[Federal Register: June 23, 2006 (Volume 71, Number 121)]
[Proposed Rules]
[Page 36034-36040]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr23jn06-14]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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[[Page 36034]]
DEPARTMENT OF ENERGY
Office of Energy Efficiency and Renewable Energy
10 CFR Part 490
RIN 1904-AB66
Alternative Fuel Transportation Program; Alternative Compliance
AGENCY: Office of Energy Efficiency and Renewable Energy, Department of
Energy.
ACTION: Notice of proposed rulemaking and opportunity for comment.
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SUMMARY: The Department of Energy (DOE) today publishes a proposed rule
to implement section 514 of the Energy Policy Act of 1992, as amended
by section 703 of the Energy Policy Act of 2005, which allows States
and alternative fuel providers to petition for a waiver of the
alternative fueled vehicle (AFV) acquisition requirements in 10 CFR
part 490. The new law requires a State entity or alternative fuel
provider requesting a waiver to show that in lieu of complying with the
applicable AFV acquisition requirement for a model year, it will take
other actions to reduce its annual petroleum motor fuel consumption by
an amount equal to 100 percent alternative fuel use in all of the
fleet's AFVs, including AFVs that the State entity or alternative fuel
provider would have been required to acquire if there was no waiver.
DATES: Public comment on this proposed rule will be accepted until
August 7, 2006. A public workshop will be held on July 12, 2006, from 9
a.m. to 4 p.m. Interested persons who wish to speak at the public
workshop should telephone Ms. Linda Bluestein at (202) 586-6116, by
4:30 p.m. on July 7, 2006. Each presentation is limited to 20 minutes.
ADDRESSES: You may submit comments, identified by RIN 1904-AB66, by any
of the following methods:
1. Federal eRulemaking Portal: http://www.regulations.gov. Follow
the instructions for submitting comments.
2. E-mail to linda.bluestein@ee.doe.gov. Include RIN 1904-AB66 in
the subject line of the e-mail. Please include the full body of your
comments in the text of the message or as an attachment.
3. Mail: Address written comments to Ms. Linda Bluestein, U.S.
Department of Energy, Office of Energy Efficiency and Renewable Energy,
FreedomCAR and Vehicle Technologies Program, Mailstop EE-2G, Room 5F-
034, 1000 Independence Avenue, SW., Washington, DC 20585-0121.
Due to potential delays in DOE's receipt and processing of mail
sent through the U.S. Postal Service, we encourage respondents to
submit comments electronically to ensure timely receipt.
The public workshop for this rulemaking will be held in Washington,
DC, at the DOE Forrestal Building in Room 1E-245, 1000 Independence
Avenue, SW., Washington, DC.
This notice of proposed rulemaking, the public workshop transcript,
and any comments that DOE receives are being made available on the
Alternative Fuel Transportation Program Web site at: http://www.eere.energy.gov/vehiclesandfuels/epact/state/state_resources.html.
You also may obtain copies of comments by contacting Ms. Bluestein.
FOR FURTHER INFORMATION CONTACT: Ms. Linda Bluestein, U.S. Department
of Energy, Office of Energy Efficiency and Renewable Energy, FreedomCAR
and Vehicle Technologies Program, Mailstop EE-2G, Room 5F-034, 1000
Independence Avenue, SW., Washington, DC 20585-0121; (202) 586-6116 or
linda.bluestein@ee.doe.gov.
SUPPLEMENTARY INFORMATION:
I. Introduction and Background
II. Discussion
III. Public Comment Procedures
IV. Regulatory Review
I. Introduction and Background
In August 2005, the Energy Policy Act of 2005, Public Law 109-58,
(EPACT 2005) was signed into law. The law adds new flexibility for
State and alternative fuel provider fleets subject to AFV acquisition
requirements under 10 CFR part 490, the Alternative Fuel Transportation
Program. Specifically, section 703 of EPACT 2005 adds section 514
(entitled ``Alternative Compliance'') to title V of the Energy Policy
Act of 1992 (Act) (42 U.S.C. 13251 et seq.). Section 514 authorizes DOE
to grant to covered alternative fuel providers (hereafter ``covered
persons'') and States with credits under section 508 of the Act a
waiver from the AFV acquisition requirements under section 501 (42
U.S.C. 13251) and section 507(o) (42 U.S.C. 13257(o)), respectively.
