secretarial Representative, U.S. De-
partment of Transportation, 450 Golden Gate
Avenue, Box 36133, San Francisco, California
94102 (415) 556-5961.
Region X Secretarial Representative, U.S. De-
partment of Transportation, 1321 Second Ave-
nue, Room 507, Seattle, Washington 98101
(206) 442-0590.
FEDERAL AVIATION ADMINISTRATION
New England Region, Office of the Regional Di-
rector, Federal Aviation Administration, 154
Middlesex Street, Burlington, Massachusetts
01803 (617) 272-2350.
Eastern Region, Office of the Regional Director,
Federal Aviation Administration, Federal
Building, JFK International Airport, Jamaica,
New York 11430 (212) 995-3333.
Southern Region, Office of the Regional Director,
Federal Aviation Administration, P.O. Box
20636, Atlanta, Georgia 30320 (404) 526-7222.
Great Lakes Region, Office of the Regional Di-
rector, Federal Aviation Administration, 2300
East Devon, Des Plaines, Illinois 60018 (312)
694-4500.
Southwest Region, Office of the Regional Di-
rector, Federal Aviation Administration, P.O.
Box 1689, Fort Worth Texas 76101 (817) 624-
4911.
Central Region, Office of the Regional Director,
Federal Aviation Administration, 601 E. 12th
Street, Kansas City, Missouri 64106 (816) 374-
5626.
Rocky Mountain Region, Office of the Regional
Director, Federal Aviation Administration,
Park Hill Station, P.O. Box 7213, Denver,
Colorado 80207 (303) 837-3646.
Western Region, Office of the Regional Director,
Federal Aviation Administration, P.O. Box
92007, World Way Postal Center, Los Angeles,
California 90009 (213) 536-6427.
Northwest Region, Office of the Regional Di-
rector, Federal Aviation Administration, FAA
Building, Boeing Field, Seattle, Washington
98108 (206) 767-2780.
FEDERAL HIGHWAY ADMINISTRATION
Region 1, Regional Administrator, Federal High-
way Administration, 4 Normanskill Boulevard,
Delmar, New York 12054 (518) 472-6476.
Region 3, Regional Administrator, Federal High-
way Administration, Room 1621, George H.
Fallon Federal Office Building, 31 Hopkins
Plaza, Baltimore, Maryland 21201 (301) 962-
2361.
Region 4, Regional Administrator, Federal High-
way Administration, Suite 200, 1720 Peachtee
Road, N.W., Atlanta, Georgia 30309 (404) 526-
5078.
Region 5, Regional Administrator, Federal High-
way Administration, Dixie Highway, Home-
wood, Illinois 604030 (312) 799-6300.
Region 6, Regional Administrator, Federal High-
way Administration, 819 Taylor Street, Fort
Worth, Texas 76102 (817) 334-3232.
Region 7, Regional Administrator, Federal High-
way Administration, P.O. Box 7186, Country
Club Station, Kansas City, Missouri 64113
(816) 361-7563.
#
i
i
PART 520-30
Region 8, Regional Administrator, Federal High-
way Administration, Room 242, Building 40,
Denver Federal Center, Denver, Colorado
80225.
Region 9, Regional Administrator, Federal High-
way Administration, 450 Golden Gate Avenue,
Box 36096, San Francisco, California 94102
(415) 556-3895.
Region 10, Regional Administrator, Federal
Highway Administration, Room 412, Mohawk
Building, 222 S.W. Morrison Street, Portland,
Oregon 97204 (503) 221-2065.
URBAN MASS TRANSPORTATION ADMINISTRATION
Region I, Office of the UMTA Representative,
Urban Mass Transportation Administration,
Transportation Systems Center, Technology
Building, Room 277, 55 Broadway, Boston,
Massachusetts 02142 (617) 494-2055.
Region H, Office of the UMTA Representative,
Urban Mass Transportation Administration,
26 Federal Plaza, Suite 1809, New York, New
York 10007 (212) 264-8162.
Region HI, Office of the UMTA Representative,
Urban Mass Transportation Administration,
Mall Building, Suite 1214, 325 Chestnut Street,
Philadelphia, Pennyslvania 19106 (215) 597-
0407.
Region IV, Office of the UMTA Representative,
Urban Mass Transportation Administration,
1720 Peachtree Road, Northwest Suite 501,
Atlanta, Georgia 30309 (404) 526-3948.
Region V, Office of the UMTA Representative,
Urban Mass Transportation Administration,
300 South Wacker Drive, Suite 700, Chicago,
Illinois 60606 (312) 353-6005.
Region VI, Office of the UMTA Representative,
Urban Mass Transportation Administration,
Federal Center, Suite 9E24, 1100 Commerce
Street, Dallas, Texas 75202 (214) 749-7322.
Region VII, Office of the UMTA Representative,
Urban Mass Transportation Administration,
c/o FAA Management Systems Division, Room
1564D, 601 East 12th Street, Kansas City,
Missouri 64106 (816) 374-5567.
Region VIII, Office of the UMTA Representative,
Urban Mass Transportation Administration,
Prudential Plaza, Suite 1822, 1050 17th Street.
Denver, Colorado 80202 (303) 837-3242.
Region IX, Office of the UMTA Representative,
Urban Mass Transportation Administration,
450 Golden Gate Avenue, Box 36125, San Fran-
cisco, California 94102 (415) 556-2884.
Region X, Office of the UMTA Representative,
Urban Mass Transportation Administration,
1321 Second Avenue, Suite 5079, Seattle, Wash-
ington (206) 442-0590.
DEPARTMENT OF THE TREASURY
Office of Assistant Secretary for Administration,
Department of the Treasury, Washington,
D.C. 20220 964-5391.
UPPER MISSISSIPPI RIVER BASIN COMMISSION
Office of the Chairman, Upper Mississippi River
Basin Commission, Federal Office Building,
Fort Snelling, Twin Cities, Minnesota 55111
(612) 725-4690.
WATER RESOURCES COUNCIL
Office of the Associate Director, Water Resources
Council, 2120 L Street, N.W., Suite 800, Wash-
ington, D.C. 20037 254-6442.
PART 520-31
ATTACHMENT 4
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 environ-
mental agencies, which can assist in the prepara-
tion 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 environ-
mental 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 clearinghouse at the earliest
practicable time in the planning of the project
or activity. Where such consultation occurs
prior to completion of the draft impact state-
ment, comments relating to the environmental
eflfects of the proposed action would also repre-
sent inputs to the environmental impact state-
ment.
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 de-
pending on its resources, the significance of the
project and the extent t« which its earlier com-
ments were considered in preparing the draft
statement.
4. The clearinghouses may also be used, by mu-
tual 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 in-
clude copies of State and local agency comments
made earlier under the A-95 process and should
indicate on the summary sheet those other agen-
cies from which comments have been requested,
as specified in Attachment 1.
40 F.R. 52395
November 10, 1975
f
f
PART 520-32
EfFecMve: July 28, 1977
PREAMBLE TO PART 523— VEHICLE CLASSIFICATION
(Docket No. FE76-05; Notice 3)
Title V of the Motor Vehicle Information and
Cost Savings Act (the Act) specifies that certain
vehicles vi'ith a gross vehicle weight rating
(GVWR) of not more than 6,000 pounds are
automobiles, and, therefore, subject to the fuel
economy provisions of the Act. This rule adds
passenger cais with a GVWR of more than 6,000
pounds and less than 10,000 pounds to the auto-
mobile category. The rule also specifies which
automobiles are passenger automobiles and which
are nonpassenger automobiles. Separate fuel
economy standards have been established under
the Act for those automobile subcategories.
Effective Date : July 28. 1977.
For Further Information, Contact:
Douglas Pritchard
Office of Automotive Fuel Economy
National Highway Traffic Safety
Administration
Department of Transportation
Washington, D.C. 20.590
(202) 75;V9384
Supplementary Information: The es.sential fea-
tures of this rule were first outlined in the notice
of proposed I'ulemaking issued by this agency on
petitions for reduction of the average fuel econ-
omy standards for model year 1978-1980 passen-
ger automobiles (41 FR 46878, October 26, 1976).
A notice of pi'oposed rulemaking (XPRM) deal-
ing directly with classification appeared at 41 FR
.5.")368 (m December 20. 1976. The NPRM fol-
lowed the ()\itlines in tlie proposal for reductio7i
petitions. The NPRM proposed classifying all
passenger cars with a gross veliicle weight rating
(GVAA'R) of less than 10.000 pounds as passen-
ger automobiles. Pickup trucks, recreational ve-
hicles, vans, general purpose vehicles, and othei'
similar vehicles with a GVWR of not more than
6,000 pounds were classified as nonpassenger auto-
mobiles. All comments on tliat proposal have
been considered and the most significant ones are
discussed below.
S.ufrxjnary of major differences between pro-
posed and fnal rules. The only significant
change in the rule is in the method for measuring
the interior vohmie of certain automobiles for
the purpose of determining whether those auto-
mobiles have greater cargo-carrying volume than
passenger-carrying volume. If they do. they are
a type of nonpassenger automobile. The method
proposed in the NPRM differed slightly from
the method used by the Environmental Protection
Agency (EPA) for determining comparable
classes of passenger automobiles under its fuel
economy labeling program. The final rule adopts
the EPA method in all respects for passenger
automobiles.
Scope of rule. Under this rule, the passenger
automobile and nonpassenger automobile sub-
categories consist of the same types of vehicles
proposed to be included in each category in the
NPRM.. The only vehicles that are potentially
subject to regiilation under the Act and that are
not classified as automobiles by this notice are
pickup trucks, recreational vehicles, vans, and
general purpose vehicles with a GVWR of more
than 6,000 pounds and less than 10,000 pounds.
The agency is contemplating initiating rulemak-
ing late this summer to expand the nonpassenger
automobile subcategory by raising the upper
GVWR limit of the subcategory to at least 8,500
pounds. That proposal would make the expan-
sion effecti\e for the 1980 model year. Thus, the
vehicles brought into the nonpassenger automo-
l)ile subcategory by that proposal would become
sui)ject to average fuel economy standards be-
ginning in that model year.
PART 023— PRE 1
■fFeclive: July 28, 1977
International Harvester commented that, al-
ihouph tlie preamble to the classification NPRM
ndicated that the nonpassenger automobile sub-
lategory was intended to include only vehicles
with a GVWR of not more than 6,000 pounds,
:he proposed rule itself could be interpreted as
classifying vehicles which have a GVWR of more
than 6,000 pounds and less than 10,000 pounds
and have 4 of the 5 ground clearance character-
istics specified in the rule as automobiles capable
of off-highway operation. Since an automobile
capable of off-highway operation is a type of
nonpassenger automobile, this conmienter be-
lieved that the rule would yield a result contrary
to the stated intention of the preamble.
This is a misinterpretation of the rule. The
provisions in the rule relating to passenger auto-
mobiles and nonpassenger automobiles, including
automobiles capable of off-highway operation,
have been drafted so that they set forth how any
vehicle with a GVWR of less than 10,000 pounds
be subcategorized if it were first categorized as
an automobile. As noted above, this rule does
not categorize as automobiles all vehicles that
can potentially be so categorized. Under the
statute, all such vehicles with a GVWR of not
more than 6,000 pounds are automatically auto-
mobiles. Section 523.3(b) of this rule adds pas-
senger cars with a GVWR greater than 6,000
pounds and less than 10,000 pounds to that cate-
gory. The rule states how these automobiles are
subcategorized. Yet to be included in the auto-
mobile category are pickup trucks, vans, recrea-
tional vehicles, general purpose vehicles and
other similar vehicles with a GVWR greater than
6,000 pounds and less than 10,000 poiuids. The
rule states how these vehicles would be subcate-
gorized when and if they are first categorized as
automobiles. Thus, the crucial point to bear in
mind is that a vehicle cannot fall within some
subcategory of automobiles, such as automobiles
capable of olf-highway operation, unless it first
falls within the automobile category. Since no
vehicle which has a GVWR greater than 6,000
pounds and less than 10,000 pounds and has 4
or 5 of the ."> ground clearance characteristics is
an automobile under this rule, no such vehicle
can be an automobile capable of off-highway op-
eration under this rule. Such vehicles may be
what one might call vehicles capable of off-
highway operation, but they are not yet auto-
mobiles capable of off -highway operation.
In a related comment the General Services
Administration (GSA) stated that it did not
understand why this agency had proposed to list
a GVWR of more than 6,000 pounds as one cri-
terion for classification of an automobile as an
automobile capable of off-highway operation.
The proposed and final rules include in the auto-
mobile category any vehicle that has a GVWR
of less than 6,000 pounds and has 4 or 5 of the
ground clearance characteristics specified in the
rule. Any such automobile is an automobile
capable of off-highway operation. GSA correctly
interpreted the proposed rule as excluding, how-
ever, a vehicle from the automobile category if the
vehicle has a GVWR greater than 6,000 pounds
and less than 10,000 pounds and 4 or 5 of the 5
ground clearance characteristics. To clarify this
exclusion, GSA suggested the deletion of having
a GVWR of greater than 6,000 pounds as one
criterion for classification of an automobile as
one capable of off-highway operation.
The confusion discussed by International Har-
vester and GSA could be eliminated if having a
GVAVR of greater than 6,000 pounds and less
than 10,000 pounds were not viewed as an indi-
cation of a capability of off-highway operation
in the same vein as 4-wheel drive or ground
clearance. Section 501(3) of the Act might have
been more clearly understood if it had been
drafted to provide that automobiles with a
GVWR of not more than 6,000 pounds had to
have 4-wheel drive and another feature related
to off-higliway capability to be classified as an
automobile capable of off-highway operation, and
that automobiles with a GVWR greater than
6,000 pounds and less than 10,000 pounds had to
have only some feature, other than 4-wheel drive,
related to off-highway capability to be so classi-
fied. Since that .section was not so drafted and
since the agency deems it desirable to follow
statutory language in drafting its criteria in the
regulation, the agency has decided to adopt the
criteria for classification as automobiles capable
of off-liighway operation as proposed.
(#
t
PART 523— PRE 2
EffacHve: July 26, 1977
Subclassif cation of nonpassenger automobiles.
Ford and International Harvester urged that the
nonpassenger automobile subcategory be subdi-
vided. International Harvester urged the crea-
tion of subcategories, one for automobiles capable
of off-highway operation and another for all
other nonpassenger automobiles. Ford also pro-
posed a subcategory for automobiles capable of
off-highway operation and urged that the remain-
ing nonpassenger automobiles be divided into
those with a GVWR of not more than 6,000
pounds and those with a G\'1VR greater than
6,000 pounds and less than 10,000 pounds. In
its notice of proposed rulemaking (November 26,
1976, 41 FR .52087) on the average fuel economy
standard for 1979 nonpassenger automobiles, the
agency stated that it was not prepared to ad-
dress fully the subclassification of nonpassenger
automobiles. Based on comments by interested
persons, a small subclass of nonpassenger auto-
mobiles was created for general purpose vehicles
such as the AMC Jeep. The question of further
subclassification of nonpassenger automobiles will
be considered in connection with rulemaking to
be initiated late this summer.
Definitions. The XPRM defined "axle clear-
ance", one of the criteria for classifying automo-
biles as automobiles capable of off-highway
operation, as follows:
"Axle clearance" means the distance from
the level surface on wliicli an automobile is
standing to the lowest point on the axle
differential of the automobile.
International Harvester commented that this
definition did not provide for the possibility that
automobiles intended for off-highway operation
might be equipped with indei)en(lent suspension.
To accommodate s>ich automobiles, the company
urged that the definition be rewritten to read as
follows:
"Axle clearance" means the distance from
the level surface on which an automobile is
standing to the lowest point on the axle
differential or otJier component more than
18 inches inboard of the wheels in either the
front or rear of the automobile.
The reason for this change would be that the
differential on independently suspended automo-
biles could be higher than portions of tlie axles
on those automobiles. In contrast, the lowest
portion of the differential on nonindependently
suspended automobiles is typically lower than all
portions of the axles of those automobiles. Thus,
use of the differential as the reference point for
measuring axle clearance could overstate the ob-
stacle clearance capabilities of independently
suspended automobiles.
The NHTSA generally agrees with this obser-
vation, but is unaware of any standardized
ground clearance criteria which would consider
all the factors involved in ground clearance. For
instance, the definition proposed by International
Harvester does not address the width of the ve-
hicle being measured or the size and shape of the
obstacle being negotiated. These factors are also
important in determining a vehicle's obstacle
clearance capabilities.
Nevertheless, the important points to be noted
are that the definition of axle clearance proposed
in the NPRM is a measure of ground clearance
recognized by the Society of Automotive ("Engi-
neers and presently reported by the Motor Ve-
hicle Manufacturers Association and the indi-
vidual manufacturers and that use of the proposed
definition adequately serves its purpose and does
not disadvantage any vehicle, regardless of its
axle configuration or suspension system. Accord-
ingly, in the interests of avoiding unnecessary
complexity in this rule, the definition proposed
in the NPRM is adopted. If a need arises in the
future to amend this definition, the NHTSA will
initiate rulemaking.
A number of comments were addressed to the
interior volume measurement technique used in
detei-mining whether an automobile had greater
cargo-carrying volume than passenger-carrying
• olume and thus was a nonpassenger automobile.
I h( NPRM ['ioposed to use a technique that
diftcred slightly from that used by the EPA in
its fuel economy labeling regulation (40 CFR
600.31.T; November 10, 1976, 41 FR 49752) with
respect to station wagons and hatchbacks. Inter-
national Harvester, Ford Motor Company, and
Volkswagen of America all stated that this
agency should use the EPA measurement tech-
nicjue to avoid the possibility of requiring the
manufacturers to measure the interior volume of
certain automobiles in two different ways. None
of the inee companies coinmeni^'d on whether
PART 523— PRE 3
Effective: July 28, 1977
different techniques were necessary. Ford com-
mented also that publication of two different in-
terior volume measurements for the same
automobile would unnecessarily confuse consum-
ers. Conversely, General Motors stated that the
measurement techniques used by the two agencies
need not be identical.
In the NPRM, this agency stated that use of a
single measuring technique that differed slightly
from the techniques used by the EPA for various
types of automobiles appeared to be necessary.
The EPA has one technique for station wagons
and a slightly different one for hatchbacks.
There is no EPA technique for vans.
After consideration of the comments and a
reevaluation of the problem of differentiating
between certain passenger automobiles and non-
passenger automobiles, this agency has decided
to use the EPA measuring techniques for station
wagons and hatchbacks. The differences between
the technique proposed in the NPRM and the
techniques used by the EPA are minor and do
not result in different classification of any auto-
mobiles as passenger automobiles or nonpassenger
automobiles. Since the results of the different
techniques are the same, there appears to be no
reason for burdening the manufacturers with the
possibility of having to measure the interior
space of the same automobile in two different
manners. Further, use of the same techniques
will avoid the possibility of consumers being
confused by some advertisements about interior
space based on one technique and other adver-
tisements based on the other technique.
The adoption of the EPA techniques for meas-
uring intei'ior volume of station wagons and
hatchbacks meets a number of concerns that
various manufacturers had raised about the pro-
posed techniques for measuring the interior space
of station wagons. Ford and Chrysler com-
mented that the proposed technique was not
suited to 3-seated wagons whose third seat was
side or rear facing. The adopted EPA tech-
nique measures the third seat area with the seat
down in the cargo-carrying position.
Chrysler noted that the proposed definition of
"passenger-carrying volume" did not clearly pro-
vide dimensions for measuring the volumes of
third seats. This could be a problem in passen-
#
ger vans. The reference in the proposed defini-
tion to "rear seats" was intended to encompass
all seats behind the front seat. The definition
has been amended to provide that the dimensions
for second seats be used for any seats to the rear
of the second seats also.
Ford urged that certain changes be made in
the EPA technique for measuring interior width
and front seat leg room and that under-floor
(hidden) storage space be included in determin-
ing station wagon cargo volume. These com-
ments should be addressed to the EPA, which has
the responsibility under the Act for these tech-
niques.
The measurement technique proposed in the
NPRM is adopted for use with respect to all
automobiles, e.g., vans, for which the EPA does
not specify a measurement technique. This pro-
vision is necessary so that a measurement tech-
nique will be specified for every type of
automobile.
Automobiles. Several commenters stated cer-
tain vehicles with off-highway capability were
not automobiles and thus were not subject to
average fuel economy standards under the Act.
AMC contended that its Jeep CJ is designed,
manufactured, and marketed primarily for off-
highway operation. AMC stated that Jeeps are
"built with low and medium speed capability and
accommodate many off-road work-performing
equipment accessories". AMC concluded that the
Jeep cannot be an automobile since it is not, in
that company's view, "manufactured primarily
for use on the public streets, roads, and high-
ways." Ford made a similar argument. It stated
that vehicles having all of the following features
are not manufactured primarily for highway use:
(1) 4-wheel drive, (2) high ground clearance as
evidenced by certain approach, breakover, and
departure angles and by certain running and axle
clearances, (3) engine oil systems capable of op-
eration on inclines having up to a 60 percent
grade, (4) relatively high axle ratios and heavy
duty axle and suspension components, and (5)
relatively high frontal area. The GSA took no
position on the treatment of vehicles capable of
off-highway operation but noted what appeared
to it as an inconsistency between a statement on
p. 90 in the House report on the Act regarding
i
#
PART 523— PRE 4
EITtcNve: July 28, 1977
vehicles manufactured primarily for off-road use
and the portion of the proposed rule relating to
automobiles capable of oiT-hiphway operation.
NHTSA cannot accept the claims of AMC and
Ford that vehicles with the characteristics set out
above are not subject to fuel economy standards
because their off-road characteristics place them
outside the scope of Title V. These arguments
have already been considered by the \HTSA and
rejected in the preamble to the rule establishing
average fuel economy standards for nonpassenger
automobiles produced during the 1973 model
year; 42 FR 13807, March 14. 1977. The discus-
sion that follows is a shortened version of that
earlier discussion. This discussion also demon-
strates that the inconsistency perceived by GSA
does not exist.
The characteristics identified by the comment-
ers are merely characteristics of vehicles which
are capable of off-highway operation. There was
no claim that the vehicles had characteri.stics
that made them incapable of highway use. More
importantly, neither manufacturer claimed that
the vehicles were not intended or expected to
spend a substantial portion of their operating
lives on the public streets, roads, or liighways.
Therefore, \HTSA believes that Congress in-
tended these vehicles to be automobiles within
the meaning of Section .501 of Title V. and sub-
ject to fuel economy standards as nonpassenger
automobiles.
This rule and section 501(1) of the Act define
an automobile as "any 4-wheeled vehicle pro-
pelled by fuel which is manufactured primarily
for use on public streets, roads, and highways . . ."
The manufacturers' claims rest on an interpreta-
tion of the word "primarily" as meaning "cluefly"
in the above-quoted definition of "automobile".
Tt is a common principle of statutoiy construc-
tion that the woi-ds of a statute are to be given
their ordinary, everyday meanings, unless there
is evidence on the face of the statute that the
ordinary, everyday meaning is not applicable and
that application of the ordinary, everyday mean-
ing would frustrate the legislative intent. Malat
V. Riddel 38,3 U.S. r>69. .■)71-.-)72 (1966). How-
ever, the word "primarily" has two ordinary,
everyday meanings in legal u.sage — "chiefly" and
"substantially". See Board of Governors of the
Federal Reserve System v. Agnew, 329 U.S. 441,
446 (1947) ; 33A Words and Phrases 206 et seg.
Hence, the NHTSA must determine which of
these two meanings the Congress intended to be
applicable in the definition of "automobile".
The NHTSA interprets the word "primarily"
as used in the definition of automobile to mean
"substantially" for the reasons set forth below.
Thus, even if a vehicle is manufactured chiefly
for off-highway use, if highway use is a substan-
tial use of the vehicle, it is manufactured pri-
marily for both highway and off-highway use,
and is therefore an automobile subject to Title V.
Congress clearly intended that vehicles capable
of off-highway operation be subject to fuel econ-
omy standards as nonpassenger automobiles;
S. Rep. No. 516, 94th Cong., 1st Sess. 153 (1975).
Thus, a manufacturer must show more than an
off-highway capability in order to establish that
a vehicle is beyond the scope of Title V.
The phrase "manufactured primarily for use
on the public streets, roads, and highways" is
also found in the definitions of "motor vehicle"
in Section 102(1) of the National Traffic and
Motor Vehicle Safety Act of 1966 (15 U.S.C.
1391(1)) and Section 2(15) of the Motor Vehicle
Information and Cost Savings Act (15 U.S.C.
1901(15)). "Automobile" under Title V, and
"motor vehicle" under both the Vehicle Safety
Act and the Cost Savings Act, do not completely
overlap (for instance, "automobiles" are limited
to four-wheeled vehicles, while "motor vehicles"
are not so limited). However, with respect to a
vehicle's identity as an on-road or an oflf-road
vehicle, the terms "motor vehicle" and "automo-
bile" seem to refer to the same vehicles. From
the experience with regidating these vehicles un-
der the Motor Vehicle Safety Act and the Cost
Savings Act, it is clear that the vehicles referred
to by AMC and Ford are on-road vehicles with a
capability for off-highway operation.
.Vfter more than a decade of regulation under
the Vehicle Safety Act. both Ford and AMC
have acted consistently with the view that ve-
hicles referred to here are "motor vehicles". In-
deed. AMC admits that the vehicles are designed
to meet the Federal safety standards applicable
to motor vehicles. Moreover, the legislative his-
tory of the Cost Savings Act specifically con-
FART 523— PRE 5
Effective: July 28, 1977
templates that Jeeps are subject to that Act.
S. Kept. No. 92-413, 92d Cong., 1st Sess., at 20.
Congress must be assumed to have been aware of
this long, unchallenged regulatory practice which
covered the vehicles at issue here when drafting
the language found in Section 501 of Title V.
There is nothing in the legislative history of
Title V which indicates that the intent of Con-
gress was that the Title have a narrower scope
than that given by the NHTSA's interpretation
in the NPRM. In its comment to the NPRM,
Ford quotes the following passage on p. 90 of the
House report on Title V in support of its claim
that vehicles with all the features suiting it for
off-road use which Ford discussed were not manu-
factured primarily for on-road use :
The effect of the definitional scheme of the
bill is to exclude entirely vehicles not manu-
factured primarily for highway use (e.g.,
agricultural and construction equipment, and
vehicles nmniifactured primarily for off -road
rather than highway use. (Emphasis sup-
plied by Ford.)
Although this language gives some examples of
the kinds of vehicles which Congress intended
not to be subject to fuel economy standards under
the Title, e.g., agricultural equipment and con-
struction equipment, those vehicles are not char-
acterized by the features which are claimed by
the manufacturers to establish that a vehicle was
not manufactured primarily for highway use.
Furthermore, the language which Ford under-
scored by no means referred necessarily to the
vehicles which Ford seeks to have excluded from
the Title. Other vehicles, such as racing cars,
fork-lifts, and runway fire apparatus, are some
vehicles which are not manufactured primarily
for highway use. A fuller discussion of the
relevant legislative history is set forth below in
the section on passenger and nonpassenger auto-
mobiles.
Finally, the purpose of the Title dictates that
its provisions, especially regarding the scope of
its applicability, be given a liberal construction.
Congress enacted Title V in response to the en-
ergy shortage. In light of the importance of
energy conservation to the Nation's economic
health and standard of living, NHTSA believes
that Congress intended the Title to have broad
application, and that any interpretation of the
Title that would have the effect of excluding an
entire class of vehicles from regulation under the
Title must be firmly based in the language of the
Title or its legislative history. Neither AMC nor
Ford has shown a clear expression of Congres-
sional intent that the vehicles with the character-
istics they described, making them suitable for
off-road operation, should be exempt from fuel
economy standards established under the Title.
Indeed, as has been demonstrated, the intent of
Congress would have those vehicles subject to
the Title.
Passenger automobiles and nonpassenger auto-
mobiles. This rule separates vehicles classed as
automobiles into two subcategories — "passenger
automobiles" and "nonpassenger automobiles".
The definition of "passenger automobile" in this
rule is taken directly from Section 501(2) of the
Act. The "nonpassenger automobile" category is
a residual subcategory, consisting of all automo-
biles which are not passenger automobiles.
Chrysler and General Motors commented that
the separation of automobiles into passenger
automobiles and nonpassenger automobiles is
proper under the Act, and that the NPRM placed
all vehicle types in the proper category.
The types of automobiles to be included in
these subcategories depend upon the interpreta-
tion given to "primarily" in the definition of
"passenger automobile". An explanation of this
agency's interpretation should serve to eliminate
any remnants of the ambiguity which GSA per-
ceived in the NPRM regarding the automobiles
capable of off-highway operation. If "primarily"
were interpreted to mean "substantially", as it
is in the definition of "automobile" discussed
supra, then almost every automobile would be a
passenger automobile, since a substantial func-
tion of almost all automobiles is to transport at
least two persons. The only nonpassenger auto-
mobiles under this interpretation would be those
specifically excluded by the definition of passen-
ger automobile; i.e., automobiles capable of off-
highway operation and automobiles manufactured
primarily for use in the transportation of more
than 10 individuals. If, on the other hand,
"primarily" is interpreted to mean "chiefly" or
"predominantly", then all automobiles not manu-
factured chiefly for use in the transportation of
#
I
PART 523— PRE
Effective: July 28, 1977
individuals would be nonpassenger automobiles,
as well as the two types of automobiles excluded
from the passenj^er automobile category by defi-
nition.
The NHTSA interprets the word "primarily"
in the definition of "passenger automobile" to
mean "chiefly". Based on the discussion below
of that definition and its legislative history,
Congress clearly intended that "passenger auto-
mobile" include only those vehicles traditionally
regarded as passenger cars, i.e., vehicles whose
major design features, including body style, re-
flect the purpose of carrying passengers. Ex-
amples of the design features which singly or in
combination indicate that an automobile is not a
passenger automobile are an open bed for carry-
ing cargo, heavy duty suspension, and greater
cargo-carrying than pas.senger-carrying volume.
As discussed in the above section entitled
Automobiles, the use of "primarily" in the defi-
nition of "automobile" must be considered against
a legislative backdrop of other .statutes using the
identical phrase, and the remedial purposes of
the Act justifying a broad interpretation of those
definitions which delineate the scope of its ap-
plicability. However, the use of "primarily" in
the definition of "passenger automobile" brings
other considerations into play. First, the reme-
dial purposes of the Act do not require a broad
interpretation of the definition "passenger auto-
mobile". Section 502 (b) of the Act requires the
NHTSA to set average fuel economy standards
for noni)assenger automobiles at the maximum
feasible level. Accordingly, the fuel efficiency
of these vehicles will be improved regardless of
whether they are classified as passenger or non-
pa.ssenger automobiles.
Second, interpreting "passenger automobile" as
this rule does permits the XHTSA to make the
passenger automobile and nonpas.senger automo-
bile categories under the Act parallel the vehicle
classification scheme established under the Na-
tional Traffic and Motor \^ehicle Safety Act of
1966, 15 U.S.Cl 1381 et seq. ("passenger car",
"multipurpose passenger vehicle", and "truck"),
and very similar to the scheme established under
the Clean Air Act, 42 U.S.C. 1857 rt ^rq. ("liglit
duty vehicle" and "light duty truck"). Similar
classification of vehicles for all three regulatory
purposes will serve to minimize the possibility
of inconsistent regulatory requirements. Addi-
tionally, the manufacturers can quickly determine
the class of their automobiles for fuel economy
purposes by examining the classification of these t
vehicles under existing regulatory schemes.
Third, placing pickup trucks and vans in the
passenger automobile category would be contrary
to the intent of Congress, as discussed below.
In the House of Representatives, the automo-
bile fuel economy provisions of H.R. 7014 were
derived almost verbatim from the Sharp floor
amendment to H.E. 6860. That amendment con-
tained the following sections :
Section 301(a)(3) The term "passenger
automobile" means any automobile which
has as its primary intended function the
transportation of not more than ten indi-
viduals.
Section 301(a)(4) The term "light-duty
truck and multipurpose passenger vehicle"
means any automobile which is not a pas-
senger automobile.
By calling the category of automobiles other than
passenger automobiles "light-duty trucks and
multipurpose passenger vehicles", the bill did not
draw on new, amorphous concepts, but, instead,
chose terms with existing definitions under other
Acts. Under the Clean Air Act, the EPA de-
fined the term "light duty truck" at that time as
"any motor vehicle rated at 6,000 pounds GVW
or less, which is designed primarily for purposes
of transportation of property or is a derivative
of such a vehicle, or is available with special
features enabling off-street or off-highway opera-
tion and use"; 40 CFR § 85.202(a) (5). Under
the Vehicle Safety Act, the NHTSA at the time
of the adoption of the Sharp amendment defined
a "nmltipurpose passenger vehicle" as "a motor
vehicle with motive power, except a trailer, de-
signed to carry 10 persons or less which is con-
structed either on a truck chassis or with special
features for occasional off-road operation"; 49
CFR § 571.3. In the Cost Savings Act, Congress
itself defined "multipurpose passenger vehicle"
in the same way as the NHTSA had in the above
(juoted regulation; 15 U.S.C. 1901(2).
PART 523— PRE 7
Effacllve: July 28, 1977
Vehicles similar to AMC's Jeeps had been re-
garded by both the EPA and the NHTSA as
automobiles with special features enabling off-
highway use. The EPA had classified pickup
trucks and cargo vans as light duty trucks, be-
cause EPA detennined that these types of vehicles
were designed primarily to transport property.
Passenger vans and recreational vehicles, such as
campers, had also been classed with light duty
trucks, since these types of vehicles were deriva-
tives of cargo vans and pickup trucks. The
NHTSA made the same classification under the
Vehicle Safety Act based on the fact that these
vehicles were constructed on a truck chassis.
Station wagons, on the other hand, have never
been classified as light duty trucks by the EPA.
The EPA determined that station wagons, which
are built on passenger car chassis with passenger
car-type springs and suspension systems, are de-
signed primarily to transport people, with a sub-
sidiary ability to transport property. The
NHTSA reached the same result, since station
wagons are built on a passenger car chassis. By
using existing terms with existing applications.
Congress gave a clear indication of the types of
automobiles that were intended to be treated
separately from passenger automobiles. If the
word "primarily" in the definition of "passenger
automobile" is interpreted to mean "chiefly",
those types of automobiles would be treated sepa-
rately from passenger automobiles. It seems
clear that the House intended H.R. 6860 to be so
interpreted.
The class "light duty trucks and multipurpose
passenger vehicles" was deleted from H.R. 7014
when reported from Committee. However, the
Committee Report states :
"Part A to Title V of H.R. 7014 as reported
is (with one exception) substantively identi-
cal to Part I of Title III of H.R. 6860 as
passed by the House." H.R. Rep. 94-340
at 87.
The exception noted in the report referred to
the procedure for modifying the average fuel
economy standards for passenger automobiles,
which does not affect this discussion. The above
statement in the House Report indicates that the
.substitution of an untitled residual category of
automobiles for the "light duty truck and multi-
purpose passenger vehicle" category was not in-
tended to broaden the scope of the passenger
automobile so as to include vehicles designed
principally for use in the transportation of prop-
erty, or derivatives thereof. Hence, the House
intended the word "primarily" in the definition
of "passenger automobile" in H.R. 7014 to mean
"chiefly".
The bill originally passed by the Senate deal-
ing with automobile fuel economy standards was
S. 1883. That bill set up two categories of ve-
hicles, automobiles and light duty trucks, to
wliich average fuel economy standards were ap-
plicable.
The "automobile" category in S. 1883 was iden-
tical to the "passenger automobile" category in
the Act. The other category of vehicles, "light
duty trucks", was defined exactly as the EPA
defined it. The Senate thus manifested its intent
to treat vehicles which had been classed as light
duty trucks by EPA, specifically, vans, pickup
trucks, general purpose vehicles, campers, and
other similar vehicles, separately from the ve-
hicles classified as "automobiles" under this bill,
such as sedans, coupes, and station wagons. The
language of S. 1883 was incorporated verbatim
into the Senate version of S. 622.
Thus, both houses of Congress had expressed
an intent that vehicles classed by EPA as light
duty trucks be subject to average fuel economy
standards separate from the standards imposed
on passenger cars. Both houses presumably un-
derstood which types of vehicles had been classed
as light duty trucks by EPA. There was, there-
fore, nothing for the conference to resolve on this
point, since the House and Senate bills were in
agreement. The adoption of the House language
no more suggests a change from the Senate bill
than the language in the House bill suggested a
change from the Sharp amendment.
The conference report accompanying S. 622,
the bill which became the Act, explains the clas-
sification of automobiles thusly:
"Automobiles are divided into two broad
categories for purposes of prescribing fuel
economy standards: passenger automobiles,
and automobiles which are not passenger
automobiles (e.g., certain light duty trucks,
recreational vehicles, and other multipurpose
#
♦
PART 523— PRE 8
E«tacHv«: July 28, 1977
vehicles). Automobiles capable of off-hiofh-
way operation . . . are specifically desip^iated
for inclusion in the latter category." S. Rep.
No. 94-516, H.R. Rep. No. 94-700 (94th
Cong., 1st Sess.) at 153.
This discu.ssion gives no indication that the
types of vehicles intended to be nonpassenger
automobiles changed. Indeed, the types of ve-
hicles intended by both houses of Congress to be
nonpassenger automobiles are listed as examples
of the kinds of vehicles which are not passenger
automobiles under the Act. The NHTSA must
interpret the word "primarily" in the definition
of "pas.senger automobile" in the way that will
effectuate the legislative intent. In light of the
clear indications given by Congress about the
types of vehicles intended to be nonpassenger
automobiles, "primarily" must be interpreted to
mean "chiefly".
Under this interpretation, there are four types
of nonpassenger automobiles. The fii-st, and most
obvious, type of nonpassenger automobile is an
automobile designed priniarily to transport more
than 10 persons. An example is a van with
more than 10 seating positions. This type of
automobile is excluded from the passenger auto-
mobile category by the Act.
The second type of automobile classed as a
iionpassenger automobile by this rule is an auto-
moi.iit designe<J primarily, i.e., chiefly, for pur-
poses of transportation of property. Section
5^3.5(a)(3) and (4) of tiie rule lists two differ-
ent ways of determining when an automobile is
designed i)rinuirily for use in the transportation
of proi>erty. An automobile which can transport
property on an open bed is not manufactured
diiefly to transport individuals, since well ovei'
half of the available space on those automobiles
consists of the cargo bed, which is exclusively
cargo-carrying area. Further, this type of auto-
mobile is (lesigiu'd to carry lieavy loads.
Automobiles classed as nonpassenger automo-
biles by this feature are pickup trucks and some
passenger car derivatives with open cargo beds,
such as the Chevrolet El Camino and the Ford
Ranchero. El Caniinos and Rancheros have been
permanently altered so that they have much less
passenger-carrying capacity and nuich more
property-carrying capacity than the passengei-
cars from which they are derived. The similarity
of these vehicles to pickup trucks built on a
truck chassis is indicated by their cla.ssification
in the EPA/FEA 1977 Gas Mileage Guide as
"standard pickup trucks". These considerations i'
appear to the NHTSA to indicate that these
vehicles are man>ifactured chiefly for use in the
transportation of property, so the classification
of these vehicles proposed in the NPRM is
adopted in this rule.
Ford connnented that it agreed that its Ranch-
ero should be classified as a nonpassenger auto-
mobile. However, Ford urged that the Ranchero
should continue to be tested under the passenger
automobile test procedures, rather than the non-
passenger automobile procedures. EPA, in con-
sultation with the NHTSA, agrees with Ford
that the additional testing would be unnecessary,
and so the Ranchero will be tested as a passenger
automobile. This determination will appear in a
rule specifying nonpassenger automobile fuel
economy test procedures to be published by EPA
in August.
An automobile which provides greater cargo-
carrying than passenger-carrying volume is also
an automobile 'designed primarily for purposes
of transportation of property. Since more of the
space inside the vehicle has been dedicated to
transporting cargo, and such vehicles are typic-
ally designed to carry heavy loatls, this agency
concludes that the chief consideration in design-
ing the vehicle was the ability to transport prop-
erty. Automobiles that are classed as nonpas-
senger automobiles on the basis of this feature
include cargo vans and multi.stop vehicles.
The third type of nonpaissenger automobile
under this rule is a derivative of an automobile
designed primarily for the transportation of
property. Section 523.5(a) (2) and (5) addresses
this type of nonpassengei' automobile. An auto-
mobile in which tlie cargo-carrying area has been
converted to provide temporary living quarters
is typically a derivative of a cargo van or pickup
truck. Automobiles that are classified as non-
passenger automobiles on the basis of this feature
include crtnn)ers.
The other common derivative of an automobile
designed primarily for the transportation of
property is the passenger van. In essence, it is a
PART 523— PRE it
Effective: July 28, 1977
cargo van in which readily removable seats have
been installed in the cargo-carrying area. This
derivative can be easily converted back into an
automobile with greater cargo-carrying than
passenger-carrying volume, i.e., a cargo van, by
removing these seats with means installed by the
manufacturer for that purpose or with simple
tools, such as a screwdriver or a wrench.
Although station wagons built on passenger
car chassis have a convertibility feature, fold-
down rear seats, this characteristic is not sufficient
to exclude them from the passenger automobile
category. Like the passenger van with removable
seats, the station wagon with its seats folded
down is easily converted back into the basic in-
terior arrangement. Indeed, the conversion is
easier since no tools are i-equired. However, it is
not the convertibility factor alone which results
in passenger vans being classified as nonpassenger
automobiles. It is that factor together with the
derivative nature of those vans. Neither passen-
ger vans nor station wagons have been perma-
nently alteied from the parent vehicles, as the
El Camino/Ranchero vehicles have. Therefore,
since a passenger van is designed with the same
chassis, springs, and suspension system as a cargo
van, it is treated in the same way as a cargo van.
A station wagon is designed with the same chassis,
springs, and suspension system as a sedan, and
so is placed in the same category as a sedan.
The fourth and final type of nonpassenger
automobile under this rule is an automobile
capable of off-highway operation.
Ford and International Harvester commented
that the 5 ground clearance measurements pro-
posed in the NPRM would adequately serve to
distinguish automobiles capable of off-highway
operation from other automobiles. The GSA
commented that all of these measurements relate
solely to vertical obstacle negotiation potential,
and suggested that NHTSA consider other fac-
tors, such as slope-climbing potential, vegetation
override potential, and swimming potential,
which would also make an automobile capable of
off-highway operation. The XHTSA considered
incorporating some of tiiese other factors in the
NPRM, but discovered that every vehicle with a
GVWR under 6,000 pounds which had one of '
these other features also had four of the five
characteristics listed in the rule. Therefore, in
the interest of avoiding unnecessary complexity,
NHTSA has decided to list only the five char-
acteristics given in the NPRM. If a need arises
in the future to establish additional criteria, the
NHTSA will initiate rulemaking.
Vehicles toith a OVWR hetween 6,000 and
10,000 pounds. The Act classifies as an automo-
bile any 4-wheeled vehicle propelled by fuel
which is manufactured primarily for use on pub-
lic streets, roads, and highways (except any ve-
hicle operated exclusively on a rail or rails)
which has a GVWR of not more than 6,000
pounds. Such a vehicle with a GVWR between
6,000 and 10,000 pounds may be clas.sified as an
automobile if the Administrator makes two find-
ings. First, the Administrator must determine
that average fuel economy standards are feasible
for that type of vehicle. Second, the Adminis-
trator must also determine that either average
fuel economy standards for this type of vehicle
will result in significant energy conservation or
that this type of vehicle is used for substantially
the same purposes as a vehicle type with a
GVWR of not more than 6,000 pounds.
The NPRM set forth the Administrator's pro-
posed determination that average fuel economy
standards are feasible for passenger cars with a
GVWR between 6,000 and 10,000 pounds, and
that these cars are used for substantially the
same purposes as passenger cars with a GVWR
of not more than 6,000 pounds. Chrysler, Ford,
and General Motors commented that this deter-
mination was appropriate.
International Hai-vester expressed no view on
the merits of the determination, but suggested
that the determination should be made in a sepa-
rate notice. Since a proposed determination has
been published and comments received thereon, it
would be unnecessarily burdensome and seem-
ingly purposeless to request commenters to ad-
dress the same proposal again. Moreover,
delaying publication of a determination which
can he made final now would serve no useful
purpose.
PART 523— PRE 10
EfFecHve: July 28, 1977
The Automobile Club of Southern California
urged that station wagons with a GVWR of
greater than 6,000 pounds be classified as non-
passenger automobiles. The basis for this sug-
gested disparate treatment is that station wagons
can carry more passengers or more cargo than
other passenger cars. It was noted that when
the large wagon is carrying nine passengers, the
passenger miles per gallon can be the same as
that of an automobile with a higher fuel economy
carrying fewer passengers. When carrying cargo,
the wagon is, according to the Automobile Club,
serving the same purposes as other nonpassenger
automobiles. Notwithstanding these observations,
they would also be applicable to station wagons
with a GVWR of not more than 6,000 pounds.
Therefore, this agency does not perceive sufficient
basis in the Automobile Club's comments for
changing its treatment of station wagons with a
GVWR greater than 6,000 pounds.
In light of the foregoing, Title 49, Code of
Federal Regulations, is amended by adding a
new Part 523, Vehicle Classification, to read as
set forth below.
The program official and attorney principally
responsible for the development of this rule are
Douglas Pritchard and Stephen Kratzke. re-
spectively.
Issued in Washington, D.C., on July 21, 1977.
Joan Claybrook
Administrator, National Highway
Traffic Safety Administration
42 F.R. 38362
July 28, 1977
PART 523— PRE 11-12
f
t
PREAMBLE TO PART 523— VEHICLE CLASSIFICATION
(Docket No. FE-77-05; Notice 4)
This notice establishes average fuel economy
standards for light trucks (pickup trucks and
vans, generally) manufactured in model years
1980 and 1981. This notice also extends the
applicability of light truck fuel economy stand-
ards and labeling requirements to vehicles with
gross vehicle weight ratings (GVWR) from 6,001
to 8,500 pounds beginning in model year 1980.
The issuance of these standards is required by
section 502(b) of the Motor Vehicle Information
and Cost Savings Act, as amended ("the Act").
The standards are intended to result in the sav-
ings of approximately 8 billion more gallons of
gasoline over the life of the light trucks manu-
factured in these 2 years than would be saved if
the standards were set at the estimated model
vear 1979 fuel economy levels for these vehicles.
Date: These standards will apply in model years
1980 and 1981.
Fo)' fiirther information contact :
]\rr. George L. Parker, National Highway
Traffic Safety Administration, 400 Seventh
Street. S.W., Washington. D.C. 20590 202-
472-6902.
■Supplement a )y itifoi motion :
I. Background Infokmatiox
Title V of the Act provides for the establish-
ment of average fuel economy standards for
various types of automobiles. Under section
.^01(1) of the Act, the term "automobile" is de-
fined to include "any 4-wheel vehicle propelled
by fuel which is manufactured primarily for use
on public streets, roads, and highways. . . ." and
which either has a gross vehicle weight rating
of 6000 pounds or less or which is rated betwe-en
6000 and 10.000 pounds and meets certain addi-
tional requirements (described below), as deter-
mined by the Secretary of Transportation. Auto-
mobiles manufactured primarily for use in the
transportation of not more than 10 individuals
are defined as "passenger automobiles" under
section 501(2), and are subject to fuel economy
standards established in or pursuant to section
502(a). The I'esidual category comprised of all
automobiles other than passenger automobiles is
subject to f\iel economy standards established
pursuant to section 502(b) of the Act. They in-
clude most pickup trucks, vans, and light utility
vehicles. Automobiles in this rapidly growing
residual category were previously called "non-
passenger automobiles" in rulemaking to estab-
lish fuel economy standards, but will henceforth
be called "light trucks," to more closely reflect
the common terminology used to describe the
affected vehicles. This change is strictly one of
name; it has no substantive significance.
Section 502(b) of the Act provides that fuel
economy standai'ds for light trucks must be estab-
lished by the Secretary of Transportation be-
ginning with the 1979 model year and for each
model year thereafter. Authority to conduct
the automotive fuel economy program was dele-
gated by the Secretary of Transportation to the
Administrator of the Xational Highway Traffic
Safety Administration (NHTSA) in 41 F.R.
25015, June 22, 1976. The standards are average
fuel economy standards. As long as the average
fuel economy of the entire fleet of automobiles
subject to a standard meet or exceed the standard,;
the fuel economy of some individual vehicles
may be below the standard. Standards are re-
quired to be set at the "maximum feasible average
fuel economy level" for each year, considering
technological feasibility, economic practicability,
the effect of other Federal motor vehicle stand-
ards on fuel economy, and the need of the Nation
to conserve energy. See section 501 (e). On March
14, 1977, standards for light trucks manufactured
PART 523— PRE 13
in model year 1979 were published in 42 F.E.
13807. This notice establishes standards for light
trucks manufactured in model years 1980 and
1981.
The starting point for this rulemaking pro-
ceeding was the information gathered during
the rulemaking for model year 1979 conducted
between March 1976 and March 1977. In March
1977, the agency issued a 29-page questionnaire
(DX-OOl) to the major light truck manufacturers
to obtain information relating to the light trucks
currently produced by those companies and their
capabilities to improve tlie average fuel econ-
omy of their light truck fleet for 1980 and 1981.
During June 1977, the agency met with each
of the domestic respondents to discuss their re-
sponses to the questionnaire. Because the re-
sponses to the questionnaire did not adequately
discuss all of the manufacturer's capabilities for
improving fuel economy, the agency sent special
orders in August 1977 to the light truck manu-
factures to obtain additional information regard-
ing those capabilities. These were followed in
September with special orders to component man-
ufactures and material suppliers to obtain their
views and data regarding various technological
methods for improving fuel economy.
On December 15, 1977, in 42 F.R. 63184, a
notice of proposed rulemaking (NPRM) was
published. It was based on the extensive material
submitted in response to the information-gather-
ing initiatives discussed in the preceding para-
graph and on other information available to the
agency. In addition to proposing standards for
the 1980 and 1981 model years, the notice also
proopsed extending the applicability of the light
truck fuel economy standards for the first time
to certain vehicles with G"\nVRs between 6,001
and 8,500 pounds.
It should be noted that a truck's GVA\Tl is
the weight of the vehicle when loaded to maxi-
mum rated capacity. The curb weight of a light
truck is typically much less than its GVIVR.
For example, a pickup truck with a G\1VR
of 5,600 pounds can weigh about 3,600 pounds,
almost 1,200 pounds less than a full-size sedan.
DX-067, App. V, Ex. D (Ford). A large van
with a GVWR of 9,500 pounds (which would
not be subject to these standards) can weigh
slightly less than that same 4,800 pound full-size
sedan. Id.
In addition, the XPRM generally discussed
the problems of captive imports, i.e., those pro-
duced outside the United States and Canada and
imported by a domestic company for sale here,
and set foi'th in detail two out of a wide range
of possible alternative schedules for imposing a
requirement that a company's "captive import"
light tracks not be counted together with that
company's domestic light trucks in the calcula-
tion of its average fuel economy for standards
compliance purposes. The notice also proposed
requiring fuel economy labeling of light trucks
with GVWR's between 6.001 and 8,500 pounds
Ijeginning with the 1979 model year. Currently,
consumers are not consistently provided with
any reliable information regarding the fuel econ-
omy of these vehicles.
The XPRM also announced a public hearing
to be held in "Washington, D.C., on January 16
and 17, 1978, and invited applications for finan-
cail assistance from individuals or organizations
which desired to participate in the rulemaking
but which were financially unable to do so. Four
applications by public interest groups for assist-
ance were granted.
Concurrent with the issuance of the XPRM,
the agency released three documents wliich dis-
cussed the basis for and impacts of the proposed
standards. The first document, titled "Rulemak-
ing Support Paper for the 1980 and 1981 Model
Year Xonpassenger Automobile Fuel Economy
Standards" (hereafter called the PSP), de-
scribed the teclmical and economic basis for the
proposed standards. The second document, titled
"Preliminary Impact Assessment of the Xon-
passenger Automobile Fuel Economy Standards
for Model Years 1980 and 1981" (hereafter called
the PIA), further discussed the economic im-
pacts of the proposed standards on the manu-
facturers and on customers and certain alterna-
tives to the proposal. The third document was
a draft environmental impact statement.
The January 16-17 public hearing was not
one required by statute, but was held to pro\ade
interested parties an additional opportunity to
present their views on the proposal. The XHTSA
Administrator and Deputy Administrator pre-
t
PART 523— PRE 14
sided over the hearing. Thirty-one organizations
or officials, including all the major domestic light
truck manufacturers, several parts and materials
suppliers, four Congressmen, labor union repre-
sentatives, and several community organizations
and public interest groups testified at the hearing.
Representatives of the Environmental Protection
Agency (EPA) and the Department of Energy
(DOE) participated on the panel of officials
which queried the witnesses.
A similarly wide range of individuals and
organizations, including most of the hearing par-
ticipants, provided written comments on the pro-
posal. The NPRM established a deadline of
January 30, 1978, for the submission of written
comments on the proposal. A limited extension
of this deadline was granted in 43 F.R. 3600
(January 26, 1978) for submission of supple-
mental material. However, in keeping with the
agency's policy of considering later submissions
to the extent practicable (DN-38, ^1,-43) addi-
tional material provided by participants up to
the time of final drafting of this notice was also
considered.
Material contained in the ESP and the PIA,
together with written submissions from interested
persons, hearing statements, special order re-
sponses, and other relevant material were all con-
sidered in developing the standards promulgated
in this notice. More detailed information on the
technical and economic bases for these stand-
ards are contained in the Supplement to the Rule-
making Support Paper (hereafter called ESPS)
and Final Impact Assessment (FIA). Copies
of these documents will be available soon from
the Office of Automotive Fuel Economy Stand-
ards, NHTSA, 400 Seventh Street, S.W.,
Washington, D.C. 20590.
II. Principal Changes Made in the
Final Rule
As a result of new information generated by
the vehicle manufacturers and others and sub-
mitted in response to the NPRM, substantial
changes to the proposed regulations have been
made. The most common comment was that the
proposed standards were too stringent and would
result in reduced production and employment.
These comments were generally based upon in-
formation from the light truck manufacturers
that was not available to the agency until after
the issuance of its proposal. The standards have
been established at levels significantly above the
projected model year 1979 levels, but substantially
below the proposed levels. Also, the agency
has established a separate class for "captive im-
port" light trucks beginning with the 1980 model
year to prevent the standards from encouraging
the increased importation of these vehicles and
exportation of domestic jobs. A separate class
with a lower fuel economy standard is also estab-
lished for light trucks manufactured by com-
panies which do not produce passenger automo-
biles and thus have limited access to passenger
automobile engine and emission control tech-
nology. This latter class was adopted to take
into account the difficulties of International Har-
vester Corporation in meeting fuel economy
standards. Finally, the proposed requirement
that light trucks with GVWRs of 6,001-8,500
pounds have fuel economy labels beginning with
the 1979 model year was delayed at the request
of EPA until the 1980 model year.
III. COMSIENTS ON THE NPRM AND
NHTSA's Assessment
a. INFORMAL RULEMAKING PROCESS
The response of many commenters to the
NPRM suggest it would be useful to recite sev-
eral aspects of the theory of informal rulemaking,
i.e., the process by which the fuel economy stand-
ards are developed. Informal rulemaking is
essentially like the legislative process in which
there is extensive, continuous gathering of infor-
mation and adjustment of proposals. Many com-
menters appeared to regard the NPRM more as
the culmination of the agency fact gathering
process than as a further step in that process.
The agency attempted to make the tentative na-
ture of the proposal and the need for additional
information as plain as possible. The agency
itemized a variety of issues on which further
comment and data were desired. It was expressly
noted that such additional information could
substantially affect the level of the final stand-
ards. (42 F.R. 63195.)
PART 523— PRE 15
b. SCOPE AND APPLICABILITY OF THE STANDARD
Some commenters suggested that there was no
forewarning that light trucks above 6000 pounds
G"V1\TI might be regulated in model years 1980-
81. Neither the statute nor events support this
contention. Given the well-known urgent need
to conserve energy and the equally well-known
bases for finding under section 501(1) of the Act
that fuel economy standards should be extended
for these vehicles, such extension should have
been anticipated since the passage of the Act for
these reasons alone. There were, moreover, far
more direct reasons for anticipating the exten-
sion. The notice of proposed rulemaking (41
F.E. 52087, at 52088; November 26, 1976) for 1979
light truck fuel economy standards stated that
the agency was considering regulating these
higher rated light trucks beginning in model year
1980. The agency's March 1977 questionnaire
made this intention clearer still by requesting in-
formation for these vehicles. Any remaining
doubt was removed by the agency deputy ad-
ministrator's prepared statement for a July 1977
Congressional hearing on fuel economy legisla-
tion. He announced that the agency would issue
standards covering 1980-81 light trucks with
GVWRs up to 8,500 pounds.
International Harvester Corporation (IH) ar-
gued that NHTSA lacks the authority to estab-
lish fuel economy standards for light trucks in
the 6,001-8,500 pound G^HVE range. DN-097, p.
2. Tliis extension of the "automobile" category
was proposed primarily because of the potential
energy savings. The G"\n\Tl ratings of many
light trucks have been raised over the past six
years, resulting in the number of light trucks
in the 6,001-8,500 pound range increasing from
approximately a one-third share of total 0-8,500
pound GV^VR sales to approximately a two-
thirds share in 1977 and continuing into 1978.
This trend was due in part to the fact that more
stringent emission standards have been applied
to vehicles with GVlVRs up to 6,000 pounds,
with the attendant need for catalytic converters
and unleaded gas, DN-055, p. 11-11. Ford Motor
Company (Ford) endorses the extension of fuel
economy standards up to the 8,500 pound G^^^'R
level (DN-067, p. 15), and General Motors Cor-
poration (GM) found the 8,500 pound G\^WE
level to be an appropriate limit for fuel economy
standards and "a reasonable cut off between the
commercial and mixed personal/commercial use
vehicles." DN-096, p. 7.
International Harvester disputed NHTSA's
tentative conclusions that significant energy sav-
ings are achievement for the 6,001-8,500 pound
GVWR light trucks, and that those light trucks
are used substantially for the same purposes as
the 0-6,000 pound GVAVR fleet. Under the stat-
ute, the extension of the "automobile" category
could be based on either of these findings.
NHTSA reaffirms both of those findings. As
noted in the preceding paragraph, there are cur-
rently almost twice as many light trucks being
sold in the 6,001-8,500 pound G"\nVR range as in
the 0-6,000 pound G^'1^^R range. The agency's
technical assessment (as set forth in the supple-
ment to the agency's Rulemaking Support. Paper)
demonstrated that the over-6,000 ix)und GVWR
trucks had as much fuel economy improvement
potential as did the 0-6,000 pound G"V1VR light
tnicks on a per-vehicle basis. Congress found
the fuel saving potential associated with the 0-
6,000 pound G'V'IVR light trucks so significant
that it required that those vehicles be subject to
fuel economy standards. Since the fuel sa\dng
potential of the latter vehicles is "significant,"
then the fuel sa^^ng potential for the 6,001-8,500
pound GVWR vehicles is significant too, a
fortiori.
The matter is clearer still when it is considered
that, as the NPRM noted, a 10 percent improve-
ment in the fuel economy of the 6,001-8,500 pound
G"\"\VR light trucks would save about 1.4 billion
gallons of gasoline per year over the lifetime of
one model year's production, a savings closely
approximating that resulting from the 1979 stand-
ard for 0-6,000 pound GVWR light trucks.
With respect to the question of the usage of
all these light trucks, it is instructive to note the
personal and recreational uses for which the
tnicks are frequently advertised. The Center for
Auto Safety reviewed various periodicals going
back to 1960 and concluded that the emphasis
in light truck advertising has shifted from com-
mercial capabilities to the sale of trucks as pas-
senger car substitutes. DN-095, p. 12. This
advertising trend is consistent with infonnation
submitted by the manufacturers which indicates
PART 523— PRE 16
a mixture of commercial and personal usage for
light trucks up to 8,500 pounds GT\VR. DN-096,
App. A, Figure A.l (GM) ; DN-067, App. V. p. 5
(Ford) ; DX-120, App. M (Chrysler). See also
DX-156 (Recreation Vehicle Industry Associa-
tion).
The Public Interest Campaign argued that
limiting the extension of the light truck category
to 8500 pound GVIVR may not end the problem
created when manufacturers increase the GVWR
of their vehicles to avoid the applicability of
standards. DN-160, p. 22. This problem is in-
herent whenever a regulatory line is drawn. It
is likely that some light trucks which currently
have GV^A'^R's just below 8,500 pounds will in the
future be rated by their manufacturers just above
that point. However, the agency does not expect
any circumvention of this type to be as prevalent
as the shift in GVTl^R across the previous 6,000
pound dividing line. This expectation is based
on the fact that relatively few light trucks are
currently sold in the 8,000-8.500 pound G"\^T?
range, compared to the number rated just below
6,000 pounds prior to the imposition of emission
standards up to that level. Further, vehicles
rated much above 7,000 pounds are equipped with
hea\'7 duty suspensions and other components
which make them unattractive for personal uses
Thus, greater owner sacrifices would be required
to shift over the 8,500 pound G\^WR line than
was the case for a shift over the 6,000 pound
G^nVR line. However, if the agency's projection
in this regard proves to be incorrect, the light
truck category could be further expanded to
avoid circumvention of the fuel economy stand-
ards.
American Motors Corporation (AM) requested
that liglit trucks sold to the Government for
military' use be exempted from the fuel economy
standard. AM argues that such vehicles are not
designed for use primarily on roadways, and are
therefore not "automobiles" as that term is de-
fined in section 501(1) of the Act. The Act
contains no specific provision for exemption of
military vehicles. The vehicles in question, the
M-151 Jeep, are subject to emission standards
under the Clean Air Act, despite the existence
of such an exemption provision in that statute,
42 U.S.C. 1857f-2 (b)(1). The existence of this
emission data provides a potential source of fuel
economy data to determine compliance with fuel
economy standards. The sales of these vehicles
have historically not constituted a large enough
portion of AM's light track sales to substantially
affect that company's fuel economy average. All
information currently available to the agency
indicates that the use of these vehicles differs in
no significant respect from the use of nonmilitary
Jeeps, which have previously been determined
to be subject to fuel economy standards. 42 F.R.
38364, July 28, 1974. Therefore, based on this
information, the militai-y Jeeps are subject to
fuel economy standards. In any event, the
agency would be very cautious in projecting
changes to those vehicles which might impair
their fimctional attributes. The agency would
consider any further submissions by AM or any
otlier interested party relating to the extant to
which the uses of these military Jeeps differ from
the uses for which publicly marketed Jeeps are
manufactured.
Two possible changes in the proposed classifica-
tion scheme for light trucks were suggested in
the comments. Ford argued that manufacturers
be given the option of complying with a com-
bined standard applying to all light trucks or
with the proposed separate 2-wheel drive and
4-wheel drive standards. The combined stand-
ard would be set at a level between the 2-wheel
drive and 4-wheel drive standards, with the exact
level depending on the relative sales levels of
those two classes of light trucks for a particular
manufacturer. DN-067, p. 13. Chrysler and
Toyota supported this option. DN-120, p. 7;
DX-088, p. 7. International Harvester argued
for a separate classification and standard for
4-wheel drive light trucks with GVWRs between
6,001 and 8.500 pounds, and 2-wheel drive light
trucks which are derived from those vehicles.
All of IH's light trucks would fall in that class.
The Public Interest Economics Foundation made
a similar proposal. DN-173, p. 5.
With respect to the Ford proposal, the three
largest domestic light truck manufacturers and
Toyota have all argued at some point in this
proceeding for a single standard applicable to
all light tracks. DN-001-02, p. 4 (Ford) ; DN-
001-05, p. 9 (Chrysler); DN-096, p. 4 (GM) ;
DN-088, p. 7 (Toyota). The main advantage
of a single, all-inclusive standard is that it pro-
PART 523— PRE 17
vides the greatest flexibility for a manufacturer
with a broad product line to select among pos-
sible methods for achieving a given level of fuel
economy improvement. For example, where
separate classes exist, a manufacturer is required
to make certain improvements to vehicles in each
class in order to comply with the separate stand-
ards. On the other hand, if a single, all
inclusive standard were established, a manu-
facturer would have the option of concentrat-
ing its available resources on making major
improvements (such as a total vehicle redesign)
to certain classes of vehicles. See 42 F.R. 63186.
However, the smaller manufacturers with more
limited product lines may be disadvantaged under
a single-standard approach, since the larger man-
ufacturers may be able to avoid making changes
to their vehicles in the same classes as the smaller
manufacturers' vehicles, through the judicious
use of the previously described flexibility. The
smaller manufacturers would have to undertake
product changes to their vehicles. This would
increase the price of the small manufacturers'
vehicles compared to the price of the similar ve-
hicles of the large manufacturer. DN-098, p. 2
(AM). For example, AM and IH both manu-
facture primarily 4-wheel drive vehicles. Under
a single-standard approach, the larger manufac-
turers could focus their fuel economy improve-
ment efforts on their 2-wheel drive vehicles, an
option imavailable to AM or IH. AM and IH
would have to change their 4-wheel drive ve-
hicles, possibly placing those vehicles at a com-
petitive disadvantage vis-a-vis the 4-wheel drive
vehicles of the larger manufacturers.
Although recognizing that the Ford proposal
has some merit, the agency is extremely con-
cerned that the classification of automobiles for
fuel economy standards purposes not have a
major anti-competitive effect. AM and IH rely
extensively on the sale of 4-wheel drive vehicles
to generate profits, to a much greater extent than
do the larger companies. The agency observes
that an optional combined standard could permit
the companies with full product lines to obtain
price and possibly performance advantages over
AM and IH for comparable 4-wheel drive ve-
hicles, through the mechanism described in the
preceding paragraph. These competitive factors
did not present as serious a problem in the
agency's 1979 light truck rulemaking, where
standards were set at levels more in line with
manufacturer's planned fuel economy levels.
Therefore, in consideration of these advantages
and the effect of the small manufacturers on level
of the combined standard, the agency is not
adopting the Ford proposal.
Nor can the agency accept IH's proposal, which
might tend to exacerbate the trend toward higher
GVWRs that has occurred over the past five
years and which was due at least in part to
different Federal standards above and below the
6,000 pound GV^VR dividing line. However, the
agency recognizes that IH has unique problems
given its limited sales volume, restricted product
line, and the fact that its engines are derivatives
of medium duty truck (above 10,000 pounds
GV"\^Tl) engines. Further, IH has not had ex-
perience with state-of-the-art emission control
technology, which the other manufacturers have
obtained in the passenger automobile market.
Therefore, NHTSA is establishing a separate
class and fuel economy standard pursuant to
section 502(b) of the Act for all light trucks
manufactured by a manufacturer whose light
truck fleet is powered by basic engines which
are not used in passenger automobiles. This
separate class is established for only two model
years' duration. The agency concludes that IH
should be able to achieve levels of fuel efficiency
in line with the other manufacturers by the 1982
model year either through purchasing engines
from outside sources or by making improve-
ments to current engines. This resolution of the
separate classification question satisfies the con-
cerns expressed by IH in recommending a sep-
arate standard for 4-wheel drive vehicles with
G^'lVRs over 6,000 pounds, without perpetuating
the incenttive for increasing light truck GVWRs
above the 6,000 pound level or maintaining
G"\nVRs at those levels.
An issue on which the agency requested com-
ment in the NPRM (42 F.R. 63187) is whether
a manufacturer's "captive import" light trucks
should be permitted to be counted together with
its domestic light trucks in the calculation of
that manufacturer's fuel economy average for
compliance purposes, or whether those trucks
should be treated separately as are captive im-
(
PART 523— PRE 18
port, passenger automobiles under passenger auto-
mobile fuel economy standards. The former
approach would encourage importation of foreign
produced, captive import light trucks and the
exportation of domestic jobs. The latter ap-
proach would prevent the standards from en-
couraging domestic manufacturers from taking
these steps. The agency discussed in detail two
of the many possible resolutions of the issue in
the NPEM. One suggestion was to provide for
separate treatment of captive imports beginning
with the 1980 model year. The other suggestion
permitted manufacturers to include captive im-
ports for 1980 and 1981 (with separate treatment
begimiing with the 1982 model year) in their
calculation of domestic fuel economy averages,
but to limit the number of includable captive
imports to 6 percent of the total number of light
trucks manufactured in each class for each model
year.
The first suggestion was supported by the
United Auto Workers (DN-093) ; General Motors
(DN-096, p. 15, Section III) ; and the Center
for Auto Safety (DN-056, p. 115). The UAW
(DN-056, p. 587) and the Center for Auto
Safety base their suggestions on the belief that
separate treatment of captive imports would en-
courage the earliest possible domestic production
of these smaller, more fuel efficient trucks. On
the other hand, Chrysler, Ford, and Toyo Kogyo
argue that tlie Act provides no legal authority
for requiring separate treatment of captive im-
ports, and that such a requirement would pro-
mote neither domestic employment nor maximum
fuel conservation (DN-120, p. 14 (Chrysler) ;
DN-149, App. VIII, Tab. B (Ford) ; DN-103,
p. 2 (Toyo Kogyo).) Alternatively, Chrysler
argues that a requirement for separate treatment
of captive imports should be delayed until such
time as sales levels justify and lead-time permits
their domestic production. DN-056, p. 373.
NHTSA believes that a requirement for the
separate treatment of captive import light trucks
would produce desirable results from the point
of view of promoting enei'gy conservation, pre-
serving competition within the automobile in-
dustry, and promoting domestic employment.
The agency also disagrees with the arguments
that it lacks adequate authority to impose such
a requirement. After reviewing the comments
of the various participants in the rulemaking
proceeding, NHTSA finds no substantial reason
to delay any longer the effective date for a re-
quirement of separate compliance of captive im-
port light trucks. Therefore, the regulations
promulgated herein establish such a requirement
beginning with the 1980 model year.
The importation of captive import trucks posed
a threat to domestic employment similar to that
posed by the importation of captive import pas-
senger automobiles. The agency's authority to
require that captive import light trucks comply
separately with fuel economy standards is the au-
thority to establish "separate standards for dif-
ferent classes" of light trucks in section 502(b)
of the Act. Ford and Chrysler argue that this
classification authority is restricted to classes
based on attributes of a vehicle, such as size or
intended use. However, these arguments over-
look the broad meaning of "class" as defined in
various dictionaries. Further, nothing in section
502(b) establishes the sort of limitation argued
for by Ford and Chrysler. In fact, the Act's
legislative history shows that a broad reading
of the term is intended. The Conference Report
(S. Rep. 94-516, 94th Cong., 1st Sess., at p. 155)
states, in discussing the classification authority,
that separate classes "could be based on func-
tional classifications or other factors." (Em-
phasis added).
Ford and Chrysler also argued that the defini-
tions of "manufacture" and "manufacturer" in
section 501 of the Act include both domestically
produced and imported automobiles, and there-
fore conclude that a fuel economy standard must
apply to both categories or classes of vehicles.
In fact, these definitions establish only that both
of these classes of automobiles are to be regu-
lated. They do not establish how the vehicles
are to be classified for that purpose. They could
be placed in the same or separate classes.
Ford also claimed that language on page 91
of the House Report, which contemplates the
establishment of "similar" procedures for treat-
ing captive import light trucks as those specified
for captive import passenger automobiles under
section 503(b) (1) of the Act, requires that some
transition period be established between model
years when captive imports are fully includable
PART 523— PRE 19
and fully excluded from domestic fuel economy
average calculations. However, a "similar" re-
quirement need not be identical in every respect.
The separate classification was not immediately
applied, but delayed one year to 1980. The man-
ufactui'ers have been on notice for a substantial
period of time that a requirement of this general
nature was being seriously considered by the
agency, permitting them to make their i^lans ac-
cordingly. 42 F.R. 13810-11; March 14, 1977.
Ford also pointed out that if a separate class
were established for captive import light trucks,
that class would be required to have a standard
set at the maximum feasible level for that class.
Ford argued that the agency had failed to set
the standard for the captive import, class at that
level in the XPRM. However, XHTSA con-
cludes that the maximum feasible average fuel
economy level for the captive import class is the
same as for the residual class of all other light
trucks. That reference point is the same one
suggested in the NPRM for captive import light
trucks. Captive import light trucks currently
have higher fuel economy in general than do-
mestically manufactured light trucks, due to the
fact that the captive imports are typically more
compact in size. However, if the captive imports
were subject to a more stringent fuel economy
standard than all other light trucks, Wrtually
identical vehicles (such as the Ford Courier, a
captive import, and the Mazda pickup truck,
which is imported by Toyo Kogjo of Japan)
would be subject to different fuel economy stand-
ards. In that case, the captive import vehicle
might be required to make fuel economy improve-
ments (at some cost) which a similar vehicle
imported by a foreign company might not have
to make. Thus, the captive imports would be
placed at a competitive disadvantage, due to
the extra cost resulting from efforts to comply
with fuel economy standards. In that case,
where similar vehicles sell for different prices,
it would be expected that the sales of the
captive import vehicles would suffer, resulting
in less energy conservation than would other-
wise be the case. Therefore, the agency con-
cludes that imposing a more stringent standard
for captive import light trucks than is applicable
to all other light trucks would be inconsistent
with the "economic practicability" consideration
in section 502(e) of the Act.
Finally, Ford argues that a separate standard
for captive imports does not promote the general
purposes of the Act. The primary purpose of
the Act is energy conservation. However, section
503(b), the "runway plant" provision, unambig-
uously establishes that Congress regarded do-
mestic employment as a paramount consideration
with respect to captive imports. The agency con-
cludes that the separate standard for captive im-
ports will promote energy savings since it will
encourage greater efforts to improve the fuel
economy of domestically produced light trucks
and in the longer run will encourage use of an
additional method (domestic production of small
light tiiicks) for complying with fuel economy
standards at the option of the manufacturer.
Vigorous efforts to sell these domestic compact
trucks would produce a market shift and con-
comitant energy savings. As measured by rela-
tive degree of marketing effort, the attitude of
the major domestic producers toward smaller
trucks has not been markedly positive. It is
likely that it will take every available method
or incentive to change this view and thus promote
both energy savings and domestic employment.
See DN-056, p. 346 (Chiysler) and p. 355-6 (re-
marks by NHTSA Administrator Claybrook).
"With a provision for the separate compliance
of captive import, light trucks, NHTSA will be
able to base its fuel economy standards in future
model years on the projected domestic production
of these smaller trucks, providing a further in-
centive for switching from foreign to domestic
production. As noted above, a second purpose
of the statute is the promotion of domestic em-
ployment. Congressional Eecord H 5383, 5386
(daily ed.. June 12, 1975). To the extent the
captive import requirement provides an addi-
tional incentive to shift to domestic production
of vehicles which are currently produced abroad
and imported, domestic employment will benefit.
Therefore, the agency concludes that this require-
ment promotes the general purposes of the
statute.
It is important to note that the separate class
for captive import light trucks does not prohibit
the importation of such vehicles. It simply keeps
the fuel economy program from inducing manu-
^
t
PART 523— PRE 20
facturers to increase their importation of those
vehicles instead of producing those small vehicles
domestically or making improvements to their
larger domestic vehicles. Assuring that those im-
provements are made was one of the express
purposes of the sponsor of the "runway plant"
amendment, Congressional Record H 5386 (daily
ed., June 12, 1975). In view of the domestic man-
ufacturers' investment in captive import light
trucks, the profitability of those vehicles and com-
petition from foreign manufacturers of similar
vehicles, the agency anticipates that the domestic
companies will continue to market their captive
imports. If the foreign manufacturers improve
the fuel economy of their compact light trucks,
the domestic manufacturers will presumably
make similar improvements to remain competi-
tive.
b. FUEL ECONOMY PROJECTIOX METHODOLOGY
One of the problems which confronted the
agency in developing the proposed standards was
the absence of fuel economy test data for the
light trucks in the 6,001-8,500 pound G'VnVE
range. These trucks will be tested for emissions
in a manner which yields fuel economy data for
the first time beginning with the 1979 model
year. Initial test data for these vehciles are
just now becoming available. Therefore, the
agency utilized a regression equation which re-
lates vehicle characteristics such as engine dis-
placement, test weight, and drivetrain ratios to
measured fuel economy for passenger automobiles
and light trucks. The regi-ession equation was
used to extrapolate and interpolate from actual
test data to develop baseline fuel economy projec-
tions for vehicles which liave not yet been tested,
adjusting for differences in relevant vehicle char-
acteristics. DN-055; DN-152. Many of the
manufacturers objected to the use of this equa-
tion, but none offered a method before the is-
suance of the NPRM which the agency could
demonstrate to be superior to the one it had de-
veloped.
Since the issuance of the NPRM, some of the
manufacturers have begun testing prototype 1979
model year vehicles in the 6,001-8,500 pound
G"\nYR class and have submitted their test re-
sults to NHTSA. This data would clearly be
the best evidence of the actual fuel economy rat-
ings these vehicles will achieve in 1979, assuming
that this early testing of development vehicles
accurately reflects the fuel economy ratings those
vehicles will achieve in final testing for that year.
However, this may well not be the case, given
that major improvements in fuel economy typ-
ically occur between early development testing
and final emission certification and fuel economy
testing. DN-259 (GM). The use of the regres-
sion equation would take this phenomenon into
account, in that extrapolations and interpola-
tion are made from final test data, not from
early development vehicles. For this reason,
GM, which concluded that the agency was
"not too far off" in its baseline assessment,
recommended that the agency wait until the 1979
certification data become available, and then mod-
ify the projected baseline where necessary. DN-
056, p. 77. Ford, on the other hand, claims that
development data for its 1978 vehicles closely
approximated final certification values. DN-067,
App. IV, Ex. A, p. 2. Ford's conclusion, how-
ever, relates to a model year in which emission
standards were carried over from several prior
years, by which time calibrations would be ex-
pected to more closely approach full optimiz-
tion. This is not the case for the 1979 model
year, when new emission standards and several
test procedure amendments will apply for the
first time to these light trucks. Therefore, Ford's
1978 experience is not a valid indicator for 1979.
Despite Ford's protests that the agency's
methodology is inaccurate in projecting its fuel
economy for 1980-81 and that its test data
sliould be used instead to develop a baseline,
XHTSA cannot conclude that Ford's procedure
is superior. In fact, the agency has taken Ford's
pre-1979 data and attempted to reconcile it with
NHTSA's projections for Ford, and has con-
cluded that the results yielded by the two pro-
cedures can be fully reconciled (in terms of
projecting the same level of average fuel economy
for the light tiiick fleet). See RSP-S.
Only in the cases of GM and IH has the agency
been imable to reconcile completely the baseline
information submitted by the manufacturers with
NHTSA's projection. In these two cases,
XHTSA has based its fuel economy projections
on those manufacturers' supplied baselines. In
the case of IH, the discrepancy is likely due to
PART 523— PRE 21
the difference in engine efficiency between that
company's engines and those of the other manu-
facturers (see section III.c.3 of this notice). In
all other cases, the agency has used its originally
projected baseline as set forth in the NPRM.
with minor adjustments discussed in the RSPS-S.
C. METHODS FOR IMPROVING FUEL ECONOMY
The proposed standards were based on the use
of technology which is either currently being
used on some vehicles or which is under develop-
ment with commercial use planned by at least
some manufacturers in the 1980-81 time frame.
The technological changes are, in general, minor,
evolutionary changes which individually pro-
duce small Ijenefits, but which when taken
together can add up to a substantial fuel econ-
omy improvement. Although the manufacturers
generally agreed with NHTSA as to which
methods for improving fuel economy are feasible
for the 1980-81 model years (cf. bN-067, p. 4
(Ford)), there was not general agreement as to
the magnitude of the fuel economy benefit achieve-
able through the use of each item or the extent
to which the items could be used given the
leadtime remaining until the 1980 and 1981 model
years. The manufacturers' specific objections and
NHTSA's response are set forth in the sections
immediately following.
1. Weight reduction. The agency projected
weight reductions ranging from approximately
69 pounds to over 600 pounds for portions of
the individual manufacturer's fleets, averaging
nearly 400 pounds per vehicle by 1981, compared
to a 1977 base. 42 F.R. 63189. Between 200 and
300 pounds of this weight reduction was due to
the use of aluminum, plastics, and high strength
steel in certain specified light trucks, as substi-
tutes for current materials. The remainder of
the weight reduction was due to the introduction
of new, more efficiently designed truck models
which were either planned or being considered
by certain manufacturers. Under current fuel
economy test procedures, the benefit of this weight
reduction would be realized only to the extent
the reduction is great enough to place a particular
vehicle in a lower "inertia weight class." Be-
ginning with the 1980 model year, the width
of these inertia weight class bands vdll generally
be halved, thereby providing a greater incentive
for manufacturers to reduce the weight of their
vehicles. However, tlie new "test weight" class
changes may result in some vehicles being tested
at higher simulated weights than under the old
procedure, and other vehicles being tested at
lower weights. DN-096, p. 11 (GM). It appears
that the manufacturers have carefully targeted
the weights of their current vehicles to take
maximum advantage of the current inertia weight
classes, so that the test procedure change will re-
sult in a trend toward lower measured fuel econ-
omy. This anomaly was taken into account in
the methodology used to develop the proposed
standards.
The agency projected the introduction of new,
redesigned light trucks only where the manufac-
turers indicated, in response to a special order
(DX-OlO) issued under section 505(b)(1) of
the Act, that a new model was either planned
by the manufacturer or at a development stage
where introduction was judged feasible by
NHTSA in the 1980-81 period. This conserva-
tive approach to new model introduction was
taken by the agency despite the fact that addi-
tional new models would be expected for much
of the domestic light truck fleet in the 1980-81
time frame if historical vehicle redesign cycles
were followed (DISr-001-02, Att. 1, p. 1 (Ford)),
and despite the fact that the manufacturers have
been on notice since December 1975 that they
would be required to make maximum feasible
improvements in their light trucks beginning
with the 1979 model year, at least for tlieir trucks
in the 0-6,000 pound G"\nVR range. See section
502(b) of the Act. However, none of the manu-
facturers apparently plan to offer a new truck
model in the 1980-81 time which is designed to
achieve maximum feasible weight reduction.
Some of the manufacturers have projected
feasible weight reductions of a magnitude very
close to those projected by NHTSA. See, e.g.,
DN-097-A. p. 6 (IH); I)-010-02, p. 8 (AM).
Many of the manufacturers' projections of weight
reduction potential for 1980 and 1981 have in-
creased significantly during the course of the
rulemaking, indicating that leadtime may still not
limit this potential to currently planned weight
levels as claimed by the manufacturers. DN-001-
06, p. 7 (IH) ; DN-120, App. D, p. 2 (Chrysler) ;
DN-001-01, p. 26 (GM 50 to 100 pounds for
PART 523— PRE 22
1980) and DN-096, p. 11 (160 pounds). Ford's
weiglit reduction projections have also varied
considerably, and have become increasingly pes-
simistic. For example, Ford's projected average
inertia weight for 1979 model year 2-wheel drive
light trucks increased 123 poimds in five months,
and the similar 1980 figure increased by nearly
300 pounds, between Ford's responses to
NHTSA's August 10 special order (DN-010-02,
App. F) and its conunents on the NPRM (DN-
067, App. IV, Ex. J, p. 2). See also DN-149
Volume II, Addendum II, p. 10, where Ford cites
the "evolutionary" nature of its product plan-
ning in explaining how its projected average test
weight increased as much as 188 pounds over 5
months. Part of these changes is due to changes
in fuel economy test procedures, according to
Ford. Ford now claims that its new, lightweight
pickup truck, which will be introduced in the
1980 model year and will have a lower test weight
than the current pickup truck by 263-396 pounds,
will result in only a 1 percent fleet-wide fuel
economy benefit. Id. p. 1.
In order to obtain independent verification of
the weight reduction achievable through material
substitution, the agency issued special orders to
various aluminum, steel, and plastics suppliers.
DN-018. These companies indicated that weight
reductions in excess of those projected by
NHTSA will be technologically feasible in the
early 1980's, in some cases as much as 900 pounds
total. See, e.g., DN-018^4 (Kaiser Aluminum
Co.) and DN-018-60 (ALCOA).
The agency concluded on the basis of all this
information that although the ultimate weight
reduction potential for current light trucks is
greater than that initially projected by NHTSA,
reductions feasible in the near term (particularly
the 1980 model year) are more limited. Further,
it appears that in most cases, the weight reduc-
tions projected by the manufacturers differed
from NHTSA's projections primarly due to dis-
crepancies in estimated baseline inertia weights
and in the effect of the inclusion of optional
equipment on test vehicles. With respect to tlie
latter points, NHTSA has deferred to the man-
facturers' presumably better knowledge of their
current light truck fleets. The agency has also
not projected the redesign of some vehicle com-
ponents when a complete vehicle redesign is
planned by the manufacturer in 1982 or 1983.
Therefore, NHTSA has generally adopted man-
ufacturers' projected weight reduction plans in
the standard-setting analysis. However, NHSTA
has projected, based on statements by GM, that
GM could offer a redesigned pickup truck for
the 1981 model year (as a mid-model year entry)
resulting in an additional fleet average 250
pounds weight reduction for 2-wheel drive ve-
hicles in that model year. NHTSA has retained
its initial weight reduction projection for
Chrysler, in the absence of any information wliich
indicates that that projection is not feasible.
NHTSA has made relatively minor upward ad-
justments to Ford's 1981 2-wheel drive weight
reduction projection, and adopted Ford's other
projections. However, NHTSA has been un-
able to completely reconcile all of Ford's various
weight reduction projections, and remains skep-
tical, in view of the substantial weight reduction
potential, that Ford's 4-year program will result
in only the relatively small weight reduction
benefit it apparently projects for its new pickup
truck line.
2. Aerodynamic improveTnents. The proposed
fuel economy standards were based on improve-
ments in vehicle aerodynamic characteristics only
where a manufacturer planned to introduce a
new vehicle. In those cases, a 4 percent fuel
economy improvement was projected. 42 F.R.
63189. Information submitted by the manufac-
turers indicates that the agency's projections in
this area were pessimistic. On the basis of Ford's
planned redesign of its pickup trucks for 1980,
it appears that fuel economy can be improved
up to 5 to 6 percent through reductions in ve-
hicle frontal area and aerodynamic drag coeffi-
cient. Some of tlie manufacturers indicated that
aerodynamic improvements could be acliieved
without undertaking a complete vehicle redesign,
through minor body modifications such as the
addition of air dams and the use of smaller
mirrors. DN-001-01, p. 48, DN-096, App. B, p.
27 (GM); DN-120, App. G (Chrysler). There-
fore the agency adopted the fuel economy im-
provement achieved for Ford's new pickup truck,
and projects a fuel economy improvement of 2.3
percent for GM and approximately 1 percent for
Chrysler in the 1980 and 1981 model years for
minor aerodynamic improvements. (See RSP-
PART 523— PRE 23
S.) No improvements are projected for the other
manufacturers.
3. Engine efficiency improveTnents. In the
NPRM, the agency projected that engine effi-
ciency improvements on the order of 8 percent
were feasible for all manufacturers other than
AM, with AM capable of an improvement of
11 percent because of its currently less efficient
engines. 42 F.R. 63190. Among the methods for
obtaining this improvement are improved fuel
metering, redesigned combustion chambers, in-
creased expansion ratio and compression ratio,
reduced internal friction, intake system and valve
timing optimization, electronic spark advance,
and improved exhaust gas recirculation. The
percent fuel economy improvements projected
for each manufacturer were based on responses
to a detailed technical questionnaire (DN-001)
sent to each manufacturer, and in particular a
detailed response by Chrysler Corp. (DN-001-
05). Subsequent engine mapping studies of typi-
cal light tnick engines support the agency's
original projections. Chrysler indicated efficiency
improvements in the areas listed above would
result in improvements at least of the magnitude
projected in the NPRM. Improvements of this
magnitude were also projected by IH (DN-001-
06, p. 24) and were in fact experienced in the
past when engines were optimized. DN-149, Add.
2, sect. II.
However, at the Januaiy 16-17 public hearing,
Chrysler indicated that it could not support en-
gine efficiency improvements of the magnitude
which NHTSA concluded Chi-ysler had projected
as being feasible for 1980 in its questionnaire
response. Several reasons were given by Chrysler
at the hearing for this apparent change of posi-
tion, including that the Chrysler questionnaire
response information was merely "a gleam in the
eyes of the engineers" and did not have "the
highest level of corporate approval." DN-056,
pp. 370-1. Subsequently, Chrysler advanced
another theory for the apparent discrepancy be-
tween their questionnaire response and their
position at the public hearing, i.e., that it mis-
interpreted certain language in the questionnaire.
Chrysler argues that, in their interpretation,
technology is "applied" not when it is used on
production vehicles as NHTSA intended that
term in its questionnaire to be interpreted, but
when technology advances one stage in the re-
search and development process. DN-120, App.
Q, p. 7. In effect, Chrysler now argues that not
all of the technology in question will be available
for the 1980 or 1981 model years. Chrysler also
reduced some of its prior projections of expected
fuel economy improvements attributable to
technology.
Subsequent information submitted by the other
manufacturers indicated that much of the tech-
nolog;y' projected to be used in the NPRM was
either not feasible for 1980 or 1981, already be-
ing used and thus not a means available for
future improvement, or part of the advanced
emission control technology which would permit
the attainment of more stringent 1979 emission
standards with minimum reduction in fuel
economy, but would produce no net fuel economy
benefit." DN-067, App. IV, Ex. A, p. 2 (Ford).
GM indicated that no improvement in fuel
economy is expected from the use of electronic
engine controls, since mechanical systems can be
(and to some extent already have been) optimized
to pro\ade similar results. DN-146-A, pp. 47-
53. An analysis by the Department's Transpor-
tation Systems Center refutes this claim. DN-
283.
Several items of technology (other than im-
proved exhaust gas recirculation or optimized
engine calibrations) will be available for engine
efficiency improvements. GM indicates that it
will be making certain minor carburetor improve-
ments for 1980. DN-096, p. 11. In 1979, Ford
will be implementing certain engine efficiency
improvements, such as increased compression
ratio, for all light trucks with GVWRs between
6,001 and 8,500 pounds. DN-067, App. TV, Ex.
A, p. 2. This benefit is accounted for by the
use of the agency's regression equation, since
trucks in the 0-6,000 pound GVWR category
already have these improvements and those were
extrapolated for the 6,001-8,500 pound GVWR
trucks. However, two Ford engine families have
not yet been optimized through combustion
chamber I'evisions, but could be for 1980. Id.
at p. 4. Ford also states that it will begin using
some electronic engine controls beginning with
the 1978 model year, but has no plan to use these,
controls on tracks until 1981, and then only in
#
(
PART 523— PRE 24
California. Id. at 13-14. NHTSA sees no reason
why these electronics could not be more widely
applied in light trucks by Ford, especially since
Chrysler may begin using some of these electronic
controls as early as 1980 in trucks. DN-120,
App. J. Chiysler also plans improved intake
manifolds for two of its engines for 1980. Id.
AM indicates that improvements of up to 5.5
percent are feasible (DN-098, p. 1) and stated
at the hearing that improvements up to 8 percent
might be feasible. DN-056, p. 468. IH originally
projected substantial fuel economy improvements
for the use of electronics, heat inlet charge, and
combustion chamber and intake manifold re-
design (the latter for the 1979 model year).
DN-001-06, p. 24. IH's later submissions were
less optimistic on this point. The potential for
engine efficiency improvements by IH is high-
lighted by data submitted by that company (Id.
App. G) which indicate that its four cylinder
engines obtain the same or even slightly worse
fuel economy than its V-8, about 13 mpg. The
agency's analj'sis indicates that the IH V-8 en-
gine too could be improved since it obtains about
1 mpg less than a comparable engine from
Chrysler, Ford, or GM.
The agency concludes that fuel economy im-
provements up to the levels originally proposed
are technologically feasible, but probably cannot
be fully implemented in the 1980-81 period, be-
cause of competing demands (due to stringent
emission standards) from passenger automobiles.
Rather, the agency projects that manufacturers
will be able to optimize emission control systems
during this period to eliminate any fuel economy
penalty resulting from changes in emission stand-
ards. In the case of GM and Chrysler, more
extensive improvements are already planned, thus
avoiding the leadtime problem. Therefore, the
agency has incorporated those companies' projec-
tions of a net 2.4 percent (1.4 percent for 4-
wheel drive light trucks) fuel economy improve-
ment for Chrysler in 1981 and 1.2 percent for
GM in 1980, beyond the optimization of the emis-
sion system. For the other manufacturers, no
net improvement is projected (beyond emission
control system optimization).
4. Engine accessory efficiency improvements.
The agency originally projected that accessory
efficiency and accessory drive improvements
amounting to 2 percent could be acliieved. 42
F.E. 63189. The achievability of a 2-percent fuel
economy improvement through the use of im-
proved accessory drives was not generally chal-
lenged by the manufacturers. See, e.g., DN-001-
05, Table 4 (Chrysler) ; DN-067, App. IV, Ex.
E (Ford). However, questions were raised as
to whether the leadtime is sufficient to imple-
ment these improvements by the 1980-81 model
years. Id., Ford. The agency agrees that lead-
time may not be adequate to implement new
accessory drives by 1981, unless already planned.
A number of accessory efficiency improvements
appear feasible for the 1980-81 period, however,
such as improved water pumps and power steer-
ing pumps, reduced alternator loads, installing
viscous fan clutches, the use of flex fans, and the
optimization of accessory drive ratios. See, e.g.,
DN-096, App. B, p. 27 (GM). These efficiency
improvements are projected by NHTSA to obtain
a fuel economy improvement of approximately
1 percent by 1981.
5. Diesel enffines. None of the manufacturers
took major exception to the agency's projections
with respect to the use of diesel engines. The
agency's position on this matter was that until
the unknown potentially adverse health effects
associated with widespread use of diesel engines
are better quantified, the maximum feasible use
of these engines will not be projected. The
agency took the posture of acknowledging the
existence of any plans on the part of manufac-
turers to use diesels but did not base standards
on further dieselization beyond that currently
planned.