The statute provides that any State or covered person may apply for an
alternative compliance waiver, and that DOE must grant the waiver if
the State or covered person demonstrates that its fleet will reduce
annual petroleum consumption by an amount equal to the amount of
petroleum it would reduce if the fleet's cumulative inventory of AFVs
operated 100 percent of the time on alternative fuel (42 U.S.C.
13264(a) and (b)). The State or covered person requesting a waiver also
must be in compliance with all applicable vehicle emission standards
established by the Environmental Protection Agency under the Clean Air
Act.
Today's proposed rule would establish procedures for the submission
of, and action on, applications for alternative compliance waivers
submitted by States and covered persons subject to AFV acquisition
requirements under 10 CFR part 490. Proposed new subpart I of part 490
includes provisions regarding the timing of waiver requests and
responses by DOE, waiver documentation and submission requirements,
annual reporting of petroleum reductions, use of credits to offset
petroleum reduction shortfall, rollover of excess petroleum reduction
to future years, enforcement for violations, and record retention.
II. Discussion
Under the proposed rule, a State or covered person must submit a
waiver application to DOE no later than March 31 of the year before the
model year for which it requests a waiver. The proposed rule would
require a waiver application to include a minimum amount of information
to enable DOE to make a decision about granting the waiver. DOE would
evaluate applications for waivers on a case-by-case basis. The proposed
rule provides that DOE would grant or deny a waiver
[[Page 36035]]
within 45 working days from the time a complete application is
submitted.
Fleets operating under a waiver would be allowed to choose various
strategies or actions to reduce petroleum motor fuel consumption. For
example, some States or covered persons may meet their annual petroleum
reduction requirement by combining alternative fuel use by existing
fleet AFVs with petroleum reductions from the use of hybrid vehicles,
which are not counted towards meeting the AFV acquisition requirements
because they are not primarily powered by electricity (an alternative
fuel). A fleet could also meet its petroleum reduction requirement with
alternative fuel or other replacement fuel use in vehicles of more than
8,500 lb gross vehicle weight rating (gvwr) or in light-duty vehicles
that are excluded, by statute and part 490, from covered fleets.
Eligibility for an Alternative Compliance Waiver
Section 514(a) of the Act provides that any covered person subject
to the AFV acquisition requirements of section 501 and any State
subject to the AFV acquisition requirements of section 507(o) may
petition the Secretary of Energy for a waiver of those requirements.
Section 514(b) of the Act provides that the Secretary shall grant a
waiver of the AFV acquisition requirements on a showing that a fleet
owned, operated, leased or otherwise controlled by a covered person or
State entity given credit under section 508 will achieve a specified
reduction in the annual consumption of petroleum fuels and is in
compliance with all applicable vehicle emission standards established
by the Environmental Protection Agency under the Clean Air Act. For
both covered persons and State entities given credit under section 508,
the statute requires DOE to grant a waiver on a showing that petroleum
motor fuel consumption will be reduced in an amount equal to the amount
of petroleum the fleet's cumulative inventory of AFVs would reduce if
those vehicles operated 100 percent of the time on alternative fuel.
The term ``fleet'' is defined in title V of the Act to include only
covered light-duty vehicles (LDVs) (42 U.S.C. 13211(9)).
While section 514(b) specifies a showing that, if met, requires DOE
to grant a waiver, there is a gap in the statute because section
514(b), read in light of the surrounding provisions in section 514 and
elsewhere in title V of the Act, does not directly address two
questions. The first question is whether DOE may grant a section 514(a)
waiver petition if the applicant makes a showing of replacement fuel
use attributable to medium- or heavy-duty vehicles or other vehicles
outside of its covered light-duty vehicle fleet. The second question is
whether DOE may grant a petition by a State that makes the requisite
showing of replacement fuel substitution even though that State has
only complied with its minimum AFV acquisition requirements and does
not have cumulative credits under section 508 of the Act. To fill the
gap in the statute, DOE proposes to exercise its rulemaking authority
under title V and section 644 of the DOE Organization Act (42 U.S.C.
7254) to propose provisions that address these questions.