Citizens for Clean Air argues that the agency
should not rely on the projected use of diesel
engines to any extent until the issue of adverse
health affects is resolved. DN-056, p. 563. Con-
versely, the Public Interest Campaign argued
that the agency lacks authority to base fuel
economy standards on less than maximum feasible
use of diesels. DN-160, p. 6. That organization
argues that it is for EPA, not NHTSA, to deter-
mine whether any health problems are associated
with the use of diesel engines, and if a problem
does exist, to set an appropriate emission stand-
ard.
PART 523— PRE 25
The agency recognizes the danger in basing
administrative standards on extra-statutory con-
siderations. See, e.g., Union Electric Company v.
Train, 427 U.S. 246, 257 (1976). However,
NHTSA feels that there is at least a possibility
that EPA may determine that certain currently
unregulated emissions from diesel powered ve-
hicles must be regulated, and that control of these
enaissions to the required level may either be
impossible or may be achievable only with a fuel
economy penalty so substantial that the diesel
engine offers no net fuel economy benefit.
XHTSA, EPA, and DOE are jointly studying
these issues.
NHTSA deems it inappropriate to encourage
the manufacturers to make investments in tool-
ing for diesel engines when the use of those en-
gines may not be tolerated in the future. There-
fore, the final fuel economy standards for 1980-81
will not be based on any projected use of diesel
engines, even when they are currently offered
or planned. This will permit reduction of any
current manufacturer plans to offer diesels if a
health problem is found. This should not be
viewed as a determination by the agency that
unavoidable adverse health effects would result
from widespread dieselization.
6. Variable displacement engine technology.
NHTSA projected limited use of variable or dual
displacement engine technology (based on the
Eaton valve selector system) for the 1980 and
1981 model years. This technology would per-
mit engines to operate on a portion of their
cylinders during light load operating modes such
as idle and cruising at constant speed.
The agency projected that a 10 percent fuel
economy benefit would be achievable by vehicles
using this technology. DX-056, p. 419 (Eaton) ;
DN-001-05, Table IV (Chrysler); DN-001-06,
p. 24 (IH). Ford indicated plans to use this
technology as early as the 1978 model year (DN-
001-02, Att. 14, p. 2) and IH stated that use was
expected by the 1981 model year (IH, id).
Since the issuance of the NPEM. the prospects
for use of this technology' have apparently dete-
riorated considerably. Ford planned to use this
system on its 300 CID, six cylinder engine, de-
spite warnings from the system's developer that
that particular engine was the worst possible
candidate for dual displacement. DN-056, p. 406
(Eaton). As Eaton had warned, rough running
and lack of reserve power made the system
unworkable in the six cylinder engine, resulting
in the termination of that particular program.
DX-067, Supp. App. IV, Ex. C (Ford). Ford
now plans to imj)lement the technology first on
eight cylinder passenger cars, despite the fact that
any drivability problems associated with the
teclmolog>- would be more likely tolerated by
truck owners than by passenger car owners. Id.
GM (DX-096, App. B, p. 30) and Chrj-sler (DN-
120, App. F.) have also experienced a variety
of problems with the technology, although GM
still targets usage of variable displacement en-
gines for the 1981 model year (DN-146-A, p.
143).
In view of the uncertain future of this par-
ticular item of technology, NHTSA is not basing
the 1980-81 fuel economy standards on the pro-
jected use of variable displacement engine tech-
nology. Rather, it is recognized that technical
problems remain to be solved, and if those
problems can be solved, the use of variable dis-
placement engines will provide the manufacturers
with some degree of flexibility in meeting the
standards.
7. Turiochargers. The agency did not base its
proposed standards on the projected use of tur-
bochargers. Turbochargers, when used with
spark ignition engines, do not directly improve
fuel economy, but rather increase engine horse-
power, thereby pennitting the substitution of
smaller displacement engines in a given appli-
cation. '\^nien used with diesel engines, turbo-
chargers apparently i-esult in additional benefits,
including direct improvements in engine fuel
efficiency and reduced particulate emissions.
(DX-146-A, p. 143). The reasons for not bas-
ing the proposed standards on the use of turbo-
chargers were primarily that in order to take
optimal advantage of turbocharging, shifts in
small engine production capacity would be neces-
sary, and the smaller engines should be initially
designed with turbocharging in mind. See 42
F.R. 63190. Leadtime was judged insufficient to
accomplish this.
PART 523— PRE 26
Althougrh the a<rency's projected 10 percent fuel
econom_y benefit from turbocharging was sup-
ported by participants in the rulemaking pro-
ceeding, so were the reasons supporting the need
for substantial leadtime for any high production
volume turbocharging program. DN-067, App.
IV, Ex. D (Ford), DN-056, p. 715 (Schwitzer) ;
DN-096, p. 32 (GM— with respect to leadtime
issue). Therefore, the agency is not basing the
1980-81 fuel economy standards on the projected
use of turbochargers, in conjunction with smaller
displacement engines. However, at least one
manufacturer apparently plans to use a limited
number of turbochargers on light trucks in the
1980-81 time frame, and it is possible that others
will as well. Therefore, turlx)chargers, along
with variable displacement and diesel engines, are
options that may be available to at least some
of the manufacturers to provide the flexibility
of additional methods for meeting the fuel
economy standards.
8. Automatic transmission improvem,ents. The
agency projected that a 3.5 percent fuel economy
improvement could be achieved for the portion
of the fleet which uses automatic transmissions
through the addition of lockup clutches to those
transmissions. In addition, based on the indi-
cated plans of Ford, it was projected that limited
use of that manufacturer's integral overdrive
automatic transmission could occur as early as
the 1980 model year, producing a 10 percent bene-
fit where applied. The 3.5 percent benefit from
the use of the lockup clutch was based primarily
on information from Chi-ysler. DN-001-05.
Table IV. GM and Ford also supported the
magnitude of that improvement. DX-096, App.
B, p. 23 (GM) ; DN-067, App. IV, Ex. G (Ford).
An additional area of automatic transmission
improvement is minor transmission efficiency im-
provements through the use of larger torque con-
verters. Ford attributes a 0.5 percent fuel
economy increase to these improvements (id.)
and GM projects 2 percent, although that benefit
is not fully additive to the 3.5 percent benefit for
the use of the lockup clutch.
By the time of the January 16-17 public hear-
ing, some of the manufacturers had reduced their
preproposal projections of planned usage and
expected fuel economy benefit from the various
automatic transmission improvements. Ford in-
dicated that no integral overdrive transmissions
would be available for 1980 model year light
trucks, since it claimed that all those transmis-
sions would be necessary for passenger car appli-
cation. DN-067, App". IV, Ex. G, p. 2. No
detailed information to support this claim was
provided. Chrysler, which had originally
claimed that the benefit associated with lockup
clutch is 3.5 percent, and had raised that estimate
on one occasion, subsequently claimed that the
benefits were reduced to 3 percent, because of a
reported need to mitigate drivability problems.
DN-120, App. B, p. 1. Ford also claimed that
it is unreasonable to expect it to implement the
lockup clutch for 1980 and 1981, given that it is
in the process of implementing the integral over-
drive transmission, albeit over an extended period
of years. Id., App. G, p. 2. With regard to
the latter point, it should be noted that the other
companies are also developing advanced trans-
missions similar to the Ford integral overdrive,
but are planning on implementing the lockui)
clutch as an interim measure.
The agency concludes that by implementing
lockup clutches, minor transmission efficiency im-
provements, and advanced transmissions like the
integral ovei-drive to the maximum feasible ex-
tent, fuel economy improvements of 3.5 percent
for the automatic transmission portion of the
fleets of GM and Chrysler in 1980, and of AM
and IH in 1981, are feasible. In the case of Ford,
a transmission efficienc}' improvement of 0.5 per-
cent is projected for 1980. For 1981, the agency
has adopted Ford's projection that its FIOD
transmission will be available for approximately
18 percent of its light trucks. However, NHTSA
finds no basis for concluding that the fuel
economy benefit of that transmission will be less
than the originally projected 10 percent, in the
absence of any tests by Ford. In addition,
NHTSA projects that Ford could offer a lockup
clutch or other equivalent improvement on the
remainder of its automatic transmission-equipped
light trucks, in the absence of any any plan by
Ford to make a complete switch to FIODs in
the foreseeable future.
PAET 523— PRE 27
9. Improved manual transmissions. The
agency projected the substitution of overdrive or
wide ratio manual transmissions or manual trans-
missions with additional driven gears for cur-
rent (primarily 3-speed) manual transmissions
beginning with the 1980 model year. These trans-
missions have generally been available as options
at extra cost on passenger automobiles for several
years. A 5 percent fuel economy benefit was
projected for these transmissions. GIM supported
this figure (DN-096, App. B, p. 24). Chrysler
projected a 4 percent improvement (DX-120,
App. L, p. 5), and Foi-d found the 5 percent
figure to be at the upper end of the expected
range. DN-067, App. IV, Ex. G. However,
objections were raised as to the extent of the
projected usage of these transmissions.
Beginning with the 1981 model year, GM ap-
parently plans to make these more fuel efficient
transmissions standard equipment on their light
trucks. DN-146-A, p. 126. With GM talring this
action, the other manufacturers would likely fol-
low suit for competitive reasons, to the extent
production capacity permits. Indications are
that, at least by the 1981 model year, additional
production capacity for improved manual trans-
missions will be available for Ford and Chrysler.
DN-067, App. IV, Ex. G, p. 8 (Ford— additional
capacity available for 1981); DN-G56. p. 345
(Chrysler — current constraint on increased usage
is marketing, not production capacity, and in-
creased marketing efforts will be undertaken in
the future). With respect to AM and IH, trans-
missions are supplier items, so that marketability
is likely to be the only possible major constraint
to the change to improved manual transmissions.
Therefore, the agency has adopted the manufac-
turers' projections for the usage levels of these
improved transmissions in 1980, and has revised
upward by a moderate amount the projections
of the companies with respect to the 19S1 usage,
where feasible. See RSP-S. The initially pro-
jected 5 percent fuel economy benefit per affected
vehicle was retained from the XPRM.
10. Improved i-wheel drive transfer cases.
Another item of technology which was not in-
cluded in the projections on which the proposed
standards were based is the use of "part-time"
4-wheel drive, where "full-time" 4-wheel drive
transfer cases are currently used. These new
transfer cases, whicli permit reduction of fric-
tional losses by minimizing the number of trans-
fer case components which are moving in the
2-wheel drive mode, should result in fuel economy
improvements of 4 to 8 percent for those 4-wheel
drive light trucks which currently use full-time
4-wheel drive. DN-184, Table B-la (GM) ;
DN-120, Att. B, p. 27 (Chrysler). Part of AM's
and Ford's 4-wheel drive fleet also uses full-time
4-wlieel drive currently, and NHTSA concludes
that both could use this new transfer case. There-
fore, fuel economy improvements projections
have been included in the analysis for the final
standards.
11. Improved crankcase, rear axle, and trans-
mission luhri.cants. The agency projected fuel
economy improvements of 2 percent for 1980 and
6 percent for 1981 through the use of a variety
of improved lubricants. The principal lubricants
expected to be available to achieve these benefits
are lower viscosity real axle lubricants (1 per-
cent benefit) and friction modified motor oils
such as those currently offered by Exxon and
Arco in the aftermarket (5 percent benefit).
The vehicle manufacturers raised three major
objections to the agency's projections in this area.
First, it was argued that on the basis of the ve-
hicle manufacturers' tests of these improved lu-
bricants, the fuel economy benefits attributed to
the lubricants were overstated. Second, the
manufacturers noted that EPA approval of some
of these lubricants (friction modified or synthetic
base motor oils) would be necessary to use these
lubricants in fuel economy testing, and that
approval had previously been withheld. Third,
it was argued that extensive durability tests of
these lubricants would be necessary before they
could be used as factory fill lubricants and recom-
mended for use thereafter.
With respect to the first point, Exxon and Arco
both supported the agency's 5 percent projection
for friction modified motor oils. DN-056, p. 157
(Exxon — 51/4 percent on the EPA test) ; Id., p.
516 (Arco — 4.85 percent, based on road tests of
147 vehicles). Arco indicated that an additional
2 i>ercent benefit (or a total of 7 percent for
motor oils alone) was expected in less than 2
years, when that company expects to offer a lower
viscosity version of its friction modified oil. Id.,
p. 534. Many other oil companies will be offer-
c
PART 523— PRE 28
ing lubricants of this general type in the near
future. DN-113. GM projected fuel economy
improvements of 3-6 percent from improved
crankcase and axle lubricants (up to 4 percent
with friction modified crankcase oils) but claimed
that these improvements would not be feasible
until the 1982 model year or later. DN-096, pp.
10-11.
GM, Ford, and Chrysler all submitted data
showing lesser fuel economy improvements than
shown by the oil companies. GM submitted data
on the fuel economy benefit associated with low
viscosity engine lubricants (DN-184, p. 2), which
showed a lower fuel economy benefit than would
be expected through the use of friction modified
oils. DN-056, p. 516 (Arco). GM also sub-
mitted data on tests (generally 2-3 tests each)
of various unspecified lubricants compared to an
unspecified base oil, and found fuel economy
improvements of up to 3.8 percent. Chrysler
conducted a series of test on both the Arco and
Exxon lubricants, and found fuel economy im-
provements of up to approximately 3 percent.
DN-120, Att. B, p. 21. Most of these tests were
conducted with reference to a 10W30 base oil
(the Arco and Exxon lubricants are both 10W40),
thereby possibly reducing the benefit which would
be achieved had viscosity been held constant in
the testing. Further, there appears to be no rea-
son why 10W30 versions of these improved lubri-
cants could not be made available for use by the
manufacturers by 1980, which should result in
fuel economy improvements in line with the
Exxon and Arco data, which compared 10W40
oils. DN-056, p. 536, DN-185 (Arco). In addi-
tion, Chrysler's tests were conducted at low
mileage, and showed a trend toward greater fuel
economy improvement at higher mileage. Exxon
indicated that the fuel economy benefit achieved
by their lubricant would appear primarily after
2,000 miles, beyond the mileage at which
Chrysler's tests were conducted. DN'-056, p. 171.
Talcing these factors into account, Chrysler's
data are not inconsistent with that of the oil
companies.
Ford's test program for friction modified
lubricants also showed low fuel economy im-
provements. DN-067, App. IV., Ex. K, p. 9.
Tests were conducted on the Exxon oil and
another blend (not Arco), and the base oil for
comparison purposes was 10W30, creating the
same problem of comparability as the Chrysler
tests. The Ford data consisted of tripicate tests
of four vehicles using each type of lubricant.
With respect to improved rear axle and trans-
mission lubricants, tests of Mobil's synthetic axle
lubricant support an improvement of 1 percent.
DN-109, DN-056, p. 695-6. GM projects an
improvement of 0.7 percent for lower viscosity
axle lubricants. DN-096, App. B, p. 8. Ford's
tests of lower viscosity axle lubricants showed
no fuel economy benefit, and it has not tested
friction modified axle lubricants yet. DN-149,
App. IV, Ex. K, p. 13. Ford claims that SAE
papers on the subject indicate that no fuel
economy improvement, rather than a 1 percent
improvement, would show up on the current fuel
economy test from the use of friction modified
axle lubricants, but NHTSA finds nothing in
the cited paper to support Ford's reading.
Chrysler also found "no significant improvement"
when switching to lower viscosity axle lubricant.
DN-120, App. H, p. 3.
Ford projects that manual transmission ve-
hicles will begin using lower viscosity automatic
transmission fluid as a lubricant. DN-149, App.
IV, Ex. K, p. 17. NHTSA's analysis indicates
that such a change could, because of the similarity
to using improved axle lubricants, result in a fuel
economy improvement of 1 percent by 1981.
As to the second point, EPA has not previously
approved the use of the improved crankcase
lubricants in fuel economy and emission testing
because of its valid concern that the lubricants
may not be used in actual service by consumers.
If the lubricants were used in EPA testing but
not in actual service, the EPA tests results would
be unrepresentative of actual driving experience,
overstating actual fuel economy and thereby pos-
sibly misleading consumers. EPA is also con-
cerned that some lubricant additives may reduce
emission control system durability. Therefore,
EPA has indicated that it would not approve the
use of friction modified and synthetic engine
lubricants until it received reasonable assurances
that the lubricants would likely be used by con-
sumers. Possible methods for demonstrating this
likelihood are competitive retail prices, wide-
spread commercial availability, and the existence
PART 523— PRE 29
of a generic definition for these lubricants so that
the vehicle manufacturers can identify them and
encourage their use. DN-120, App. H, Att. B.
EPA has recently taken the position that fric-
tion modified and synthetic engine lubricants
could be used in dui-ability testing for 1980 model
year emission certification. DN-195. Further,
it appears very likely that remaining impedi-
ments to that use of these lubricants in fuel
economy testing will be removed in time to per-
mit full use of these lubricants as factory-fill for
the 1980 model year. One previous impediment,
the lack of a procedure to define these oils gen-
erically, is expected to be removed by December
of this year, when the American Society for Test-
ing Materials (ASTM) is scheduled to complete
development of such a procedure. DN-056, p.
175.
The general availability of these lubricants in
time for the 1980 model year, another require-
ment for their permitted use in fuel economy
testing, also seems assured, given the expanding
activity of the oil companies in this field. DX-
056, p. 523, DN-112, 113. Current selling prices
of many of these lubricants appear to be ade-
quate to satisfy EPA's concern that it be likely
that consumers will in fact use these lubricants.
These latter two requirements are necessary to
provide an assurance that the lubricants will be
used as replacement lubricants, not just for fuel
economy testing. Therefore, it is quite likely
that these lubricants can be used by the 1980
model year in fuel economy testing. See also
DN-160, p. 7 (Public Interest Campaign). How-
ever, neither this agency nor EPA can predict
with complete certainty when approval of those
lubricants will become possible.
With respect to the vehicle manufacturers'
third objection, the agency concludes that the
manufacturers should be able to complete all
necessary durability testing of these friction
modified lubricants by the 1980 model year. DN-
096, p. 10 (GM). Judging from the data sub-
mitted by the manufacturers, the agency believes
that testing of these lubricants has already
progressed significantly. The oil companies
which produce these improved lubricants have
already conducted substantial testing of the lubri-
cants before they were first marketed. DN-056,
p. 175-6 (Exxon). In fact, the oil companies
argue that one of the major advantages of using
the friction modified lubricants is that engine
wear is reduced. Id., p. 535 (Arco). Since these
oils also meet American Petroleum Institute
Criteria for SE grade lubricants, engine dur-
ability should be improved. The oil companies
found no reason to expect any adverse impacts
from switching to these oils, which are of the
same viscosity, come from the same base stock,
and have most of the same additives as current
factory fill oils. Id., p. 175 (Exxon). In fact,
it appears that a less extensive durability pro-
gram would be necessary in switching to friction
modified oils than in switching to a lower vis-
cosity oil, wliich GM indicates could be done by
1980. See also id., p. 296 (Ford). Ford ap-
parently was willing to use these lubricants as
early as the 1978 model year. DN-149, App.
IV, Ex. K, p. 2. In fact, GM's oil durability test
requirements which were provided to NHTSA
recently refer only to tests for lower viscosity
engine oils, not friction modified oils. DN-184,
p. 4.
Therefore, the agency projects that a total fuel
economy benefit of at least 3 percent is achievable
through the use of improved lubricants (crank-
case and axle). To assure ample time for the
approval of these lubricants for use in vehicle
fuel economy testing by EPA, NHTSA will not
project their use prior to the 1981 model year.
It should be noted that it is possible that, by that
model year, further improvements in crankcase
lubricants may result in additional fuel economy
improvements, considering the agency's conserva-
tive projection of the currently achievable bene-
fit. Also, the use of improved manual transmis-
sion lubricants may expand in 1981. This could
provide a further safety margin for the manu-
facturers. However, since the eventual approval
of these lubricants is beyond the agency's con-
trol, alternative fuel economy standards for the
1981 model year will be established. In the un-
likely event that EPA has not yet approved the
use of these improved lubricants by January 1,
1980, a lower fuel economy standard, excluding
the projected use of the lubricants, will be in
effect. If, as the agency expects, this approval
is given by then, a higher (by 0.5 mpg) standard
will apply. NHTSA expects that the manufac-
I
t
PAKT 523— PRE 30
turers will still have a strong incentive to seek
the expeditious approval of those lubricants, in
order to use the lubricants in passenger auto-
mobiles as well as for light trucks.
12. Reduced rolling resistance. The agency
projected that a fuel economy improvement of
4.5 percent would be achieveable by the 1980
model year through the use of current or ad-
vanced radial tires on all light trucks, rather
than the bias ply and bias belted tires currently
used. This improvement was based on measured
differences (using the tire companies' own test
procedures) in tire rolling resistance between
radial and bias tires and the known relationship
between rolling resistance and fuel economy for
passenger automobiles. See, e.g., DN-018-28,
Table I (Goodyear); DN-018-49, p. 1 (Fire-
stone); DN-018-46, p. 2 (Uniroyal). Further
significant reductions in tire rolling resistance
through increased tire inflation pressure and
other means were anticipated for the near future.
r)N-018-28, p. 4 (Goodyear) ; DN-018-46, p. 2
(Uniroyal) ; DN-018-t9, p. 2 (Firestone). Good-
year indicated that there is a possibility that
their new elliptic tire, for which they project a
fuel economy benefit of up to 6 percent compared
to current radial tires, could be available for
use on a portion of those light trucks which
use passenger car type tires (primarily those un-
der 6,400 pounds (GVWR) by the 1980 model
year. DN-145; DN-146-A, p. 106-7. GM in-
dicated that the same benefits achievable with the
elliptic tire would be achievable with more con-
ventional tires by increasing inflation pressure.
Id.
After the issuance of the NPRM, it became
increasingly clear that the fuel economy benefits
associated solely with a switch to current radial
tires would not equal 5 percent. A number of
participants in the proceeding indicated that
radial tires were inappropriate for use on off-
road vehicles, due to the greater vidnerability of
radial tires to sidewall damage. DN-056, p. 190
(Goodyear) ; DN-097, p. 5 (IH) ; DN-098, p. 1
(AM) ; DN-096, p. 9 (GM). In addition, prob-
lems exist in measuring the radial-bias tire fuel
economy differential on current EPA fuel econ-
omy test procedures. Current test procedures
apparently accurately simulate the characteristics
of radial tires but overestimate the fuel economy
characteristics of bias tires. DN-067, App. IV,
Ex. F (Ford) ; DN-018-49 (Firestone) ; DN-145
(Goodyear). The light tire manufacturers gen-
erally projected fuel economy improvements in
the range of 2 percent for the portion of their
fleets which use passenger car type tires, assuming
that the optional "coast-down" test procedure
could be used to measure the fuel economy benefit
of switching to radial tires. DN-120, App. C
(Chrysler— 21/2 percent) ; DN-906, p. 9 (GM—
11/2 percent) ; DN-067, App. IV, Ex. F (Ford) ;
DN-088, p. 4 (Toyota).
In view of this new infoiTnation submitted
after the issuance of the NPRM, the agency has
re-analyzed the potential for fiiel economy im-
provements from switching to radial tires. On
the basis of this detailed analysis of the tires
currently used by the manufacturers on light
trucks and current recommended inflation pres-
sures, the agency now projects that fuel economy
improvements ranging from 1.6 to 2.5 percent
can be achieved for approximately 80 percent of
the light truck fleet (excluding off-road applica-
tions) by switching to radial tires and by making
minor inflation pressure increases. See RSP-S.
It should be noted that to the extent new tire
concepts such as the elliptic tire become available
for use in light trucks in the 1980-81 period,
the manufacturei-s will have additional flexibility
in meeting the fuel economy standards. It is
possible that the agency's originally projected
fuel economy benefit will be achieved with these
advanced tire concepts.
13. Engine displacement or drive ratio reduc-
tions. The agency projected that reductions in
average engine displacement or drive ratios (gear
ratios or axle ratios) or both could be imple-
mented by the 1980 model year for each manu-
facturer. Specifically, it was projected that the
product of engine displacement multiplied by
total drivetrain ratio (CID x N/V) could be
reduced 10 percent from 1977 levels for each
manufacturer, in addition to reductions made in
conjimction with weight reduction, to maintain
constant vehicle performance. Drive ratio
changes can be accomplished with relatively
short lead time. Such reductions were projected
to result in fuel economy improvements of ap-
proximately 4 percent. Reductions in engine
displacement or drive ratio tend to diminish a
PART 523— PRE 31
vehicle's acceleration and grade-climbing ability,
thereby limiting the extent to which these re-
ductions can be implemented without impairing
the vehicle's functional capabilities.
It should be noted that these reductions are
projections of reductions in average engine dis-
placement or drivetrain ratio, and not every
vehicle would be expected to achieve such a re-
duction. For example, vehicles incorporating
overdrive transmissions would not be expected
to fully implement such reductions and other
vehicles would be expected to achieve reductions
greater than 10 percent. The 10 percent figure
was based on an analysis by the Department of
Transportation which indicated that much
larger reductions, i.e., as high as 30 percent, could
be achieved without violating any of the mini-
mum performance criteria specified by the manu-
facturers. DN-036, App. B. The agency used a
10 percent reduction instead of the 30 percent
reduction projected in the document based on
the agency's judgment that major reductions in
acceleration performance occurring over a rela-
tively short period of time might result in con-
sumer dissatisfaction and possibly reduced sales,
notwithstanding the ability of the vehicles to
satisfy minimum performance requirements.
The manufacturers and many other partici-
pants in the rulemaking expressed concern as to
whether the proposed standards could be achieved
while still maintaining acceptable levels of light
truck performance and utility. However, no
participant advanced any specific vehicle per-
fonnance criteria different from those previously
analyzed by the agency, and no specific informa-
tion was presented which contradicted the orig-
inal conclusion as to the feasibility of a 10
percent reduction in engine displacement or
drivetrain ratio or both. In fact, it appears that
all of the manufacturers except Chrysler and IH
have presented information which indicates that
the 10 percent reduction is feasible and in some
cases currently planned. DN-096, App. B, p. 25
(GM) ; DN-149, App. IV, Ex. I (Ford) ; DN-
010-02, p. 10 (AM). Chrysler is apparently in-
vestigating certain specific approaches for reduc-
ing engine displacement or drive ratio. DN-120,
Att. B, p. 25. Further, it appears that even with
a 10 percent reduction in CID x N/V, Chrysler's
average performance level for a given test weight
would be higher than those of many of the other
manufacturers. See RSP-S.
An example of the difference between the argu-
ments made at the January 16-17 hearing or in
written comments and the actual manufacturer
plans and capabilities relating to this issue is
the position taken by Ford. At various times in
the rulemaking. Ford stated on one hand that
it could not reduce average engine displacement
because of production capacity constraints (DN-
149, App. IV, Ex. I, p. 2) and because such re-
ductions might be fatal to their truck's func-
tional capacities, but on the other hand that
reductions in CID alone of more than 10 per-
cent were planned. DN-010-02, App. F; DN-
149, App. IV, Ex. I, p. 1. Ford similarly raised
numerous objections to NHTSA's projections of
feasible reductions in N/V ratio (DN-149, App.
IV, Ex. 1), despite the fact that significant re-
ductions of that parameter are also planned by
Ford. DN-149, App. IV, Ex. I, p. 1. Thus,
Ford objected strenuously to the feasibility of
NHTSA's projections of CID x 1^/Y reductions,
despite the fact that it plans to make even
greater reductions than those projected by the
agency. With respect to the issue of whether
these reductions will improve fuel e<!onomy by
the amount projected by NHTSA, Ford's own
test data for 1979 light trucks supports improve-
ments of at least the level projected. See RSP-S.
Therefore, the reductions in engine displace-
ment or drivetrain ratio projected initially by
the agency have been retained, except where the
manufacturers' plans exceed those projections.
In the latter cases, the final projections were
based on the manufacturers' plans. However, the
agency projects a more limited 7 percent reduc-
tion for Chrysler in 1980. The agency projects
that Chrysler may need an additional year to
phase-in maximum reductions, given its limited
current plans to make these changes and its past
reliance on high performance levels as a market-
ing technique.
14. A/ix shifts. For the 1980-81 model years,
the agency projected negligible shifts in the 1977
product mix of the manufacturers beyond those
projected by the manufacturers, or, looked at
another way, the agency projected that the man-
ufacturers would take such actions as necessary
to assure that product sales would not shift to-
f
((
(
PART 523— PRE 32
■ward the higher test weight classes. The one
exception to this statement is that the agency
proje<:ted the sale of a limited number of "mini-
vans" and other new truck concepts by General
Motors in the 1980-81 model years. GM now
indicates that sales of the mini-van, at least in
a light truck configuration, are not planned.
DN-056, p. 51-3. Because of the limited variety
of market class offerings currently available in
the light truck market, as compared to passenger
automobiles, mix shifts could occur in the future
primarily through new product offerings. New
offerings which are not currently planned are not
feasible in the limited time left before the 1980
and 1981 model years.
However, the agency projects that one limited
type of mix shift is feasible for the 1980 model
year. Because of recent changes in the fuel
economy and emissions test procedures by EPA,
optional equipment must be included on test ve-
hicles if it is projected to be sold on 33 percent
of the vehicles in a particular "car line." Under
the previous test procedures, optional equipment
was included only if it was projected to be sold
on 33 percent of the vehicles in a particular
"engine family." An "engine family" is, gen-
erally, a combination of basic engine and emis-
sion control systems, independent of the vehicle
in which the engine is placed. This test proce-
dure revision would be expected to have a random
impact on the manufacturers, with no trend to-
ward either higher or lower test weights. How-
ever, it appears that the manufacturei"s have
carefully targeted the availability of optional
equipment to take maximum advantage of the
option rule (e.g., restricting options on some
engine families to 30 percent usage), so that the
change to the "car line" test will initially in-
crease average test weights. However, given time
between the test procedure change and the 1980
model year, there is no reason to believe that
the manufacturers will not be able to reallocate
their option offerings among engine families
(e.g., restricted option sales to 30 percent for
some car lines which currently have option sales
levels of just 33 percent) to offset the effect of
the rule change. In fact, it appears that such
efforts are already planned. D\-146-A, p. 26-8.
No net reduction in the total number of options
sold for all light tracks need result from such
actions.
d. ECONOMY PRACTICABILITT
Relatively few objections were raised with
respect to the costs attributed by the agency to
various technological improvements. None of
the comments suggested that the cost of imple-
menting the technologies upon which the pro-
posed standards were based would exceed the
bounds of economic practicability. However, the
manufacturers and others did argue that com-
pliance with standards at the levels of the pro-
posal, with to those commenters implied taking
st«ps beyond implementing the projected tech-
nologies, would be economically impracticable.
With respect to the latter issue, the difference
between the agency's position and that of the
manufacturers resulted from differences in the
projected fuel economy benefit achievable with
the various technological improvements and the
extent to which these improvements could be
implemented by a particular model year, and
from the consequent assumption by the manu-
facturers that compliance measures beyond those
specified in the proposal would be necessary.
These differences have been discussed in section
III.c above, and the final standards are estab-
lished at levels closer to what the manufacturers
projected than the proposed standards.
The increase in capital expenditures necessary
for individual manufacturers to comply with the
1980 and 1981 standards is not large, either
absolutely or relatively. Almost no increase in
capital investment will be necessary for the manu-
facturers to achieve the standards instead of their
lower recommended levels of average fuel econ-
omy. Typically, the difference between the
standards and the recommended levels consisted
of low capital measures such as performance re-
ductions and lubricants. The capital investment
necessary to make up this difference is not the
full investment attributable to the standard. A
portion, but not all, of the capital investment
necessaiy to achieve the manufacturer's recom-
mended levels is also attributable to the stand-
ards. The reason for not attributing all of this
latter investment to the standards is that the
agency anticipates that the need to remain com-
petitive with other manufacturers and the mar-
PART 523— PRE 33
ketability of increased fuel economy would have
led the manufacturers to voluntarily make fuel
economy improvements even if there were no fuel
economy standards. The legislative record for
the fuel economy provisions of the Act is replete
with statements supporting the reasonableness of
anticipating that result. Even if the entire
capital investment for raising average fuel econ-
omy to the level of the standards were attributed
to the standards, the increase in business-as-
usual capital expenditures would be negligible, on
the order of 3 percent. That small figure may
be an overstatement because it is based on the
pessimistic assumption that none of the capital
investments could be offset through normal busi-
ness expenditures.
"With respect to the issue of the specific types
of analysis which should be undertaken in a
determination of economic practicability. GM
and Ford argued that NHTSA should consider
the impact of fuel economy standards on the
economy as a whole, not just the industry itself.
DN-067, App. V, p. 1 (Ford) ; DN-096, App.
D, p. 1, DN-056, p. 93 (GM). NHTSA recog-
nizes the need to consider such factors as the
impacts of standards on employment in the auto
industry and its suppliers, inflation, vehicle sales,
and the trade balance, and the agency did so in
its impact assessment. DN-067, App. V, p. 1
(Ford). These matters are, of course, inter-
related, in that product changes which are not
accepted by some consumers will reduce industry
sales, at least in the short term, with resulting
deceases in employment and industry profitabil-
ity. However, the agency believes that limited
visible or otherwise preceptible product changes
that may be necessary to comply with these
standards will be accepted by consumers.
Several of the manufacturers urged that the
economic practicability of the fuel economy
standards be determined in the context of the
other Federal vehicle standards which the manu-
facturers must meet. The assumption of these
commenters appeared to be that it would be suf-
ficient in making such an analysis simply to Imow
the expenditures necessitated by the various
Federal vehicle regulatory programs. The short-
comings of such an analysis are obvious. A
definitive analysis of the sort urged by these
commenters implies the availability of extensive
information regarding all of the manufacturers'
resources and demands on those resources. None
of these commenters provided or offered to pro-
vide such information.
Ford argues that greater emphasis should be
placed on cost-benefit analysis in determining
economic practicability. Id. Ford states that
greater reliance should be placed on the language
of section 325(a) of title III of the Act, relat-
ing to appliance energy efficiency and not auto-
motive fuel efficiency. That section clearly en-
visions substantial reliance on cost-benefit analysis
in setting standards. However, section 325 also
goes to great lengths to differentiate between the
concepts of "feasibility" and whether standards
are "economically justified," with cost-benefit
analysis being tied to the latter concept only.
Since the language in section 502 of the Act is
expressed in terms of "feasibility" and "practi-
cability," the agency remains of the view that
Congress intended that these terms be interpreted
consistently in different sections of the same
statute. See 42 F.R. 33537. Nevertheless, the
agency notes that the benefits of the technology
projected by NHTSA to be used in meeting the
1980-81 fuel economy standards would meet a
cost-benefit test. This result could change de-
pending on the retail price increases which the
various manufacturers elect to impose, and de-
pending on whether the manufacturers elect to
purchase technology from outside sources or
produce it themselves. See FIA.
No slowdown in the growth of the light truck
market should occur as a result of these stand-
ards. Of all the projected methods for improv-
ing fuel economy, only engine displacement or
drive ratio reductions and the use of diesel en-
gines have the potential to be viewed by con-
sumers as having adverse impacts on the utility
of light trucks despite their contributions to in-
creased fuel economy. In both cases, NHTSA
projected changes no more stringent than those
already contemplated by the manufacturers. The
implanned production of new, downsized trucks
is not projected due to leadtime constraints and
is not necessary to meet the standards promul-
gated herein. The other projected changes will
hardly be preceived by vehicle owners, except
with respect to slight initial vehicle price changes
and significant fuel economy improvements.
i
PAET 523— PRE 34
The possibility of adverse sales and employ-
ment impacts resulting from retail price increases
can be roughly projected through the use of
economic models. Since the retail price increases
associated with this rule are expected to be small,
absolutely as well as compared to the fuel sav-
ings, compliance with these standards should not
result in any significant sales or employment
effects. See Final Impact Assessment. Similarly,
the vehicle and price changes should not lead to
retention by owners of older veliicles instead of
buying the new more efficient ones.
GM argues that the fuel savings associated
with the proposed standards are small in com-
parison to the risks associated witli compliance
with those standards. DN-096, App. D. GM's
comment about risks clearly applies to standards
set at the proposed levels. Since the final stand-
ards have been reduced as a result of new infor-
mation received since the proposal and are near
the levels recommended by the manufacturers,
they presumably do not present the risks men-
tioned by GM. Because of changes in the base-
line pursuant to manufacturers' comments,
however, the sa^^ngs are similar to those for the
proposed standards. Those methods of improv-
ing fuel economy which involve possible market-
ing risk, such as engine displacement reductions,
have been established at levels equal to GM's
own projections. "With respect to the magnitude
of the potential energy savings associated with
these standards, the light truck fuel economy
standards should not be considered in a vacuum,
but rather must be viewed in the context of the
entire national energy conservation program. If
each element of that program were to be cut back
or eliminated on the grounds that the savings
achievable with that element is small in com-
parison to the total energy problem, then the
overall program could not be successful.
Ford objected to the exclusion of the cost for
their new pickup truck line in the agency's
economic analysis. This cost was not included
in the agency's Preliminary Economic Impact
Assessment because the new truck series was not
an extraordinary cost associated with these fuel
economy standards. The introduction of these
new models is consistent with Ford's historic re-
design cycle, and would have occuiTed at approxi-
mately the planned time regardless of the
existence of standards. DN-001-02, Att. 1, p. 1.
Ford began work on the new truck prior to the
enactment of the Act, and Ford stated that the
fuel economy standards were only one factor
considered in the design. DN-056, p. 225.
Further, it is apparent from the other factors
specified by Ford that the standards were not
the only reason for making fuel economy im-
provements. The fact that the fuel economy
standards were one of the concerns in planning
that truck does not necessarily imply that addi-
tional costs were associated with that concern.
Ford submitted no information which would in-
dicate that the cost of introducing a new light
truck for general marketing, competitive, and
compliance purposes is any greater than the cost
of introducing a new light truck for marketing
and competitive purposes alone. Therefore, no
costs associated with this new light truck, other
than those for the technological improvements
discussed in this notice (e.g., improved lubricants,
radial tires, etc.) have been attributed to this
rulemaking.
Ford also argued that the cost of electronic
engine controls and three-way catalysts is so high
that their use is unjustifiable for light trucks in
1980-81. DN-067, App. IV, Ex. A, p. 15. The
agency has never suggested that three-way catal-
ysts be used on all light trucks for 1980-81. With
respect to the use of electronic engine controls
for spark advance, air-to-fuel ratio, and exhaust
gas recirculation rate. Ford submmited only "re-
tail price equivalents" for the cost of those items,
which includes an unspecified mark-up. Infor-
mation currently available to the agency from
suppliers of electronic components indicates that
the cost of these items on a high volume, per
unit basis would not justify retail price increases
to the level specifietl by" Ford ($128). It is
impossible for the agency to analyze Ford's ob-
jection as to the cost for variable displacement
engine technology, which Ford also provides in
terms of a retail price equivalent. Id, App. V,
p. 13. Ford's objection to the agency's projected
cost for engine displacement and/or drive ratio
reductions (Id, App. V, p. 12) is based on Ford's
assumption that it would have to introduce a new
line of engines beyond its current plans. That
assumption is unfounded. See section III.c.13
of this notice. Ford's objection to the cost of
PART 523— PRE 35
weight reduction is also based on its assumption
that product changes beyond those projected by
NHTSA would be necessary to achieve the fuel
economy benefit specified by the agency. As
discussed in section III.c.l of this notice, the
agency's revised weight reduction projection for
Ford is based on the agency's best estimate of
the benefit achievable from Ford's planned new
truck line and other actions such as option re-
strictions which have no associated cost.
Chrysler (DN-120, App. N) and IH (DN-
097-A, App. J) objected to the costs used by
the agency for weight reduction by material
substitution. Although Chrysler provided no
basis for its estimate of a 35(|; per pound cost
penalty for weight reduction by material sub-
stitution, and IH failed to provide any detailed
information (such as breakdowns of material
and fabrication costs) in support of its claimed
costs for various component substitutions, from
other information it appears that the agency's
cost projections for some components were too
low. Alcoa (DN-018-60) provided detailed cost
information for aluminum components, and other
material suppliers provided similar information
for various plastic and high strength steel items.
Therefore, the cost estimate for weight reduc-
tion by material substitution has been adjusted
in accordance with this newly supplied informa-
tion. See Final Impact Assessment.
Chrysler also objected to the cost associated
with diesel engines. Since the agency has not
projected any use of diesel engines, the cost of
dieselization is not attributable to these fuel
economy standards, and is therefore not included
in the agency's analysis. However, Chrj'sler cor-
rectly points out that the agency's cost estimate
for diesel engines was based on the cost resulting
from conversion of a current engine production
facilitj' to produce a dieselized version of an
existing engine, and high volume sales of that
engine. Docket FE-76-01-GR-003, Document 3,
App. B. This scenario accurately reflects the
dieselization program of only GM among the
domestic manufacturers, at the present time.
If a manufacturer were to purchase engines from
an outside source, the cost of dieselization to the
consumer would be much higher. DX-120, App.
N. Chrysler and IH both plan to continue pur-
chasing diesel engines, at least for the near
future.
Perhaps the most frequent comment in the
entire rulemaking involved the concern expressed
by the light truck industiy, Congressmen, com-
munity groups, and others that the proposed
standards would result in substantial unemploy-
ment. Based on the post-proposal statements
of the manufacturers, many commenters assumed
that the agency had given insufficient considera-
tion to the possible employment impacts of its
proposal. Tliis is manifestly not so. The agency
sought, based on the information available to it,
to propose standards that could be met without
any significant employment impact. The anal-
ysis of that information indicated that no un-
planned major design changes, new engines or
new models would be necessary to meet the pro-
posed standards.
In their post-proposal comments, the light
truck manufacturers submitted new information
which contradicted or clarified previous submis-
sions or which filled previous infonnation gaps.
The new infonnation showed that some tech-
nology would not yield the degree of fuel econ-
omy improvement indicated by the pre-proposal
information and that some technology could not
be used to the extent previously indicated by
agency anah'sis. Some manufacturers noted that
the technological projections underlying the pro-
posal would not yield the proposed levels of
average fuel economy and imputed to the agency
an intent to require the manufacturers to make
technological changes not feasible within the
available leadtime or to make drastic reductions
in product offerings. Neither the proposal nor
its supporting documents were based on such an
intent.
As noted above, the agency sought to propose
standards that would not adversely affect em-
ployment. The agency continues to embrace that
goal.
AVith respect to the issue raised by Ford and
others, NHTSA has made adjustments to the
proposed fuel economy standards in light of in-
formation submitted after the issuance of the
XPR^VI in December. On the basis of all this
information, NHTSA concludes that the fuel
economy standards established herein can be met
i
PART 523— PRE 36
without elimination of any current product offer-
ings, and without any necessaiy loss in employ-
ment. By making the various relatively minor
technological improvements discussed in this
notice, NHTSA projects that each manufacturer
can achieve the final standards. The impact
on employment of making these vehicle improve-
ments may well be positive. DN-160, pp. 16-18
(Public Interest Campaign), and FIA. The final
standards are set at levels significantly lower
than the proposed standards, due to the post-
proposal submissions, comments, and data from
a wide range of participants in the proceeding.
Such revisions are entirely consistent with the
informal rulemaking process, in which an agency
makes a proposal based on the best information
it then has available, solicits additional informa-
tion from all interested individuals and organi-
zations, and then establishes a final rule based
on all available information, including changes
based on comments on the proposal. See 5 U.S.C.
553, "International Harvester v. Ruckleshaus,"
478 F. 2d 615, 632.
Chrysler responded to the proposal by announc-
ing that it was delaying the conversion of its
Jefferson Avenue assembly plant in Detroit from
the production of full-size passenger cars to van
production. DN-120, p. 13. Chrysler stated
further that issuance of final standards at the
proposed level would lead to a closing of the
plant permanently. Subsequently, the company
indicated that the plant would definitely remain
open if the standards were established at a much
lower level specified by Chrysler. However,
Chrysler declined to state the maximum level of
standards which could be set without that com-
pany's deciding to close the plant. Therefore,
the agency issued a special order under sec-
tion 505(b) of the Act to Chrysler to obtain
information related to Chrysler's statements, e.g.,
information about current and future van sales
and production capacity. DN-191. Chrysler
did not respond, or provided incomplete answers
to several crucial questions and requests for docu-
ments in the special order, particularly those
items bearing on the relationship of the proposed
standards and decision to delay the conversion.
DX-191, 191-A.
The final standards established by this notice
should not cause or pose the possibility of plant
closings. They reflect the agency's consideration
of all of the post-proposal information submitted
by the manufacturers regarding the fuel economy
improvements to be gained from particular tech-
nologies and the extent to which those technol-
ogies can be implemented in 1980-81. Significant
changes have been made to the agency's original
projections concerning these matters. There is
ample leadtime for modest departures required
from the manufacturer's plans for 1980 and the
only slightly less modest extra effort necessary
for" 1981.
e. THE EFFECT OF OTHER FEDERAL MOTOR
\TEHICLE STANDARDS
A number of changes in Federal emission
standards and associated test procedures will
occur between 1977 (the base year for our cal-
culations) and 1980-81. The major change is
the tightening of the light truck emission stand-
ards from 2 grams per mile of hydrocarbons
(HC), 20 grams per mile of carbonmonoxide
(CO), and 3.1 grams per mile of oxides of ni-
trogen (XOx) for 0-6,000 pound G^^^^l trucks
only to levels of 1.7/18/2.3, respectively, for 1979
model year light trucks with GV WKs up to
8.500 pounds. The manufacturers claimed fuel
exjonomy penalties ranging from 3 to 5 percent
largely associated with the change in the NOx
standard, with changes in the other two stand-
ards apparently having much less effect. In the
1979 fuel economy standard nilemaking. the
same issue arose, and the agency took the position
that none of the manufacturers had demonstrated
the existence of an unavoidable penalty. 42 FR
13813-4. Only Chrysler and Ford have since
submitted additional data or arguments to sup-
port their claims of penalties.
Chrysler's argument for a 3 percent penalty is
based upon a comparison of 1978 data from the
CalifoiTiia light tmck fleet subject to standards
of 0.9/17/2.0 and the "49-state" fleet subject to
Federal standards. NHTSA finds a number of
serious en-ors in this comparison. First, the
California 1978 standards are more stringent than
the 1979 Federal standards. Chrysler assumes
that the differences between these two sets of
standards can be accounted for by making the
assumption that the fuel economy penalty re-
sulting from more stringent emission standards
PART 523— PRE 37
is linearly related to the change in the NOx
standard. Chrysler offers no basis for this as-
sumed relationship, and NHTSA knows of no
reason wliy such a relationship should exist, par-
ticularly when more advanced control technology
may be available for compliance with the more
stringent standard. Second, Chrysler compared
these standards based on 1978 technology, while
NHTSA methodology requires a comparison
based on 1977 versus 1980-81 emission control
technology. Therefore, under Chrysler's pro-
cedure, the fuel economy of vehicles subject to
Federal emission standards has the advantage
of one additional year of technology develop-
ment, wliile the fuel economy of California ve-
hicles is understated because it does not reflect,
as it should, the technological development that
will occur between 1977 and 1980-81. Thus,
the measured penalty was inappropriately in-
creased. In this rulemaking, NHTSA must de-
termine the fuel economy achievable in 1980-81
based on the technology available and the emis-
sion standards applicable in those years, com-
pared to the fuel economy that was achievable
in model year 1977 with 1977 emission standards
and control technology. Thus. Chrysler's anal-
ysis failed to account for advances in technology^
i)etween 1977 and 1980-81. Third, and perhaps
most significant, California experience has in
general not been a valid indicator of 49-state
experience with respect to emission standards
effects. The reason for the past unrepresenta-
tiveness of California experience is that manu-
facturers cannot devote the same level of effort
toward optimizing emission control systems and
engine calibrations to minimize the effect of more
stringent emission standards when those stand-
ards are applicable only to a small minority
(perhaps 10 percent) of their fleet as it does
when they are applicable to 90 percent of their
fleet. Therefore, lower fuel economy would be
expected if a particular set of (California) emis-
sions standards applied to a minority of tlie fleet,
and compliance was achieved by modifying a
portion of the fleet which was originally designed
to meet less stringent (Federal) standards.
Therefore, the agency is unpersuaded by
Chrysler's argument.
Ford attempted to demonstrate the existence
of an emission standard-related fuel economv
penalty by two methods. First, it used an ana-
lytical method, called "engine mapping", which
is designed to show the theoi-etical relationship
between fuel economy and NOx emissions at
various emission standard levels. This approach
showed that a penalty of approximately 1 per-
cent is theoretically achievable through optimal
use of proposed technology. DN-067, App. VI,
p. 2. Second, Ford submitted test data from 16
development vehicles which were calibrated to
meet 1979 standards, and compared those results
to 1978 emission certification data for identical
vehicles (in terms of engine, transmission, inertia
weight, and axle ratio). Under that procedure,
a fuel economy penalty of 4 percent was meas-
ured. Id., p. 5. NHTSA has a number of diffi-
culties in accepting the results of either of these
procedures and applying them to this rulemaking.
First, Ford's tests were conducted on develop-
ment vehicles at initial calibration settings. Sub-
stantial improvements are feasible after the first
testing of development vehicles, on a continuing
basis through 1980 and 1981. Ford's analysis
ignores this effect by comparing 1979 develop-
ment data against data for 1978 vehicles, which
have been subject to the same emission standards
for several j'eare, with ample opportunity to
more closely approach full optimization. Ford
denies the existence of such an improvement
effect between initial development testing and
final emission certification, but bases its argu-
ment on its experience in the 1978 model year,
a year in which the emission standards did not
change, and for which calibrations would be ex-
pected to more closely approach full optimiza-
tion.
Second. Ford's engine mapping procedure
does not measui'e the relevant fuel economy dif-
ferential for the purposes of NHTSA projec-
tions. Ford's procedure attempts to measure
fuel economy when meeting 1979 emission stand-
ards using 1979 emission control technology, and
compares that value to fuel economy achievable
using 1979 technology to meet 1977 model year
standards. DN-149, App. VI. This procedure
is patterned after that specified in section 502(d)
of the Act. NHTSA, on the otlier hand, under
section 502(e)(3) of the Act, must not only
assess the effect of the cliange in emission stand-
ards between 1977 and 1979 (and on to 1980
(
PART 523— PRE 38
and 1981, where standards M'ill remain the same)
but also consider the offsettinfr effect of differ-
ences between the technolojry and calibrations
actually used in 1977 and the technolofry and
calibrations which will be available for use in
1980-81. Thus, Ford's engine mapping analysis
failed to consider advances in emission control
technology between 1977 and 1979, and further
advances achievable through 1980 and 1981. In-
stead, technology and calibration optimization
were assiuned by Ford to be fixed at a particular
level. However, improvements in emission con-
trol technology have in fact occurred in this
1977-79 period. DN-067, App. IV, Ex. A, Att.
1. The small magnitude of the theoretical pen-
alty claimed by Ford (1 percent) and the fact
that advances in technology were not considered
in developing that penalty indicates that the ac-
tual 1977-79 combined effect of emission stand-
ards changes and technology advances may well
be an improvement in fuel economy, not a loss.
Third, it has been demonstrated that when
passenger automobile NOx emission standards
were made more stringent in 1977 (from 3.1 to
2.0 gram per mile), engine efficiency improve-
ment more than offset any adverse impacts of
the new emission standard, when various ex-
traneous factors affecting fuel economy were
disaggregated. SAE paper 760795. EPA ex-
pects that this historical effect should also be
applicable in the case of comparable reductions
in the light truck NOx emission standard. DN-
255, pp. 1-2.
Therefore, NHTSA reaffirms its position that
the 1979 change in Federal emission standards
has not been demonstrated to cause an adverse
impact on average fuel economy for light trucks.
Ford also argued that the agency has not ade-
quately accounted for the effect of California
emission standards, which are more stringent
than Federal standards. DN-067, App. VI, p.
9. Ford claims that the effect of these strndards
is 0.1 mpg, or less than 1 percent. As EPA
points out. Ford's analysis is based upon a com-
parison of 1978 California and 49-State vehicles,
and does not accurately reflect the types of tech-
nology which will be used in 1980-81 to comply
with California standards. Ford indicates that
it will be using electronic engine controls in con-
junction with three-way catalysts to meet these
more stringent California standards in 1981.
DN-149, App. IV Supp., Ex. A, p. 5. (Ford).
In fact. Ford has already begun using this type
of technology on its 1978 California passenger
cars. Vehicles using this technology are pro-
jected by Ford to achieve the same fuel economy
as a 49-State vehicle in the same model year.
NHTSA projects that, given current efforts to
develop these advanced emission control systems
for passenger car use, a sufficient number of
these systems could be applied to 1980-81 model
year California light trucks to eliminate the al-
most negligibly small effect of the California
standards.
Several manufacturers have also claimed that
EPA's recently issued advisory circular on
changes to the transmission shift schedule for
fuel economy and emission testing of manual
transmission vehicles will result in a fuel econ-
omy penalty. DN-097, p. 4 (IH) ; DN-096,
App. B, p. 25 (GM) ; DN-067, App. VI, p. 15
(Ford). Previously, the manufacturers have
been permitted to shift manual transmission ve-
hicles in fuel economy and emission testing ac-
cording to the shift schedule specified in the
owner's manual. According to EPA, some man-
ufacturers have taken advantage of this provision
by specifj'ing shift schedules in the owner's
manuals for certain vehicles which are not repre-
sentative of typical driving. These new shift
schedules have recommended shifting at ex-
tremely low engine speeds, or in some cases skip-
ping gears in the shift pattern, resulting in
artificially high fuel economy and low emissions.
DN-255, Advisory Circular Number 72, January
19, 1978. Under the new requirements, three
alternative shift patterns are permitted, either
shifting at 66, 65, and 57 percent of rated engine
speed into second, third, and fourth gears, re-
spectively, or shifting at 15, 25, and 40 miles per
hour into second, third, and fourth gears, respec-
tively, or some other shift pattern which the
manufacturer demonsti'ates to be representative
of actual driving experience. Id. In the first
two alternatives, skipping gears while shifting up
(e.g., first directly to third or fourth) is not
permitted.
The manufacturers have not yet had the oppor-
tunity to fully evaluate the effect of the change
in the EPA test procedure on fuel economy.
PAET 523— PEE 39
DN-149, App. VI, p. 16 (Ford) ; DN-146-A, pp.
127-8 (GM). Early submissions by tine manu-
facturers evaluated the impact of a requirement
of shifting at 66 percent of rated engine speed
for all gears, not the final EPA requirement.
D\-096, App. B, Table B-7 (GM) ; DX-067.
App. VI, p. 16 (Ford). Therefore, there is in-
sufficient data to justify NHTSA's making an
adjustment to the standards now. Although the
test procedure change was intended to have the
effect of reducing the measured fuel economy of
some vehicles, and make the measured fuel econ-
omy more representative of on-the-road fuel
economy, the manufacturers have as yet not
quantified the magnitude of this effect. To jus-
tify any reduction, the agency would be required
to determine the number of test vehicles which
were shifted in an unrepresentative manner in
1977, the specific shift schedule permitted under
the new requirements which would provide the
most favorable results for individual manufac-
turers, and the fuel economy impact for indi-
vidual vehicles of the change from 1977 shift
patterns to this most favorable new pattern.
This adjustment factor would be expected to vary
from manufacturer to manufacturer, depending
on the extent to which unrepresentative shift
schedules were specified in 1977. Therefore, the
agency will make no adjustment to the standards
to account for this effect in the current rule-
making, but will accept petitions from individual
manufacturers which attempt to justify a reduc-
tion in the standards because of the test proce-
dure change.
Ford also argued that changes in test proce-
dures for measuring evaporative emissions from
vehicle fuel tanks would cause a fuel economy
penalty. This new procedure, called the SHED
test, attempts to more accurately quantify the
total amount of hydrocarbons which escape from
the vehicle, other than as exhaust emissions.
Ford's argument for a penalty of 0.08 mile per
gallon is that the new test procedure will measure
more escaped vapors than the old one, thus re-
quiring the manufacturers to use more efficient
evaporative emission control systems. These
more efficient systems would, according to Ford,
result in more hydrocarbon vapors being retained
in the evaporative cannister and fed through the
carburetor. However, Ford assumes that none of
these vapors would be combusted and do work,
but instead would be sent straight out the exhaust
system. This additional hydrocarbon exhaust
would be measured on the fuel economy test as
fuel consiamed, however, according to Ford.
DX-149, App. VI, Ex. B. NHTSA cannot accept
this analysis for two reasons. First, there is no
reason to believe that all the extra gasoline vapors
retained in the gas tank and sent through the
carburetor would escape combustion. If some
portion of this extra gasoline vapor is combusted
and does work in moving the vehicle, then a
benefit in measured fuel economy should result.
Second, EPA indicates that improved evapora-
tive emission control systems are available which
make efficient use of the extra fuel which is re-
tained in the cannister rather than vented to the
atmosphere. Id. Therefore, NHTSA concludes
that Ford has not demonstrated that a fuel econ-
omy penalty exists due to its current evaporative
emission control system, and that no penalty need
exist if a more efficient design were adopted.
f . THE NEED OF THE NATIOX TO CONSERVE ENERGY
No detailed comments were received on this
consideration in establishing the "maximum
feasible average fuel economy level," other than
that made by GM- and addressed in section Ill.d
of this notice. The agency believes that the need
of the nation to conserve energy continues to be
very substantial. See also DN-160, p. 20 (Public
Interest Campaign).
g. BASIS FOR DETERMINING THE "MAXIMUM
FEASIBLE A\ERAGE FUEL ECONOMY" LEVEL
Many participants in the proceeding argued
that the agency had established fuel economy
standards at levels above those achievable by one
or more of the manufacturers, and that such a
procedure exceeds the agency's statutory author-
ity. DX-097, p. 8 (IH) ; DN-096, p. 12 (GM) ;
DX-149, App. VIII, Att. A (Ford) ; DN-120,
p. 9 (Chi-ysler) ; DN-056-05 (Congi-essman John
Dingell). On the other hand, the Center for
Auto Safety argued that standards cannot be
based on the "least capable manufacturer," citing
supportive language in the Conference Eeport
on the Act and the various provisions in the Act
for compromise or elimination of civil penalties
c
PART 523— PRE 40
in case of a failure to meet fuel economy stand-
ards. DN-155. See also DN-160, p. 8 (Public
Interest Campaign).
It should be noted at the outset that the ajjency
did not propose standards at levels which it con-
cluded could not be met by one or more of the
manufacturers. Rather, the ao;ency postulated
certain technological improvements, calculated
the resulting fuel economy for the various manu-
facturers, and then discussed certain additional
measures which could be undertaken by certain
manufacturers to achieve the higher level of fuel
economy at which the standards were set. 42 F.R.
63193. "Wliile it is true that the agency discussed
the ability of some of the manufacturers to pay
civil penalties in case of noncompliance, the pay-
ment of such penalties was viewed as an alterna-
tive (albeit an undesirable one) which some
manufacturers might adopt rather than making
all feasible fuel economy improvements. The
manufacturers uniformly stated at the January
16-17 public hearing and in their written sub-
missions that they would not opt for payment of
civil penalties rather than making feasible fuel
economy improvements, and the agency applauds
this policy.
As will be discussed in section V of this notice,
the final 1980-81 fuel economy standards are es-
tablished at levels which NHTSA projects to be
technologically feasible and economically prac-
ticable for all the manufacturers. Therefore,
NHTSA need not address the connnents relating
to this issue.
IV. Other Miscellaneous Comments
ON THE NPRM
AMC and Chrysler argued that fuel economy
labeling of light trucks in the 6001-8500 pound
GVWR range should not be required in the 1979
model year, as was proposed in the NPRM. AM
argues first that requiring the fuel economy test-
ing necessary to develop data for labeling would
impose an unacceptable burden on them and on
EPA. DN-098, p. 7. Both AM (id.) and
Chrysler (DN-120, Att. B, p. 31) argue further
that requiring labeling in 1979 will further im-
pair the credibility of the fuel economy data as a
valid representation of on-the-road driving ex-
perience. Chi-ysler bases its argument on the
fact that EPA's current labeling procedures for
light trucks do not distinguish between vehicles
which might be expected to fall into different
"car lines" (e.g.. Ford F-lOO and F-200 series
pickup trucks) since they are marketed as differ-
ent models. Instead, EPA has in the past in-
cluded all of a manufacturer's pickup trucks in a
single car line, potentially creating a situation
where a wide variety of vehicles with greatly
different fuel economy ratings would have the
same fuel economy rating on the labels.
NHTSA is of the view that defining "car line"
in a manner more consistent with the way that
term is used for passenger automobiles (i.e., de-
fining vehicles marketed as different models to
be different car lines, such as the F-lOO and
F-200) would solve much of this difficulty. How-
ever, to require fuel economy labeling for the
1979 model year, this problem would have to be
resolved almost immediately. EPA has informed
this agency earlier this month that it may not be
able to resolve this problem in time to make the
amendments effective for the 1979 model year.
Therefore, the fuel economy labeling requirement
will not be made applicable until the 1980 model
year.
NHTSA concluded that the fuel economy
labeling provision for 1979 was especially im-
portant in part because such a requirement
would result in the generation of fuel economy
data for vehicles with GVlVRs between 6,001 and
8,500 pounds, in addition to the benefit to con-
sumers of having this information. The Agency's
effort to compensate for the current absence of
that data was one of the manufacturers' primary
objections to NHTSA's standard-setting meth-
odology in this rulemaking. NHTSA deems it
important to have this information as soon as
possible to develop a fuel economy baseline based
on test data for the light truck standards for
model years after 1981. Therefore, NHTSA is
requesting by this notice that each of the manu-
facturers provide by April 15 information on the
extent to which they will provide NHTSA with
fuel economy data (city and highway driving
cycle) for their 1979 6,001-8,500 pound GVWR
light trucks, and the time by which this testing
could be accomplished. In view of the impor-
tance which the manufacturers understandably
attach to baselines based on test data, the agency
assumes that such data will be readily forthcom-
PART 523— PRE 41
ing from the manufacturers. To facilitate issu-
ance of the notice of proposed rulemaking for
1982 and thereafter, these tests should be avail-
able by sometime this fall. Voluntary provision
of this data by the manufacturers would obviate
the need for XHTSA to exercise its authority
under section 505(c) (1) of the Act to establish a
rule which requires this testing on an expedited
basis. Such a rule, if necessary, would likely
require the testing by the end of this fall of the
light truck configurations identified in 40 CFR
600.506(c).
NHTSA invited comment on the extent to and
manner in which monetary credits could be trans-
ferred between the 1979 and 1980 model yeai-s,
given the change in NHTSA's light truck classi-
fication scheme between 1979 and 1980. For 1979,
light trucks are classified as either a single group
or two groups, one consisting of "i-wheel drive
general utility vehicles," and the other of "all
other light trucks." For 1980, this classification
will be changed, with 2-wheel drive and 4-whe6l
drive classes being established. However, section
508(a)(3)(B) of the Act prohibits applying
credits generated by light trucks in one class to
civil penalties incurred by light trucks in a dif-
ferent class. The Center for Auto Safety con-
cludes that this requirement means that when the
classification system is changed between model
years, no carryover monetary credits can be ap-
plied unless the revised classes included identical
vehicles for a particular manufacturer. DX-155.
Ford, on the other hand, argues that manufac-
turers should not be penalized by the change in
the classification scheme, so that credits earned
by one class could be applied to penalties incurred
by any other class which overlaps the first, at the
manufacturer's option, between the 1979 and 1980
model years. DX-149, x\.pp. VIII, Att. C. Xo
other participant in the proceeding addressed the
issue in detail. Although XHTSA believes that
all manufactui'ers can meet the 1980 standards,
this issue may be of importance to some manu-
facturers in the 1980 model year. X^HTSA
wishes to give this issue further consideration
and invites interested individuals and organiza-
tions to submit further comments on the question
to XHTSA.
IH objected to the limited time available for
comment on the proposed standards. DX-097,
p. 2. The originally specified comment period of
45 days (42 FR 63184) was extended on a limited
basis for 10 days (DX-38-A, 43 FR 3600, Jan-
uary 26, 1978), at the request of IH among others
(DX-038), and IH took advantage of that exten-
sion. DX-97-A. Further, the agency let it be
known that it would consider late submissions to
the extent practicable, given the need to issue the
final standards as soon as possible. All comments
received before issuance of the final rule were
considered. DX-038-A. In fact, the agency has
affirmatively sought out additional information
relating to IH's capabilities to make fuel econ-
omy improvements to its light trucks after the
close of the extended comment period. In addi-
tion, it appears that the comment period for the
light truck manufacturers eifectively began some
five weeks prior to the publication of the XPRM,
when the Department of Commerce (without
authorization by this agency) provided copies of
a draft XPRM to the manufacturers, which pro-
vided the substance of the agency's proposal.
DX^-191, question 10. Therefore, IH effectively
had much more than the 90-day comment period
it requested.
AM claimed that the agency violated section
502(b) of the Act by failing to promulgate the
1980 model year standard at least 18 months
prior to the start of that model year. Section
501(12) defines "model year" to be "a manufac-
turer's annual production i^eriod (as defined by
the EPA Administrator) which includes January
1'" of the specified calendar year. If no annual
production period exists, then the model year
coincides with the calendar year. Id. AM states
that its 1980 annual production period begins in
July, 1979, and that the "18-month rule" there-
fore requires the issuance of the 1980 standard in
January, 1978.
EPA has yet to detemiine a single model year
for purposes of section 502(b) of the Act. In-
deed, annual production periods appear to run
from as early as that specified by AM to the
beginning of a calendar year for many of the
foreign companies. XHTSA has endeavored to
provide approximately 18 months notice to the
domestic manufactui'ers by the expeditious com-
pletion of this rulemaking. It is the agency's
view that issuance of these by mid-March satisfies
all statutoi'v requirements.
PART 523— PRE 42
Several of the manufacturers and other par-
ticipants in the rulemaking proceeding argued
that the percentage increase for the proposed
standards over 1979 levels was not consistent with
the one mile per gallon increments Congress es-
tablished for passenger automobile standards in
1978-80. It should first be noted that tlie final
standards have been set at levels which require
a lesser relative improvement over 1979 levels
than did the proposal. However, the fact that
Congress in 1975, with less and much older infor-
mation than NHTSA currently has available, set
standards for a different type of vehicle at par-
ticular levels has little bearing on the question of
what is the maximum feasible average fuel econ-
omy level for light trucks. If major improve-
ments in fuel economy are economically and
technologically feasible in a short time, then
NHTSA is statutorily required to set standards
at levels commensurate with those capabilities.
Several of the commenters made the related
suggestion that to require a large percentage
improvement in average fuel economy was pre-
sumptively inappropriate. The percentage
change in fuel economy standards is, by itself,
an unreliable indicator of the time and effort
necessary to meet the standards. This should be
obvious from the fact that some substantial fuel
economy improvements can be made quickly with
little or no additional capital investment while
some fairly minor improvements may take much
longer and require significant additional invest-
ment. Only by examining the technological
changes underlying the differences in fuel econ-
omy standards for different model years can any
meaningful judgment be made about the reason-
ableness and stringency of the standards.
V. Calculation of the 1980 and 1981
Standards
As discussed in section Ill.b of this notice, the
basic methodology on which the final standards
are based is unchanged from the proposal. Re-
visions have been made as noted above to the
projected benefit achievable with the various
items of technology, "\^^^en these revisions are
jected to be capable of achieving the following
taken into account, the manufacturers are pro-
levels of average fuel economy for their light
t rucks :
1980 1981
2-WD 4-WD 2-WD 4-WD
AM 23.6 15.1 24.1 16.2
Chrysler 16.4 14.4 18.0 15.8
Ford 16.6 14.6 18.7 16.3
GM 16.8 14.1 18.7 15.7
IH 14.1 14.0 15.2 15.3
Nissan 24.4 25.2
Toyo Kogyo 32.0 33.0
Toyota 25.8 17.5 26.6 18.4
Volkswagen 18.0 19.5
(1981 projpctions would be reduced by 0.5 mpg if
improved lultricants cannot l)e used in fuel economy
testing.)
As can be seen from the above information,
Chrysler has the lowest projected fuel economy
for 2-wheel-drive light trucks, and GM the lowest
for 4- wheel drive. IH would be subject to a sepa-
rate standard, as previously discussed.
Because the agency's fuel economy projections
for the major manufacturers fall within a rela-
tively narrow range, and because insufficient lead-
time exists for the manufacturers to make major
improvements beyond those described in this no-
tice, the agency finds it appropriate to establish
the 1980 and 1981 standards at levels no higher
than those projected foi- the manufacturer with
the lowest fuel economy level. In view of this
limited leadtime, the agency is making a slight
downward adjustment to some of the levels
projected for the "least capable" manufacturers
to provide a safety margin for compliance and to
create some additional flexibility for the manu-
facturers in meeting the standards. The maxi-
mum feasible average fuel economy levels, and
therefore the fuel economy standards, are estab-
lished as follows:
2-wli eel-
drive
4-wheel-
drlve
Limited
product line
light truck
1980
1981
16.0
*16.0
14.0
*15.5
14.0
*15.0
* The 1981 model year standards are 0.5 inpg lower
than the values specified above if approval of improved
lubricants for fuel economy testing is not granted by the
EPA by January 1, 1980.
PART 523— PRE 43
VI. Standards for 1982 and Later
Model Years
As discussed in section III of this notice, the
limited leadtime available before the 1980 model
year and slightly limited leadtime before 1981
model year have significantly restricted the ex-
tent to which the agency can project fuel econ-
omy improvements for the manufacturers. For
example, no completely new vehicles or engines
were projected by NHTSA unless those items
were already planned by manufacturers. There-
fore, the agency will issue in early 1979 a notice
of proposed rulemaking to establish fuel economy
standards for the 1982-1984 and possible 198.5
model years. The much greater leadtime for
these model years will, in turn, enable the agency
to project major improvements in fuel economy
beyond those set forth in this notice.
In virtually every technology categorj' dis-
cussed in section III of this notice, significant
potential exists for additional fuel economy im-
provements. For example, the agency projected
weight reductions of approximately 200 pounds
for the 1980-81 model years. Information avail-
able from material suppliers indicates that weight
reductions of up to 900 pounds are currently
feasible through substitution of lighter weight
materials. If such material substitutions were
undertaken in conjunction with a complete vehicle
redesign (including some downsizing), it is pos-
sible that the average weight of light trucks
could be reduced by a further 1,000 pounds, com-
pared to current levels. Weight reduction of this
magnitude could improve fuel economy by ap-
proximately 20 percent. Domestic production of
small pickup trucks could be begun.
Additional lubricant improvements of as high
as 5 percent were described above. Advanced
tires could provide an additional ^ percent fuel
economy improvement beyond 1981 levels. Turbo-
charged versions of smaller displacement engines
could maintain vehicle performance while im-
proving fuel economy by 10 percent. It is pos-
sible that fuither development work on variable
displacement engine technologj' will solve current
problems experienced by the truck manufactur-
ers, resulting in a fuel economy improvement of
10 percent. Widespread use of advanced auto-
matic transmissions similar to the FIOD should
result in a fuel economy improvement of 6.5
percent, beyond 1981 levels. Aerodynamic im-
provements should result in fuel economy im-
provements of at least 4 percent when current
light trucks are redesigned in the 1982-5 period.
A major area for potential fuel economy im-
provement is the use of diesel engines. Diesel
engines have traditionally been used in medium
and heavy duty trucks, and it is reasonable to
expect that light truck purchasers would accept
diesels in view of the fuel economy improvement
of at least 25 percent associated with their use.
Turbocharged diesel engines, which have ap-
peared on larger trucks in the past, offer even
greater improvements, while reducing particulate
emissions and improving acceleration capabilities.
However, questions relating to the effects on
health and potential for control of diesel emis-
sions must be resolved before NHTSA will base
fuel economy standards on the use of diesel en-
gines. Use of other engine types, such as the
Ford PROCO (programmed combustion) engine,
may also be feasible in the 1982-85 time frame.
VII. Impact of Standards on
Petroleum Consumption
The standards presented in section V of this
notice are projected to result in the savings of
about 8 billion gallons of gasoline over the life
of the light trucks produced in the 1980 and 1981
model years. Even gasoline savings of this mag-
nitude will not eliminate the nation's dependence
on foreign petroleum and the associated trade
deficit. However, these standards constitute a
significant part of the overall energy conservation
program which can gradually reduce this de-
pendence. See Final Impact Assessment.
The impact of our national dependence on im-
ported petroleum has become a matter of increas-
ing concern over the past several months. The
national trade deficit was over $26 billion for
1977, while the cost of imported petroleum was
almost $45 billion in that same year. The na-
tional cost of oil imports has been increasing at a
rate of over 30 percent per year since 1975. Pe-
troleum now constitutes about one-third of all
imports. The impact of this large trade deficit
on domestic inflation is substantial. Although
the light truck standards will not solve this prob-
PART 523— PRE 44
lem by themselves, they could reduce total pe-
troleum imports by $1 billion in 1985 and $2
billion in 1990. XHTSA deems this a significant
benefit for the nation, and an important step in
attempting to reduce the overall import problem.
VIII. Economic Impact of Standards
The economic impact of these standards was
evaluated. This evaluation concludes that retail
price increases in the range of sixty dollars total
are expected from the actions necessary to achieve
compliance with fuel economy standards for 1980
and 1981. This relatively small increase com-
pares to a lifetime operating cost reduction of
about 600 dollars per vehicle, due to the reduction
in gasoline consumption for these light trucks.
It is projected by NHTSA that light truck sales
and related employment in the light truck in-
dustry will be at higher levels in 1980-81 than
currently exist in the absence of some unrelated
and curren tlyunforeseen downard turn in the
national economy. The largest factor in this
trend toward higher sales and employment is the
underlying increasing consumer demand for these
vehicles. It is projected that improving the fuel
economy of light trucks will have a small effect
in improving sales levels, since good fuel economy
is a desirable vehicle attribute. Slightly higher
retail prices resulting from the fuel economy
standards might tend to slightly offset this trend
toward higher sales. However, the effects of
improved fuel economy and slightly higher retail
prices are small in comparison to the underlying
sales trend. Therefore, NHTSA concludes that
the manufacturers' efforts to comply with fuel
economy standards will at worst cause no loss in
sales or employment, and may result in slight
gains.
IX. EN^^RONMENTAL ImPACT or THE
Standards
The environmental impact of the standards
was also evaluated, in accordance with section
102 of the National Environmental Policy Act,
42 U.S.C. 4332. Copies of the agency's final
environmental impact statement are available
from the Office of Automotive Fuel Economy, at
the address set forth at the beginning of this
notice. That document sets forth the basis for
the agency's conclusion that the standards will
result in no significant adverse impacts on the
environment. In fact, the major environmental
impact of the standards, reduction in petroleum
consumption, should reduce current adverse im-
pacts resulting from high levels of petroleum
exploration, drilling, transportation and refining.
One type of technology which improves fuel
economy but which may have adverse environ-
mental effects is the use of diesel engines. Be-
cause of possible adverse environmental effects
associated with the use of diesel engines, the
agency set standards at levels which could be
met without the use of those engines.
Authority : Sec. 9, Pub. L. 89-670, 80 Stat. 981
(49 U.S.C. 1657); sec. 301, Pub. L. 94-163, 89
Stat. 901 (15 U.S.C. 2002) ; delegation of author-
ity at 41 FR 25015, June 22, 1976.
The program official and lawyer principally
responsible for the development of this proposed
regulation are George L. Parker and Roger C.
Fairchild, respectively.
Issued on March 15, 1978.
Joan Claybrook
Administrator
43 F.R. 11995-12013
March 23, 1978
PART 523— PRE 45-46
f
PREAMBLE TO AMENDMENT TO PART 523— VEHICLE CLASSIFICATION
(Docket No. FE 77-05; Notice 7)
Action: Technical amendment.
Summa)^ : This notice amends the definition of
the term "automobile" as it appears in the
agency's fuel economy vehicle classification regu-
lations. The amendment is intended to clarify
the applicability of the light truck fuel economy
standards for model year 1980 and thereafter.
Elective date: This amendment is eflfective
January 15, 1979.
For further information contact :
Francis J. Turpin, Office of Automotive Fuel
Economy Standards, National Highway
Traffic Safety Administration, 400 Seventh
Street, S.W.,* Washington, D.C. 20590 (202)
472-6902).
Supplementary informMion : Section 501(1) of
the Motor Vehicle Information and Cost Savings
Act ("the Act"), 15 U.S.C. 2001(1), defines the
term "automobile" for purposes of establishing
the applicability of automotive fuel economy
standards and other fuel economy-related require-
ments. That definition includes within the scope
of that term any "4-wheeled vehicle propelled by
fuel which is manufactured primarily for use on
public streets, roads, and highways (except for
any vehicle operated exclusively on a rail or
rails), and which is rated at 6000 pounds gross
vehicle weight or less." That section also au-
thorizes the Secretary of Transportation to ex-
pand tlie "automobile" category and thereby
regulate additional vehicles if certain findings are
made. These findings relate to the feasibility of
standards for such vehicles, the energy savings
potential associated with regulating the vehicles,
and the usage of the vehicles.
On March 23, 1978, in 43 FE 11995, the Na-
tional Highway Traffic Safety Administration
(NHTSA) published the required findings with
respect to certain vehicles (called "light trucks")
with gross vehicle weight ratings between 6001
and 8500 pounds. The vehicles in the 6001 to
8500 pound GVAVR range wliich were excluded
from the expanded automobile category were a
relatively small number of vehicles with either
curb weights in excess of 6000 pounds or with
frontal areas of more tlian 46 square feet (prin-
cipally step-vans), or both. These vehicles were
excluded because of design features which would
largely preclude pei'sonal use thus making regu-
lation as heavy duty vehicles proper (41 FR
56316).
The Environmental Protection Agency (EPA),
which conducts fuel economy testing under the
Act, has recently informed NHTSA of an error
encountered in measuring the frontal area of
some of the step-vans. It appears that in order
to exclude the intended larger-frontal area ve-
hicles, the regulatory dividing line must be re-
duced from 46 to 45 square feet. The number of
vehicles affected by this change is extremely
small in relation to the number of light trucks
in the 6001 to 8500 pound GVWR range. There-
fore, NHTSA is amending the appropriate regu-
latory language to connect this error.
Since this amendment is in the nature of a
technical correction and affects such a small nmn-
ber of vehicles, it is determined that a notice of
proposed rulemaking is unnecessary and contrarj-
to the public interest, M'ithin the meaning of 5
U.S.C. 553(b). Therefore, this notice will be
issued as a final rule.
NHTSA has also determined that this docu-
ment does not contain a significant regulation
requiring a regulatory analysis under Executive
Order 12044. Further, this action does not re-
quire an environmental impact statement under
the National Environmental Policy Act (49
U.S.C. 4321 etseq.).
PART 523— PRE 47
This amendment is effective immediately, since
its eflFect is to relieve a restriction. See 5 U.S.C.
553(d)(1).
In consideration of the foregoing, 49 CFR,
Chapter V, is amended ....
AUTHORITY : Sec. 9, Pub. L. 89-670, 80 Stat.
931 (49 U.S.C. 1657) ; sec. 301, Pub. L. 94-163.
89 Stat. 901 (15 U.S.C. 2002) ; delegation of
authority at 41 FR 25015, June 22, 1976, and 43
FR 8525, March 2, 1978.
Issued on January 15, 1979.
Michael M. Finkelstein
Associate Administrator
for Rulemaking
44 F.R. 4492-4493
January 15, 1979
(
PART 523— PRE 48
PART 523— VEHICLE CLASSIFICATION
Sec.
523.1 Scope.
523.2 Definitions.
523.3 Automobiles.
523.4 Passenger automobiles.
523.5 Nonpossenger automobiles.
AUTHORITY: Sec. 301, Pub. L. 94-163, 80
Stat. 901 (15U.S.C. 2001).
§ 523.1 Scope.
This part establishes categories of vehicles that
are subject to Title V of the Motor Vehicle In-
formation and Cost Savings Act, 15 U.S.C. 2001
et. seq.
§ 523.2 Definitions.
"Approach angle" means the smallest angle, in
a plan 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 whicii an automobile is
standing to tlie lowest point on the axle differ-
ential of tlie automobile.
"Basic vehicle frontal area" is used as defined
in 40 CFR § 86.079-2.
"Breakover angle" means the supplement of
the largest angle, in tlie plan side view of an
automobile, that can be formed by two lines
tangent to the front and lear static loaded radii
arcs and intersecting at a point on the iindoiside
of the automobile.
"Cargo-carrying volume" means the luggage
capacity or cargo volume index, as appropriate,
and as those terms are defined in 40 CFR 600.315.
in the case of automobiles to which either of
those terms apply. With respect to automobiles
to which neither of those 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.
"Curb weight" is defined the same as "vehicle
curb weight" in 40 CFR Part 86.
"Departure angle" means the smallest angle,
in a plan 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.
"Gross vehicle weight rating" means the value
specified by the manufacturer as the loaded
weight of a single vehicle.
"Pas.senger-carrying volume" means the sum of
the front seat volume and, if any, rear seat
volume, as defined in 40 CFR 600.315, in the case
of automobiles to wliich that term api)lies. With
respect to automobiles to which that term does
not apply, "passenger-carrying vohmie" means
the sum in cubic feet, rounded to the nearest 0.1
cubic feet, of the vohnue of a vehicle's front seat
and seats to the reai- of the fi'ont seat, as ap-
l)licable. calculated as follows with the head
room, shoulder room, and leg room dimensions
determined in accordance with the procedures
PART 523-1
outlined in Society of Automotive Engineers
Recommended Practice JllOOa, Motor Vehicle
Dimensions (Report of Human Factors Engi-
neering Committee, Society of Automotive Engi-
neers, approved September 1973 and last revised
September 1975.)
(a) 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.
(1) H61 — Effective head room — front.
(2) W3— Shoulder room— front.
(3) L34 — Maximum effective leg room — accel-
erator.
(b) 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 round the quotient
to the nearest 0.001 cubic feet.
(1) H63 — Effective head room — second.
(2) W4 — Shoulder room — second.
(3) L51 — Minimum effective leg room — second.
"Running clearance" means the distance from
the surface on which an automobile is standing
to the lowest point on the automobile, excluding
unsprung weight.
"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 cen-
terline, and the tire inflated to the manufactur-
er's recommended pressure.
"Temporary living quarters" means a space in
the interior of an automobile in which people
may temporarily live and which includes sleep-
ing surfaces, such as beds, and household con-
veniences, such as a sink, stove, refrigerator, or
toilet.
§ 523.3 Automobile.
(a) An automobile is any 4-wheeled vehicle
propelled by fuel which is manufactured primar-
ily for use on public streets, roads, and highways
(except any vehicle operated exclusively on a rail
or rails), and that either —
(1) Is rated at 6,000 pounds gross vehicle
weight or less; or
(2) Which—
(i) Is rated more than 6,000 pounds gross ve-
hicle weight, but less than 10,000 pounds gross
vehicle weight,
(ii) Is a type of vehicle for which the Admin-
istrator determines, under paragraph (b) of this
section, average fuel economy standards are
feasible, and
(iii) (A) Is a type of vehicle for which the
Administrator determines, under paragraph (b)
of this section, average fuel economy standards
will result in significant energy conservation, or
(B) Is a type of vehicle which the Adminis-
trator determines, under paragraph (b) of this
section, is substantially used for the same pur-
poses as vehicles described in paragraph (a) (1)
of this section.
(b) The following vehicles rated at more than
6,000 pounds and less tlian 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.
§ 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.
PART 523-2
§ 523.5 Light truck.
(a) A light truck is an automobile other than
a passenger automobile which is either designed
for off-highway operation, as described in para-
graph (b) of this section, or 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 greater cargo-carrying than pas-
senger-carrying volume ; or
(5) Permit expanded use of the automobile for
cargo-carrying purposes or other nonpassenger-
carrying purposes through removal of .seats by
means installed for that purpose by the automo-
bile'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.
(b) An automobile capable of off-highway op-
eration is an automobile —
(1) (i) That has 4- wheel drive; or
(ii) Is rated at more than 6,000 pounds gross
vehicle weight; and
(2) That has at least four of the following
characteristics (see Figure 1) calculated when
the automobile is at curb weight, on a level sur-
face, with the front wheels parallel to the auto-
mobile'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 de-
grees.
(iii) Departure angle of not less than 20 de-
grees.
(iv) Running clearance of not less than 8
inches.
(v) Front and rear axle clearances of not less
than 7 inches each.
42 F.R. 38362
July 28, 1977
FRONT
WHEELS
A - - APPROACH ANGLE
B -- BREAKOVER ANGLE
C -- DEPARTURE ANGLE
REAR
WHEELS
Fig. I
PART 523-3^
I
•
Effective: July 28, 1977
PREAMBLE TO PART 525— EXEMPTIONS FROM AVERAGE FUEL ECONOMY STANDARDS
(Docket No. FE 76-04; Notice 2)
This notice establishes the format and content
requirements for petitions which may be filed by
low volume manufacturers of passenger automo-
biles requesting exemption from average fuel
economy standards pursuant to section 502(c)
of the Motor Vehicle Infomiation and Cost Sav-
ings Act, as amended. The notice also establishes
the timing requirements for the filing of such
petitions, and describes the procedures that the
agency will follow in acting on petitions.
Effective Date : July 28, 1977.
For Further Information, Contact:
Douglas F. Pritchard
Office of Automotive Fuel Economy
National Highway Traffic Safety
Administration
Department of Transportation
Washington, D.C. 20590
(202) 755-9384
Supplementary Information :
Section 502(c) of the Motor Vehicle Informa-
tion and Cost Savings Act, as amended (the
Act), pi'ovides that a low volume manufacturer
of passenger automobiles may be exempted from
the average fuel economy standards for passen-
ger automobiles established by or under Section
502(a) if those standards are more stringent than
the maximum feasible average fuel economy for
the low volume manufacturer, and if the Admin-
istrator of the National Highway Traffic Safety
Administration (NHTSA) establishes an alter-
native standard for the low volume manufac-
turer. A low volume manufacturer under the
Act is one who manufactures less than 10,000
passenger automobiles in the model year for
which the exemption is sought (the affected
model year), and who produced less than 10,000
passenger automobiles in the second model year
preceding the affected model year. This final
rule adds a new Part 525 to NHTSA regulations,
and establishes the timing, content, and format
requirements of petitions for exemption, and sets
forth the procedure tliat the agency will follow
in acting on petitions.
This final rule was preceded by a notice of
proposed rulemaking (NPRM), 41 FR 53827,
December 9, 1976. The proposed rule provided
that petitions for exemptions for model year
1980 and subsequent model years must be sub-
mitted to the agency not later than 24 months
before the beginning of the affected model year.
Petitions for exemption for model year 1978 must
be submitted not less than three months before
the beginning of that model year, and petitions
for model year 1979 must be submitted not later
than 12 months before the beginning of that
model year. The petition would have to include
information showing that the petitioner was a
low volume manufacturer, and data, views, and
arguments that show that the petitioner's maxi-
mum feasible average fuel economy for the af-
fected model year is less than the level of the
otherwise applicable fuel economy standard. The
proposed rule sets out specific items of informa-
tion relating to the petitioner's claimed maximum
feasible average fuel economy wliich all petitions
must include.
The NPRM further proposed that the NHTSA
would publish in the Federal Register notice of
receipt of a petition for an exemption, and would
place the nonconfidential portions of the petitions
in the public docket. After considering the pe-
tition and other information available to it, the
NHTSA would publish a notice of proposed
rulemaking announcing its proposed decision on
the petition, and soliciting comments on the pro-
posed decision. After opportunity for comment,
and a consideration of any comments that might
PART 525— PRE 1
outlined in Society of Automotive Engineers
Recommended Practice JllOOa, Motor Vehicle
Dimensions (Report of Human Factors Engi-
neering Committee, Society of Automotive Engi-
neers, approved September 1973 and last revised
September 1975.)
(a) 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.
(1) H61 — Effective head room — front.
(2) W3 — Shoulder room — front.
(3) L34 — Maximum effective leg room — accel-
erator.
(b) 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 round the quotient
to the nearest 0.001 cubic feet.
(1) H63 — Effective head room — second.
(2) W4 — Shoulder room— second.
(3) LSI— Minimum effective leg room — second.
"Running clearance" means the distance from
the surface on which an automobile is standing
to the lowest point on the automobile, excluding
unsprung weight.
"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 cen-
terline, and the tire inflated to the manufactur-
er's recommended pressure.
"Temporary living quarters" means a space in
the interior of an automobile in which people
may temporarily live and which includes sleep-
ing surfaces, such as beds, and household con-
veniences, such as a sink, stove, refrigerator, or
toilet.
§ 523.3 Automobile.
(a) An automobile is any 4-wheeled vehicle
propelled by fuel which is manufactured primar-
ily for use on public streets, roads, and highways
(except any vehicle operated exclusively on a rail
or rails) , and that either —
(1) Is rated at 6,000 pounds gross vehicle
weight or less ; or
(2) Which—
(i) Is rated more than 6,000 pounds gross ve-
hicle weight, but less than 10,000 pounds gross
vehicle weight,
(ii) Is a type of vehicle for which the Admin-
istrator determines, under paragraph (b) of this
section, average fuel economy standards are
feasible, and
(iii) (A) Is a type of vehicle for which the
Administrator determines, under paragraph (b)
of this section, average fuel economy standards
will result in significant energy conservation, or
(B) Is a type of vehicle which the Adminis-
trator determines, under paragraph (b) of this
section, is substantially used for the same pur-
poses as vehicles described in paragraph (a) (1)
of this section.
(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.
§ 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.
PART 523-2
! 523.5 Light truck.
(a) A light truck is an automobile other than
a passenger automobile which is eitlier designed
for off-highway operation, as described in para-
graph (b) of this section, or 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 greater cargo-carrying than pas-
senger-carrying volume; or
(5) Permit expanded use of the automobile for
cargo-carrying purposes or otlier nonpassenger-
carrying purposes through removal of seats by
means installed for that purpose by the automo-
bile'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.
(b) An automobile capable of off-highway op-
eration is an automobile —
(1) (i) That has 4- wheel drive; or
(ii) Is rated at more than 6,000 pounds gross
vehicle weight ; and
(2) That has at least four of the following
characteristics (see Figure 1) calculated when
the automobile is at oirb weight, on a level sur-
face, with the front wheels parallel to the auto-
mobile'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 de-
grees.
(iii) Departure angle of not less than 20 de-
grees.
(iv) Running clearance of not less than 8
niches.
(v) Front and rear axle clearances of not less
than 7 inches each.
42 F.R. 38362
July 28, 1977
FRONT
WHEELS
A -- APPROACH ANGLE
B -- BREAKOVER ANGLE
C -- DEPARTURE ANGLE
REAR
WHEELS
Fig. I
PART 523-3^
Effective: July 28, 1977
would liave insufficient data upon which to base
a projection of averajrc fuel economy.
The objection of Checker and Avanti to the
two year requirement raises a difficult problem
for the agency. The ajjency realizes that the low
volume manufacturers which purchase engines
for use in theii- vehicles must depend on their
engine suppliers foi- nuich information relating
to the engine, especially the effects of the engine
on fuel economy. JNIoreover, since General
Motors, the engine supplier for both Checker and
Avanti, has been continually developing engines
with improved fuel economy, it is likely that the
fuel economy effects of any particular size engine
will change over time. Therefore, even a low
volume manufacturer that traditionally buys
the same size engine and plans to continue
doing so will not necessarily know what effect a
future engine of that size will have on fuel econ-
omy. Also, the manufacturer of the engine may
be reluctant to tell the low volume manufacturer
what the likely fuel economy effects of a par-
ticular engine will be on the grounds that the
information is unknown, or is a trade secret.
Without data relating to the fuel economy of the
engine, the low volmne manufacturer will have
difficulty projecting the future fuel economy of
its automobiles.
Xevertheless, the agency wishes to avoid the
situation in which it must accept the low volume
manufactui-ers' planned fuel economy as the
maximum feasible le\el of average fuel economy
because there is insufficient leadtime to make fuel
economy improvements that the petitioner could
have made with more leadtime. Such situations
are likely to arise if the agency waits until just
before the beginning of the affected model year
to reach a decision on a petition for exemption,
as it must do if petitions are accepted up until
shortly before the affected model year. Further,
the agency wants to make its decision on a peti-
tion for exemption and alternative standard as
early as possible so that the low volume manu-
facturer will have a firm fuel economy target,
and enough leadtime to make whatever product
or marketing changes which uuiy be necessary to
meet the alternative standard, if the exemption
is granted, or the general standard if the exemp-
tion is not granted.
The agency has decided to retain the two year
requirement. Retention of this requirement is
more consistent with the basic energj' conserva-
tion purposes of the Act since it permits the
setting of standards that will require greater fuel
economy improvements by the exempted manu-
facturers. The agency believes also that it is
essential that the low volume manufacturers
know the fuel economy standard which they will
have to meet well in advance of the beginning of
the affected model year so that they may make any
necessary changes in their product plans with a
maximum of efficiency and a minimum of expense
and disruption. Allowing petitions for exemp-
tion to be filed six or seven months before the
beginning of the affected model year would barely
leave the agency time to reach a decision before
the manufacturer must begin production, and
would leave the manufacturer little time to make
any changes that may be necessary in light of the
decision on the petition.
Moreover, the agency believes that the lack of
engine data problem raised by Checker and
Avanti is not insurmountable. Although Checker
and Avanti have been unable to get the most
current engine performance data, neither com-
pany has experienced significant difficulty in ob-
taining an engine which they desired. Thus, the
low volume manufacturers know to a high degree
of certainty what engines will be available for
their use. With this knowledge, the low volume
manufacturers should be able to make reasonable
projections of the range of fuel economy which
they can expect to achieve. For example, if a
low volume manufacturer uses a 350 cubic inch
displacement engine in the year of application
(two years before the beginning of the affected
model year) and knows that it will be able to use
a 350 cubic inch engine in the affected model
year, the low volume manufacturer can assume
no improvement in fuel economy from the engine,
and can project fuel economy for the affected
model year from other aspects of the vehicle,
such as weight reduction or lowering the axle
ratio. The low volume manufacturer can also
project fuel economy improvement from using a
smaller engine in the affected model year, such
as a 305 cubic inch engine.