First, proposed Sec. 490.802 provides for the grant of a waiver to
a covered person or State entity that demonstrates it will achieve the
specified level of petroleum fuel reduction in any of its motor
vehicles, not just covered LDVs. Thus, under the proposed rule, a State
or covered person receiving a waiver would be allowed to use
alternative fuel or other replacement fuels in vehicles that are not
part of the covered ``fleet,'' such as medium- and heavy-duty vehicles
and excluded LDVs, to meet its petroleum reduction requirement. DOE
believes this additional flexibility will make the alternative
compliance option attractive to more fleets, and this, in turn, is
likely to lead to somewhat greater petroleum displacement. While State
entities that meet the minimum AFV acquisition requirements in section
507(o) are not required by the Act to use alternative fuel in their
AFVs,\1\ fleets operating under a waiver must reduce petroleum motor
fuel consumption by an amount equal to the amount of petroleum the
fleet's cumulative inventory of AFVs would reduce if those AFVs
operated 100 percent of the time on alternative fuel. Because AFVs in
State fleets that are flexible or dual-fuel vehicles often operate on
petroleum fuel, increased use of the waiver option would result in
greater petroleum displacement.
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\1\ The Act does require alternative fuel use in AFVs acquired
by covered persons. See 42 U.S.C. 13251(a)(4).
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Second, proposed Sec. 490.802 provides that States that have not
been given credits under section 508 of the Act must meet the same
eligibility criteria as States that have received such credits. While a
majority of State fleets have complied with AFV acquisition
requirements using credits earned under section 508 for AFV
acquisitions in excess of model year requirements, a significant number
of State fleets have not received section 508 credits. DOE is unable to
discern any basis for treating State entities that have not earned
credits differently than State entities that have earned credits, or
any harm to the apparent goal of the statute that would result from
subjecting all States to the same eligibility criteria. Thus, all
States requesting a waiver would be required to demonstrate that they
will achieve the same amount of annual petroleum reduction, and that
they are in compliance with applicable Clean Air Act standards.
Petroleum Reduction Calculation
Section 514(b) provides that for covered persons, the specified
annual reduction in petroleum consumption is the amount that would
result from ``100 percent cumulative compliance with the fuel use
requirements in section 501'' (42 U.S.C. 13264(b)(1)(A)). For States,
the specified annual reduction in petroleum consumption is the amount
equal to ``the annual consumption by the State entity of alternative
fuels if all of the cumulative alternative fuel vehicles of the State
entity given credit under section 508 were to use alternative fuel 100
percent of the time'' (42 U.S.C. 13264(b)(1)(B)). The language of these
provisions differs slightly because, as previously mentioned, there is
a statutory fuel use requirement for covered persons in the Act, but
none for State fleets.
Consistent with the statute, proposed Sec. 490.802 would require
both covered persons and State entities to reduce petroleum fuel
consumption by an amount equal to the amount of petroleum the fleet's
cumulative inventory of AFVs, including required AFV acquisitions in
waiver years, would reduce if those vehicles operated 100 percent of
the time on alternative fuel. The inclusion of required AFV
acquisitions in waiver years is compelled by the statute's apparent
purpose of providing States and covered persons compliance flexibility
in exchange for achieving the maximum level of petroleum fuel reduction
that would occur if the State or covered person were to comply with the
Act's AFV acquisition requirements. If AFV requirements for waiver
years were not included in the cumulative AFV count, a State or covered
person that requests a waiver in successive years would have rapidly
diminishing petroleum reduction requirements, and that would be
unreasonable in light of the petroleum replacement goal of the statute.
The following example is provided to show how the petroleum
reduction requirement would apply in successive years for which a
covered person
[[Page 36036]]
requests an alternative compliance waiver:
In year 1, the covered person has 25 AFVs in its fleet and has an
AFV acquisition requirement of 9. The AFV requirement is based on the
number of LDVs that the fleet anticipates acquiring during the waiver
year. In this example, the covered person anticipates acquiring 10
LDVs, and has an AFV acquisition requirement of 9 AFVs (10 vehicles x
90 percent fuel provider requirement). Thus, the cumulative total of
AFVs in inventory and AFV acquisition requirements is 34. Because the
covered person's LDVs have an average fuel consumption of 500 gasoline
gallon equivalents (gge)/year, the total amount of petroleum that the
covered person must reduce in the first waiver year is 17,000 gge (34
AFVs and AFV requirements combined, multiplied by 500 gge).
In year 2, the fleet has retired 10 of the original AFVs from its
inventory, which leaves a total of 15 of the 25 AFVs originally counted
in year 1. The fleet again plans to acquire 10 LDVs, thus generating a
requirement to acquire 9 AFVs in year 2. Since the average number of
years that this fleet keeps an AFV is 4 years, the 9 AFVs required in
year 1 are included in the calculation of the year 2 required petroleum
reduction. This results in a total of 33 AFVs (15 + 9 + 9) and a total
petroleum reduction requirement of 16,500 gge for year 2 (assuming the
same average fuel consumption per vehicle).
In year 3, the fleet has retired 10 more of the original AFVs,
leaving 5 in its inventory, and it is again required to acquire 9 AFVs.
The calculation of the year 3 petroleum reduction includes the 9 AFVs
required for each of years 1 and 2. Therefore, the total AFV count for
year 3 is 32 (5 + 9 + 9 + 9), and the petroleum reduction requirement
for year 3 is 16,000 gge.
In year 4, the fleet has retired the last 5 of the original AFVs
and plans to acquire 10 LDVs, generating a requirement of 9 AFVs. A
total of 36 AFVs are included in the baseline calculation (9 + 9 + 9 +
9), and the petroleum reduction requirement for year 4 is 18,000 gge.
In year 5, the fleet retires the 9 LDVs represented by the first
waiver year's AFV requirements (the fleet retires LDVs after 4 years).
The fleet acquires 10 more LDVs, generating 9 AFV requirements.
Therefore, the total AFV count for year 5 is 36 and the total petroleum
requirement for year 5 is 18,000 gge.
Although simplified, this example shows how DOE proposes to
implement the cumulative compliance/AFV language in section 514(b) to
calculate a covered person's petroleum reduction requirement. The same
approach would be used to determine the reduction for a State entity,
but the applicable AFV acquisition percentage (75 percent) in section
507(o) would be used.
The application for a waiver. Proposed Sec. 490.803 specifies the
items of information that an applicant for an alternative compliance
waiver would have to submit to DOE for the model year for which it is
seeking a waiver. These items of information are:
The model year for which the State or covered person is
requesting the waiver;
The average length of time a LDV stays in the State's or
covered person's fleet until retirement;
The number of AFVs that the State or covered person would
be required to acquire during the waiver year, calculated in the same
way as AFV requirements are calculated on DOE Form FCVT 101;
The total number of AFVs in the fleet inventory during the
waiver year, including AFVs previously reported to DOE on Form FCVT 101
and AFV requirements for the waiver year and preceding waiver years,
and excluding AFVs that will be retired before the beginning of the
waiver year;
The average annual fuel consumption in gges of the fleet's
LDVs, which may be an average of previous years' consumption, and an
estimate of per vehicle consumption;
The estimated amount of petroleum that the fleet must
reduce during the waiver year, estimated by multiplying the number of
fleet AFVs, including AFV requirements accumulated during the current
and previous waiver years, by the average LDV fuel consumption;
A detailed plan describing the actions or strategies the
State or covered person will pursue to reduce petroleum consumption and
the amount of petroleum reduction anticipated from each action or
strategy; and
Documents or a certification by a responsible official of
the State or covered person showing the fleet is in compliance with all
applicable Clean Air Act vehicle emission standards.
The information a State or covered person submits to DOE with its
alternative compliance plan must be verifiable and from credible
sources. Sources of fuel economy and efficiency information must be
documented. Under proposed Sec. 490.809, a State or covered person
would be required to keep all documents pertaining to its application
and compliance with a waiver for a minimum of three years following the
end of the waiver year.
Use of credits. DOE recognizes that a fleet, despite good faith
efforts, may fail to achieve the required petroleum reduction in a
model year because the amount will have been estimated based on
assumptions about the number of vehicles and the actual amount of fuel
the fleet would use in the following model year. DOE, therefore,
provides in proposed Sec. 490.805 that a State or covered person may
request to use credits purchased or earned pursuant to 10 CFR subpart F
to offset a shortfall in its reduction of petroleum.