•
#
PART 525— PRE 4
»
t
•
Tn addition, the ajrency believes that the low
volume iiiaiHifaoturer may he ahle to ])roject in-
creases in fuel economy associated with particular
improvements in an enjjine. Both Avanti and
Checker indicated to the airency that General
Motors lias always been extremely helpful to
them in their product planning to allow them to
accommodate the General Motors enffines. As
the fuel economy performance of the engines be-
comes a more sifjnificant aspect of the product
planninir of the low volume manufacturers, they
may find tliat General Motors will be willing to
assist them by supplying advance engine infor-
mation relating to fuel economy. In addition,
the agency, through reporting requirements ap-
plicable to General Motors, or other engine sup-
pliers, or through subpoena, could obtain
information about the fuel economy effects of a
particidar engine. The agency would use this
information to evaluate the maximiun feasible
average fuel economy of the low volume manu-
facturer. In light of these considerations, the
agency has determined that the public interest in
energy' conservation, as well as the interest of the
low volume manufacturers, will be best served by
requiring petitions for exemption for model
years beyond 1980 to be filed not later than two
years before the beginning of the affected model
year.
Notwithstanding the foregoing, the agency has
determined to provide for situations where new
information obtained within two years of the
beginning of the affected model year can be
brought to the agency's attention, and possibly
modify the decision on a petition for an exemp-
tion. Therefore, section i525.11 of the final rule
allows a low volume manufacturer which has had
a petition denied to reapply, anytime before the
beginning of the affected model year, on the
basis of information that was unavailable despite
due diligence, at the time of the original applica-
tion. This change is intended to ensure that no
low volume manufacturer is deprived of an op-
portunity to make a complete showing of his
maximum feasible average fuel economy by the
requirement that petitions for exemptions for
model year beyond 1979 be filed not later than
two years before the beginning of the affected
model year.
EfFecHve: July 28, 1977
With respect to petitions for exemption foi-
model year 1978. the agency has decided to delete
the requirement that petitions be submitted not
later than three months before the beginning of
that model year. Under- the final i-ule, petitions
may be submitted at any time before the begin-
ning of the model year. This change was made
since less than three months i-emain befoi-e model
year 1978. The two low volume manufacturers
that have thus far indicated an interest in peti-
tioning for an exemption have previously been
advised tliat if they wish to submit petitions,
they could do so by following the format and
content requirements of the proposed rule.
The agency has made the following technical
and clarifying changes to the rule.
The phrase "content and format requirements
for petitions for exemptions" is substituted for
the term "guidelines" in section 525.2, to make
clear that the requirements of Part 525 are man-
datory and not merely advisory.
A new paragraph (b) is added to section
525.7, requiring petitioners to state whether the
petitioner controls, is controlled by, or is under
common control with another manufacturer of
passenger automobiles, and if so, to indicate the
number of passenger automobiles manufactured
by such other manufacturer in the second model
year immediately preceding the affected model
year. The agency interprets the term "control"
to include any stock ownership, credit relation-
ship or contractual arrangement which enables
one person, as a practical matter, to influence the
decisions of another person. Paragraphs (b)
through (g) are redesignated (c) through (h).
In addition, the paragraph that was 525.7(e)
in the NPRM is amended by substituting "40
CFR 600.506(a) (2)" for "40 CFR (a) (2)". This
amendment corrects a typographical error which
appeared in the NPRM and is not a substantive
change.
The subparagraph that appeared as 525.7(d)
(5) in the NPRM is amended to read "fuel
metering system, including the number of carbu-
retor barrels, if applicable". This change is not
substantive, but is made to make the subpara-
graph consistent with terminology in EPA regu-
lations in 40 CFR Part 600.
PART 525— PRE 5
EfFeclive: July 28, 1977
The subparagi'aph that appeared in the NPEM
as 525.7(g)(5) would have required petitioners
which are not considering means or strategies to
comply with applicable average fuel economy
standards for the affected model year to explain
their reasons for not doing so. This subparagraph
is amended to make it clear that the explanations
are to be comprehensive. As amended, the sub-
paragraph requires that the explanation include
discussion of weight reduction, straight-line ac-
celeration reduction, other technological changes
or improvements, and shifts in production mix.
This amendment will ensure that the agency re-
ceives economic and technological justification for
all major aspects of potential fuel economy im-
provement.
All references to "Part 522" are deleted. At
the time of the XPRM, the agency intended to
issue a procedural regulation. Part 522, that
would specify the informal rulemaking proce-
dures used by the agency in the fuel economy
area. The agency has since decided to continue
to use the procedures in 47 CFR 551-553.
#
In light of the foregoing. Title 49, Code of
Federal Regulations, is amended by adding a
new Part 525, Exemptions From Average Fuel
Ecanomy Standards. Because these rules are
procedural in nature, the agency has determined
that they shall become effective on the date of
publication in the Federal Register.
The program official and lawyer principally
responsible for the development of this regidation
are Douglas Pritchard and David Zisser, respec-
tively.
Issued on July 21, 1977.
Joan Claybrook
National Highway Traffic Safety
Administrator
42 F.R. 38374
July 28, 1977
#
t
PART 525— PRE 6
PREAMBLE TO AMENDMENTS TO PART 525-EXEMPTIONS FROM AVERAGE
FUEL ECONOMY STANDARDS
(Docket No. FE 76-04; Notice 4)
Action: Final rule.
Summary: This rule makes several amendments to
the requirements governing the contents of peti-
tions by manufacturers of fewer than 10,000
passenger automobiles annually for exemptions
from the generally applicable fuel economy
standards and in the procedures followed by the
National Highway Traffic Safety Administration
(NHTSA) in processing those petitions. These
amendments will require that petitions for exemp-
tion contain more information concerning the fuel
economy testing of the vehicles, but otherwise
simplify the general content requirements for
these petitions. In addition, the notice of receipt of
the petitions and the proposed decision on the peti-
tions will now be combined into one notice. These
changes will simplify and expedite the preparation
and processing of these petitions.
Effective date: This rule is effective with respect to
petitions for exemption for 1980 and subsequent
model years.
For further information contact:
William Devereaux, Office of Automotive Fuel
Economy Standards, National Highway
Traffic Safety Administration, Washington,
D.C. 20590 (202-755-9384).
Supplementary information:
Section 502(c) of the Motor Vehicle Information
and Cost Savings Act, as amended (the Act), pro-
vides that a low volume manufacturer of passenger
automobiles may be exempted from the generally
applicable average fuel economy standards for
passenger automobiles if those standards are more
stringent than the maximum feasible average fuel
economy for that manufacturer and if the NHTSA
establishes an alternative standard for the
manufacturer at its maximum feasible level. Under
the Act, a low volume manufacturer is one who
manufactures fewer than 10,000 passenger
automobiles in the model year for which the ex-
emption is sought (the affected model year) and
who manufactures fewer than 10,000 passenger
automobiles in the second model year preceding
the affected model year.
To implement section 502(c), NHTSA issued
Part 525, Exemptions From Average Fuel
Economy Standards. Part 525 prescribes the con-
tent of exemption petitions and sets forth the
agency procedures for processing those petitions.
In connection with the processing of petitions sub-
mitted by low manufacturers, several problems
with the process for handling exemption petitions
became apparent. The most obvious problems were
the amount of time needed to obtain a complete
petition from the petitioners and the amount of
time needed to publish a final decision on the peti-
tions. To reduce these problems, NHTSA pub-
lished a notice of proposed rulemaking to amend
Part 525 at 44 FR 21051; April 9, 1979.
Two comments were submitted in response to
this proposal. One comment addressed the issue of
the fuel economy improvements to be expected
from improved lubricants, but did not address any
of the issues raised in the notice. Accordingly, that
comment will not be discussed further in this
notice.
The other comment was submitted by Aston
Martin Lagonda, a low volume manufacturer.
Aston Martin suggested that the rule be amended
so that low volume manufacturers not be required
to submit petitions two years before the affected
model year. This suggestion has not been adopted.
For the same reasons set forth in the final rule
originally establishing Part 525 (42 FR 38374; July
28, 1977), NHTSA believes that retention of the
two year requirement is more consistent with the
energy conservation purposes of the Act. Early
PART 525-PRE 7
submission allows NHTSA to set standards at
levels that require maximum fuel economy
improvements by the exempted manufacturers.
The agency also believes that it is essential that
low volume manufacturers know the fuel economy
which they will have to meet as far in advance of
the affected model year as possible, so that the
manufacturers can make any necessary changes in
their product plans with a maximum of efficiency
and a minimum of expense and disruption.
Aston Martin went on to argue that it should not
be expected to make any significant alterations to
its vehicles. This does not relate to the issues
raised in the proposal, but on how NHTSA should
determine a manufacturer's maximum feasible
average fuel economy. As such, the comment is not
relevant to the issues raised in the notice.
Neither of these commenters responded to
NHTSA's request for comments as to means of
avoiding an annual submission and processing of
petitions for exemption, and the request for com-
ments on extending the duration of the exemption
from the current three year maximum to a longer
period. Since no commenter has raised any objec-
tion to the proposed amendments, they are being
adopted without change.
The agency has reviewed the impacts of this rule
and determined that they are minimal, and that the
rule is not a significant regulation with the mean-
ing of Executive Order 12044.
The program official and attorney principally
responsible for the development of this proposed
regulation are William Devereaux and Stephen
Kratzke, respectively.
In consideration of the foregoing, 49 CFR Part
525 is amended. . . .
Issued on September 19, 1979.
Joan Claybrook
Administrator
44 F.R. 55578
September 27, 1979
#
#
PART 525-PRE 8
PREAMBLE TO AN AMENDMENT TO PART 525— EXEMPTIONS FROM
AVERAGE FUEL ECONOMY STANDARDS
(Docket Nos. FE 76-04; Notice 5;
FE 77-03, Notice 4; 80-21, Notice 1)
ACTION: Final Rule.
SUMMARY: This notice makes conforming
amendments to several of the agency's regulations
deleting specific requirements for confidentiality
determinations. These conforming amendments
are needed as a result of the publication today of a
new agency regulation governing requests for con-
fidentiality determinations (Part 512). Since that
new regulation supercedes the confidentiality pro-
visions existing in several of the agency's other
regulations, these conforming amendments are
being made without notice and opportunity for
comment.
EFFECTIVE DATE:
tive April 9, 1981.
These amendments are effec-
f
FOR FURTHER INFORMATION CONTACT:
Roger Tilton, Office of Chief Counsel,
National Highway Traffic Safety Adminis-
tration, 400 Seventh Street, S.W.,
Washington, D.C. 20590 (202-426-9511).
SUPPLEMENTARY INFORMATION: In accordance
with the above, Title 49 of the Code of Federal
Regulations is amended as follows.
Part 525, Exemptions From Average Fuel
Economy Standards, is revised as follows:
(1) Section 525.6(g) (1) and (2) are deleted and
replaced with the following:
(g) Specify and segregate any part of the infor-
mation and data submitted under this part that the
petitioner wishes to have withheld from public
disclosure in accordance with Part 512 of this
Chapter.
(2) Section 525.13 is deleted and section
525.12 is revised to read:
§ 525.12 Public inspection of information.
(a) Except as provided in paragraph (b), any per-
son 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 in-
terested persons, and the notices regarding the
petition, in the Docket Section of the National
Highway Traffic Safety Administration. Any per-
son 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 infor-
mation authorized by section 505 of the Act and
Part 512 of this Chapter, information made
available for public inspection does not include in-
formation 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 United States Code.
Part 537, Automotive Fuel Economy Reports, is
revised as follows:
(1) Section 537.5(c) (7) (i) and (ii) are deleted
and replaced with the following:
(7) 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 infor-
mation in accordance with Part 512 of this
Chapter.
(2) Section 537.12 is deleted and section
537.11 is revised to read:
§ 537.11 Public Inspection of Information.
(a) Except as provided in paragraph (b), any per-
son may inspect the information and data submit-
PART 525; PRE 9
ted by a manufacturer under this part in the docket
section of the National Highway Traffic Safety Ad-
ministration. Any person may obtain copies of the
information available for inspection under this sec-
tion in accordance with the regulations of the
Secretary of Transportation in Part 7 of this title.
(b) Except for the release of confidential infor-
mation authorized by section 505 of the Act and
Part 512 of this Chapter, information made
available under paragraph (a) for public inspection
does not include information for which confiden-
tiality is requested under § 537.5(c) (7) and is
granted in accordance with Part 512 of this
Chapter, section 505 of the Act, and section 552(b)
of Title 5 of the United States Code.
Part 555, Temporary Exemption From Motor
Vehicle Safety Standards, is revised as follows:
(1) Section 555.5(b) (6) is revised to read:
(6) Specify any part of the information and
data submitted which petitioner requests be
withheld from public disclosure in accordance
with Part 512 of this Chapter.
(2) Section 555.10(b) is revised to read:
(b) Except for the release of confidential infor-
mation authorized by Part 512 of this Chapter, in-
formation made available for inspection under
paragraph (a) shall not include materials not rele-
vant to the petition for which confidentiality is re-
quested and granted in accordance with sections
112, 113, and 158 of the Act (15 U.S.C. 1401, 1402,
and 1418) and section 552(b) of Title 5 of the
United States Code.
Issued on December 30, 1980.
Joan Claybrook
Administrator
1
46 F.R. 2063
January 8, 1981
#
PART 525; PRE 10
PART 525-EXEMPTIONS FROM AVERAGE FUEL ECONOMY STANDARDS
Sec.
525.1
525.2
525.3
525.4
525.6
525.7
525.8
525.9
525.10
525.11
525.12
525.13
Scope.
Purpose.
Applicability.
Definitions.
Requirements for petition.
Basis for petition.
Processing of petitions.
Duration of exemption.
Renewal of exemption.
Termination of exemption; amendment
of alternative average fuel economy
standard.
Public inspection of information.
Confidential information.
i
§ 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 manufac-
turers of passenger automobiles which desire to
petition the Administrator for exemption from ap-
plicable average fuel economy standards and for
establishment of appropriate alternative average
fuel economy standards and to give interested per-
sons 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
523 to be an automobile.
(4) The term "passenger automobile" means
an automobile determined by the Administrator
under 49 CFR 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 terms "base level" and "vehicle con-
figuration" 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;
PART 525-1
"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 revolu-
tions 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, D.C. 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 alter-
native 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 infor-
mation and data submitted under this part that the
petitioner wishes to have withheld from public
disclosure in accordance with Part 512 of this
Chapter. (46 PR 2063-January 8, 1981. Effective:
April 9, 1981)1
§ 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
manufacutured 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 demon-
strating 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 manufac-
tured 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 wit 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 configura-
tion of the petitioner's passenger automobiles to be
manufactured in that affected model year:
(1) Frontal area;
(2) Vehicle curb weight;
(3) Number of designated seating positions
and interior volume index;
(4) Basic engine, displacement, and SAE net
horsepower;
(5) Fuel metering system, including the
number of carburetor barrels, if applicable;
(6) Drive train configuration and total drive
ratio; and
(7) Emission control system;
(Rev. 1/9/81)
PART 525-2
(8) Dynamometer road load setting, deter-
mined 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, differen-
tial, 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 (aX2), 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 com-
parable 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 peti-
tioner's past and planned efforts to implement the
means described under paragraph (hXl) 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 peti-
tioner'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 infor-
mation required by this Part, the petitioner is
informed about the areas of insufficiency and
advised that the petition will not receive further
consideration until the required information is sub-
mitted.
(b) The Administrator may request the peti-
tioner to provide information in addition to that re-
quired by this Part.
(c) The Administrator publishes a proposed deci-
sion in the Federal Register. The proposed decision
indicates the proposed grant of the petition and
establishment of an alternative average fuel
economy standard, or the proposed denial of the
petition, specifies the reasons for the proposal and
invites written public comment on the proposal.
(d) Any interested person may, upon written re-
quest to the Administrator not later than 15 days
after the publication of a notice under paragraph
(c) of this section, meet informally with an ap-
propriate 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 Federal Register.
The final decision is based on the petition, written
public comments, and other available information.
PART 525-3
The final decision sets forth the grant of the ex-
emption and establishes an alternative average
fuel economy standard or the denial of the petition,
and the reasons for the decision.
§ 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
Administration 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.
1(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 in-
terested persons, and the notices regarding the
petition, in the Docket Section of the National
Highway Traffic Safety Administration. Any per-
son 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 infor-
mation authorized by section 505 of the Act and
Part 512 of this Chapter, information made
available for public information does not include in-
formation 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 United States Code.
(46 FR 2063-January 9, 1981. Effective: April 9,
1981)1
§525.13 [Deleted]
42 F.R. 38374
July 28, 1977
(Rev. 1/9/81)
PART 525-4
PREAMBLE TO AN AMENDMENT TO PART 526 and 533
Petitions Under the Automobile Fuel Efficiency Act of 1980;
Procedures Relating to Light Truck Fuel Economy Standards
(Docket No. 82-01; Notice 1)
ACTION: Interim final rule.
SUMMARY: The notice establishes requirements for
the contents of petitions filed under Automobile Fuel
Efficiency Act of 1980 ("the 1980 Act"). The 1980
Act authorizes the granting of relief from certain
requirements related to the automobile fuel economy
standards established under Title V of the Motor
Vehicle Information and Cost Savings Act ("the Cost
Savings Act"). This notice is being issued to inform
manufacturers about types of information which
must be submitted in support of the various types of
relief petitions and plans. This notice also explains
the flexibility of manufacturers in determining how to
group their vehicles for the purposes of compliance
with the MY 1982 light truck fuel economy standards.
EFFECTIVE DATE: February 18, 1982.
SUPPLEMENTARY INFORMATION:
The Automobile Fuel Efficiency Act of the 1980 (94
Stat. 1821) amended the fuel economy provisions of
the Motor Vehicle Information and Cost Savings Act
to assist the automobile manufacturers in complying
with fuel economy standards and to promote
employment in the U.S. automotive industry. To
obtain this relief, the 1980 Act requires manu-
facturers first to file petitions or plans with the
agency and make certain specified showings. This
notice establishes an interim final regulation
concerning the specific information which manu-
facturers must submit in their petitions and plans.
This notice addresses four different types of relief
authorized under the 1980 Act. The agency has
previously issued a rule under the 1980 Act relating
to the availability of monetary credits for exceeding
the light truck average fuel economy standards. See
45 FR 83233, December 19, 1980, and section 6(b) of
the 1980 Act.
The first set of requirements established in this
notice applies to the exemption provided by section
4(a) of the 1980 Act from the domestic content
requirement in section 503 of the Cost Savings Act.
The requirement specifies that if at least 75 percent
of the cost to the manufacturer of an automobile is
attributable to value added in the United States or
Canada, the automobile is considered domestically-
manufactured. If the percentage is below that level,
the automobile is considered to be foreign-
manufactured. See section 503(bX2XE). Under that
requirement, if a manufacturer produces cars both in
this country and abroad for sale in this country and it
raises the domestic content of the cars produced in
this country above 75 percent, it must ensure that its
domestically-produced cars and its foreign-produced
cars separately meet the fuel economy standards.
Thus, the manufacturer could not average high fuel
economy imported cars with lower fuel economy
domestically-manufactured cars as a strategy for
complying with the fuel economy standards.
The domestic content provision was originally
included in the Cost Savings Act to promote
employment in the U.S. automobile industry by
encouraging manufacturers to produce high fuel
economy vehicles in this country, instead of relying
on the importation of high fuel economy cars which
they produce or purchase abroad. However, the
requirement for separate compliance has had the
opposite effect on U.S. employment in its application
to foreign manufacturers. Foreign manufacturers
which seek or might seek to produce high fuel
economy cars in the U.S. are penalized under the
original domestic content provision. If they produce
their high fuel economy cars in the country and
PART 526-PRE 1
eventually exceed 75 percent domestic content, they
would lower the average fuel economy of their
remaining foreign-produced fleet. As a result, a
manufacturer's foreign fleet might not comply with
the fuel economy standards, although its combined
foreign and domestic fleet would probably exceed the
standard substantially.
To reduce this disincentive for foreign manu-
facturers to initiate production in this country and to
achieve high levels of domestic content. Congress
amended section 503(b) of the Cost Savings Act by
adding a new subsection (3). Under that provision, a
manufacturer which completes its first model year of
domestic production of automobiles between 1975
and 1985 may petition the agency for exemption from
the requirement for separate compliance so that it
does not apply when the domestic content of the U.S.
produced fleet exceeds 75 percent. Section 503 (bX3)
requires that the agency grant such a petition unless
it finds that doing so would "result in reduced
employment in the United States related to motor
vehicle manufacturing." Employment reductions
could occur if, for example, granting the petition
resulted in the petitioner's capturing increased sales
from current U.S. manufacturers whose vehicles
have a higher domestic content. The agency has
already granted a petition under this provision to
Volkswagen of America. (See 46 FR 54453;
November 2, 1981.) It appears that in most instances,
increasing U.S. content for one company should
produce net increases in overall U.S. employment.
To determine whether to grant a petition filed
under this provision, the agency needs information on
the magnitude of these possible adverse employment
effects, if any. The agency would also need to know
the magnitude of the positive employment effects
resulting from the decision to begin domestic
production or increase domestic content. Therefore,
the regulations or petitions and plans for relief set
forth below specifies that a petitioning manufacturer
submit information describing insofar as possible the
vehicles it plans to sell in the United States during the
exemption period, the projected sales of those
vehicles, the domestic content of those vehicles and
plans for obtaining components from domestic
sources. Information is also required on the extent, if
any, to which additional sales of the petitioner's
vehicles are expected to be gained at the expense of
current U.S. manufacturers, and the net employment
impact of the shift in sales. The petitioner must also
submit data on the yearly total employment related to
its U.S. production operations to give an overview of
the positive impact of granting petition. Finally,
information is required on the extent to which the
petitioner's product plan and component sourcing
decisions would be affected by the agency's granting
or denial of the petition.
The second relief provision added by the 1980 Act is
intended to encourage manufacturers to transfer
production of a foreign-produced vehicle to this
country. Section 503(b)(4) of the Coast Savings Act
authorizes a temporary exemption from the domestic
content requirement in section 503. Under that
requirement, an automobile whose domestic content
is less than 75 percent must be treated as a foreign-
produced automobile. This poses a problem
particularly if a manufacturer wishes to transfer
production of a high fuel economy car and average it
with its domestic fleet. The exemption is available to
any manufacturer which plans to phase-in domestic
production of a new vehicle by gradually increasing
its domestic content to 75 percent. A manufacturer
which satisfies the satutory requirements is
permitted to include up to 150,000 automobiles in its
domestic fleet if the automobiles have at least 50
percent domestic content initially and if the
manufacturer submits and the agency approves a
plan for achieving 75 percent domestic content by the
fourth year of the exemption.
In considering whether to approve a plan under this
provision, the agency must determine whether the
plan is adequate. To verify achievement of the 50 and
75 percent domestic content levels, the regulation
specifies that information must be provided on the
total manufacturing costs of the vehicles whose
production is to be transferred to this country. In
addition, information is required on the changes in
domestic content of the vehicles to be produced in this
country during each of the four years covered by the
plan, including information on the timing and nature
of the change.
The third relief provision relates to compliance with
fuel economy standards for 4-wheel drive light
trucks. This provision, which was added by the 1980
Act to the Coast Savings Act as section 502(k),
authorizes the agency to adjust the manner in which
average fuel economy is calculated for a petitioner's
4-wheel drive light truck fleet or to provide other
relief with respect to a fuel economy standard for
4-wheel light trucks. To obtain this relief, the
petitioner must show that it would be unable to
comply with such a standard "without causing service
economic impacts such as plant closings or reduction
PART 526-PRE 2
in employment in the United States related to motor
vehicle manufacturing." (Section 502(k)).
To enable the agency to assess the impacts on a
petitioning manufacturer of compliance with a fuel
economy standard for 4-wheel drive light trucks, the
regulation requires that information be submitted on
the changes planned by the manufacturer to achieve
compliance and the cost and fuel economy impacts of
each of those changes. The manufacturer must also
identify the particular compliance steps which the
manufacturer believes would cause "severe economic
impacts" and the nature of those impacts. This
information will permit the agency to determine what
level of rule economy the petitioner is capable of
achieving without experiencing "severe economic
impacts."
Information must also be submitted on monetary
credits likely to be earned in the three model years
preceding and the three model years following model
year for which relief is sought. This information will
permit the agency to assess the effect of available
credits on the need for relief. Credits are earned at the
rate of five dollars per vehicle for each tenth of a mile
per gallon by which a manufacturer's fleet exeeds a
average fuel economy standard. Earned credits may
be used to offset civil penalties (accrued at the same
rate) for the manufacturer's falling below a standard in
one or more of the three model years before or after
the model year in which the credit was earned.
Finally, the petitioner must specify the precise type
and extent of relief being sought.
The final relief provision is section 502(1) of the
Cost Savings Act which was added by section 6(b) of
the 1980 Act. Section 502(1) authorizes a
manufacturer which expects to fail to meet a fuel
economy standard in a particular model year to file a
plan with NHTSA regarding the prospects for
earning credits in the next three model years. The
plan must set forth the individual actions comprising
the plan and the schedule for accomplishing those
actions. If NHTSA approves the plan, the credits are
available immediately to offset the civil penalty for
the model year in which the manufacturer failed to
meet the standard. The benefit of having such a plan
approved is that the manufacturer can avoid ever
being deemed to have violated the fuel economy
standard for the model year if it actually earns the
projected credits. If such a manufacturer does not
obtain the agency's approval for a plan under section
502(1), the manufacturer may have to pay the civil
penalty and then seek a refund if credits are
subsequently earned.
Section 502(1) directs the agency to approve any
plan submitted by a manufacturer under that section
unless the agency determines that "it is unlikely that
the plan will result in the manufacturer earning
sufficient credits" to offset the civil penalty. The
agency might make such a finding if either the
technological or other steps planned by the
manufacturer will fail to produce the levels of
average fuel economy necessary to earn the credits.
Therefore, the regulation specifies that the manu-
facturer must submit information demonstrating the
feasibility of its plan. Among types of required
information are descriptions of planned product
actions which will affect fuel economy (e.g., the
introduction of a new model), and the effect of that
product action on the manufacturer's average fuel
economy.
In addition to establishing a regulation regarding
certain types of submissions under provisions added
to the Cost Savings Act by the 1980 Act, this notice
also adopts a simple change relating to how light
trucks are grouped for purposes of compliance with
the light truck fuel economy standards for model year
1982. The change would give manufacturers the same
latitude in grouping their light trucks in the model
year the they presently have for model years
1983-1985. On December 31, 1979, the NHTSA
published a proposal to establish separate standards
for 2-wheel drive and 4-wheel drive light trucks for
model years 1982-1985. Due to a statutory deadline
for issuing the model year 1982 standards, the agency
published them on March 31, 1980. The standards
were 16 miles per gallon for 4-wheel drive light trucks
and 18 miles per gallon for 2-wheel drive light trucks.
The NHTSA then sought further comment on the
model year 1983-1985 standards and expressly
focused public attention on the concept of a combined
standard. Whe the agency published its decision on
December 11, 1980, it provided manufacturers with
an option of complying with separate standards or a
single combined standard. The NHTSA did not,
however, then go back and provide the same option
for model year 1982.
Over the past year, the agency has been reviewing
its existing procedures and regulations pursuant to
E.O. 12291 to determine the need for any
amendments to eliminate ineffective or unnecessarily
burdensome or inflexible regulations. However, it
was only in December that the agency received
informaton indicating the value of increasing the
flexibility of the manufacturers in grouping their light
trucks for compliance purposes. In that month, the
PART 526-PRE 3
manufacturers submitted their semi-annual fuel
economy reports required by 49 CFR 537. The
agency's analysis of the information in those reports
revealed for the first time the value of giving
manufacturers the same flexibility in grouping their
light trucks for model year 1982 as they already have
for model years 1983-1985. By placing all of its light
trucks in a single group, a manufacturer has greater
freedom to choose how it allocates its efforts to
improve fuel economy between technology changes
and sales mix changes.
Accordingly, the agency has decided to provide
manufacturers with the option of complying with a
single, combined standard, in terms of required fuel
savings, the separate standards of 16 and 18 miles per
gallon are essentialy the equivalent of a single
standard of 17.5 miles per gallon for all light trucks
together. The single standard has therefore been set
at the level. The figure of 17.5 was calculated by
harmonically weighting the separate standards based
on the 75 percent/25 percent sales mix of 2-wheel
drive light trucks and 4-wheel drive light trucks used
in the 1983-1985 proceeding. This notice adopts that
combined standard of 17.5 miles per gallon. As noted
above, this action makes no change in the level of fuel
economy required of manufacturers, but does allow a
manufacturer the choice of placing all of its 2-wheel
drive and 4-wheel drive light trucks together in a
single group or maintaining two separate groups for
compliance purposes. It also provides an additional
method of compliance, i.e., selling larger numbers of
the higher fuel economy 2-wheel driven light trucks.
The actions taken by this notice are being issued as
an interim final rule because they are essentially
procedural and therefore notice and opportunity for
comment is not required by the Administration
Procedures Act. Neverless, the agency is providing
an opportunity to comment. Appropriate changes
warranted by the comments will be incorporated in
the permanent final rules.
The agency also notes and expressly finds there is
good cause for proceeding directly to an interim final
rule. As noted above, the need for their amendment
was identified by the agency as a result of its
evaluation of the recently submitted pre-model year
fuel economy reports. Those reports were submitted
to the agency last month. If manufacturers are to
have a meaningful opportunitiy to take advantange of
the change, it must be adopted now. Typical
production runs for 1982 light trucks of major
domestic manufactuers end in June 1982. That is only
about four months away. If the rule were not adopted
and made effective until after a comment period and
the issuance of another Federal Register, little or no
time would remain for the manufacturers to take
advantage of the additional flexibility being provided
through the combined standard. Extensive comment
has already been solicited and obtained on the
concept of an optional combined standard for the
immediately following model years. Applying the
concepts to model year 1982 does not appear to raise
any issues not considered in the rulemaking. For
these reasons and because this amendment relieves a
restriction, the agency finds good cause also for
making the amendment effective upon publication in
the Federal Register.
The petitions and plans regulation also is being
made effective immediately. The agency finds good
cause for doing so since it will facilitate the
submission of any requests for relief.
For the reasons set forth in the preamble, Chapter
V of Title 49, Code of Federal Regulation, is amended
as set forth below.
Issued on February 11, 1982.
(#
Raymond A. Peck, Jr.,
Administrator
33 F.R. 7245
February 18, 1982
PART 526-PRE 4
PREAMBLE TO AN AMENDMENT TO PART 526 and 533
Petitions Under the Automobile Fuel Efficiency Act of 1980;
Procedures Relating to Light Truck Fuel Economy Standards
(Docket No. 82-01; Notice 2)
ACTION: Final rule.
SUMMARY: This notice issues in final form certain
fuel economy procedural rules which were initially
implemented on an interim basis. Most of the
procedures relate to provisions in the Automobile
Fuel Efficiency Act of 1980 for granting relief to
manufacturers from automobile fuel efficiency
requirements. The balance relate to compliance with
light truck fuel economy standards. Since no
comments were received on the interim procedures,
this notice establishes final procedures identical to
the interim ones.
EFFECTIVE DATE: July 29, 1982.
SUPPLEMENTARY INFORMATION:
The Automobile Fuel Efficiency Act of the 1980 (94
Stat. 1821) amended the fuel economy provisions of
the Motor Vehicle Information and Cost Savings Act
to assist the automobile manufacturers in complying
with fuel economy standards and to promote
emplojmnent in the U.S. automotive industry. To
obtain this relief, the 1980 Act requires manu-
facturers first to file petitions or plans with the
agency and make certain specified showings. On
February 18, 1982, the agency published interim
procedures on the required contents of these petitions
and invited comment on those procedures. See 47 FR
7245. That notice also specified an optional procedure
for complying with 1982 light truck standards. Since
no comments were received on the interim pro-
cedures during the established public comment
period, the agency is now adopting those procedures
in final form without change.
Two of the petition procedures in the interim rules
relate to fuel economy domestic content require-
ments. The Cost Savings Act specifies that, in
general, each manufacturer's domestically manu-
factured (i.e., those with at least 75 percent U.S. or
Canadian content) and imported automobiles must
comply separately with average fuel economy
standards. This provision was originally enacted to
discourage domestic auto manufacturers from merely
importing increasing numbers of fuel efficient,
foreign produced vehicles to comply with standards,
thereby adversely affecting U.S. employment.
However, the original provision could, in certain
situations, penalize manufacturers which intended to
transfer production of a foreign automobile to the
United States or, in the case of a foreign
manufacturer, to begin U.S. production of an existing
model. Therefore, Congress enacted the previously
mentioned two exemption provisions.
The first provision applies to foreign manufacturers
which begin U.S. production. Such manufacturers
may be exempted from domestic content require-
ments if they submit, and NHTSA approves, a
petition demonstrating that granting the requested
relief would not adversely affect employment in the
U.S. automobile industry. The second provision
applies to the situation where a manufacturer
transfers a foreign produced automobile to U.S.
production. To obtain exemption from domestic
content requirements under that provision, a
petitioner must show (among other things) that it will
achieve at least 75 percent U.S. content with the
transferred automobiles by the fourth model year
after U.S. assembly begins. The interim procedures
specify the required contents for both types of
petitions.
The 1980 Act also authorized special relief for
manufacturers which plan to exceed fuel economy
standards for a year prior to that future one. Under
the current statutory scheme, manufacturers earn
credits for any model year in which they exceed a fuel
economy standard. These credits may be used to
offset civil penalties which would otherwise be
assessed for falling short of a standard in any of the
three prior or subsequent model years. The 1980 Act
PART 526-PRE 5
authorized these credits to be available in advance
where a manufacturer submits and the agency
approves a plan for earning the necessary credits in
the future. Approval of such a plan eliminates the
need for manufacturers to pay civil penalties and
subsequently apply for a refund when credits are
earned, and also eliminates any stigma associated
with being in violation of a standard.
The fourth provision of the 1980 Act authorizes
special relief for manufacturers which are unable to
comply with one or more of the four-wheel drive light
truck fuel economy standards in model years 1982-85.
Such manufacturers may petition the agency to
adjust the manner in which average fuel economy is
calculated for these truck. The 1980 Act requires
petitioning manufacturers to submit information on
their abilities to comply with the standard and the
economic consequences of their efforts to comply.
The final provision in the interim rule permitted
manufacturers to combine their two-wheel drive and
four-wheel drive light truck fleets in order to comply
with the 1982 model year fuel economy requirements
for light trucks. When those requirements were
originally established, 1982 model year light trucks
were required to comply with separate two-wheel
drive and four-wheel drive standards. Manufacturers'
fleets of two-wheel drive trucks were required to
comply with a standard of 18 miles per gallon, while
the average fuel economy of each company's four-
wheel drive trucks was required to be at least 16 miles
per gallon. When standards were later established for
the 1983-85 model years, the agency set separate
standards for each of these classes of trucks.
However, it also set an optional combined standard
for each manufacturer's entire light truck fleet. The
combined standard was intended to achieve
essentially the same overall fuel efficiency
improvement as the separate standards, while giving
manufacturers the flexibility of making greater
improvements to one class or the other. When the
1983-85 standards were established, the agency did
not make corresponding changes to the 1982
standards by adding a separate combined standard
option for that year. However, that conforming
change was made in the February 18 interim pro-
cediu-es, by establishing a 17.5 mile per gallon
optional combined standard.
Further information on the final procedures can be
fovmd at 47 FR 7245 with the actual text of the
procedures appearing at 47 FR 7248-50.
Since this notice makes final existing procedures, it
is effecive immediately
For the reasons set forth in the preamble, the
agency adopts as final the amendments made to
Chapter V of Title 49 , Code of Federal Regulation, in
47 FR 7248-50.
List of Subjects in 49 CFR Parts 526 and 533
Energy conservation
Gasoline
Imports
Motor vehciles
National Highway Traffic Safety Administration
Sec. 9, Pub. L. 89-670, 80 Stat. 931 (49 U.S.C.
1657); sec. 301, Pub. L. 94-163, 89 Stat. 901 (15
U.S.C. 2002 and 2003); delegation of authority at 49
CFR 1.50.)
Issued on July 2, 1982.
Raymond A. Peck, Jr.,
Administrator
47 F.R. 32721
July 29, 1982
PART 526-PRE 6
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 peti-
tions 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
imder the Automobile Fuel Efficiency Act of 1980
must be addressed to the Administrator, National
Highway Traffic Safety Administration, 400 Seventh
Street, S.W., Washington D.C. 20590.
(c) Authority and scope of relief. Each petition or
plan must specify the specific provision of the 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 4(a) of the Act
must contain the following information:
(a) For each model type (as defined by the En-
vironmental 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 cur-
rent product plan and the assumption that the peti-
tion 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 at-
tributable 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. manufac-
turers the petition must provide an estimate of the
employment impact on those manufacturers of the
lost sales and the gain in employment for the peti-
tioner 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 foreign to
U.S. production.
Each plan submitted under section 4(b) of the
Automotive Fuel Efficiency Act of 1980 must contain
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 vehi-
cle for the model type;
(4) The precentage 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 in-
dividual 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.
PART 526-1
§ 526.4 Adjustment of fuel economy standards for
4-wheel drive light trucks.
Each petition submitted under section 5 of the
Automobile Fuel Efficiency Act of 1980 must contain
the following information:
(a) For each configuration (as defined by the
Environmental Protection Agency in 40 CFR Part
600) of 4-wheel drive light trucks to be manufactured
by the petitioner and for each model year from the
year in which the petition is filed to the year for which
relief is sought:
(1) Model designation and type (e.g., K-15 pickup);
(2) Test weight;
(3) Gross vehicle weight rating;
(4) Engine displacement, cylinder configuration
and engine type;
(5) Transmission type;
(6) Fuel economy;
(7) Projected sales;
(8) Rear axle ratio; and
(9) N/V ratio.
(b) A list and full description of each planned
product action (e.g., new transmission, addition of
improved tires) which will affect the average fuel
economy of the petitioner's 4-wheel drive light trucks
beginning with the current model year and ending
with the model year for which relief is sought.
(c) An indication of which configurations specified
under paragraph (a) of this section are affected by
each product action specified under paragraph (b) of
this section.
(d) The fuel economy effect of each product action
specified under paragraph (b) of this section per
affected vehicle.
(e) The petitioner's actual or projected average fuel
economy for 4-wheel drive light trucks subject to fuel
economy standards for the model year for which
relief is sought, the three preceding model years and
the three following model years. For model years
1979 and 1982-85, also provide actual or projected
fuel economies for the combined fleet of 2-wheel drive
and 4-wheel drive light trucks, and the number of
vehicles in the combined fleet. For those same five
model years, provide the number of the vehicles in the
combined fleet which are subject to a fuel economy
standard for 4-wheel drive light trucks.
(f) The actions which the petitioner would
undertake to comply with the fuel economy standard
for 4-wheel drive light trucks in the model year for
which relief is sought and which the petitioner
believes would result in severe economic impacts.
(g) The economic effects (such as reduction in
employment or plant closings) which would result
from undertaking the actions specified under
paragraph (f) of this section. Provide information to
support the conclusion that these impacts would
result from attempted compliance. If reductions in
employment or plant closings are projected, identify
the plants which may be affected and the number of
employees at each plant which are involved in the
production of 4-wheel drive light trucks.
§ 526.5 Earning offsetting monetary credits in
future model years.
Each plan submitted under section 6(b) of the
Automobile Fuel Efficiency Act of 1980 must contain
the following information:
(a) Projected average fuel economy and production
levels for the class of automobOes 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. For light truck credit transfers
which may occur between different classes of light
trucks, provide the information specified in
§ 526.4(e).
(b) A list and full description of each planned
product action (e.g., new model, mix change) which
will effect 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.
47 F.R. 32721
July 29, 1982
^
PART 526-2
PREAMBLE TO PART 527— REDUCTION OF PASSENGER AUTOMOBILE
AVERAGE FUEL ECONOMY STANDARDS
(Docket No. FE 76-2; Notice 2)
ACTION: Final rule.
SUMMARY: This regulation prescribes require-
ments for the contents and processing of petitions
by passenger automobile manufacturers to reduce
the average fuel economy standards applicable to
passenger automobiles produced in model years
1978, 1979, and 1980 to compensate for any adverse
fuel economy impact of more stringent Federal
motor vehicle emission, safety, noise, or
damageability standards in those years. Such
requirements and reductions are authorized by the
Motor Vehicle Information and Cost Savings Act.
This regulation is intended to provide notice to
passenger automobile manufacturers of the pro-
cedures to be followed in processing those petitions.
EFFECTIVE DATE: November 14, 1977.
FOR FURTHER INFORMATION CONTACT:
Mr. Theodore Bayler,
Office of Automotive Fuel Economy, (NFE-01),
National Highway Traffic Safety
Administration, 400 Seventh Street, S.W.,
Washington, D.C. 20590, 202-755-9384.
SUPPLEMENTARY INFORMATION:
I. Background Information
Title V of the Motor Vehicle Information and Cost
Savings Act, as amended (hereafter, "the Act"),
establishes average fuel economy standards ap-
plicable to manufacturers of passenger automobiles.
The term "passenger automobiles" generally in-
cludes four-wheeled vehicles manufactured primar-
ily for on-road use and for the transportation of ten
or fewer passengers, e.g., sedans and station
wagons. See 15 U.S.C. 2001(1) and (2) and 41 F.R.
55368. Compliance of a manufacturer with these
standards is to be determined by averaging the fuel
economy ratings of the various types of passenger
automobiles manufactured by the manufacturer in a
model year and comparing that number to the fuel
economy standard. The Act specifies fuel economy
standards of 18, 19, 20, and 27.5 miles per gallon for
model years 1978, 1979, 1980, and 1985, respec-
tively. Fuel economy standards for model years
1981-84 have been established administratively at
22 mpg for 1981, 24 mpg for 1982, 26 mpg for 1983,
and 27 mpg for 1984. Fuel economy values for the
various types of passenger automobiles are deter-
mined in accordance with procedures established by
the Environmental Protection Agency. See 40 CFR
Part 600.
The fuel economy achievable by a particular
passenger automobile may be adversely affected by
the technology adopted by the manufacturer in
order to comply with Federal motor vehicle emis-
sion, safety, noise, and damageability standards
(hereafter called "nonfuel economy standards") re-
quirements. The fuel economy standards for model
years 1978-80 were estabhshed at levels which took
into account the effects of the nonfuel economy
standards in effect in 1975. However, in order to
compensate for possible increases in the stringency
of the nonfuel economy standards and for any cor-
responding fuel economy impacts, an additional pro-
vision was included in the Act. Under Section 502(d)
of the Act, a manufacturer can petition for an ad-
justment of a fuel economy standard (called a
"Federal standards fuel economy reduction") due to
the impacts of these more stringent nonfuel
economy standards. The Act gives the Department
authority to publish regulations specifying the re-
quired content of these petitions; the regulations
published herein are based upon this authority.
These regulations were published in proposed
form on October 26, 1976. See 41 F.R. 46878. A
comment period of 60 days was established. A
docket was established for this rulemaking pro-
ceeding in the Department's headquarters offices in
Washington, D.C. Four domestic automobile com-
panies, two federal agencies, one manufacturer of
gasoline additives, one newspaper publishing
association, one "public interest" group, and three
PART 527-PRE-l
private individuals submitted written comments on
the proposal. All written comments, together with
certain other related material such as an economic
impact assessment were placed in the docket and
made available for public inspection. Finally,
copies of this notice were circulated to various
Federal agencies for their comment and review.
All of the various submissions, discussions referred
to above, and other available information were
considered in developing the final regulations pro-
mulgated herein.
Section 502(g) of the Act requires that petitions
for reduction be processed according to standard
informal rulemaking procedures, except for the
mandatory additional opportunity for oral presen-
tations. The Act also authorizes the consolidation
of petitions by more than one automobile manufac-
turer, to permit the conduct of a single proceeding
for all. See section 502(d) (4). As noted in the
preamble to the October 26 notice, NHTSA intends
to exercise this consolidation authority to the max-
imum extent possible, consistent with the other re-
quirements of the Act and the commonality of
issues raised by various petitioners. See 41 F.R.
46884. This will reduce the administrative burden
of processing petitions and will facilitate participa-
tion in the proceeding by less affluent individuals
and organizations, who might be unable to par-
ticipate in a series of completely separate pro-
ceedings.
These regulations require a manufacturer apply-
ing for a reduction to submit information on two
sets of passenger automobiles for the purpose of
calculating a reduction. The first set is the actual
set of passenger automobiles which the manufac-
turer plans to produce in the model year for which
the reduction is requested (hereafter called the "af-
fected model year"). The second set is the
hypothetical set of passenger automobiles which
the manufacturer would have produced had
1975-level standards in those nonfuel economy
categories for which a reduction is sought (e.g.,
emissions and damageability) still been in effect.
For each of these sets, information is requested on,
among other things, the distribution of vehicles
among the various vehicle categories expected to
be produced (called the "production mix"), the fuel
economy-related technology used in the vehicles,
and any available technology not used but which
would have reduced any loss of fuel economy and
improved the resulting vehicle fuel economy. From
all this information, the average fuel economy of
the two sets of vehicles can be calculated, and the
difference between the two averages gives an in-
dication of the fuel economy penalty associated
with the nonfuel economy standards. The required
information would also enable NHTSA to assure
that the manufacturer has used all available means
for complying with the nonfuel economy standards
so as to minimize or avoid entirely any reduction of
the fuel economy of its passenger automobiles. If a
manufacturer sustains its burden of demonstrating
that a reduction is warranted under the statute
and the regulations, the fuel economy standard ap-
plicable to that manufacturer for the affected
model year is reduced in accordance with Section
502(d) of the Act.
A more detailed description of this rule and
related statutory requirements can be foimd in the
Notice of Proposed Rulemaking published in 41
F.R. 46878 on October 26, 1976. ;,
II. Principal Changes In the Rule
As a result of the public comments and NHTSA's
further analysis, several changes were made to the
rule as proposed. Under the final rule, NHTSA will
grant confidential treatment to any portion of a
reduction petition only in the most exceptional cir-
cumstances. Based on comments expressly solic-
ited in the NPRM, the procedure for calculating a
reduction was revised to take into account the
possible interaction of efforts to comply with more
than one category of Federal standards. In addi-
tion, the format for submitting information on
each of a petitioner's vehicle configurations was
revised to make data submission less biu-densome.
The final rule revises the methodology for ad-
justing a petitioner's production mix when none of
the petitioner's passenger automobiles has a fuel
economy rating that equals or exceeds the fuel
economy standard. Also, several revisions to the
proposed procedures for holding hearings on peti-
tions were adopted. Each of these changes, as well
as requested changes that were not adopted, are
discussed in greater detail below.
III. Comments Received and the Final
Version of the Regulation
A. Required Contents of Petitions
Several commenters raised questions with
respect to the quantity of data and level of detail
required in petitions. The NPRM suggested that
the submission of particular items of data and in-
PART 527-PRE-2
formation would not be required, but that the peti-
tioner would be required to make various specified
showings by whatever means it deemed best. If the
means chosen by a manufacturer were inadequate,
its petition would be denied. The Administrator
retained the authority to require additional
supporting information at any time prior to a final
decision, however, and to suspend processing of
the petition until such information was submitted.