Rollover of excess petroleum reduction. Proposed Sec. 490.806
provides that a State or covered person that overcomplies with its
petroleum reduction requirement under subpart I may request that the
excess reduction be applied to meet the petroleum reduction requirement
in one or more future years. For example, if a fleet reduces petroleum
use by 65,000 gallons, but is only required under the terms of the
waiver to reduce 60,000 gallons, the excess 5,000 gallons could be
applied to meet the petroleum reduction required in the next waiver
year or some future year for which a waiver is requested.
Annual report. Section 514(c) of the Act requires a State or
covered person that is granted a waiver to submit a report to DOE not
later than December 31 following the model year for which the waiver is
granted (42 U.S.C. 13264(c)). This provision would be implemented by
proposed Sec. 490.807.
Sanctions for violations. Section 514(d) of the Act provides that
DOE shall revoke the waiver of a State or covered person that fails to
comply with the alternative compliance petroleum reduction or reporting
requirements, and that DOE may impose a civil penalty for any such
violation (42 U.S.C. 13264(d)). This section would be implemented by
proposed Sec. 490.808.
Exemptions. DOE will not grant exemptions to a State under 10 CFR
Sec. 490.204 or to a covered person under 10 CFR 490.308 if the State
or covered person has been granted an alternative compliance waiver.
Exemptions are based upon lack of alternative fuels and/or AFVs.
Because a fleet operating under a waiver has the flexibility to
consider all available technologies for meeting its petroleum
consumption reduction requirement, it has no need for an exemption.
III. Public Comment Procedures
A. Written Comments
Interested persons are invited to participate in this proceeding by
submitting data, views, or arguments. Written comments should be
submitted
[[Page 36037]]
to the address, and in the form, indicated in the ADDRESSES section of
this notice of proposed rulemaking. To help DOE review the comments,
interested persons are asked to refer to specific proposed rule
provisions, if possible.
If you submit information that you believe to be exempt by law from
public disclosure, you should submit one complete copy, as well as one
copy from which the information claimed to be exempt by law from public
disclosure has been deleted. DOE is responsible for the final
determination with regard to disclosure or nondisclosure of the
information and for treating it accordingly under the DOE Freedom of
Information Act regulations at 10 CFR 1004.11.
B. Public Workshop
A public workshop will be held at the time, date, and place
indicated in the DATES and ADDRESSES sections of this notice of
proposed rulemaking. Any person who is interested in making an oral
presentation should make a phone request to the person and telephone
number in the DATES section by 4:30 p.m. on the date specified for
making such requests. The person should provide a daytime phone number
where he or she can be reached. Each oral presentation will be limited
to 20 minutes. Persons making an oral presentation are requested to
bring three copies of their prepared statement to the workshop and
submit them to the registration desk.
DOE reserves the right to select the persons who will speak. DOE
also reserves the right to schedule speakers' presentations and to
establish the procedures for conducting the workshop. A DOE official
will be designated to preside at the workshop. The workshop will not be
a judicial or evidentiary-type hearing, but will be conducted in
accordance with 42 U.S.C. 7191. Any further procedural rules for the
conduct of the workshop will be announced by the presiding official.
A transcript of the workshop will be made, and the entire record of
this rulemaking will be retained by DOE and made available as provided
in the ADDRESSES section of this notice of proposed rulemaking.
IV. Regulatory Review
A. Executive Order 12866
Today's proposed rule has been determined to not be a significant
regulatory action under Executive Order 12866, ``Regulatory Planning
and Review,'' 58 FR 51735 (October 4, 1993). Accordingly, this action
was not subject to review under that Executive Order by the Office of
Information and Regulatory Affairs of the Office of Management and
Budget.