Ford Motor Co., in its comment on the NPRM,
argues that NHTSA should not refuse to consider a
petition on the basis of inadequacy "unless the
petition on its face fails to present any information
with respect to each of the items required under
the applicable regulations." This argument rests
on Ford's reading of "International Harvester v.
Ruckelshaus," 478 F.2d 615 (D.C. Cir. 1973).
However, the portion of that opinion which Ford
cites actually states that denial of a petition on the
grounds of incompleteness is improper where the
petitioner came forward "with all the data there
was to be had, and the Administrator did not ask
for more." 478 F.2d at 642. Therefore, NHTSA
reasserts its right to request additional relevant in-
formation where such information either presently
exists or can be generated and made avaOable, and
to refuse to further consider petitions which a peti-
tioner fails to supplement as required. Failure to
provide such information constitutes a failure to
satisfy the burden of persuasion in the proceeding.
Most of the automobile manufacturers which
responded to the NPRM cautioned NHTSA on the
potentially burdensome impact of the data submis-
sion requirements, particularly with respect to the
requirement for the submission of detailed infor-
mation on the technology used in each vehicle con-
figuration (as defined by EPA in 40 CFR 600.002-
77) of the petitioner's passenger automobiles. It is
NHTSA' s intent to minimize the data submission
burden on petitioners, consistent with our need for
detailed information in order to calculate reduc-
tions. However, the EPA average fuel economy
calculation procedure, which is also applicable to
our reduction calculations, requires fuel economy
values for most large-selling vehicle configura-
tions. Each data point in the average fuel economy
calculation may affect the reduction calculation
and must therefore be reviewed by NHTSA in our
analysis of petitions for reduction. To reduce this
burden, the regulations permit the incorporation
by reference of material contained elsewhere in the
petition. For example, a petitioner could first list
all technology which is used throughout its entire
product line, then list additional technology which
is common to an individual car line but which dif-
fers from other car lines, and so on with similar
listings for each model type within that car line,
each base level, and finally each configuration.
This approach should reduce the amount of
duplication involved in presenting the required in-
formation.
Chrysler Corporation suggested two additional
methods for reducing this burden. First, it sug-
gests that petitioners should be permitted to sub-
mit copies of reports containing quarterly vehicle
production data which are submitted to EPA pur-
suant to 40 CFR 86.077-36 and 86.078-37 in order
to satisfy the need for information on its past pro-
duction mix and totals. Second, it suggests that the
requirement that petitions continually be updated
as new information becomes available should be
revised to permit periodic updates. Both sugges-
tions have merit. To the extent that reports re-
quired to be submitted to EPA or to any other
agency present the information required under
this regulation in a straightforward manner, not
requiring extensive culling of useful information
from surrounding material irrelevant to a section
502(d) proceeding, copies of those reports may be
submitted. The EPA reports cited by Chrysler may
satisfy the product mix submission requirements.
With respect to the question of updating petitions,
Chrysler correctly points out that much of the re-
quired data, such as projected production mix and
total, will be in a state of flux at the time the
manufacturer submits its petition. The regulation
has, therefore, been changed to require the submis-
sion of revised information within 30 days after the
revision. This permits petitioners to submit new in-
formation either as it becomes available or to sub-
mit monthly updates including more than one
change. Allowing more than 30 days for submis-
sion of updated information (Chrysler suggested
90 days) would prejudice NHTSA's ability to
evaluate petitions quickly and accurately.
In contrast to the above comments, the Center
for Auto Safety argues that the data required to be
submitted under the proposed regulations is inade-
quate to evaluate petitions. That organization sug-
gests requiring the submission of additional infor-
mation similar to that required in EPA emission
standard suspension proceedings, principally in-
PART 527-PRE-3
volving the manufacturer's research and develop-
ment program resources and its efforts to develop
alternative technology. NHTSA has concluded
that it would be inappropriate to routinely require
the submission of all of this information as part of
every petition for a reduction. However, to the ex-
tent that this type of information is relevant to a
particular reduction proceeding, it is expected that
it would normally be submitted to NHTSA as part
of the manufacturer's petition for a reduction.
Much of the suggested information seems more
relevant to an evaluation of a manufacturer's max-
imum feasible fuel economy improvements in a
standard-setting proceeding than to a reduction
proceeding. Compliance with applicable fuel
economy standards is not a prerequisite to qualify-
ing for a reduction. Both manufacturers which
greatly exceed and manufacturers which fail to
meet the fuel economy standards may still qualify
for a reduction if they can demonstrate that their
fuel economy suffered as a result of their efforts to
comply with nonfuel economy standards, not-
withstanding the use of a "reasonably selected
technology." For the purpose of submitting a peti-
tion, it is not even necessary for a manufacturer to
actually have used reasonably selected technology
in its vehicles, since a petition must be granted if a
fuel economy penalty would have resulted had the
petitioner used such a technology. See section
502(d) (2) (B) (ii) of the Act.
B. Reasonably Selected Technology
A difference of opinion in the comments arose
with respect to the determination of whether a par-
ticular technology is "reasonably selected." Ford
argues that this should be an individualized deter-
mination, with the reasonableness of a given
technology depending on the particular manufac-
turer's circumstances. On the other hand, the
Coimcil on Wage and Price Stability contends that
the regulations would have an anticompetitive ef-
fect unless the same criteria were applied to all
technological assessments for all manufacturers.
In the Council's view, the regulation should not
tolerate the use of less energy efficient technology
by financially weaker manufacturers, since to do so
would reward inefficiencies in management, pro-
duction, or marketing which a competitive market
would penalize. Although recognizing merit in the
Council's argument, NHTSA cannot contravene
the clear Congressional intent that an individual-
ized evaluation be performed. Section 502(d) of
House bill H.R. 7014, the direct precursor to the
reduction provisions in section 502(d) of the Act,
required that "emission standards penalties" be
calculated on the basis of "all passenger automo-
biles to be manufactured in a model year," not
limiting consideration to a particular manufac-
turer's fleet. The House Report on H.R. 7014 (H.
Rep. No. 94-340, 94th Cong., 1st Sess. 90 (1975))
states that the determination of an emission stand-
ards penalty should be on "an industry-wide basis,
rather than a manufacturer-by-manufacturer
basis." However, the version of that provision
which came out of the Conference Committee con-
tained significantly different language. Under the
conference substitute, reductions are to be based
on "the reduction in a manufacturer's average fuel
economy in a model year." (Emphasis added.) Sec-
tion 502(d) of the Act is replete with references to
the petitioning manufacturer's unique cir-
cumstances. For example, in evaluating various
technological options to determine whether the
petitioner applied a reasonably selected
technology, the Administration must, under the
Act, consider the manufacturer's cost and lead-
time requirements. Also, only fuel economy values
for the petitioning manufacturer are to be con-
sidered in calculating a reduction. Therefore, the
Council's position cannot be accepted. It should be
noted, however, that beyond 1980, fuel economy
standards will be the same for all manufacturers,
and any anticompetitive pressures generated by
these procedures will no longer exist.
The Council also suggests that a "cost-
effectiveness" analysis be performed when
evaluating various technological options. The Act
requires that NHTSA evaluate the additional costs
and fuel savings associated with these options. It is
NHTSA' s intent to compare the costs of techno-
logical improvements with the value of their
associated fuel economy benefits. This would be ac-
complished by placing a dollar value on the
gasoline saved. As noted by the Council, it may be
appropriate to assume a number of different
gasoline prices in conducting this analysis, since
the present pimip price cannot be expected to
reflect the average pump price prevailing over the
lifetime of the vehicles produced in the affected
model years, nor does it reflect the "social cost" of
gasoline. The results of these analyses would be
factors considered by the Administration in deter-
PART 527-PRE-4
mining whether a particular technology is
"reasonably selected."
C. Adjustment and Selection of
Production Mix
In certain instances, a petitioner's projected pro-
duction mix for the affected model year would not
be used in calculating reductions. This would occur
whenever the petitioner's average fuel economy at
the projected mix failed to meet the standard for
that model year, even if its vehicles were modified
to meet 1975-level nonfuel economy standards. In
such cases, the petitioner's projected production
mix would be adjusted according to the procedure
set forth in section 527.11 of the regulations.
Ford notes that the use of this slightly arbitrary
adjustment procedure may result in the use, for
calculation purposes, of a production mix which
would have been infeasible for the manufacturer to
implement. However, NHTSA remains convinced
that the proposed adjustment procedure is gener-
ally appropriate. Section 502(d) (3) (E) of the Act
requires the use in reduction calculation of a pro-
duction mix which would have resulted in com-
pliance with fuel economy standards. An adjusted
mix is used only if the manufacturer would fail to
meet the fuel economy standards with its planned
production mix, even if the manufacturer's
vehicles were designed to meet 1975 nonfuel
economy standards in all four categories. If a mix
existed which was feasible for the manufacturer
and which would have resulted in meeting the fuel
economy standard, the manufacturer presumably
would have used it rather than risk the substantial
civil penalties associated with noncompliance. Fur-
thermore, if no adjustment methodology were
specified in advance, petitioners would have an in-
centive to postulate increased production of those
vehicle configurations with a large nonfuel
economy standard-related gas mileage penalty. It
was deemed necessary, therefore, to use a uniform
adjustment methodology. In most instances, the
methodology adopted results in reasonable types
of adjustments which a manufacturer might well
decide to employ in order to comply with the fuel
economy standards.
The Center for Auto Safety objected to the ad-
justment procedure used when no mix of a peti-
tioner's automobiles would meet the applicable fuel
economy standard. This situation would arise if the
petitioner did not manufacture even a single vehi-
cle configuration whose fuel economy met or ex-
ceeded the standard. Under the proposal, such a
petitioner would use its projected mix in
calculating the reduction, even though that mix
failed to satisfy the requirements of section
502(d) (3) (E). The Center recommends using that
mix which would come closest to meeting the
standard, to wit, all vehicles produced being of that
configuration with the highest fuel economy. This
suggested revision has been incorporated in the
final rule. Since in this situation the section
502(d) (3) (E) requirement cannot be met by any
mix vehicles, it is reasonable to come as close as
possible to complying with that requirement,
which the Center's approach does. As a practical
matter, however, it should be noted that it is ex-
tremely unlikely that this provision will ever apply
to a petitioner. NHTSA is aware of no vehicle
manufacturer subject to fuel economy standards
which would not qualify for a low-volume exemp-
tion under section 502(c) of the Act and which fails
to manufacture at least one vehicle configuration
whose fuel economy equals or exceeds even the
most stringent standard applicable in the 1978-80
period, the 1980 standard of 20 mpg.
Ford also argues that in those instances where a
petitioner can demonstrate that its production mix
would differ from that projected if 1975-level non-
fuel economy standards remained in effect, it
should use that revised mix in its set 2 calculation.
However, as discussed in the preamble to the
NPRM at 41 F.R. 46882, section 502(d) (3) (E) of
the Act requires the use of the same production
mix for set 1 and set 2 passenger automobiles.
Ford did not specifically dispute this statutory con-
struction in its comment. Therefore, the regula-
tions continue to require the use of a single produc-
tion mix.
D. Fuel Economy Reduction
Calculation Procedures
The most fundamental issue raised with respect
to calculation procedures involves the use of
analytical methods as an alternative to fuel
economy tests in petitions. The notice of proposed
rulemaking permitted the use of such methods.
General Motors Corp. and Ford argued that such
analyses are appropriate and should be permitted.
Chrysler, on the other hand, argued that such
analyses are inappropriate, at least for deriving
the majority of the required fuel economy values.
The need to use alternatives to actual fuel economy
PART 527-PRE-5
testing arises because of three incompatibilities
between EPA's fuel economy testing requirements
and the procedures for processing reduction peti-
tions. First, EPA test results may not be available
for all specified vehicle configurations in time for
inclusion in a manufacturer's petition. Section
502(d) (1) of the Act permits manufacturers to sub-
mit reduction petitions at any time within the
twenty-four months before the beginning of the af-
fected model year. Petitioners would, as a practical
matter, hope to file petitions and obtain a final
decision as early as possible, in order to obtain
maximum leadtime in planning production ad-
justments which may be necessary depending on
the level of the applicable average fuel economy
standard. However, required EPA testing may not
be completed until just prior to the required date
for the manufacturer's preliminary determination
of its fuel economy average, 10 days prior to its
public introduction date. See 40 CFR 600.506-78
(a). Second, the EPA tests can only provide data
with respect to set 1 vehicles, and then only to the
extent that the planned production vehicles employ
a reasonably selected technology. Third, an incom-
patibility arises where the projected production
mix must be adjusted for purposes of calculating a
reduction, and different configurations are re-
quired to be tested under the EPA regulations at
the adjusted mix than would be required under the
projected mix. In each of these cases, EPA test
data may not be available for inclusion in the peti-
tion for reduction.
The maximum use of actual test data is clearly
desirable from the point of view of accuracy in
calculating reductions, and is indeed mandated by
section 502(d) (2) (A). However, it must be
recognized that imposing substantial additional
test requirements upon the manufacturers would
be extremely burdensome, given the cost of con-
ducting those tests (estimated by Ford at a
minimum of $3,000 per test). Therefore, NHTSA
will continue to permit the use of appropriate
analytical methods in limited situations. Whether a
given method is appropriate will be determined in
the context of individual reduction proceedings.
The regulations promulgated herein permit the
submission of petitions based on analytical
methods, subject to certain conditions. First, the
petition must contain all available data from EPA
fuel economy testing and the petitioner's own in-
house testing program which has been completed
by the time the petition is submitted. Second, the
petitioner must schedule its fuel economy testing
so that as much testing is completed by the time of
submission as is reasonably practicable. Third, to
the extent practicable, testing should be scheduled
so that those vehicle configurations with the
largest projected sales are tested first, so that this
important data may be included in the petition.
Fourth, the previously discussed monthly updates
of petitions must include all additional test data
which becomes available. Finally, if set 1 data is
based in whole or significant part upon analytical
methods, the decision made by NHTSA on the peti-
tion will be an "interim decision," subject to revi-
sion if there are significant disparities between
subsequently obtained EPA test data and the
analyses submitted in the petition. See pp. 156-7 of
the Conference Report (S. Rep. No. 94-516, 94th
Cong., 1st Sess. (1975)). To avoid situations in
which the submitted non-test data consistently
overstates the reduction shown through actual test
results, and to take into accoimt variability in test
procedures, the "significance" of disparities be-
tween EPA and analytically generated data will be
determined with reference to the aggregate im-
pact of all disparities. In other words, large dif-
ferences between interim and final fuel economy
values for individual configurations would not re-
quire revision of the interim decision if the dif-
ferences did not reflect systematic bias in the
analytical procedure used by the petitioner.
"Significant disparities" will be defined as those
which, when taken together, would result in a dif-
ference of 0.1 mpg or more in the calculated
average, the level of precision specified in section
503(e) of the Act for fuel economy calculations.
Relatively large but nonsystematic errors would
tend to cancel each other out in the overall calcula-
tion. The approach adopted in this regulation will
permit early processing of petitions and will give
the petitioner the advantage of greater leadtime,
but will place the risk of using inaccurate analytical
methods on the advocate of those methods.
As previously noted, it is unlikely that any test
data for set 2 vehicles would be generated unless
additional tests were run specifically for the pur-
poses of providing data for a reduction petition. In
this regard, Chrysler has suggested conducting
tests on prototype vehicles in each of the peti-
tioner's largest-selling vehicle configurations
which comprise a total of seventy percent of the
PART 527-PRE-6
petitioner's sales, then modifying each vehicle
tested to comply with 1975-level nonfuel economy
standards and retesting the same vehicle.
Presumably, analytical methods could be used to
provide set 2 data for the other configurations
which were not tested, and EPA-approved data
would satisfy other set 1 requirements, although
Chrysler does not specifically suggest this. This ap-
proach would appear to be an entirely appropriate
method for generating data for a petition.
However, NHTSA will not attempt to establish
generally applicable minimum testing re-
quirements for all manufacturers. Manufacturers
may submit petitions in which set 2 data is based
entirely upon analytical methods. However, such
manufacturers should recognize that data based
upon analytical methods will not be given the same
probative weight as actual test data in NHTSA's
review of petitions. As previously noted, particular
types of analytical methods may be found to be
completely inadequate for predicting fuel economy
values, and a petition based on such analyses could
not be granted.
Where it becomes necessary to obtain fuel
economy data for particular vehicle configurations
solely because of required adjustments to the pro-
duction mix, NHTSA would accept appropriate
non-test data for both set 1 and set 2. These con-
figurations would generally not have large sales
fractions, even under the adjusted production mix,
and would not be tested otherwise.
Ford has suggested that, in calculating a reduc-
tion due to emission standards, vehicles subject to
the more stringent California emission standards
should be included in set 1 but excluded from set 2.
This approach would have the effect of lowering
set 1 average fuel economy with respect to that of
set 2, and thereby increasing the reduction
granted, because of the generally lower fuel
economy of vehicles subject to California emission
standards.
Ford bases its argument on its reading of H.R.
7014, which contained the House version of Title
V, and its view of the assumptions on which Con-
gress based the reduction provisions. First, Ford
points out that section 502(d) (3) (C) (i) of the Act
specifies the first step in calculating a Federal
standards fuel economy reduction is determining
"the reduction in a manufacturer's average fuel
economy in a model year which results from the ap-
plication of a category of Federal standards ap-
plicable to such model year, and which would not
have occurred had Federal standards of such
category applicable to model year 1975 remained
the only standards of such category in effect." Sec-
tion 502(d) (3) (D) lists several "categories of
Federal standards," the first of which, emission
standards, specifically includes the more stringent
California standards. Ford concludes from this
that the reference in section 502(d) (3) (C) (i) to the
average fuel economy resulting from the applica-
tion of a "category of Federal standards" for the
affected model year, which corresponds to set 1
fuel economy under the regulations, must include
California vehicles because of the definition of
"category of Federal standards" in section 502(d)
(3)(D).
However, in Ford's view, the reference to
"Federal standards of such category applicable to
model year 1975" in section 502(d) (3) (C) (i), which
corresponds to set 2 fuel economy under the
regulations, is not subject to the same definition,
despite the use of the words "such category" and
"Federal standards." Rather, in Ford's view, the
standards on which set 2 fuel economy is to be
based are to be determined by referring to section
502(d) of H.R. 7014, which bases the calculation of
an emission standards fuel economy penalty on the
1975-level 49-state emission standards. Ford's sec-
ond argument is that reductions must be calculated
in a manner consistent with the procedure Con-
gress used to project the 1980 fuel economy stand-
ard, which was based on the level of fuel economy
achieved at 1975-level 49-state emission standards,
again referring to H.R. 7014 and its legislative
history.
NHTSA is unable to accept this argument. The
language of section 502(d) of the Act is unam-
biguous on its face in this respect. Reductions are
to be calculated on the basis of changes in strin-
gency in a "category of Federal standards," and,
in the case of emission standards, the category was
defined to include the more stringent California
standards. The differences in the language of the
phrases "category of Federal standards" and
"Federal standards of such category" are too
minor to justify giving them completely different
meanings, especially when the latter phrase clearly
refers to the former. If the meaning of a statute is
unambiguous on its face, the generally accepted
rules of statutory construction prohibit reference
to the legislative history to seek a different
meaning.
PART 527-PRE-7
Even assuming arguendo that Ford's reading of
H.R. 7014 is correct, it does not follow that the
Conference Committee necessarily adopted the
House provision in total. Ford argues that the Con-
ference Committee lacked authority to amend the
House version since, under 2 U.S.C. 190c(a), a Con-
ference Committee can amend a provision only
where the House and Senate versions disagree. If
Ford's reading of the House bill is correct, the two
bills must be viewed as being inconsistent. Under
section 504 of S. 1883, baseline fuel economy was
established at the "industrywide average fuel
economy level for model year 1974," which must
be read to include California vehicles. Fuel
economy standards were to be established taking
into account "the impact of other Federal stand-
ards." See § 504(a) (3) of S. 1883. The product of
the Conference Committee would necessarily,
therefore, be viewed as a "germane modification
of subjects in disagreement" between the two bOls.
2 U.S.C. 190c(a).
Furthermore, to the extent that the reduction
procedure and the 1978 fuel economy standards set
forth in H.R. 7014 were drafted with an assumed
baseline of 1975 49-state emission standards in
mind, the manufacturers will not suffer under the
Conference substitute from any increased strin-
gency due to the inclusion of California vehicles.
The Conference substitute decreased each of the
fuel economy standards applicable in model years
1978 to 1980 by 0.5 mile per gallon and reduced the
amount by which the calculated average fuel
economy penalty must be diminished when
calculating the allowable reduction from 1.0 to 0.5
mile per gallon per category of standards.
Ford's approach is also inconsistent with the pur-
pose of section 502(d). If the intent of that provi-
sion is to first measure the impact on fuel economy
of affected model year nonfuel economy standards
with respect to 1975-level standards and to give
the manufacturers partial credit for that impact,
the Ford approach would overstate the actual fuel
economy penalty experienced. In fact, it is theoret-
ically possible under Ford's approach for a
manufacturer to obtain an emission standards
reduction where affected model year and 1975
emission standards are identical in stringency. The
more stringent California emission standards had
a measurable impact upon average 50-state vehicle
fuel economy in 1975. Congress recognized that
fact in adopting section 502(d), and the final
regulations must also take that fact into account.
Chrysler Corporation stated that the NPRM was
unclear regarding the methodology to be used for
revising the 1978 or 1979 standard for domestic
passenger automobiles with includable captive im-
ports when a manufactiu-er requests the reduction
of the standard as it applies to those vehicles, but
not as it applies to the residual, nonincludable
group of captive imports. Under the reduction
regulations, the manufacturer is to provide for its
captive imports the same type of technological in-
formation that it is required to provide for its
domestically manufactured vehicles. The fuel
economy calculations are to be performed in ac-
cordance with EPA procedures in 40 CFR Part
600. With respect to the treatment of captive im-
ports in model years 1978 and 1979, 40 CFR
600.511-78 restates the requirements of section
503(b) of the Act. Under § 600.511-78, the peti-
tioner separately calculates, using the projected
production mix, the average fuel economy of its
planned imports for the affected model year. Next,
the petitioner divides its planned imports into its
"includable base import volume" and into a
residual group of planned imports. Both groups are
deemed to have the same average fuel economy as
the manufacturer's overall volume of planned im-
ports. In calculating a reduction, as in calculating
an overall fuel economy average for standards
compliance purposes, the "includable" imports are
treated as a single model type with a sales volume
equal to the includable base import volume. That
model type is added to the model types of
domestically manufactured passenger automo-
biles. The residual group is not included in the
calculation. Corresponding technological informa-
tion and fuel economy calculations are required to
be provided for the set 2 vehicles with the technol-
ogy modified to reflect the assumption of
1975-level nonfuel economy standards in those
categories for which a reduction is sought.
The NPRM raised the issue of how to take into
account possible interactions between technology
used by a manufacturer to comply with different
categories of nonfuel economy standards. Such in-
teractive effects might appear if, for example,
compliance with a vehicle damageability standard
required the addition of relatively heavy biunpers
to a vehicle and the additional weight made com-
PART 527-PRE-8
pliance with emission standards more difficult.^
The procedure set forth in the NPRM would have
calculated a reduction by separately assessing the
impacts of the two standards, if reductions for both
damageability and emission standards were re-
quested. The damageability standards reduction
would have been calculated by subtracting the
average fuel economy of the vehicles designed to
comply with all categories of affected model year
standards (set 1) from the average fuel economy of
those vehicles at 1975-level damageability stand-
ards and affected model year standards in all other
categories (set 2), less 0.5 mile per gallon. The 0.5
mile per gallon per category of standards is sub-
tracted as required by section 502(d) (3) (C) of the
Act. See Table 1.
Table 1
Emission
standards
Safety
standards
Noise
standards
Damageability
standards
Setl
AMY'
AMY
AMY
AMY
AMY
AMY
Set 2
... AMY
75 MY
' AMY = affected model year
Similarly, under the procedure in the NPRM, the
reduction attributable to more stringent emission
standards would be calculated by subtracting the
same set 1 fuel economy as in Table 1 from the
average fuel economy of those vehicles designed to
meet 1975-level emissions standards and affected
model year standards in all other categories of
standards, less 0.5 mile per gallon. See Table 2.
Table 2
Emission
standards
Safety
standards
Noise
standards
Damageability
sundards
Set 1
AMY'
AMY
AMY
AMY
AMY
AMY
Set 2
.... 75 MY
AMY
' A MY = affected model year
The total reduction would have been calculated by
summing the two numbers calculated above. This
sum may not reflect the actual fuel economy pen-
alty suffered by the petitioner due to the interac-
' It is also possible that compliance with more stringent stand-
ards in one category may facilitate compliance with more strin-
gent standards in another category. For example, a safety
requirement relating to high-sf)eed crash survivability might re-
quire the use of "soft" vehicle front ends, which reduce vehicle
weight and might, therefore, make compliance with emission
standards easier.
tion problem. This becomes apparent when one
considers that the comparison in Table 1 would
measure not just the damageability standards
penalty, but also an emission standards impact
resulting from the ability of set 2 vehicles to use
less extensive emission controls, due to their
lighter weight. The impact of emission standards
could be partially "double counted" in the above
example.
Ford has suggested an alternative method for
calculating reductions which avoids the interaction
problem by not attempting to apportion the total
fuel economy penalty incurred among the various
categories of standards for which a reduction is
sought. Under Ford's approach, the same set 1
vehicles would be used as above. However, set 2
would include vehicles designed to meet 1975-level
standards in all categories for which a reduction is
sought. In the example above, where reductions
for both emission and damageability standards
were sought, the two sets would be defined as set
forth in Table 3.
Table 3
Emission
standards
Safety
standards
Noise
standards
Damageability
standards
Set 1
AMY '
AMY
AMY
AMY
AMY
AMY
Set 2
. . . . 75 MY
75 MY
' AMY = affected model year
In calculating a reduction, the difference in fuel
economy of the two sets would be calculated, and
0.5 mile per gallon would be subtracted for each
category of standards for which a reduction is
sought. Thus, in the example above, 1.0 mile per
gallon would be subtracted from the fuel economy
difference between the two sets.
The Ford approach greatly reduces the data re-
quirements and simplifies calculations where
reductions for more than one category of stand-
ards are sought. In addition, the Ford procedure is
mathematically equivalent to that specified in the
Act, merely rearranging and reassociating the
terms in the overall summation. Where interac-
tions are present, the Ford procedure measures
the true total impact on fuel economy, while the
procedure specified in the NPRM, as the NPRM
preamble noted, could either overstate or
understate that effect. The fact that the Ford pro-
cedure does not assign a fuel economy penalty to
each of the separate categories of standards is un-
PART 527-PRE-9
important, since the total penalty is the critical
number in adjusting the fuel economy standard.
The only possible inaccuracy in the Ford procedure
would occur if, for example, one of the categories
of standards had an associated fuel economy dif-
ference between the two vehicle sets of less than
0.5 mile per gallon. Under the NPRM approach,
the fact that the difference for category A was less
than 0.5 mOe per gallon would have no effect on
the calculation of the applicable fuel economy
reduction for category B. The only significance of
the fact would be that no applicable fuel economy
reduction would be allowed for category A. Under
the Ford approach, there would be such an effect
since the differences for the two categories are
added together and then 1.0 mile per gallon (0.5
mile per gallon for each category) is subtracted
from the total difference. To the extent that 0.5
mile per gallon was greater than the difference for
category A, it would be subtracted from the poten-
tial reduction obtainable under category B. A peti-
tioner could avoid this penalty, however, by simply
not applying for a reduction in that category.
Although the statute defines separate reductions
for each category of standards, nothing in the
statute requires that these numbers be separately
calculated.
Therefore, the NHTSA has revised the final
regulations to incorporate the Ford proposal. The
regulations no longer provide for the separate
calculation of "applicable fuel economy reduc-
tions" as in § 527.10 of the proposed rule, and cor-
responding revisions have been made in other
sections.
American Motors Corporation raised two issues
relevant to the manner in which reductions are
calculated. First, it suggested that uniform reduc-
tions be promulgated for all manufacturers where
changes in stringency of nonfuel economy stand-
ards occur and where the impact of those changes
is similar for all manufacturers. Although it is not
inconceivable that such a situation could arise,
NHTSA is unaware of any cases of this type, and
does not anticipate promulgating uniform reduc-
tions at this time. In order to grant a reduction
NHTSA must evaluate the technology actually
used by a manufacturer and other technology
which might have been reasonably selected. Both
of these determinations are necessarily individual-
ized, necessarily made in the context of an in-
dividual manufacturer's situation, and the overaO
determination would not, therefore, lend itself to
uniform treatment. See discussion of reasonably
selected technology in section Illb. AMC's second
point was that changes in nonfuel economy test
procedures which affect the stringency of those
standards should be treated the same as changes in
the numerical level of the standards. NHTSA
agrees that where a test procedure change has this
effect, the change should be treated the same as a
revision to the standard for purposes of calculating
a reduction. However, whether particular test pro-
cedure changes will be deemed to have such an ef-
fect must be determined in individual reduction
proceedings, since the precise effect of such
changes may differ for the various automobile
manufacturers. Changes in the emission test pro-
cedures which impact measured fuel economy
values (the emission and city fuel economy test pro-
cedures are the same) for 1978, 1979, or 1980
would be evaluated for comparability under section
503(d) (1) of the Act. Changes in nonfuel economy
test procedures or standards which occur after
1980 would be reflected in possible amendments to
the fuel economy standards, under section 502(f).
Ford raised the issue of whether petitioners
would be permitted to base their analyses on their
need to build vehicles in such a way that the
vehicles will have a high probability of meeting ap-
plicable nonfuel economy standards. Ford main-
tains it must "target" its production process to the
achievement of an effectively more stringent
standard, in order to take into account product
variabOity and, in the case of emissions, perform-
ance deterioration of control technology. To the
extent that a petitioner can demonstrate that its
projected design targeting is reasonable and con-
sistent with past practice, such level may be taken
into account in petitions. However, NHTSA will
carefully scrutinize any purported lower design
targets to assure that assumed safety margins are
reasonable in light of methods available to
manufacturers to reduce these margins without
undue risk and its own past practices. Among
these methods might be retesting failed vehicles,
certifying several versions of individual models in-
tended for sale, and avoiding recertification of a
previous year's vehicles which met a subsequent
year's more stringent nonfuel economy standards.
The Ethyl Corporation argued that all fuel
economy calculations must take into account the
different amounts of energy needed to produce a
PART 527-PRE-lO
gallon of leaded or unleaded gasoline. The need for
unleaded gasoline was generated in part by the
adverse impact of lead additives on some emission
control devices. However, the determination of the
equivalence of various types of automobile fuels is
the responsibility of EPA under section 503(d) (2)
of the Act and it would be improper for NHTSA to
attempt to decide the matter in this proceeding.
E . Hearing Procedures and Processing of
Petitions
Several comments were received with respect to
the question of the proper format for reduction
proceedings. Since some of those comments
resulted from misunderstandings of or ambiguities
in the NPRM, it is worthwhile to restate and
clarify the intended procedures. The proceeding
would commence with the submission of a petition
by a manufacturer. The Administrator would then
evaluate the petition to assure that it meets each of
the requirements of §§ 527.5 through 527.12 of the
regulations. If the petition is deemed to be in-
complete, the Administrator would so notify the
petitioner, specifying the additional material needed.
Once a complete petition is received, it is placed in
a public docket, and a copy of the petition is
transmitted to the Federal agency responsible for
the administration of the category of standards for
which a reduction is sought for that Agency's
evaluation. For example, in the case of a petition
for an emission standards reduction, a copy of the
petition would be sent to the Environmental Pro-
tection Agency. Simultaneously, the Administra-
tor would publish a notice of receipt in the
Federal Register. The notice would state that a
petition had been received, identify the petitioner,
cite the reduction requested and summarize the
petitioner's rationale therefor, state the Adminis-
trator's options for disposition of the petition and
list the criteria to be applied in evaluating the peti-
tion. The notice would also identify the location of
copies of the petition available for public inspection
and solicit comment on the petition. Once com-
ments are received from interested parties and
Federal agencies and evaluated, a proposed deci-
sion or, as appropriate, set of alternative decisions
would be published. In the latter case, the proposal
would set forth reasonable alternative dispositions
of the issues, granting, denying, or denying in part
the reduction. The alternatives could range from
complete denial to complete granting of petitions.
but neither of these extreme positions would be
proposed unless NHTSA concluded that those
levels could be supported by available data and in-
formation and were based on reasonable assump-
tions and judgments. This will permit advocates of
either granting or denying the petition to focus
their comments on attacking the undesirable alter-
native or alternatives and supplementing the data
base for the desired one. The proposal would set
forth the data, analyses, and methodology on
which each alternative disposition is based, and
would request comments from the public. The
notice also establishes a time and place for a public
hearing. Following the hearing, and subsequent
comment period, the entire record for the pro-
ceeding is reviewed and an interim or final decision
is published. An interim decision is subject to read-
justment when EPA test data becomes available,
after an opportunity for public comment on the
readjustment.
EPA's Office of Mobile Source Air Pollution
Control (OMSAPC) and the Center for Auto Safety
have suggested that proceedings held pursuant to
this regulation be patterned after those held in the
past by EPA on the suspension of automotive emis-
sion standards. Under the suggested EPA pro-
cedure, a notice of receipt would be published con-
taining the same information as the notice of
receipt in the NHTSA procedure, plus information
about the required hearing. OMSAPC and the
Center for Auto Safety suggest eliminating the
proposed decision from the NHTSA procedure.
They propose holding the public hearing after the
issuance of the notice of receipt and then pro-
ceeding to a final notice. OMSAPC argues that this
procedure is legally sufficient and superior from a
policy standpoint to the NHTSA procedure.
With respect to the first point, it is true that in-
itial notices which do not provide detailed informa-
tion on every aspect of the final rule adopted are
appropriate in some cases. See, e.g., "Ethyl Corp.
V. EPA," 541 F.2d 1, at 48. However, courts may
be less tolerant of such "general" notices in
rulemaking proceedings which have significant ad-
judicatory aspects. In such cases, the inclusion of a
requirement for opportunity for oral comment in
addition to the usual opportunity for submission of
written comments may evince a Congressional
policy of encouraging greater "give-and-take" in
the rulemaking proceeding, which may in turn re-
quire a more detailed description of the "subjects
PART 527-PRE-ll
and issues involved." See, e.g., "International
Harvester," supra at 632, where the court ex-
presses diffidence with respect to the opportunity
for full public comment provided in the EPA pro-
cedure. Also, the statutory requirements under
which NHTSA proceedings will be held differ in
two respects from those under which EPA oper-
ated. First, no statutory time constraint is
specified for the completion of a reduction pro-
ceeding, as was the case under the Clean Air Act.
The court in "International Harvester" frequently
cited the Clean Air Act "60 day requirement" as a
basis for tolerating certain procedural "short-
cuts." 478 F.2d at 629, 631, 632. Second, unlike
EPA, NHTSA rulemaking, under section 502(d) is
subject to the "substantial evidence test" in any
subsequent judicial review. 15 U.S.C. 2004(a).
Although the courts are still grappling with the
question of the effect of combining informal
rulemaking under 5 U.S.C. 553, normally subject
to the less stringent "arbitrary and capricious"
test of 5 U.S.C. 706(2) (A), with the substantial
evidence test, at least one court has concluded that
such a combination necessitates additional pro-
cedural safeguards to assure the opportunity for a
full dialogue between the agency and interested
parties. "Mobil Oil Corp. v. FPC, " 483 F.2d 1238,
1257-1263 (D.C. Cir. 1973). This may also necessi-
tate the presentation of a more precise statement
of the agency's views at a time prior to the for-
mulation of a final rule. NHTSA does not conclude
from this discussion that a procedure such as
EPA's is necessarily inadequate in the context of
section 502(d), but rather that substantial legal
questions may exist with respect to the appro-
priateness of that procedure.
OMSAPC also argues that its procedures would
avoid shifting the burden of proof in a proceeding
away from the petitioner. However, under the
EPA procedure, once the petitioner makes its
prima facie case, the burden is shifted to anyone,
including the agency, which seeks to apply a dif-
ferent methodology to reach a different result. See
"International Harvester," supra at 643. The only
effect of the proposed decision in the NHTSA pro-
cedure is to clarify where the burden of proof lies
at that time, by either advancing one or more alter-
native methodologies or concurring in the peti-
tioner's.
In addition, NHTSA disagrees with the policy
arguments made by OMSAPC. The original intent
of the regulations has been clarified to require that
the notice of receipt will solicit comments from the
general public. (See letter from Stephen Wood,
Assistant Chief Coimsel, NHTSA, to Eric Stork,
Deputy Assistant Administrator for Mobile Source
Air Pollution Control, EPA, dated November 17,
1976, Docket FE 76-2, No. lA.) Taken together
with our prior statement that the views of other af-
fected Federal agencies would be solicited (41 F.R.
46884) and formal interagency review require-
ments for rulemaking, it appears that OMSAPC's
objections regarding NHTSA taking a position on
a petition prior to receiving any outside input have
been met. Furthermore, it is NHTSA's view that
the use of a proposed decision will achieve a signifi-
cant improvement over the EPA procedure, by
soliciting public comment on not only Agency
methodology (it is not clear from the OMSAPC
comment that they even recommended this, the
"International Harvester" requirement for such
comment notwithstanding), but also on the applica-
tion of that methodology. While the law may not
require such a full opportunity for comment,
NHTSA deems it appropriate to provide more than
the bare minimum which the Administrative Pro-
cedure Act requires. In light of this, NHTSA can-
not conclude that the EPA procedure is clearly
superior to that set forth in this regulation from a
policy standpoint.
With respect to the issues of the desirability of
permitting "two cycles of notice and comment" on
complex matters and making public the agency's
views on matters important to the final rulemaking
at a time prior to the final decision, "in order to
enhance the usefulness of further comments," the
positions adopted in this regulation appear to be
supported by a recent recommendation of the Ad-
ministrative Conference of the United States. See
Recommendation No. 76-3, 1 CFR 305.76-3, also
published in 41 F.R. 29654, July 19, 1976.
There is some merit in the points raised by
OMSAPC and the Center for Auto Safety, in
regard to the likelihood that an agency which pro-
poses a specific rule has a natural tendency to
resist changes to the rule. Efforts to minimize this
acknowledged phenomenon conflict with NHTSA's
need to provide a full opportunity for public com-
ment by clearly detailing the relevant considera-
tions in the proceeding. NHTSA has attempted to
balance these conflicting considerations by pro-
viding in the regulation that the proposed decision
will, when appropriate, contain alternatives which
establish a reasonable range of justifiable reduc-
PART 527-PRE-12
tions, or denial of the petition. Therefore, the pro-
posed procedure, as clarified, has been retained.
Several commenters raised the issue of the need
for NHTSA to act on petitions as expeditiously as
possible. Recognizing the importance of an early
decision to the petitioning manufacturer, NHTSA
will endeavor to complete the entire decision pro-
cess within 180 days from the time a complete peti-
tion is received. If complying with that goal proves
impossible, NHTSA will still make every effort to
expedite the decision, albeit by a later date.
Several changes to the procedures for the public
hearing on petitions were adopted. As suggested
by EPA, individuals other than NHTSA officials
may serve on the hearing panel. In order to em-
phasize the need for complete and accurate presen-
tations at the hearing, all testimony will be made
under oath. In addition, any participant in the pro-
ceeding may petition NHTSA to use its authority
under section 505(b) of the Act to compel the ap-
pearance and testimony at the hearing of any in-
dividual shown to have relevant information
necessary to an informed decision in the pro-
ceeding. The agency may well use that authority
on its own initiative to secure the testimony of
automobile manufacturers and suppliers of
automobile components. Notice of the public hear-
ing will be given through the issuance of a press
release by NHTSA, in addition to a Federal
Register notice, in order to inform the public at
large.
F. Treatment of Confidential
Information
Several commenters discussed the question of
how NHTSA should handle petitioners' requests
for confidential treatment of information included
in petitions for reduction. In such cases, the
public's need to obtain access to the information in
order to make informed comments on the petition
runs counter to the manufacturer's desire to pre-
vent disclosure of information which may be of
some benefit to its competitors. This same conflict
appears in most of NHTSA's rulemaking activities
under Title V of the Act. In recognition of the im-
portance of these issues, NHTSA published a
notice requesting comment on how these requests
for confidential treatment should be handled. 42
F.R. 3240 (January 17, 1977).
After evaluating comments submitted on this
issue in the context of this proceeding and the
January 17 notice, NHTSA deems it appropriate to
alert potential petitioners to the agency's intention
to grant confidential treatment to information sub-
mitted as part of reduction petitions only in excep-
tional circumstances. This approach is taken under
the authority of section 505(d) (1) of the Act which
permits the release of trade secret information
where relevant to any administrative or judicial
proceedings. NHTSA does this for several reasons.
First, Congress has expressed its intent that the
1976-80 fuel economy standards established in sec-
tion 502(a) (1) of the Act should be entitled to a
strong presumption of validity and should be
modified only on a clear showing by a petitioner
and after a broad opportunity for public participa-
tion in the reduction proceeding. Unlike most other
rulemaking under the Motor Vehicle Information
and Cost Savings Act, Congress specified that sec-
tion 502(d) rulemaking would be subject to the
more stringent "substantial evidence" test in any
subsequent judicial review, and that participants in
the rulemaking proceeding would be entitled to
make oral presentations, in addition to the usual
opportunity for written comment. See 15 U.S.C.
2002(g) and 2004(a). In view of the manufacturer-
specific nature of reduction proceedings (see sec-
tion Illb above), the ability of participants in the
proceeding to effectively comment on all relevant
issues would be limited unless they have access to
the entire petition. This is a greater problem in the
context of reduction proceedings than in most
rulemaking proceedings, where industry-wide con-
siderations and long-term capabilities are of
greater relevance. The portions of a petition for
which a petitioner is most likely to request con-
fidential treatment, projected production mix and
technology to be employed or capable of being
employed in the affected model year, will be
critical to an informed analysis of the petition and
are likely to be central issues in NHTSA's final
decision. Second, no manufacturer is required to
submit a reduction petition, so that the potential
release of any confidential information is, in a
sense, voluntary on the part of the manufacturer.
Although manufacturers possess a statutory right
to petition for a reduction, it is not unreasonable
for NHTSA, in exercising its discretionary author-
ity under section 505(d) (1) to promote the goals of
Title V, to require manufacturers to balance their
PART 527-PRE-13
need for a reduction against the potential danger
from release of the contents ojf their petition.
Failure to obtain a reduction is unlikely to have
devastating consequences for a manufacturer. All
manufacturers other than those qualifying for
"low- volume" exemptions under section 502(c) of
the Act are expected to have average fuel
economies either closely approaching or exceeding
the applicable fuel economy standards for model
years 1978-80. Thus, even in the worst case, a
manufacturer which, without a reduction, would
fail by a small margin to meet the standard, could
elect to pay the civil penalty specified in section
508, which, because of the manufacturer's nearly
meeting the standard, would be relatively small on
a per-vehicle basis, compared to the price of the
automobile. On the other hand, such a manufac-
turer could elect to implement some of the tech-
nological improvements which would be necessary
to meet the next year's fuel economy standard in
any case, one year early in order to avoid paying
the penalties. Finally, the information submitted in
a petition would become public in a relatively short
time regardless. Petitions must be submitted
within two years of the start of the affected model
year under section 502(d) (1). In most cases, a com-
petitor would not have adequate leadtime to take
advantage of the information contained in the peti-
tion between the time of submission and the start
of the affected model year, when the information
necessarily becomes public through the sale of the
affected model year vehicles. For these reasons.
NHTSA will grant confidential treatment to infor-
mation contained in reduction petitions only in
exceptional, and presently unforeseen, cir-
cumstances.
IV. Economic and Environmental Impacts
The economic and environmental impacts of
these regulations were evaluated and found to be
minimal. The granting of denial of reductions
based on these regulations may have significant
impacts but those impacts will be individually
evaluated in the context of individual reduction
proceedings. No adverse environmental impacts
were found to be associated with this essentially
procedural regulation itself. The only economic im-
pacts would involve staff time spent in preparing
and evaluating petitions and perhaps a small
number of additional fuel economy tests. The addi-
tional costs attributable to the rule are expected to
be under three million dollars total for both the in-
dustry and the government, based on the submis-
sion of four petitions.
The program official and lawyer principally
responsible for the development of this regulation
are Ralph J. Hitchcock and Roger C. Fairchild,
respectively.
Issued on November 4, 1977.
Joan Claybrook
Administrator
42 F.R. 58938
November 14, 1977
PART 527-PRE-14
PART 527— REDUCTION OF PASSENGER AUTOMOBILE AVERAGE
FUEL ECONOMY STANDARDS
(Docket No. FE 76-2; Notice 2)
Sec.
527.1 Scope and purpose.
527.2 Applicability.
527.3 Definitions.
527.4 Eligibility.
527.5 Requirements for petition.
527.6 Technology.
527.7 Fuel economy.
527.8 Average fuel economy.
527.9 Federal standards fuel economy reduction.
527.10 Projected production total and mix.
527.11 Production mix for determining Federal
standards fuel economy reductions.
527.12 Calculation of fuel economy values and
average fuel economy.
527.13 Supplementary Information requirements.
527.14 Processing of petitions.
527.15 Public hearing.
527.16 Public Inspection of Information.
AUTHORITY.-Sec. 9, Pub. L. 89-670, 80 Stat.
931 (49 U.S.C. 1657); sec. 301, Pub. L. 94-163, 89
Stat. 901 (15 U.S.C. 2002); delegation of authority
at 41 FR 25015, June 22, 1976.
§ 527.1 Scope and purpose.
This part estabUshes procedures for the sub-
mission and disposition of petitions filed by
manufacturers of passenger automobiles to obtain
reduction of the applicable average fuel economy
standard for model year 1978, 1979, or 1980. These
reductions are intended to offset any loss of fuel
economy due to the application in that year to
passenger automobiles of Federal emission, safety,
noise, or damageability standards more stringent
ban those applicable in model year 1975. This part
also establishes procedures for holding public hear-
ings on those petitions.
§ 527.2 Applicability.
This part applies to manufacturers of passenger
automobiles.
§ 527.3 Definitions.
(a) Statutory terms. (1) The terms "Federal
standards fuel economy reduction," "fuel,"
"manufacturer," "model year," and "reasonably
selected technology" are used as defined in section
501 or 502 of the Act.
(2) The terms "average fuel economy," "fuel
economy," and "model type" are used in 40 CFR
600.002-77.
(3) The terms "automobile" and "passenger
automobile" are used as defined in section 501 of
the Act and in accordance with the determina-
tions in 49 CFR Part 523.
(b) Other terms. (1) The terms "base level" and
"vehicle configuration" are used as defined in 40
CFR 600.002-77.
(2) As used in this part, unless otherwise re-
quired 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).
"Administration" means the National
Highway Traffic Safety Administration.
"Affected model year" means the model year
for which a reduction of an average fuel economy
standard is requested under this part.
"Category of Federal standards" means any of
the following categories of motor vehicle stand-
ards and associated measurement procedures—
(1) Emissions standards issued imder section
202 of the Clean Air Act (42 U.S.C. 1857f-l), and
emissions standards applicable by reasons of sec-
tion 209(b) of that Act (42 U.S.C. 1857f-6a(b));
PART 527-1
Traffic and Motor Vehicle Safety Act of 1966 (15
U.S.C. 1381 et seq.);
(3) Noise emission standards issued under sec-
tion 6 of the Noise Control Act of 1972 (42 U.S.C.
4905); or
(4) Property loss reduction standards issued
under title I of the Act (15 U.S.C. 1911 et seq.).
"EPA Administrator" means the Administrator
of the Environmental Protection Agency.
"Modifications" means changes by a petitioner
in the technology of a passenger automobUe con-
sistent with the need of the Nation to improve
automobile fuel economy and with the energy sav-
ings, economic costs, and leadtime requirements
associated with the technologies that would have
been practicably available to the petitioner given
the applicability of the model year 1975 standards
in the category or categories of Federal standard
for which a reduction is sought.
"NHTSA Administrator" means the Adminis-
trator of the National Highway Traffic Safety
Administration.
"Production mix" means the number of
passenger automobiles, and the percentage of the
petitioner's annual total production of passenger
automobiles, in each vehicle configuration which a
petitioner plans to produce in a specified model
year.
"Set 1" means the set of passenger automobiles
which a petitioner will produce in the affected
model year.
"Set 2" means the set of passenger automobiles
which a petitioner would have produced in the af-
fected model year had the model year 1975 stand-
ards in all categories of Federal standards for
which a Federal standards fuel economy reduction
is sought been the only standards in those
categories.
§ 527.4 Eligibility.
Any manufacturer of passenger automobiles
may petition the NHTSA Administrator under this
part for a reduction of the average fuel economy
standard applicable to passenger automobiles for
model year 1978, 1979, or 1980.
Each petition filed under this part must:
(a) Request the reduction of an average fuel
economy standard for not more than one model
year;
(b) Identify the affected model year;
(c) Be submitted within the 24-month period im-
mediately preceding the beginning of the affected
model year;
(d) Be submitted in twenty copies to: Adminis-
trator, National Highway Traffic Safety Adminis-
tration, Washington, D.C. 20590;
(e) Be written in the English language;
(f) State the full name, address, and title of the
official responsible for the preparation of the peti-
tion; and
(g) Set forth in full the data, views, and
arguments of the petitioner supporting the
Federal standards fuel economy reduction re-
quested in its petition, including the information
and data specified in §§ 527.6 through 527.12 and
the calculations and analyses used to develop the
information and data. No documents may be incor-
porated by reference in a petition unless the
documents are submitted with the petition.
§ 527.6 Technology.
(a) The petitioner shall submit the following in-
formation as part of its petition—
(1) Set 1 technology. For each vehicle con-
figuration specified in 40 CFR 600.506(a) (2) (iii)
of the petitioner's passenger automobiles to be
produced in the affected model year, the infor-
mation specified in paragraph (a) (1) (i) and (ii) of
this section:
(i) A description of the technology that is in-
corporated in the vehicle configuration and
that either relates to the petitioner's efforts to
comply with any category of Federal stand-
ards or affects the fuel economy of the vehicle
configuration;
(ii) A description of any alternative or addi-
tional technology that was practicably avail-
able to the petitioner for incorporation in the
vehicle configuration and the use of which
would have enabled that vehicle configuration
to achieve higher fuel economy and would have
resulted in a smaller Federal standard fuel
economy reduction than the technology
described under paragraph (a) (1) (i) of this
region; and
PART 527-2
(iii) For each item of alternative technology
described under paragraph (a) (1) (ii) of this
section, a statement of the reasons for not in-
corporating the item, including a comparison
of the fuel savings, economic costs and lead-
time requirements of that item and of the
technology that was incorporated in the vehi-
cle configuration.
(2) Set 2 technology. A description of the
modifications that the petitioner would have
made to each vehicle configuration specified in
40 CFR 600.500(a) (2) (iii) had the model year
1975 standards in all categories of Federal stand-
£irds for which a Federal standards fuel economy
reduction is sought been the only standards in
those categories for the affected model year.
§ 527.7 Fuel economy of vehicle configurations and
model types.
The petitioner shall submit a fuel economy value
for each vehicle configuration specified in 40 CFR
600.506(a) (2) (iii) and for each model type of the
petitioner's set 1 and set 2 passenger automobiles.
§ 527.8 Average fuel economy.
The petitioner shall submit the average fuel
economy determined in accordance with
§ 527.12(c) of the petitioner's set 1 and set 2
passenger automobiles.
§ 527.9 Federal standards fuel economy reduction.
Federal standards fuel economy reductions shall
be calculated as follows:
(a) Subtract—
(1) Set 1 fuel economy determined under
S 527.8 from
(2) Set 2 fuel economy determined under
$ 527.8; and
(b) Subtract 0.5 miles per gallon from the result
obtained under paragraph (a) of this section for
each category of Federal standards for which a
Federal standards fuel economy reduction is
sought.
§ 527.10 Projected production total and mix.
(a) The petitioner shall submit its projections,
based on the average fuel economy standard for
passenger automobiles as specified in the Act for
the affected model year, of its total production and
production mix of all model types of its passenger
automobiles for the affected model year, and all
vehicle config^ations within each of those model
types, and information demonstrating that those
projections are reasonable. The information shall
include information showing that those projections
are consistent with the petitioner's mixes of
passenger automobiles produced or expected to be
produced in each model year from model year 1975
through the model year immediately preceding the
affected model year, its passenger automobile pro-
duction capacity for the affected model year, its ef-
forts to comply with that average fuel economy
standard, and the anticipated consumer demand
for passenger automobiles during that model year.
§527.11 Production mix for determining Federal
standards fuel economy reductions.
The production mix to be used for calculating
Federal standards fuel economy reductions shall
be the mix or mixes specified in paragraph (a), (b),
or (c) of this section, as appropriate.
(a) (1) The production mix to be used shall be the
mix projected imder § 527. 10 if either of the follow-
ing conditions are met:
(i) The average fuel economy determined in
accordance with § 527.12(c) of the petitioner's
passenger automobiles for the affected model
year, based upon the production mix projected
under § 527.10, equals or exceeds this ap-
plicable average fuel economy standard; or
(ii) The average fuel economy based on the
mix projected under §527.10 of the
petitioner's passenger automobiles to be pro-
duced in the affected model year with the
modifications that the petitioner would have
made to them had the standards in one or
more categories of Federal standards for
model year 1975 been the only standards in
that category or categories in effect during the
affected model year equals or exceeds the ap-
plicable average fuel economy standard.
(2) If the condition in paragraph (a) (1) (i) of
this section is not met but the condition in
paragraph (a) (1) (ii) of this section is met, the
petitioner shall provide the information specified
in §§ 527.6, 527.7, and 527.8 for the passenger
automobiles described in paragraph (a) (1) (ii).
(b) If the average fuel economy of no mix of
passenger automobiles for the affected model year
as modified under § 527.11(a) (1) (ii) equals or ex-
ceeds the applicable average fuel economy stand-
ard, the production mix to be used shall be that
PART 527-3
mix with production total equal to that total pro-
jected under $ 527.10 and with all vehicles being of
the vehicle configuration with the highest fuel
economy.
(c) The production mix to be used shall be that
mix calculated under this paragraph if none of the
criteria in paragraphs (a) or (b) of this section are
met. For the purposes of adjusting the production
mix pursuant to this paragraph, the following pro-
cedures shall be followed: '
(1) Assume initially that the modified
passenger automobiles specified in paragraph
(a) (1) (ii) of this section are to be produced in the
production total and mix projected under
§ 527.10.
(2) Keeping that total production constant, ad-
just that production mix as follows:
(i) For each model type of those modified
passenger automobiles whose fuel economy is
less than the average fuel economy standard
for passenger automobiles for the affected
model year, decrease the numbers of those
modified passenger automobiles in that model
type and in each vehicle configuration within
that model type by 0.1 percent.
(ii) For each model type of those modified
passenger automobiles whose fuel economy is
equal to or greater than that standard, in-
crease the numbers of those modified
passenger automobiles in that model type and
in each vehicle configuration within that model
type by that percentage which, in conjunction
with the decrease specified in paragraph
(c) (2) (i) of this section, will keep the total pro-
duction constant.
(3) Calculate the average fuel economy of the
production mix as adjusted under paragraph
(c) (2) of this section.
(4Xi) If the average fuel economy calculated
imder paragraph (c) (3) of this section equals or
exceeds the applicable fuel economy standard,
the mix as adjusted under paragraph (c) (2) of
this section shall be used for calculating Federal
standards fuel economy reductions.
(ii) If the average fuel economy calculated
under paragraph (c) (3) of this section is less
than the standard, adjust the projected pro-
duction mix further by repeating the pro-
cedure in paragraphs (c) (2) and (3) of this sec-
tion until the first production mix is reached
whose average fuel economy equals or exceeds
that standard.
§ 527.1 1 Calculation of fuel economy values and
average fuel economy.
For the purposes of this part, fuel economy
values shall be determined as follows:
(a) Determination of vehicle configuration fiiel
economy values. (1) For each vehicle configuration
for which a fuel economy value is required under 40
CFR 600.506(a) (2) (i) through (a) (2) (ui) and for
which a fuel economy value has been determined
and approved under 40 CFR Part 600, the peti-
tioner shall submit that fuel economy value.
(2) For each vehicle configuration for which a
fuel economy value is required under 40 CFR
600.506(a) (2) (iii) and for which an approved
value does not exist, the petitioner 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. Values
based on actual tests conducted in accordance
with procedures specified in Subpart B of 40
CFR Part 600, shall be entitled to greater pro-
bative weight in NHTSA's evaluation of peti-
tions than values based on analytical methods.
Values to be used in the average fuel economy
calculation in $ 527.8 and based on methods
other than such actual tests will be acceptable to
NHTSA only if the petitioner demonstrates in its
petition that—
(i) The petition contains all data previously
approved by EPA and all relevant fuel
economy test data from the petitioner's in-
house testing program;
(ii) To the maximum extent practicable, all
fuel economy testing required to be conducted
under 40 CFR Part 600, has been scheduled so
that as much testing as possible is completed
prior to the submission of the petition; and
(iii) To the maximum extent practicable,
testing required to be conducted under 40 CFR
Part 600, has been scheduled so that those
vehicle configurations with the largest pro-
jected sales are tested first.
(b) Determination of model type fuel economy
values. For each model type, the petitioner shall
submit a fuel economy value based on the values
determined in accordance with paragraph (a) of
PART 527-4
this section and calculated in the same manner as
model type fuel economy values are calculated for
use under Subpart F of 40 CFR Part 600.
(c) Determination of average fuel economy.
Average fuel economy shall be based upon fuel
economy values calculated under paragraph (b) of
this section for each model type and shall be
calculated in accordance with 40 CFR 600.506, ex-
cept that—
(1) The production mix determined under
S 527.11 shall be used in place of projected sales;
and
(2) Fuel economy values for running changes
implemented and for vehicle configurations
added are required only for those changes or ad-
ditions made before the submission of the peti-
tioner's petition. Data for subsequent running
changes and added vehicle configurations must
be included in reports submitted under
$ 527.13(c).
S 527.13 Supplementary Information requirements.
(a) The petitioner shall provide the NHTSA Ad-
ministrator with any revisions that it makes, after
submitting its petition and before a final decision is
rendered under § 527.14, to the production mix
and total provided under § 527.10. The petitioner
shall submit information demonstrating that the
revisions are reasonable, including the information
described in § 527.10.
(b) For each vehicle configuration of the peti-
tioner's passenger automobiles to be produced in
the affected model year for which a fuel economy
value is generated by the petitioner's in-house
testing program or approved by the EPA Ad-
ministrator under 40 CFR 600.506-78 after the
submission of the petition and before a final deci-
sion is rendered under § 527.14, the petitioner
shaU provide the NHTSA Administrator with that
value and a revised fuel economy value for that
vehicle configuration as modified under
$ 527.6(a) (2).
(c) All revisions required to be submitted under
5 527.13(a) or (b) shall be submitted within thirty
days of their availability to the petitioner. The peti-
tioner shall show the effect on the petition of all
revisions submitted.
1 527.14 Processing of petitions.
(a) On receipt of a petition, the petition is
evaluated for completeness. If a petition is found
not to contain the information required by this
part, the petitioner is informed about the areas of
insufficiency and advised that the petition will not
receive further consideration until the necessary
information is submitted.
(b) The NHTSA Administrator may request the
petitioner to provide relevant information in addi-
tion to that required by this part: Provided, That
such informaton either presently exists or can be
obtained by the petitioner without undue hardship.
(c)(1) After the NHTSA Administrator con-
cludes that a petition contains all the information
required under this part, a notice of receipt of the
petition is published in the Federal Register. The
notice of receipt provides the following informa-
tion:
(i) That a petition has been received;
(ii) The petitioner's identity;
(iii) The reduction requested and a brief
summary of the petitioner's rationale therefor;
(iv) NHTSA's options for disposition of the
petition;
(v) The criteria to be applied in evaluating
the petition;
(vi) The location of copies of the petition
available for public inspection; and
(vii) An invitation of comments from the
public and a deadline for submission of those
comments.
(2) At the same time the notice of receipt is
published, a copy of the petition is sent to the
Federal agency responsible for administering
the category of standards for which the Federal
standards fuel economy reduction is sought and
the comments of that agency are invited.
(d) The NHTSA Administrator requests the
EPA Administrator to provide him with fuel
economy values as they are approved by the EPA
for the petitioner's passenger automobiles to be
produced in the affected model year. These values
replace the corresponding unapproved values in all
calculations of average fuel economies.
(e) After all comments are received and
evaluated, the NHTSA Administrator publishes a
proposed decision or set of reasonable alternative
decisions in the Federal Register. The notice
specifies the reasons for each alternative, solicits
written comment on the proposal, and establishes
a date and place for a public hearing.
PART 527-5
(f) After the conclusion of the pubhc comment
period and hearing specified in paragraph (e) of
this section, the NHTSA Administrator pubHshes a
final decision in the Federal Register. The final
decision is based upon the petition, written and
oral comments, and other available information.
The final decision sets forth the grant or denial of
the petition in accordance with section 502(d) (2) of
the Act and the reasons for the decision. To the ex-
tent practicable, a final decision will be rendered
within 180 days of receipt of a complete petition.
(g) If fuel economy values approved by the EPA
Administrator cannot be obtained by the NHTSA
Administrator for most model types of the peti-
tioner's passenger automobiles to be produced in
the affected model year, the NHTSA Administra-
tor may rely on fuel economy values submitted pur-
suant to § 527.12(a)(2) and issue the notice
described in paragraph (f) of this section as an
interim determination. The notice, which is
published in the Federal Register, contains the in-
terim determination and the findings and analysis
upon which such determination is based. The in-
terim determination becomes final unless the
NHTSA Administrator determines, after notice
and opportunity for written and oral comment in
accordance with this section, that significant
disparities exist between the fuel economy values
upon which the interim determination was based
and fuel economy values subsequently approved by
the EPA Administrator or submitted by the peti-
tioner under § 527.13(b). Notice of the final deter-
mination with the adjusted reduction and of the
reasons therefor is published in the Federal
Register. For the purposes of this section,
disparities between approved and unapproved data
are deemed significant if, when all such disparities
are taken together, the total average fuel economy
calculate pursuant to § 527.8 would differ by 0.1
mile per gallon or more.
§527.15 Public hearing.
(a) Each hearing under $ 527.14(e) is a
legislative type hearing intended to provide in-
terested persons with an opportunity to state their
views or arguments, or to provide pertinent infor-
mation concerning the proposed reduction.
(b) (1) The NHTSA Administrator appoints one
or more employees of the Administration to serve
on the hearing panel and designates one of those
employees to be the presiding official. Other
Federal employees may be invited to serve on the
panel as well.
(2) The presiding official may:
(i) Limit the length of oral presentations;
(ii) Exclude irrelevant or redundant
material; and
(iii) Direct that corroborative material be
submitted in writing rather than presented
orally.
(c) Any person desiring to make an oral state-
ment at the hearing should file a notice of such in-
tention and, if practicable, five copies of his pro-
posed statement with the NHTSA Administrator
at least ten days prior to the hearing.
(d) (1) The NHTSA Administrator requires
representatives of the petitioner able to address all
matters raised in the petition to attend the hear-
ing.
(2) The NHTSA Administrator may, on his
own motion or at the request of a hearing partici-
pant, require any person who submits written
comments to the NHTSA Administrator on the
proposed reduction before the hearing or who
has relevant information necessary to an in-
formed decision in the proceeding to attend the
hearing at any time before its conclusion.
(3) The Administrator requires any person
who, under paragraph (d) (1) or (2) of this section
attends the hearing, to respond to questions
posed to him under paragraph (e) of this section.
(4) All testimony at the hearing is made under
oath.
(e) Any individual appointed under paragraph
(b) of this section may, on his own initiative or at
the request of any interested person attending the
hearing, propound questions to—
(1) Any person subject to paragraph (d) of this
section.
(2) Any person who makes an oral presenta-
tion at the hearing.
(f) Interested persons attending the hearing
may submit to the panel written questions to be
propounded to persons identified in paragraph (e)
of this section. Questions for a witness other than
those identified in paragraph (d) (1) of this section
may not be submitted to the panel after the com-
pletion of testimony by that witness.
t
PART 527-6
(g) A verbatim transcript of the proceeding is
made and copies are available from the reporter at
the expense of any person requesting them.
§ 527.16 Public Inspection of Information.
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, the transcript of the public
hearing, and the notices regarding the petition, in
the Docket Section of the Administration. Except
as provided in $ 527.15(g) regarding transcripts of
the public hearings, any person may obtain copies
of the information available for inspection under
this paragraph in accordance with the regulations
of the Office of the Secretary of Transportation (49
CFR Part 7).
[FR Doc. 77-32887 Filed 11-11-77; 8:45 am]
Joan Claybrook
Administrator
42 F.R. 58938
November 14, 1977
$
$
PART 527-7
#
Effective: July 28, 1977
PREAMBLE TO PART 529— MANUFACTURERS OF MULTISTAGE AUTOMOBILES
(Docket No. FE 77-02; Notice 2)
The purpose of this notice is to establish a rule
for determining, 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 Title V of the Motor Vehicle
Information and Cost Savings Act, as amended
(15 U.S.C. 2001 et seq.), and its implementing
regulations. Section 501(8) of the Act requires
such rule to be issued. In most instances, the
rule makes the incomplete automobile manufac-
turer responsible for meeting the Title V require-
ments, including those relating to automobile
fuel economy standards, fuel economy labeling,
and reporting.
Effective Date : July 28, 1977.
For further information, contact :
Roy Dennison
National Highway Traffic Safety
Administration
Department of Transportation
400 Seventh Street, S.W.,
Washington, D.C. 20590
(202) 755-9384
Supplementary Information :
Section 501(8) of Title V requires the Admin-
istrator of the National Highway Traffic Safety
Administration (NHTSA) to prescribe rules for
determining, in cases where more than one pei-son
is the manufacturer of an automobile, which per-
son is to be treated as the manufacturer of that
automobile and thus responsible for compliance
with the requirements of Title V. The principal
requirements are those for complying with aver-
age fuel economy standards, submitting reports,
and placing fuel economy labels on new auto-
mobiles.
The general outlines of a rule to implement
section 501(8) were first discussed in the notice
of proposed rulemaking (November 26, 1976, 41
FR 52087) on average fuel economy standards
for model year 1979 nonpassenger automobiles.
That notice stated that the agency contemplated
issuing a proposal that would place compliance
responsibilities on incomplete automobile manu-
facturer in most instances. A notice of proposed
rulemaking (NPRM) dealing directly with multi-
stage automobiles was published on February 14,
1977 (42 FR 9040). Consistent with the No-
vember 26 notice, the NPRM proposed that in-
complete automobile manufacturers be made
responsible in most instances for complying with
the Title V requirements. The major exception
to this assignment of responsibility was when a
subsequent manufacturer, i.e., an intermediate or
final-stage manufacturer, altered an automobile
sufficiently to void the results of the fuel economy
testing of the automobile by the incomplete auto-
mobile manufacturer. In such an instance, the
subsequent manufacturer would become partially
or totally responsible for complying with Title V.
A relatively minor exception was provided in
the instance of a final-stage manufacturer that
completed manufacture of a multistage automo-
bile in a model year after the model year in
which the incomplete automobile manufacturer
finished its manufacturing operations on the
automobile and that marketed the automobile as
one manufactured in the latter model year. The
NPRM provided that the final-stage manufac-
turer would assume responsibility for compliance
in this circumstance also. Under either excep-
tion, the assumption of responsibility by the
subsequent manufacturer would permit the in-
complete automobile manufacturer to remove the
automobile from its fleet of automobiles subject
to the fuel economy standards.
Comments on the February 14, 1977 notice
were received from American Motors Corporation
(AMC), Chrysler, Ford, General Motors (GM)
PART 529— PRE 1
Effective: July 28, 1977
and the Automobile Club of Southern California
(Auto Club). All comments have been consid-
ered and the most significant ones are discussed
below.
Major differences hetween the proposed and
■final rules. The most significant differences be-
tween the proposed rule and the final rule estab-
lished by this notice are set forth below :
(1) The manufacturer which attaches the por-
tion of the automobile body containing the wind-
shield and front seat side windows to an
incomplete automobile is made responsible for
affixing the fuel economy label to that automobile.
(2) An incomplete automobile manufacturer
is responsible for submitting a partial semi-
annual report regarding its incomplete automo-
biles even if it ceases to be treated as their
manufacturer for purposes of standards and
labeling compliance. Xo report is required from
intermediate or final-stage manufacturers under
any circumstance.
(3) The final rule does not adopt the proposed
requirement that a final-stage manufacturer
which sells a multistage automobile as one manu-
factured in the model year in which it completed
its manufacturing operations must assume respon-
sibility for complying with Title V with respect
to that automobile if that model year is subse-
quent to the model year in which the incomplete
automobile manufacturer completed its manufac-
turing operations.
Assignment of responsibility. The NPRM as-
signed to incomplete automobile manufacturei's
the responsibility for complying with the require-
ments of Title V and its implementing regula-
tions that affect multistage automobiles. Ford
and Chrysler agreed with this assignment, noting
that the incomplete automobile manufacturer is
the manufacturer of a multistage automobile
if it designs and builds the chassis and power
train components that primarily determine the
fuel economy of the completed automobile. Ford
observed that incomplete automobile manufac-
turers generally have the engineering manpower
and test facilities necessary to perform fuel econ-
omy development and testing, wliile intermediate
and final-stage manufacturers seldom have these
resources. Neither AMC nor GM objected to this
assignment.
Ford and GM also stated that they did not
object to the proposed assignment of responsi-
bility because including their incomplete automo-
biles in their fleets for standards compliance
purposes would have a negligible effect on their
average fuel economy. This was said to be true
even if the fuel economy of their incomplete
automobiles wei-e based upon "worst case" testing.
Ford and Chrysler did, however, limit their
agreement with the proposed assignment of re-
sponsibility to those automobiles which had been
completed by the subsequent manufacturers
within the specifications of the incomplete auto-
mobile manufacturer. Ford and Chrysler urged,
as the agency had proposed, that if an interme-
diate or final-stage manufacturer exceeds the
maximum curb weight or maximum frontal area
specified by the incomplete automobile manufac-
turer, thus invalidating the fuel economy values
determined by the incomplete automobile manu-
facturer, that subsequent manufacturer should
become responsible for that automobile under
Title V.
Compliance with average fuel economy stand-
ards. The NPRM suggested alternative methods
of testing to determine the fuel economy of multi-
stage automobiles. It was noted that the practice
of "worst case" testing, while appropriate for
emissions certification, might not be suited for
use under Title V. For emissions standard en-
forcement purposes, the actual emissions levels
are not too important. "Wliat is important is
whether they exceed the maximum specified in
the emissions standards. However, the actual
tested level of performance is important under
the fuel economy program. The fuel economy
of each model type produced by a manufacturer
is used to calculate whether and to what extent
the average fuel economy of the manufacturer
has fallen below or exceeded the prescribed mini-
mum level of average fuel economy. The amount
of civil penalties and credits against civil penal-
ties are determined by the level of shortfall or
excess, respectively. The NPRM noted that if
an incomplete automobile manufacturer were re-
quired to determine the fuel economy of its fleet
based partially on " worst case" tested incomplete
automobiles, a manufacturer of a substantial
number of those automobiles could be at a dis-
advantage relative to a manufacturer of only
PART 529— PRE 2
Effective: July 28, 1977
single-stage automobiles in trying to comply with
the average fuel economy standards.
The comments suggest that there would be no
such disadvantage. GM said that it preferred
"worst case" testing because that approach mini-
mized GM's testing burden. Ford expressed no
preference, pointing out that the use of "best
case" testing instead of "worst case" testing or
vice versa would make no practical difference in
the resulting average fuel economy. Ford, GM.
and Chrysler all noted that the sale of incomplete
automobiles was such a small proportion of
their total sales that the effect of the incomplete
automobiles on their average fuel economy was
negligible. Ford stated that determining more
representative fuel economies would require ad-
ditional testing. In that company's view, that
additional testing was not justified because of
the insufficient effect on average fuel economj'.
The NPRM also noted that "worst case" test-
ing miglit be inappropriate for determining fuel
economy because the fuel economy value appear-
ing on the label would then be the lowest possible
value for that automobile. That is, the value
would be that for an automobile completed to the
maximum pemiissible curb weight and frontal
area specified by the incomplete automobile
manufacturer. Thus, a final-stage manufacturer
that completes an automobile with a curb weight
and frontal area significantly less than the max-
ima would not be rewarded by a commensurately
higher fuel economy value. Thus, there would
be reduced incentive for a final-stage manufac-
turer to attempt to minimize curb weight and
frontal area. Further, in competing with manu-
facturers of single-stage vehicles having a com-
parable size and function, the final-stage
manufacturer might be at a disadvantage due to
the comparatively low fuel economy that its
automobiles appear to be capable of achieving.
Xo final-stage manufacturer commented on this
or any other portion of the proposed rule.
Ford, GM, and Chrysler opposed additional
testing to determine the fuel economy of multi-
stage automobiles more accurately. They stated
that the cost and burden of additional testing
could cause an incomplete automobile manufac-
turer to eliminate or sharply curtail production
of those automobiles. In response to a question
posed in the NPRM, the costs stated by the
manufacturers for retesting an automobile after
having tested it and then reset the road load
would range from $200 to $400.
Chrysler stated that it believed that the fuel
economy values for multistage automobiles should
represent as accurately as possible the fuel econ-
omy that would result from testing the completed
automobile. For the reasons stated in the im-
mediately preceding paragraph, that company
said that there is no cost-effective way of ac-
curately establishing the fuel economy of com-
pleted multistage automobiles through testing.
However, Chrysler indicated that the cost of con-
ducting additional fuel economy tests should not
prevent developing a best estimate of the fuel
economy that could be achieved by the completed
multistage automobiles. Chrysler suggested a
method that might be used for determining a
best estimate of the fuel economy for those auto-
mobiles.
Under Chrysler's suggested method, the incom-
plete automobile would be tested in its "worst
case" condition. If the curb weight and frontal
area of the completed automobile incorporating
the incomplete automobile are less than the max-
ima specified for the incomplete automobile, then,
according to Chrysler, it should be possible to
estimate mathematically the fuel economy of the
incomplete automobile using the fuel economy
values for the completed automobile and incom-
plete automobile.
Ford and GM responded negatively to the sug-
gestion in the NPRM that a more accurate de-
termination of the fuel economy of multistage
automobiles might be possible through improved
communication between the incomplete and final-
stage manufacturers. These commenters stated
that there was no practicable means by which
they could learn about the final specifications of
the incomplete automobiles that they manufac-
ture. According to these commenters, incomplete
automobiles are sold to more than 1,000 different
intermediate and final-stage manufacturers and
converted into as many as 25 different types of
automobiles, with the final-stage manufacturer
having substantial latitude regarding body style
and shape and options.
All of the above comments regarding methods
for developing fuel economy values have been
referred to the Environmental Protection Agency
PART 529— PRE 3
Effective: July 28, 1977
(EPA). The EPA has the authority under sec-
tion 503 of Title V for specifying tlie procedures
for determining fuel economy.
Com.'plian.ce with laheUng requirements. Chrys-
ler, Ford, and GM recommended that the fuel
economy label values for multistage automobiles
be derived from the corresponding completed,
single-stage automobiles manufactured by the in-
complete automobile manufacturer. This com-
ment, like the other conunents on methods for
developing fuel economy values, has been referred
to EPA for consideration.
Chrysler, Ford, and GM also commented that
they were presently complying with the labeling
requirements in the same manner as for single-
stage automobiles. Ford noted that most fuel
economy labels for incomplete automobiles were
attached to the windshields or side windows. For
incomplete automobiles sold with no body, that
company recommended that the labels be enclosed
with the emissions certification and safety com-
pliance information furnished by the incomplete
automobile manufacturer to subsequent manufac-
turers. The NHTSA agrees with this recom-
mendation. The rule has been revised to provide
that while the incomplete automobile manufac-
turer would be responsible for preparing the fuel
economy label for those incomplete automobiles,
the responsibility for affixing the label would be
placed on the manufacturer that adds the body
to the automobile.
Ford commented that the XPRM did not com-
pletely and appropriately assign responsibility
for the fuel economy labels remaining affixed to
the multi-stage automobiles. That company
stated that when the incomplete automobile
manufacturer affixes the label to an incomplete
automobile, all subsequent manufacturers of the
automobile must assume responsibility and be
held accountable for maintaining the label. The
NHTSA agrees that there was incomplete as-
signment of this responsibility. The rule has
been revised to ensure an unbroken chain of
accountability for the fuel economy labels' re-
maining attached. If a manufacturer receives
an incomplete automobile that has the portion of
the body including the windshield and front seat
side windows and therefore should be labeled,
but does not have a fuel economy label, the
manufacturer is required to attach a label identi-
cal to the one that should be on the automobile.
The document containing the curb weight and
frontal area maxima and the addenda, if any,
to that document will identifj- the previous man-
ufacturer of that automobile which should have
prepared the missing label. Similarly, if a fuel
economy label is removed from an incomplete
automobile while it is in the possession of one of
its manufacturers, that manufacturer must re-
attach that label or obtain an identical one from
the manufacturer which prepared the removed
label. A manufacturer is not required to replace
a label that is removed in the circumstances of
the immediately preceding sentence if the manu-
factui'er has exceeded one of the maxima and
must prepare a new label with new fuel economy
values.
CoTnpliance ivith reporting requirements. The
NPEM assigned reporting responsibilities in the
same general manner as standards compliance
and labeling responsibilities, but stated that the
manner of assigning reporting responsibilities
would be addressed in greater detail in a subse-
quent notice of proposed nilemaking dealing
solely with reporting requirements. That subse-
quent notice was published April 11, 1977, 42 FR
18867. The question of multistage manufacturers
was addressed at 42 FR 18869. The reporting
XPRM provided that even when an intennediate
or final-stage manufacturer assumed full respon-
sibility for the compliance of an automobile with
the fuel economy standards, it would assume only
partial responsibility for compliance with the re-
porting requirements. In commenting on the
multistage XPRM, Chrysler, Ford, and GM
stated that an intermediate or final-stage manu-
facturer which exceeds the curb weight and
frontal area maxima should assume the reporting
responsibilities. However, in commenting on the
subsequent reporting NPRM, none of these man-
ufacturei-s objected to a proposal that the report-
ing responsibilities be divided between the
incomplete automobile manufacturer and one of
the subsequent manufacturers when the latter
manufacturer exceeds one of the maxima.
After considering these comments and the com-
ments discussed above about the degree of com-
munication between the incomplete automobile
manufacturers and subsequent manufacturers, the
X'HTSA has decided to make several relatively
PART 529— PRE 4
EfFeclive: July 28, 1977
minor changes in the reporting responsibilities
described in the reporting NPRM. First, the in-
complete automobile manufacturer would not be
required to provide information relating to cer-
tain aspects of completed multistage automobiles
manufactured from its incomplete automobiles.
These aspects would include items such as num-
ber of designated seating positions, body style,
and passenger and cargo carrying volumes. Based
on the comments regarding the lack of communi-
cations between the incomplete aiitomobile man-
ufacturers and the subsequent manufacturers,
information of this type would apparently not
be available to the incomplete automobile manu-
facturers. Second, intermediate and final-stage
manufacturers are not required to do any report-
ing under any circumstances, including any cir-
cumstance in which an intermediate or final-stage
manufacturer exceeds the maximum frontal area
or curb weight. Given the agency's expectation
that intermediate and final-stage manufacturers
will rarely exceed either of the maxima, these
manufacturers were unlikely to have been re-
quired to submit reports in any event. For the
same reason, incomplete automobile manufactur-
ers are unlikely to be required to submit more
information about their incomplete automobiles
than they would have been required to do under
the reporting NPRM. Further, exceeding the
maxima would not affect most of the information
that the incomplete automobile manufacturer is
required to submit.
Model year determination. The NPRM pro-
vided that the final-stage manufacturer would
have two options regarding the designation of
model year of a multistage automobile. The
manufacturer could choose to offer for sale or
sell the automobile as one manufactured in either
the model year in which the incomplete automo-
bile manufacturer completed its manufacturing
operations or the model year in which that final-
stage manufacturer completed its manufacturing
operations. It was proposed that if the final-
stage manufacturer chose to offer the automobile
for sale as one manufactured in the model year
in which the incomplete automobile manufacturer
completed its manufacturing operations, and if
no subsequent manufacturer had exceeded the
curb weight and frontal area maxima, the final-
stage manufacturer could rely on the fuel econ-
omy testing and label of the incomplete
automobile manufacturer. If, however, the final-
stage manufacturer completed the automobile in
a model year after the incomplete automobile
manufacturer completed its manufacturing op-
erations and if the final-stage manufacturer
elected to offer the automobile for sale as one
manufactured in the latter model year, the final-
stage manufacturer would become the manufac-
turer of the automobile for the purposes of Title
V and would be required to conduct fuel economy
testing and to comply with the fuel economy
standard and labeling requirements for that later
model year.
Chrysler initially commented that the model
year of a multistage automobile should be the
model year in which the incomplete automobile
manufacturer completed its manufacturing op-
erations. This comment was qualified in a sub-
sequent meeting and telephone conversation with
the NHTSA which were summarized in mem-
oranda placed in the docket. In that meeting
and conversation, Chrysler stated that its sugges-
tion regarding model year was merely meant to
indicate that a multistage automobile should be
subject to the average fuel economy standard for
the model year in which the incomplete automo-
bile manufacturer completes its manufacturing
operations on the automobile unless a subsequent
manufacturer exceeded either the maximum
frontal area or maximum curb weight in a sub-
sequent model year. With respect to the market-
ing of completed automobiles, Chrysler intended
to suggest that the final-stage manufacturer have
the option of marketing the completed multistage
automobile either as one manufactured in the
model year in which the manufacturer for stand-
ards compliance purposes completed its manu-
facturing operations or as one manufactured in
the model year in which the final-stage manufac-
turer completed its manufacturing operations.
Chrysler went further to urge that the final-stage
manufacturer's election of the latter model year
not cause that manufacturer to become the manu-
facturer of that automobile for the purposes of
Title V and to be compelled to comply with the
applicable fuel economy standard for that model
year. Chrysler's comments stemmed from a con-
cern that the NPRM would have motivated final-
stage manufacturers to order all of their
PART 529— PRE 5
Effective: July 28, 1977
incomplete automobiles for delivery early in each
model year to avoid having to market out-of-date
automobiles. That company stated that it had
discouraged such one-time ordering because large
block ordering was disruptive of its efforts to
spread orders evenly over each model year.
The NHTSA believes that the Chrysler com-
ments have merit. To avoid unnecessarily burden-
ing both the incomplete automobile manufacturers
and final-stage manufacturers, the rule has been
revised to eliminate the model-year-determination
provision. The elimination of that provision
leaves the manufacturer free under Part 529 to
designate the model year of its automobiles as it
desires. However, the fuel economy label will
bear tlie model year in which the manufacturer
for purposes of standard and labeling compliance
completed its manufacturing operations. Fur-
ther, other law may limit the discretion of the
manufacturer in designating a model year. See
the discussion below of the Auto Club comment.
The elimination of the provision on model year
determination makes it unnecessary to respond in
detail to an objection by GM to that provision.
That company interpreted that provision as
meaning that any multistage automobile that a
final-stage manufacturer completes after the
model year in which the incomplete automobile
manufacturer completes its manufacturing op-
erations would be subtracted from the incomplete
automobile manufacturer's fleet for that earlier
model year. That interpretation was wrong in
several respects. However, the essential point is
that the model year in which a multistage auto-
mobile is completed has no effect on the deter-
mination of which automobiles are to be counted
as being in the incomplete automobile manufac-
turer's fleet.
The Auto Club objected to the model-year-
determination proposal on the basis that it con-
flicted with California law. Section 11713.5 of
the California Vehicle Code prohibits a dealer or
manufacturer from offering for sale a motor ve-
hicle if the vehicle is represented to be of a model
year different from the model year designated at
the time of manufacture or assembly. The Auto
Club stated that "if the incomplete automobile
manufacturer, who is the manufacturer for pur-
poses of Federal law, designates a model year for
the incomplete automobile, then any final-stage
manufacturer licensed to do business in California
who attempts to sell that automobile under sub-
division (a) of Section 529.7 would be in viola-
tion of (the California Vehicle Code)."
The deletion of the model-year-determination
provision eliminates the problem perceived by
the Auto Club. The provision was eliminated in
response to the Chrysler comment discussed
above and to avoid the possibility of unnecessar-
ily interfering with California law. The agency
notes that the provision might not have caused
any interference. The determination under Part
529 of which manufacturer is to be treated as the
manufacturer of a multistage automobile is con-
trolling for the limited purposes of Title V only.
Under the National Traffic and Motor Vehicle
Safety Act (15 U.S.C. 1391 et seq.) and imple-
menting regulation in 49 CFE Part 568, the
final-stage manufacturer is treated as the manu-
facturer. These differing determinations of who
is to be treated as a manufacturer to serve dif-
ferent statutory purposes do not control the de-
termination of who is a manufacturer under
California law. California, not Federal, law
must be interpreted to determine which of the
manufacturei"s of a multistage automobile is the
manufacturer of the automobile for the purposes
of section 11713.5 of the California Vehicle Code.
Additional comments. Ford suggested that the
proposal be modified to include express reference
to importers of incomplete automobiles in the
definition of "incomplete automobile manufac-
turer". This agency does not believe that this
additional language is necessary. The term
"manufacture" is defined in section 501 to include
the importation of automobiles into the customs
territory of the United States.
Chrysler recommended that the NHTSA con-
sider exempting an incomplete automobile manu-
facturer from any responsibility under Title V
with respect to its complete automobiles if those
automobiles constitute less than 2 percent of the
total number of automobiles that the manufac-
turer produces in that class. This recommenda-
tion was based upon Chrysler's argiunents about
the negligible effects of those incomplete automo-
biles on the average fuel economy of the manu-
facturer. There is no authority under Title V
for adopting Chrysler's suggestion. Exemption
from standard compliance responsibilities are
PART 529— PRE 6
Effective: July 28, 1977
available only to low volume manufacturers of
passenger automobiles. Most multistage automo-
biles are nonpassenger automobiles. Further, the
exemptions are not complete. Alternative stand-
ards must be established for exempted manufac-
turers.
GM recommended that the midtistage automo-
bile rule be drafted to permit a final-stage manu-
facturer which manufactures less than 10,000
automobiles per year to petition for an exemption
under section 502(c) of Title V. That company
stated that when an exemption is granted for
multistage automobiles, their incomplete automo-
bile manufacturer should not have to include any
of them in its fleet. Section 502(c) provides for
the exemption of manufacturers which manufac-
ture less than 10,000 passenger automobiles per
year. As noted above, the exemptions can apply
to passenger automobiles only and can be granted
only if an alternative standard is established for
the exempted passenger automobiles. The eligi-
bility of a final-stage manufacturer to apply for
an exemption depends upon the number of pas-
senger automobiles it produces, assembles, or im-
ports and upon whether it is treated under this
rule as the manufacturer of those automobiles.
If the final-stage manufacturer produces a multi-
stage automobile but is not treated as its manu-
facturer, that final-stage manufacturer may not
obtain its exemption under section 502(c). An
exemption may be granted to a manufacturer for
automobiles under Title V only if the manufac-
turer can demonstrate that its maximum feasible
average fuel economy is less than the level of
average fuel economy specified in the standard
generally applicable to all manufacturers. An
automobile for whose fuel economy the final-stage
manufacturer has no responsibility has no bear-
ing upon its maximum feasible average. If the
final-stage manufacturer produces a multistage
automobile and is treated as its manufacturer,
that automobile is excluded by this rule from the
incomplete automobile manufacturer's fleet irre-
spective of any exemption. Thus, GM's comment
states no basis for changing the rule.
In light of the foregoing, Title 49, Code of
Federal Regulations, is amended by adding a new
Part 520, Manufacturers of Multistage Automo-
biles. . . .
The program official and lawyer principally
responsible for the development of this rule are
Roy Dennison and Kathy DeMeter, respectively.
Issued in Washington, D.C. on July 21, 1977.
Joan Claybrook
National Highway Traffic Safety
Administrator
42 F.R. 38369
July 28, 1977
PART 529— PRE 7-8
PART 529— MANUFACTURERS OF MULTISTAGE AUTOMOBILES
Sec.
529.1 Scope and purpose.
529.2 Applicability.
529.3 Definitions.
529.4 Requirements for incomplete automobile
manufacturers.
529.5 Requirements for intermediate manufac-
turers.
529.6 Requirements for final-stage manufac-
turers.
529.7 Determination of model year.
AUTHORITY: Sec. 301, Pub. L. 94-163, 80
Stat. 901 (15 U.S.C. 2001), delegation of author-
ity at 41 FR 25015, June 22, 1976.
§ 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 for 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 "automo-
bile" 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," "manufac-
turer," 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 auto-
mobile that requires no further manufacturing
operations to perform its intended function, other
than the addition of readily attachable compo-
nents, 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 opera-
tions 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 as-
semblage consisting, as a minimum, of frame and
chassis structure, power train, steering system,
suspension system, and braking system to the ex-
tent that those systems are to be part of the
completed automobile, that requires further man-
ufacturing 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 com-
pleted 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 re-
spect to multistage automobiles incorporating its
PART 529-1
incomplete automobiles, the manufacturer of the
multistage automobiles for purposes of the re-
quirements of Title V and rules issued there-
under.
(b) Each incomplete automobile manufacturer
shall furnish with each of its incomplete automo-
biles, when it is delivered to the subsequent man-
ufacturer, (1) a document that contains the
following information—
(i) Name and mailing address of the in-
complete automobile manufacturer.
(ii) Month and year during which the in-
complete automobile manufacturer performed its
last manufacturing operation on the incomplete
automobile.
(iii) Identification of the incomplete auto-
mobile 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 manu-
facturer to ascertain positively that the docuemnt
applies to a particular incomplete automobile even
if the document is not attached to that automo-
bile.
(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 con-
taining those values has been prepared in accord-
ance 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 with-
out invalidating the fuel economy values deter-
mined by the incomplete automobile manufac-
turer.
(vi) Maximum frontal area that may not
be exceeded by a subsequent manufacturer with-
out invalidating the fuel economy values
determined by the incomplete automobile manu-
facturer.
(vii) Whether the fuel economy values
have been computed with the road load horse-
power 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 manufac-
turer shall either attach the document specified
in paragraph (b) (1) of this section to the in-
complete 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 manu-
facturer places the portion of the body including
the windshield and front seat side windows on
the incomplete automobile, the manufactiu-er
shall attach the fuel economy label specified in
paragraph (b) (2) of this section to that automo-
bile 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) to have been prepared by the incomplete
automobile manufacturer for one of its incom-
plete automobiles, identified by the requesting
manufacturer in the same fashion as in the docu-
ment specified in paragraph (b) (1) of this sec-
tion, the incomplete automobile manufacturer
shall send that manufacturer a copy of the label.
§ 529.5 Requirements for intermediate manufac-
turers.
(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
manfacturer under paragraph (b) of this sec-
tion, as appropriate, is considered the manufac-
turer of the multistage automobile manufactured
from that automobile for the purpose of the re-
quirements of Title V and rules issued there-
under, other than that in Part 537, Fuel Economy
Reports.
(b) Each intermediate manufacturer of an in-
complete automobile shall furnish, in the manner
specified in § 529.4(c), to the subsequent manu-
PART 529-2
facturer 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 statements in
the document or any addendum attached to the
document by a previous manufacturer shall
furnish an addendum to the document that con-
tains its name and mailing address and an indi-
cation 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 automo-
bile.
(d) (1) If the intermediate manufacturer's
manufacturing operations on an incomplete auto-
mobile cause it to exceed the maximum curb
weight or maximum frontal area set forth in the
document furnished it by the incomplete automo-
bile manufacturer under § 529.4(c) (1) or a pre-
vious intermediate manufacturer under paragraph
(b) of this section, as appropriate, that manu-
facturer shall prepare a new fuel economy label
for that automobile in accordance with 40 CFR
Part 600.
(2) If neither the intermediate manufac-
turer of an incomplete automobile nor any pre-
vious 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 manufac-
turer 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 para-
graph (d) (1) of this section, as appropriate, to
that automobile in accordance with 40 CFR Part
600.
(4) The intermediate manufacturer shall at-
tach 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 manufac-
turer 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 man-
ufacturing operations do not cause that automo-
bile 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 interme-
diate manufacturer or by a final-stage manufac-
turer for a copy of a fuel economy label prepared
by the intermediate manufacturer under para-
graph (d) (1) of this section for one of its incom-
plete automobiles, identified by the requesting
manufacturer in the same fashion as in the docu-
ment specified in § 529.4(b) (1), the intermediate
manufacturer shall send that manufacturer a
copy of that label.
§ 529.6 Requirements for final-stage manufac-
turers.
(a) Except as provided in paragraph (c) of
this section, each final-stage manufacturer whose
manufacturing operations on an incomplete auto-
mobile 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 automo-
bile 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
PART 529-3
the requirements of Title V and rules issued
thereunder, other than those in Part 537, Fuel
Economy Reports.
(b) Each final-stage manufacturer that be-
comes the manufacturer of a multistage automo-
bile imder paragraph (a) of this section shall,
within 10 days after completing its manufactur-
ing 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 be-
comes the manufacturer of a multistage automo-
bile 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 at-
tach 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 manu-
facturing operations do not cause that automobile
to exceed either of the maxima specified in para-
graph (c) (1) of this section; and
(iii) That fuel economy label is not on
that automobile when received by that manufac-
turer or is removed from that automobile while
it is in the possession of that manufacturer.
42 F.R. 38369
July 28, 1977
PART 529-4
Effective: Model Years 1981-1984
PREAMBLE TO PART 531— PASSENGER AVERAGE FUEL ECONOMY STANDARDS
(Docket No. FE 76-1; Notice 5)
This notice establishes average fuel economy
standards for passenger automobiles manufac-
tured in model years 1981-84. These standards
are 22 miles per gallon (mpg) for passenger
automobiles produced in model year 1981, 24 mpg
for 1982, 26 mpg for 1983, and 27 mpg for 1984.
These standards are promulgated to satisfy the
requirements of section .502(a)(3) of the Motor
Vehicle Information and Cost Savings Act, as
amended. The establishment of these standards
is intended to result in the consumption of ap-
proximately 41 billion fewer gallons of gasoline
(worth $19 billion, with gasoline valued at &5^
per gallon) over the life of the vehicles manu-
factured in 1981-84 than would be the case if the
average fuel economy of new passenger automo-
biles remained at the level of the 1980 fuel econ-
omy standard, 20.0 mpg.
Dates : These standards will apply to the model
years 1981 through 1984.
For further information contact :
Mr. Stanley R. Scheiner
National Highway Traffic Safety
Administration
Department of Transportation
400 7th Street, S.W.
Washington, D.C. 20590
(202-472-5906)
Supplementary Information :
I. Background information.
Title V of the Motor Vehicle Information and
Cost Savings Act, as amended (hereafter, "the
Act"), establishes average fuel economy standards
applicable to manufacturers of passenger auto-
mobiles. Title V was added to the Act by Part
A of Title III of the Energy Policy and Con-
servation Act (hereafter, "the Energy Act").
The term "passenger automobiles" generally in-
cludes four-wheeled vehicles manufactured pri-
marily for on-road use and for the transportation
of ten or fewer passengers, e.g., sedans, coupes,
and station wagons. See 15 U.S.C. 2001(1) and
(2), and 41 FR 55368, December 20, 1976. Com-
pliance of a manufacturer with these standards
is to be determined by computing the production-
weighted fuel economy average of the various
model types of passenger automobiles manufac-
tured by the manufacturer in a model year and
comparing that niunber to the fuel economy
standard. Fuel economy values for the various
model types of passenger automobiles are deter-
mined in accordance with procedures established
by the Environmental Protection Agency. See
41 FR 38675, September 10, 1976. The Act speci-
fies fuel economy standards of 18, 19, and 20 mpg
for model years 1978, 1979, and 1980, respectively,
and 27.5 mpg for 1985 and thereafter. Fuel
economy standards for model years 1981-84 are
to be established administratively by the Secre-
tary of Transportation not later than July 1,
1977. See section 502(a)(3) of the Act. This
notice establishes the latter standards.
Section 502(a) (3) imposes two substantive re-
quirements for the 1981-84 standards. That sec-
tion requires that the standards for each of those
model years be set at a level which (1) is the
maximum feasible average fuel economy level
and (2) will result in steady progress toward
meeting the 1985 standard. The statutorily-
established standard for 1985 and thereafter of
27.5 mpg may be adjusted either upward or
downward by the Secretary of Transportation if
he determines that the present standard does not
reflect the maximum feasible average fuel econ-
omy level for those years. If the Secretary
amends the standard for any model year to a
level above 27.5 mpg or below 26.0 mpg, that
amendment is subject to a veto by either House
of the Congress. See section 502(a)(4). In
determining maximum feasible average fuel
economy, the Secretary must, under section
PART 531— PRE 1
Effective: Model Years 1981-1984
502(e) of the Act, consider four factors: tech-
nological feasibility, economic practicability ; the
effect of other Federal motor vehicle standards
on fuel economy; and the need of the nation to
conserve energy.
Responsibility for the automotive fuel economy
progi'am was delegated by the Secretary of
Transportation to the Administrator of the
National Highway Traffic Safety Administration
(XHTSxV) in -tl FR 25015, June 22, 1976. Rule-
making under section 502(a)(3) was initiated
on September 23, 1976, when the NHTSA pub-
lished an advance notice of proposed rulemaking
(ANPRM). See 41 FR 41713. The ANPRM
solicited specific information on all subjects rele-
vant to the establishment of 1981-84 standards,
with particular emphasis on the four considera-
tions relating to the determination of maximum
feasible average fuel economy levels set forth
above. Six automobile manufacturers, two in-
dustry trade associations, one state and one fed-
eral energ\' agency, and one private individual
provided responses to the ANPRM. These re-
sponses were considered in developing tlie notice
of proposed rulemaking and supporting materials
discussed below. To encourage the representation
in the proceeding of interests and points of view
which have traditionally been underrepresented
due to the high costs of participation, NHTSA
invited applications for financial assistance from
individuals and groups which were financially
unable to participate. See 42 FR 5178, January
27, 1977. Five public interest organizations re-
ceived funding in this first action under the
Department's demonstration program for finan-
cial assistance, which was announced in 42 FR
2864, January 13, 1977.
On February 22, 1977, a notice of proposed
rulemaking and public hearing (NPRM) was
published in 42 FR 10321. Tliis notice discussed
in additional detail the issues which were deemed
relevant to the establishment of 1981-84 stand-
ards. The notice also announced the availability
of a document titled "Data and Analysis for
1981-84 Passenger Automobile Fuel Economy
Standards" (hereafter, the ''Support Docu-
ment"), which set forth the methodologj' and
data on which fuel economy improvement projec-
tions would be based. This document was re-
leased on March 1, 1977. As noted in the NPRM,
the Support Document projected potentially
achievable fuel economy levels which Avould re-
sult in steady progress toward meeting 27.5 mpg
by 1985. These projections were based on the
use of a limited class of technological improve-
ments, and were therefore not projections of
"maximum feasible average fuel economy levels."
See 42 FR 10322, and Tr-I, p. 87 (remarks of
Dr. Robert Sawyer).' However, such projections
were useful for demonstrating that average fuel
economy levels in the range to be considered in
this proceeding were achievable.
The NPRM also announced a public hearing
to commence on ilarch 22, 1977, to permit inter-
ested parties to make oral presentations in addi-
tion to their opportunity to make written
submissions. The hearing was not required by
the Act, but was held at the discretion of the
Secretary to augnxent the opportunity for public
participation in this important informal rule-
making action. The Secretary of Transportation
presided over the first day of the hearing, to-
gether with the Administrator of the Federal
Energy Administration and the Deputy Admin-
istrator of the Environmental Protection Agency.
Representatives of the latter agencies also par-
ticipated throughout the remainder of the hear-
ing. Eleven companies, groups and individuals
made presentations at the hearing, including five
passenger automobile companies and four funded
public interest groups. The NPR]\I established
a deadline of April 7, 1977, for the submission of
written comments on the NPRM and the Support
Document and on issues raised at the hearing.
This deadline was extended on April 1, 1977, to
April 12, 1977, at the request of Chrysler Cor-
poration,- to allow additional time for the pre-
' The abbreviation "Tr" refers to tlie transcript of tlie
fuel economy pulilic hearing, copies of which are in the
fuel economy docket. The roman numeral following the
abbreviation refers to the transcript volume, "I" being
the Tuesday, March 22 volume, "11" being the March 23
volume, and "III" iieing the March 24 volume. Refer-
ences to the transcript and other materials are intended
as an aid to per.sons dealing with the voluminous ma-
terials in this rulemaking, and may not be exhaustive.
'DN-25. The abbreviation "DN" followed by a num-
lier refers to the docket number of material in NHTSA
docket FE 76-01-NO3. This docket is located in Room
5108 of the Nassif Building, 400 Seventh Street, S.W.,
Washington, D.C., and is open to the pulilic during
normal business hours.
PART 531— PRE 2
Effective: Model Years 1981-1984
paration of responses to questionK for whicli the
hearin<r panel received no answer at tlie hearing.
Sec 42 FR 18413, April 7. 1977. To assure fully
responsive answers to certain important questions
asked at the public hearin<r, "special orders" were
issued on April 1. 1977, under section 505 (b) (1)
of the Act to the five automobile companies which
participated in the hearing. DN-7. In addition,
on April 21, similar special orders were issued to
certain foreign passenger automobile manufac-
turers to obtain information on their capabilities
to achieve high levels of average fuel economy-
DX-28. On April 20, special orders were sent to
five automobile equipment and material suppliers
to obtain information on the fuel economy im-
provement potential and cost associated with the
equipment and material they could supply to
passenger automobile manufacturers in the 1981-
84 period. DX-27. An additional special order
was issued on May 19 to the recipients of the
April 1 order to obtain further information on
the impact of the Administration's proposed
emission standards and energy plan on fuel
economy. DX-35. All comments and responses
have been considered and the most significant are
discussed below.
Material contained in the Support Document,
as supplemented or revised in light of material
submitted in response to the NPRM and special
orders, together with other relevant material,
were used in the development of the standards
l^romulgated herein. More detailed information
including more extensive data and analyses used
in the development of these standards is con-
tained in a Rulemaking Support Paper (here-
after, the "RSP"), copies of which will soon be
available from the Office of Automotive Fuel
Economy (NFE-01), Xational Highway Traffic
Safety Administration, 400 Seventh Street, S.W.,
Washington, D.C. 20590 or by calling 202-472-
5906. The data and analyses in that paper ap-
pear to justify average fuel economy standards
more stringent than 27.5 mpg by 1985. However,
the scope of notice limits this final rule to stand-
ards for 1981-84. Thus, the statutory standard
of 27.5 mpg for 1985 and thereafter cannot be
changed by this ndemaking. Further, standards
of 27.5 mpg or higher cannot be set for any year
before 1985 so long as the 1985 standard remains
at 27.5 mpg. This second limitation results from
the statutory requirement that the 1981-84 stand-
ards lead to steady progress toward tlie 1985
standard.
It should be noted that these limitations on the
1981-85 standards are only temporary. Shortly,
tlie Department intends to exercise its authority
under section 502(a)(4) of the Act to initiate
rulemaking to increase the average fuel economy
standards for 1985 and thereafter. At that time,
the relation between the new standard for 1985
and the standards for 1981-84 established herein
will be considered. A further discussion of this
topic is contained in section XII below.
II. Methodology on which standards are based.
A. The methodological approach .
In view of the statutory requirement for maxi-
mum feasible standards and of the nation's need
to conserve energy, the Department has attempted
to set fuel economy standards at the most strin-
gent possible level, consistent with other statutory
requirements. At least two approaches exist for
determining such maxinuim levels. One ap-
proach is to evaluate the most fuel efficient pas-
senger automobiles produced today in each of the
various market classes of automobiles, and to use
that evaluation to set improvement targets for
all other automobiles in the same class. This
approach has the advantage of providing a clear
basis for evaluating current technological capa-
bilities. However, to the extent that the best of
the present vehicles, or even existing prototype
vehicles, do not employ all available fuel econ-
omy-improving technology, this approach does
not truly measure even current maximum capa-
bilities. Further, it does not consider technologi-
cal improvements that will occur in time to be
incorporated in the 1981-84 passenger automo-
biles. Therefore, in developing 1981-84 fuel
economy standards, the Department has employed
a different approach. The adopted methodology
looks at present passenger automobiles and
projects the impact of applying current and ex-
pected future technology to those vehicles. This
approach has the disadvantage that no one has
actually built or tested a vehicle that combines
the technological attributes of the vehicles pos-
tulated in the analysis. However, the Depart-
ment is convinced that the individual technologi-
PART 531— PRE 3
Effective: Model Years 1981-1964
cal improvements considered in this analysis have
been sufficiently well demonstrated through engi-
neering analysis and other means that the com-
bined fuel economy projections provide a reliable
estimate of the achievable fuel economy of future
passenger automobiles.
The Department's analysis started with the
detailed schedules for downsizing, weight reduc-
tion through materials substitution and matching
of engines with vehicles by the four major do-
mestic manufacturers, as contained in the Sup-
port Document. Then the schedules for inertia
weight reduction over the period 1981-85 were
revised to reflect further information. The
projected fuel economy results for each manu-
facturer for each year were then revised to reflect
the new weight estimates as well as the Depart-
ment's assessment that an average 10 percent
reduction in acceleration performance could be
achieved by the 1981 model year to increase fuel
economy by an additional 4 percent.
Next, the percentage increases in fuel economy
due to technological improvements in transmis-
sions, aerodynamic drag, rolling resistance, engine
and vehicle accessories, and lubricants were eval-
uated and these technological improvements were
projected to be phased-in to the 1981-85 vehicles
at various rates for each manufacturer. The
phase-in schedules took into account differences
in capability for implementation among the
manufacturers.
The technologies and the associated increases
in fuel economy are :
Improved automatic transmission 10%
Improved manual transmission 5%
Improved lubricants 2%
Reduced accessory loads 2%
Reduced aerodynamic drag 4%
Reduced rolling resistance 3%
In addition, the assessment included a 1 percent
fuel economy penalty due to safety standards
necessary to assure adequate levels of crash sur-
vivability in the automobile fleet of the 1980's.
See RSP.
Finally, the distribution of car sizes for each
manufacturer was assumed to be approximately
the same as in 1976.
The diesel engine was also considered in the
assessment. It is available to manufacturers as an
alternative way to obtain increased fuel economy
and the Department concludes that manufactur-
ers potentially could achieve a 25 percent pene-
tration of diesel engine powered passenger
automobiles by 1985. Similarly, the Department
considered a shift in size distribution to 10 per-
cent large cars, 25 percent midsize, 25 percent
compact, and 40 percent subcompact by 1985 as a
way to obtain a further increase in fuel economy.
Diesel engines and mix shifts were placed in a
"safety margin" category of technologically
feasible means for the purposes of this rule-
making.
The economic practicability of the specific
technical approach to improving fuel economy
was examined in depth. The assessment consid-
ered the cost to the manufacturer of the needed
capital facilities and the variable costs associated
with the various technological improvements in
fuel economy. It projected price increases based
on those cost estinuites. It examined the overall
costs to the consumer due to changes in new car
prices, improvements in fuel economy, and
changes in maintenance costs over tiie life of the
car. It considered the impacts of price and fuel
economy changes upon new car sales. It exam-
ined in some depth the capability of the four
domestic manufacturers to finance the capital
facilities and equipment out of revenue.
This approach results in a demonstration of
one feasible path for attainment of the fuel econ-
omy standards, which, however, is not necessarily
the least cost or lowest risk path for each auto-
mobile manufacturer to adopt to achieve com-
pliance. Since the fuel economy standards are
•'performance standards," manufacturers are free
to select any alternative path for achieving com-
pliance. Even if the Department had based its
fuel economy projections on the use of all luiown
technology, manufacturers would still have flex-
ibility in achieving compliance. In some cases,
the Department's analysis makes an allowance
for alternative technologies (e.g., downsizing or
material substitution to achieve weight reduction)
from which manufacturers may select. In addi-
tion, manufacturers may increase the percent of
their production for which some methods are
used and thereby genei'ate flexibility to decrease
PART 531— PRE 4
Effacllva: Model Years 1981-1984
the usag;e of some other method. The manufac-
turers may vary the intensity •witli which they
apply a particular method, for example, achiev-
ing a greater or lesser reduction in weight or
acceleration capability. Many of the achievable
improvements assumed in the analysis are based
on projections of fuel economy improvement
potential which the Department considers con-
servative. If improvements in fuel economy
greater than those projected are in fact realized,
more flexibility is obtained. Finally, any new
technological developments over the intervening
years would generate additional flexibility. Foi'
these reasons, it is clear that, even excluding the
measures comprising the compliance safety mar-
gin provided in this analysis, alternate ap-
proaches to complying with fuel economy
standards will be open to the automobile manu-
facturers.
B. Statutory requirements.
Section 502 of the Act provides guidance re-
garding the analysis to be used in setting the
1981-84 fuel economy standards. The first re-
quired step is to determine the "maximum fea-
sible average fuel economy level." The first
consideration required inider section 502(e) in
determining that level is "teclinological feasibil-
ity." The Department interprets the latter
phrase, in the context of the "maximum feasil)le"
requirement and the methodological approach
discussed above, as presenting the question of
whether the various technological options for
improving fuel economy are, individually and
when used with other options, capable of com-
mercial application in 1981-84. Therefore, the
technology considered in the Department's assess-
ment is not limited to that presently in produc-
tion. If it can be reasonably projected that the
technology will become available in time to be
applied in a specified model year, its use is tech-
nologically feasible in that year. See generally
"Chrysler Corp. v. Department of Transporta-
tion," 472 F.2d 659 (6th Cir. 1972, at 671-3;
"International Harvester v. Euckelshaus," 478
F.2d 615 (D.C. Cir. 1973), at 628-9. Although
marketing strategies for encouraging the pur-
chase of fuel efficient passenger automobiles are
not items of technology, those strategies have
been included in the "mix shift" portion of the
discussion of the technology -based average fuel
economy projections. Given the use of "maxi-
mmn," the Act must be construed to require the
Department to base its analysis on the use of all
feasible methods for improving average fuel
economy.
The NPRM, at 42 FR 10322, solicited comment
on the second statutory considei'ation, "economic
practicability." Ford Motor Company argued
that this consideration, along with the techno-
logical feasibility consideration, requires the De-
partment to reject any level of standards which
would create even a risk of reductions in industry
sales, employment or profits or of restrictions in
the mix of automobiles offered for sale. DN-15,
Document II, p. 2. Ford suggests basing the
standards on a "risk-benefit" analysis. Chrysler
Corporation argued that the term means as a
minimmn that "the various manufacturers are
financially capable of taking the necessary steps
to insure compliance." DN-30, p. 20. Chrysler
goes on to state that the analysis should require
a consideration of the impacts of the proposed
standards on employment, inflation, and consum-
ers. The Department's view on this issue is more
consistent with that of Chrysler than with Ford's.
The dictionary meaning of the word "prac-
ticable" is that something is "capable of being
put into practice, done or accomplished." Web-
ster's Third New International Dictionaiy, p.
1780 (1961) 8 Oxford English Dictionary, p. 1218
(1970). "Economic practicability" is nowhere
defined in the Act. However, similar terms,
"economically justified" and "economically fea-
sible," are used in Part B of Title III of the
Energy Act, and it is possible to infer the mean-
ing of "economic practicability" from the use of
those terms. The word "pi'acticable" is synony-
mous with "feasible," according to the Oxford
definition. This appears to be consistent with the
way the term is used in the Act.
Section 325(a)(4)(D) defines "economically
justified":
. . . improvement of energy efficiency is eco-
nomically justified if it is economically feasible
the benefits of reduced energy consumption,
and the savings in operating costs throughout
PART 531— PRE 5
Effective: Model Years 1981-1984
the estimated average life of the covered
product, outweigh —
(i) any increase to purchasers in initial
charges for, or maintenance expenses of, the
covered product which is likely to result from
the imposition of the standard,
(ii) any lessening of the utility or the per-
formance of the covered product, and
(iii) any negative effects on competition.
It should be noted that "economically feasible
the benefits of" is a grammatical error which
appears in the Energy Act itself as well as the
Conference Report. The legislative history in-
dicates that it should probably be lead "eco-
nomically feasible and if the benefits of."
Section 325 clearly contemplates that a stand-
ard must be hoth economically feasible and justi-
fied on a cost-benefit basis. Since Congress used
the two concepts separately, it obviously did not
intend them to be synonymous, i.e., economically
feasible is not the same as cost-beneficial. This
is further made clear by the definition of feasi-
bility in the Conference Report :
The term feasibility is used in section 325 in
the strict sense, namely "capable of being car-
ried out." Economic feasibility refers to
whether or not a manufacturer has the eco-
nomic capability to carry out the requirements
of an energy efficiency standard. S. Rep. No.
94-516, H. R. Rep. No. 94-700 (94th Cong.,
1st Sess.) at 172.
In the dictionary definitions listed above,
"feasible" was listed as a synonym for "prac-
ticable," and interchanging them would lead to
the conclusion that economic practicability is a
separate concept from cost-beneficial (the second
element of economically justifiable).
In addition, not equating cost-benefit consid-
erations with economic practicability is consistent
with the goal of achieving maximum feasible fuel
economy by allowing economically and tech-
nologically possible standards which will improve
fuel economy but which an analysis, subject to
many practical limitations, might indicate are
not cost-beneficial.
The word "practicable" appears in the other
major vehicle regulatory statute that NHTSA
administers, the National Traffic and Motor Ve-
hicle Safety Act. Section 103(a) of the Vehicle
Safety Act (15 U.S.C. § 1392(a) ) states, in part:
. . . The Secretary shall establish by order
appropriate Federal motor vehicle safety
standards. Each such Federal motor \'ehicle
safety standard shall be practicable . . .
Unfortunately, the term is defined neither in the
Vehicle Safety Act nor its legislative history.
However, the legislative history of the Vehicle
Safety Act states that the determination of prac-
ticability must include consideration of tech-
nological and economic factors. Further, there
is a small body of judicial interpretations of the
term which outlines its contours.
First, it is clear that the term does not mean
cost-beneficial. In "Chrysler Corp. v. Depart-
ment of Transportation," 472 F. 2d 659 (6th Cir.
1972), the court noted that the Automobile
Manufacturers Association had suggested a num-
ber of amendments to the bill from which the
Vehicle Safety Act arose, including limiting
standards to those at costs commensurate with
the benefit to be achieved. Id. at 672, fn. 16.
and stated:
None of these specific restraints sought by the
Automobile Manufacturers Association was
adopted, and we must decline to write into the
Act the very same suggestions which Congress
declined to write into the Act. Id. at 672,
fn. 16.
Considering the definition of "economically
justifiable" that Congress placed in Part B but
not Part A of Title III of the Energy Act, the
Department must likewise decline any invitation
to write such limitation into Part A.
\Miat "practicability" does mean is suggested
in the following cases. In "Chrysler Corp. v.
Department of Transportation," 515 F. 2d 1053
(6th Cir. 1975), relating to rectangular head-
lamps, the court stated :
A review of the cases in this area suggests the
practicability requirement was designed pri-
marily to prevent the NHTSA from establish-
ing mandatory safety standards tiiat are
economically or technologically infeasible. (ci-
tations omitted). Id. at 1060.
PART 531— PRE 6
Effective: Model Years 1981-1984
In "Chrysler Corporation v. Department of
Transportation," 472 F. 2d 659 (6th Cir. 1972),
relating to passive restraints the court stated :
We do not intend to suggest that the Agency
might impose standards so demanding as to
require a manufacturer to perform the im-
possible, or impose standards so imperative
as to put a manufacturer out of business.
But it is clear from the Act and its legislative
history that the Agency may issue standards
requiring future levels of motor vehicle per-
formances which the manufacturers could not
meet unless they devoted more of their re-
sources to producing additional safety tech-
nology than they might otherwise do.
Id. at 672. It should be noted that this ex-
plicitly recognizes the Department's authority to
set standards at non-free market dictated levels,
i.e., at levels not fully cost justified under tradi-
tional free market economic theory.
Finally, in "H & H Tire Co. v. U.S. Depart-
ment of" Transportation," 471 F. 2d 350 (7th
Cir. 1972) the Court said:
We agree with the Government that "the fact
that a government regulation may cause eco-
nomic hardship to a party does not make such
regulation unreasonable." Id. at 354.
Congress was presumably aware of the judicial
interpretation of this term. It can be inferred
from Congress' use of the same term in the Cost
Savings Act as in the Vehicle Safety Act, both
of which are overseen by the Commerce Com-
mittee and administered by the XHTSA, that
Congress intended the same interpretation in both
cases.
Considering all these factors, the Department
concludes that "economic practicability" should
be interpreted as requiring the standards to be
within the financial capability of the industry,
but not so stringent as to threaten substantial
economic hardship for the industry. A cost-
benefit analysis would be useful in considering
these factors, but sole reliance on such an anal-
ysis would be contrary to the mandate of the Act.
The third consideration in determining "maxi-
mum feasible average fuel economy" levels is
"the effect of other Federal motor vehicle stand-
ards on fuel economy." This term is interpreted
to call for making a straight- forward adjustment
to the fuel economy improvement iirojections to
account for the impacts of othei- Federal stand-
ards, principally those in the areas of emission
control, occupant safety, vehicle damageability,
and vehicle noise. However, only the unavoid-
able consequences of - compliance witli these
standards should be accounted for. The automo-
bile manufacturers must be expected to adopt
those feasible methods of achieving compliance
with other Federal standards which minimize
any adverse fuel economy effects of those stand-
ards.
The final statutory consideration is the "need
of the Nation to conserve energy." The Support
Document contains information on this topic,
including a discussion of the impact of our na-
tional need to import large quantities of pe-
troleum, and the impact of various automotive
fuel economy standards schedules on such im-
portation. No participant in the rulemaking
proceeding disputed the importance of the need
to conserve energy. The magnitude and promi-
nence of this need have increased in the years
since Congress' amendment of the Act. It must
be recognized that achieving improvements in
automobile fuel economy, no matter how great,
will not by itself solve the national energy prob-
lem. Maximum conservation efforts must be
made in all areas of energy consumption if the
nation is to begin to solve its overall energy
problem. It would jeopardize the overall na-
tional conservation effort if individual elements
of that effort, such as the automobile fuel econ-
omy program, were to fail to require the last
increments of feasible fuel savings on the -sole
ground that such increments are small in com-
parison to the overall need. Therefore, in con-
sidering various fuel economy schedules for
1981-84 passenger automobiles, the Department
must select the highest schedule consistent with
the other statutory requirements, due to the
serious national need to conserve enei'gy. See
Federal Energy Administration submission, DN-
37, pp. 1-2.
The second substantive statutory requirement
for the 1981-84 standards is that they must result
in "steady progress" toward meeting the 1985
standard. Although the Act does not define the
term "steady progress," some guidance as to the
term's meaning can be obtained by reference to
PART 531— PRE 7
EfFecHve: Model Years 1981-1984
the "plain meaning" of the two words, cases
constniing the two words, and the Act's legisla-
tive history. From a review of these materials,
it appears that the term requires annual increases
in average fuel economy, but with none of the
annual increments varying dramatically from the
other annual increases. Schedules like those
suggested by American Motors Corporation
(Tr-I, p. 74) and by Damiler-Benz AG (DN-10.
p. 11), which require increases in average fuel
economy in only one year during the 1981-84
period, would be inconsistent with the "steady
progress" requirement, even if they met the
"maximum feasible" requirement, since they do
not require annual progress. On the other hand,
a projected maximum feasible average fuel econ-
omy level of 26 mpg for 1981, for example, would
have to be adjusted downward because of the
disproportionately large increment resulting for
that year.
III. Determination of maximum feasible average
fuel economy levels.
A. Technology-hased fuel econ-oTny projections.
Participants in the rulemaking proceeding did
not seriously challenge the appropriateness of the
basic methodological approach used in the Sup-
port Document (Docket Number FE 76-01
GR-3) to project fuel economy improvement
potential. That methodology assigns an analyt-
ically-derived percent average fuel economy
improvement to certain options which are tech-
nologically feasible and applies that percentage
to each of the various manufacturers" present
passenger automobile fleets. The same imple-
mentation schedule is not used for all manufac-
turers nor for all automobiles in a given
manufacturer's fleet due to the significant difi'er-
ences which exist in the financial capability and
in the efficiency of the current automobiles of the
various manufacturers. Rather, a maximum
appropriate improvement schedule taking those
factors into consideration is assigned. The tech-
nology considered in the development of the
standards established in this notice are discussed
in detail below. Because of the qualitative dif-
ference in the domestic automobiles and the im-
ports, the fuel economy improvement potential
of the imports will be discussed separately.
1. Weight reduction.
The most obvious method for improving fuel
economy is to make the passenger automobile
lighter. For analytical purposes, the Support
Document divided this option into three sub-
options: downsizing; material substitution; and
mix shifts. "Downsizing" referi-ed to the reduc-
tion of vehicle weight and exterior dimensions
by optimizing the vehicle design. The goal of
downsizing is to reduce the exterior dimensions
of the automobile without reducing significantly
the interior passenger and higgage volume of the
automobile. According to General Motoi-s, this
option "retains the essential characteristic of cars
tlw^it meet a variety of consumer needs and de-
sires." DX-18. Attachment VIII, p. 3. The
Department notes that there is significant varia-
tion in the interior space of different passenger
automobiles with the same number of seating
positions and that tradeoffs between interior
space and improved fuel economy are possible.
"Material substituti<m" refers to the substitution
of materials with lighter weight for a given
strength, such as aluminum, plastics, and high-
sti'ength steel, for currently used materials. "Mix
shifts" refers to shifting the percentages of the
vehicles sold in different market classes (e.g.,
selling more compacts and fewer midsize auto-
mobiles). For explanation of these market
classes, see the fuel economy labeling regulations
established by E.P.A. in 41 FR 49753 (November
10, 1976). The automobile manufacturers gen-
erally argued that they were unable to differen-
tiate between weight savings attributable to
downsizing and material substitution, since they
are both inseparable parts of the vehicle redesign
process. See GM connnent, DN-18, p. 11;
Chrysler comment, DN-3'2, pg. 11. Therefore,
the Rulemaking Support Paper has combined
the weight reducti(m potentials for those two
methods. Mix shifts will be dealt with separately
in section III.xV.lO.
The Support Document based its projections
of feasible weight reduction tlirough downsizing
primarily on the reductions already achieved by
General Motors with its large-sized vehicles and
on press reports of planned downsizing of the
other market classes. See Support Document 2,
Volume I, page 2-7. Since these projections
were based on current downsizing efforts, they
PART 531— PRE 8
Effective: Model Years 1981-1984
may well understate the inaxiinum potential for
downsizing in 1981-84. See DN-11, p. i, com-
ments of Mr. Thomas Austin. In fact, Ford, in
response to the April 1 special order (DX-7)
projected greater total weight reduction for its
fleet than NHTSA had originally assumed.
DN-15, Doc. Ill, p. 30. GM strongly implied
that a second round of downsizing, in addition
to the one now underway, was both feasible and
planned. DN-18, Att. VIII, p. 3. In addition,
GM submitted a "hypothetical scenario" of ac-
tions it could take to meet a standard of 27.5
mpg in 1985. DN-18, p. 12. Although GM
characterizes this scenario as "drastic," the com-
pany's main concern appears to be that the
scenario assumes the use of diesel engines in 25%
of its automobiles and a reduction in average
acceleration capability. The projected weight
reductions, which are significantly greater than
those initially projected by NHTSA, do not ap-
pear "drastic," and are generally consistent with
Ford's projections. The reasonableness of GM's
projections can also be inferred from GM's state-
ment that the reduction assumed no mix shift
toward smaller market classes (p. 12) and the
fact that its projected average inertia weight for
1984 subcompacts (p. 13) is substantially higher
(2690 pounds) than that of many subcompacts
built today.
Additional evidence that the Support Docu-
ment's projections of achievable weight reductions
were unduly pessimistic was provided by Alcoa
and U.S. Steel Corporation in response to the
April 20 special order. See DN-27. Alcoa
projected that the use of aluminum in certain
vehicle components where that use is expected to
be feasible by 1982 could I'educe the weight of a
present compact car by 415 pounds. Alcoa em-
phasized that that total was nof based on a com-
plete list of all feasible aluminum substitutions
and that no allowance was made for propagation
effects, i.e., the ability to reduce the weight of
certain additional components because of weight
reductions achieved in other components. DN-
27-D.
Alcoa projected a material cost increase of only
$33 for its proposed aluminum substitution.
U.S. Steel projected a slightly greater weight
reduction, at a higher cost, through the substitu-
tion of certain steel products for those presently
used. DN-27-A. These projected weiglit reduc-
tions, which do not refer to identical lists of
vehicle components, are approximately twice as
great as those projected in the Support Docu-
ment, Doc. 2, Vol. I, page 2-7, of 150-250 pounds.
Since the Alcoa and U.S. Steel projections were
not available at the time of the XPRM, the
Department is reluctant at this time to revise
upward its projections in this rulemaking of
weight-saving potential on the basis of tliose sub-
missions. However, these submissions do support
the feasibility of the original weight reduction
projections.
Front engine, front wheel drive power trains
oti'er another technological option for further
downsizing of passenger automobiles. GM
(DX-18, p. 10) and Chrysler (DN-19, p. 7) each
projected use of such power trains in their fleets
in 1981-84. Their use allows additional vehicle
downsizing through maximizing passenger com-
partment volume by elimination of the driveline
tunnel and rear axle kick-up area. It may also
be possible to reduce the length of the engine
compartment by transverse mounting of the en-
gine and transmission. The only projection given
for fuel economy improvements associated with
front wheel drive was the 5 percent figure of-
fered by Dr. Sawyer at the hearing. Tr-III,
p. 93. Although no percent improvement is as-
signed to front-wheel drive for the purposes of
this analysis, the use of such power trains is
recognized as a feasible method for optimizing
vehicle design. The availability of this option,
which was not part of the original DOT anal-
ysis, tends to confirm the Department's conclusion
that the weight reductions projected in the Sup-
port Document are conservative estimates of the
maximum feasible reductions. There appears to
be no technological reason which would prohibit
the use of such power trains in all vehicles, par-
ticularly if the implementation of this option
were phased in concurrently with transmission
changes. (See sections 3 and 4.)
Therefore, the weight reductions assumed for
Ford and GM have been revised to take into
account the higher projections made by those
companies, but not the submissions by Alcoa and
U.S. Steel. In the case of AMC and Chrysler,
the original projections in the Support Document
have been retained, despite the claims of those
PART 531— PRE 9
Effective: Model Years 1981-1984
two manufacturers that the Department's projec-
tions exceed their plans.^ AMC argues that its
vehicles are presently optimally designed, and
that the other manufacturers' downsizing plans
will merely bring the latter automobiles up to
AMC's level of efficiency. DX-14, p. 1. Chrysler
argues that DOT projections are 100-200 pounds
too optimistic per vehicle. DX-30, p. 9. With
respect to both AMC and Chrysler, there is no
reason to believe that the improvements asso-
ciated with material substitution are not as fully
applicable to them as to Foi-d and GM, which
did not dispute the projected improvements.
Neither AMC nor Chrysler gave any indication
that they presently use light-weight materials to
a greater extent than their domestic competitors,
and a comparison of the weights of their present
vehicles confirms that there is no such difference.
AMC's claim that absolutely no downsizing of
its vehicles is possible must also be rejected. For
example, the AMC Gremlin has less interior
room than a Honda Accord, but weighs nearly
800 pounds more. See 1977 EPA/FEA Gas
Mileage Guide, Second Edition, and Automotive
News, 1977 Market Data Book Issue, April 27,
1977, p. 76, 109. The AMC Hornet weighs
nearly 500 pounds more than an Audi lOOLS.
but has less interior room. The AMC Pacer
weighs nearly 600 pounds more than that same
Audi model, with equivalent interior roominess.
The AMC Matador weighs 168 pounds more than
a large size Pontiac, based on a comparison of
six-cylinder versions of both cars, but has eight
less cubic feet of total interior volume. A similar
comparison between present Chrysler and Ford
automobiles reveals no significant differences in
weight or roominess, yet Ford projects that it
will achieve a significantly lower fleet average
weight than Chrysler. It is significant that
Chrysler engineers have projected that weight
reductions of 630 pounds could be achieved
through light-weight material substitution alone
in a mid-size car, with "moderate changes in
' Many of the automobile manufacturers' specific ob-
jections to the percent improvements projected by the
Department for various technological options are phrased
in terms of differences between DOT projections and
the manufacturer's present "plan." It is clear, however,
that under the statute DOT'S projections must be based
on maxinmm achievable improvements, notwithstanding
any contrary "plans" by the manufacturer.
design and manufacturing techniques." SAE
Paper #760203, Docket FE-76-01-GR-21.^ Those
engineers project that such weight reduction
techniques could be implemented in "two or three
years," with a resulting fuel economy improve-
ment of 26 percent. Therefore, the original
assessments of weight reduction potential for
AMC and Chrysler have been retained. The
originally adopted schedule for attaining those
reductions allows more time for those two com-
panies to complete the process than in the cases
of Ford and GM, in order to take into account
differences in economic and product development
capabilities (see Support Document, Doc. 4).
These delays provide needed flexibility for the
smaller domestic manufacturers without signifi-
cantly reducing total fuel savings. Table 5.1 of
the KSP provides the projected fleet average
inertia weights for each manufacturer and the
resulting fuel economy values appear in Table
5.9.
2. Reduction in straight-line acceleration capa-
hility.
Over a limited range of engine parameters, it
is possible to achieve fuel economy improvements
through reducing engine displacement or the
I'atio of engine speed to vehicle speed (N/V), or
some combination of those two items. These re-
ductions, while improving fuel economy, also
adversely afl'ect vehicle acceleration capability.
Where it is possible to merely substitute one set
of gears for another to change the axle ratio or
expand the ratio of transmission gearing or
where sufficient plant flexibility exists for a
manufacturer to increase the production of lower
displacement engines, this method of improving
fuel economy can be implemented in a highly
economical manner. The primary constraint
which restricts the use of this method is consumer
resistance, at least initially, to significantly re-
duced levels of vehicle acceleration. A secondary
constraint is the increased difficulty of controlling
NOx emissions as engine loading increases.
' "SAE Paper.s" are technical research papers presented
before the Society of Automotive Engineers. The papers
cited in this notice were prepared by engineers and
scientists expert in particular areas of automotive
technology.
PART 531— PRE 10
EffecHve: Model Years 1981-1984
Therefore, in the April 1 special orders, the
automobile manufacturers were required to sub-
mit estimates of the minimum level of accelera-
tion performance wliich consumers currently find
acceptable. DN-7, Question I.B.2. The responses
to this question were relatively consistent. In
terms of the time required for vehicles to ac-
celerate from rest to a speed of 60 miles per
hour, GM indicated that vehicles which require
more than 15 seconds are "currently meeting
with unfavorable consumer acceptance" (DX-18,
p. 5) ; Ford judged the same time to be the
"minimum performance acceptable without en-
countering consumer resistance" (DN-15, p.
11) ; Chrysler estimated a "threshold level" at
about 17 seconds (DN-32, p. 8) ; and AMC
states that times in excess of 20 seconds are
"clearly unacceptable" (DN-14, p. 4). However,
the specified "thresholds" do not appear to be
absolute minima, even at present, which all pas-
senger automobiles must exceed. GM states that
16 percent of its present fleet of passenger auto-
mobiles presently have acceleration times poorer
than its specified minimum (id., p. 5), Ford
states that nearly 26 percent of its fleet is in that
class (DN^3, Att. I), and AMC states that 26
percent of its sales are presently near the 20
second threshold (id., p. 4). Eight percent of
Chrysler's domestic fleet has acceleration times
poorer than 17 seconds. DN-32-A. Large por-
tions of all manufacturers' current import fleets
have acceleration performance levels poorer than
these "thresholds."
In view of these statements, it is concluded
that a reduction in average passenger automobile
acceleration of approximately 10 percent from
the present average baseline acceleration times of
approximately 14 seconds can be achieved with-
out incurring substantial consumer resistance.
This reduction roughly corresponds to a fleet
average "zero-to-sixty" time of 15.4 seconds, and
would be phased-in by the 1981 model year. A
fuel economy benefit of four percent would result
from this change.
It should be noted that several factors combine
to mitigate the impact of even this relatively
modest reduction. First, it is possible for the
manufacturers to achieve this reduction by nar-
rowing the range of offered acceleration char-
acteristics, e.g., by decreasing the acceleration
time for its faster automobiles. P^ven under the
GM "Hypothetical Scenario," which assumed a
greater performance reduction than tlic one
projected here, the reduction in average accelera-
tion performance is achieved while concurrently
hnproring the performance of the slowest of
GM's present passenger automobiles. DX-18, p.
17. In addition, it may be possible for the manu-
facturers to offset this performance reduction in
their passenger automobiles. At the same time
that a manufacturer switches from an 8-cylinder
engine to a 6-cylinder engine or loAvers tlie N/V
ratio, it could increase the acceleration perform-
ance of whatever engine is used by using a turbo-
charger or fuel injection system. The use of this
alternate technology may even result in a net fuel
economy benefit, in some cases. DN-16, p. 1
(Volkswagen) and DX-27B, p. 2 and Attachment
(Bendix). Fuel injection is presently used on a
number of passenger automobiles, and at least
one manufacturer plans to use turbochargers in
the near future. DX-18, p. (GM). Volks-
wagen, under DOT contract, tested a turbo-
charged version of the Diesel Rabbit and achieved
a fuel economy improvement of up to 18 percent
with a concurrent improvement in acceleration
performance. The acceleration level of this ve-
hicle is superior to that of approximately 24
percent of General ^Motors' present passenger
automobiles. DX-16, p. 2 (VW) and DX-18.
p. 6 (GM). The fuel economy benefit from
turbocharging is an indirect one which would
typically result from the ability to substitute a
smaller displacement engine for the larger one
currently used and increasing the smaller en-
gine's horsepower while maintaining its better
fuel economy by turbocharging. Therefore, the
performance reduction discussed above is adopted
in the analysis on which the 1981-84 standards is
based. See Rulemaking Support Paper, Section
5.3, for a further discussion of this topic.
3. Improved automatic transmissions.
The Support Document projected that im-
provements in automatic transmissions could re-
sult in a 10 percent fuel economy improvement
in vehicles which use automatic transmissions, or
about 85 percent of the domestic fleet. This
improvement was based on tests of prototype
transmissions under contract for DOT, and sev-
eral studies presented in papers submitted to the
PART 531— PRE 11
EfFecrive: Model Years 1981-1984
Society of Automotive Engineers. Id. Document
2, Vol. 1. These data indicate that improvements
up to nearly 20 percent are achievable with cer-
tain types of improved automatic transmissions.
Present automatic transmissions are generally
three-speed units with a conventional torque
converter. Some data generated by the domestic
manufacturers indicate that certain modified ver-
sions of the present three-speed transmissions,
principally those employing a lock-up clutch on
the torque converter in conjunction with a wide
gear ratio range, have the potential to achieve
the assumed 10 percent improvement. In addi-
tion, a four-speed, wide ratio range automatic
transmission has the potential to achieve even
greater fuel economy improvements, but at sig-
nificantly higher costs. Ford, GM, and Chrysler
each projected fuel economy improvements
achievable through the use of one or more of the
above types of automatic transmission of a mag-
nitude either consistent with or very close to the
assumed 10 percent figure projected in the Sup-
port Document. DN-15, Doc. I, p. 3; DX-18,
p. 3; DX-30, p. 11. Volvo also supported the
10 percent improvement projection. DX-28-02,
p. 5. Even if tlie higlier cost four-speed unit is
necessary to achieve this improvement, none of
the four domestic manufacturers claimed that the
use of such units is economically impracticable,
in response to a specific question in the April 1
special order. DN-7, Questions IIA and B.
Indeed, Ford has begun plant modifications to
permit the production of a four-speed automatic
transmission with lock-up torque converter in
time for installation in some 1980 model year
automobiles. Docket FE-76-01-GR-23. There-
fore, the original 10 percent improvement is re-
tained in the final analysis.
GM argued that the 10 percent improvement
in automatic ti-ansmissions is not applicable to
all automobiles which use automatic transmis-
sions. DX-19, p. 3. Lightweight vehicles "with
small displacement engines, small automatic
transmissions and high axle ratios" are projected
to attain a significant share of the market and,
according to GM, the fuel economy of such ve-
hicles is not significantly improved by the addi-
tion of a lock-up clutch. Id., p. 4. NHT8A
cannot accept this argument for several reasons.
First, GM addressed itself primarily to the im-
pact of the lock-up clutch, without addressing
the impact of increasing the number of geared
speeds, which, as was previously noted, is consid-
ered both technologically feasible and economi-
cally practicable, or of other transmission
improvement techniques. Second, none of the
other manufacturers raised a similar objection to
the assumed across-the-board application, despite
their even greater orientation toward smaller
market class automobiles. Third, it should be
noted that General Motors' engineers have pro-
jected fuel economy improvements up to nearly
20 percent, over a wide range of engine sizes and
axle ratios. See SAE Paper #770418, Docket
FE-76-01-GR-2i. It may be that GM is im-
plying that its future use of a (presumably new)
small automatic transmission with high axle
ratio would obviate the need to use a lock-up
torque converter on its small cars. If this is
true, then the projected 10 percent improvement
figure for all automobiles which employ auto-
matic transmissions is still correct, since the new
drive train would achieve that improvement.
GM is in no way constrained to achieve that
improvement in precisely the same manner in
which it is postulated in this analysis.
AMC stated that it could only achieve a 2
percent improvement in its automatic transmis-
sions. DX-14, p. 1. However, AMC presently
purchases its transmissions from Chrysler and is
likely to continue to purchase such technology
from outside sources in the future. Therefore,
any transmission improvements achieved by the
"Big Three" would become available to AMC,
albeit on a delayed basis. Implementation delays
similar to those assumed for Chrysler and AMC
for weight reduction were also assumed for trans-
mission improvements in this analysis. See RSP
Tables 5.5-5.8.
4. Improved manual transmissions.
Another possible area of fuel economy im-
provement is the use of additional drive gears in
manual transmissions. Many domestic manual
transmissions have only 3 speeds. Information
received on this subject in response to the April 1
(DX-7) and April 21 (DX-28) special orders
supports a projected fuel economy improvement
of 5 percent for the manual transmission portion
of the fleet. DX-18, p. 8 (GM) ; DX-28-02, p. 6
PART 531— PRE 12
Effective: Model Years 1981-1984
(Volvo) ; DN-28-03, p. 5 (Honda). Ford's sub-
niission supports the feasibility of tliis substitu-
tion for all present manual transmissions.
DN-15, Doc. I. p. 11. No information was sub-
mitted which raised any doubts about the tech-
nolofiical feasibility or economic practicability of
this option. In fact, five-speed manual trans-
missions have currently achieved substantial
market penetrations in the import fleet. Honda
projects that the use of five-speed manual trans-
missions would result in a $50 per vehicle price
increase (for those vehicles with manual trans-
missions). DN-28-03, p. 5. Therefore, a 5 per-
cent improvement for all manual transmission
vehicles was adopted in the analysis. The per-
oentajie of vehicles which use manual transmis-
sions was not projected to increase between the
present and 1985, due to the difficulty encountered
by certain manual transmission vehicles in at-
tempting^ to meet more stringent emission stand-
ards. The use of manual transmissions with
additional drive gears results in a small, but
nevertheless significant, increase in average fuel
economy.
5. hn proved lubricants and accessories.
Improvements in average fuel economy can
also be obtained through the use of synthetic,
lower viscosity, or extended viscosity range lubri-
cants and through improvements in the efficiency
of vehicle and engine accessories such as pumps,
fans, and accessory drives. A total improvement
of 4 percent was assigned to these options in the
Support Document, 2 percent for each category.
See Doc. 2, Vol. I, p. 2-19. Three domestic
manufacturers which addressed this issue did not
object to the 4 percent improvement projection.
DN-18, p. 1 (GM) ; DN-15, Doc. I, p. 3 (Ford) ;
DN-14, p. 1 (AMC). Improvements up to the
assumed 4 percent for lubricant improvements
alone have been documented. See SAE Papers
750376 (Docket FE-76-01-GK-21 ) and 750675
(Docket FE-76-01-GR-21). Therefore, the as-
sumed 4 percent improvement is retained in this
analysis.
6. Reduction of aerodynamic drag and rolling
resistance.
Further fuel economy improvements are
achievable through reducing the automobile's
aerodynamic drag and rolling resistance. The
latter term refers to the use of improved radial
and other advanced tires and r 
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