B. National Environmental Policy Act
DOE has determined that this proposed rule is covered under the
Categorical Exclusion found in the DOE's National Environmental Policy
Act regulations at paragraph A.5 of Appendix A to Subpart D, 10 CFR
part 1021, which applies to rulemaking that amends an existing rule or
regulation which does not change the environmental effect of the rule
or regulation being amended. Under the proposed rule, a State entity or
alternative fuel provider requesting an alternative compliance waiver
must show that in lieu of acquiring AFVs for its covered light-duty
vehicle fleet, it would use alternative fuel and/or other replacement
fuels in various types of motor vehicles to reduce petroleum fuel
consumption by an amount that equals 100 percent alternative fuel use
in the fleet's AFVs, including AFVs that would be required in waiver
years. The statute, therefore, grants the waiver applicant greater
compliance flexibility in exchange for achieving the maximum level of
petroleum reduction that would occur if the State or covered person
were to comply with the Act's AFV acquisition requirements. Because the
amount of petroleum displaced would be the same, the proposed rule
would not change the environmental effect of compliance with 10 CFR
part 490. Accordingly, neither an environmental assessment nor an
environmental impact statement is required.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires
preparation of an initial regulatory flexibility analysis for any rule
that by law must be proposed for public comment, unless the agency
certifies that the rule, if promulgated, will not have a significant
economic impact on a substantial number of small entities. As required
by Executive Order 13272, ``Proper Consideration of Small Entities in
Agency Rulemaking,'' 67 FR 53461 (August 16, 2002), DOE published
procedures and policies on February 19, 2003, to ensure that the
potential impacts of its rules on small entities are properly
considered during the rulemaking process (68 FR 7990). DOE has made its
procedures and policies available on the Office of General Counsel's
Web site: http://www.gc.doe.gov.
DOE has reviewed today's proposed rule under the provisions of the
Regulatory Flexibility Act and the procedures and policies published on
February 19, 2003. The requirements in 10 CFR part 490 apply only to
alternative fuel providers with fleets containing at least 50 LDVs (20
of which are centrally fueled or capable of being centrally fueled) and
to like-size State fleets in metropolitan statistical areas with a
population of more than 250,000. The owners and operators of fleets of
this size are not small entities. In addition, the proposed rule
establishes voluntary procedures for State entities and covered persons
that wish to receive a waiver from otherwise applicable AFV acquisition
requirements. Alternative compliance does not impose any additional
burdens on the entities subject to sections 501 and 507(o) of the
Energy Policy Act of 1992. On the basis of the foregoing, DOE certifies
that this proposed rule would not have a significant economic impact on
a substantial number of small entities. Accordingly, DOE has not
prepared a regulatory flexibility analysis for this rulemaking. DOE's
certification and supporting statement of factual basis will be
provided to the Chief Counsel for Advocacy of the Small Business
Administration pursuant to 5 U.S.C. 605(b).
D. Paperwork Reduction Act
Proposed Sec. 490.803 (``Application for wavier''), proposed Sec.
490.807(c) ('Reporting requirement''), and proposed Sec. 490.809
(Record retention) contain information collection requirements. DOE has
submitted this proposed collection of information to the Office of
Management and Budget for approval pursuant to the Paperwork Reduction
Act of 1995 (44 U.S.C. 3501 et seq.) and the procedures implementing
that Act, 5 CFR 1320.1 et seq. A person is not required to respond to a
collection of information unless it displays a currently valid OMB
control number.
DOE estimates that alternative compliance waivers will be requested
for 15 State and fuel provider fleets. Part of the information
specified in Sec. 490.803 that a State or covered person would be
required to submit with its application for a waiver under proposed
subpart I is already required for reporting pursuant to 10 CFR 490.205
and 490.309. DOE estimates the additional burden required to provide
information pertaining to its required petroleum reduction and plan for
achieving that reduction to be 21 hours for each model year for which a
waiver is requested. DOE estimates that a State or covered person would
expend 20 hours to comply with the reporting requirements
[[Page 36038]]
in Sec. 490.803 (``Application for waiver'') and Sec. 490.807
(``Reporting requirement'') and 1 hour to comply with the recordkeeping
requirement in Sec. 490.809. DOE estimates the total annual costs of a
State or covered person that receives an alternative compliance waiver
would be $1,134.00 for each fleet subject to the waiver.
DOE invites public comment on: (1) Whether the proposed information
collection requirements are necessary for the performance of DOE's
functions, including whether the information will have practical
utility; (2) the accuracy of DOE's estimates of the burden of the
proposed information collection requirements; (3) ways to enhance the
quality, utility, and clarity of the information to be collected; and
(4) ways to minimize the burden of the information collection
requirements on respondents. Comments should be addressed to the
Department of Energy Desk Officer, Office of Information and Regulatory
Affairs, OMB, 725 17th Street, NW., Washington, DC 20503. Persons
submitting comments to OMB also are requested to send a copy to the
contact person at the address given in the ADDRESSES section of this
notice of proposed rulemaking. Interested persons may obtain a copy of
the DOE's Paperwork Reduction Act Submission to OMB from the contact
person named in this notice of proposed rulemaking.
E. Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) generally
requires Federal agencies to examine closely the impacts of regulatory
actions on State, local, and tribal governments. Subsection 101(5) of
title I of that law defines a Federal intergovernmental mandate to
include any regulation that would impose upon State, local, or tribal
governments an enforceable duty, except a condition of Federal
assistance or a duty arising from participating in a voluntary Federal
program. Title II of that law requires each Federal agency to assess
the effects of Federal regulatory actions on State, local, and tribal
governments, in the aggregate, or to the private sector, other than to
the extent such actions merely incorporate requirements specifically
set forth in a statute. Section 202 of that title requires a Federal
agency to perform a detailed assessment of the anticipated costs and
benefits of any rule that includes a Federal mandate which may result
in costs to State, local, or tribal governments, or to the private
sector, of $100 million or more. Section 204 of that title requires
each agency that proposes a rule containing a significant Federal
intergovernmental mandate to develop an effective process for obtaining
meaningful and timely input from elected officers of State, local, and
tribal governments.
This proposed rule would provide an alternative compliance option
for States and alternative fuel providers subject to AFV acquisition
requirements in 10 CFR part 490. The proposed rule would not result in
the expenditure by State, local, and tribal governments in the
aggregate, or by the private sector, of $100 million or more in any one
year. Accordingly, no assessment or analysis is required under the
Unfunded Mandates Reform Act of 1995.
F. Treasury and General Government Appropriations Act, 1999
Section 654 of the Treasury and General Government Appropriations
Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family
Policymaking Assessment for any proposed rule that may affect family
well being. The proposed rule would not have any impact on the autonomy
or integrity of the family as an institution. Accordingly, DOE has
concluded that it is not necessary to prepare a Family Policymaking
Assessment.
G. Executive Order 13132
Executive Order 13132, ``Federalism,'' 64 FR 43255 (August 4, 1999)
imposes certain requirements on agencies formulating and implementing
policies or regulations that preempt State law or that have federalism
implications. Agencies are required to examine the constitutional and
statutory authority supporting any action that would limit the
policymaking discretion of the States and carefully assess the
necessity for such actions. DOE has examined this proposed rule and has
determined that it would not preempt State law and would not have a
substantial direct effect on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government. No further
action is required by Executive Order 13132.
H. Executive Order 12988
With respect to the review of existing regulations and the
promulgation of new regulations, section 3(a) of Executive Order 12988,
``Civil Justice Reform,'' 61 FR 4729 (February 7, 1996), imposes on
Executive agencies the general duty to adhere to the following
requirements: (1) Eliminate drafting errors and ambiguity; (2) write
regulations to minimize litigation; and (3) provide a clear legal
standard for affected conduct rather than a general standard and
promote simplification and burden reduction. With regard to the review
required by section 3(a), section 3(b) of Executive Order 12988
specifically requires that Executive agencies make every reasonable
effort to ensure that the regulation: (1) Clearly specifies the
preemptive effect, if any; (2) clearly specifies any effect on existing
Federal law or regulation; (3) provides a clear legal standard for
affected conduct while promoting simplification and burden reduction;
(4) specifies the retroactive effect, if any; (5) adequately defines
key terms; and (6) addresses other important issues affecting clarity
and general draftsmanship under any guidelines issued by the Attorney
General. Section 3(c) of Executive Order 12988 requires Executive
agencies to review regulations in light of applicable standards in
section 3(a) and section 3(b) to determine whether they are met or it
is unreasonable to meet one or more of them. DOE has completed the
required review and determined that, to the extent permitted by law,
the proposed rule meets the relevant standards of Executive Order
12988.
I. Treasury and General Government Appropriations Act, 2001
The Treasury and General Government Appropriations Act, 2001 (44
U.S.C. 3516 note) provides for agencies to review most disseminations
of information to the public under guidelines established by each
agency pursuant to general guidelines issued by OMB.
OMB's guidelines were published at 67 FR 8452 (February 22, 2002),
and DOE's guidelines were published at 67 FR 62446 (October 7, 2002).
DOE has reviewed today's proposed rule under the OMB and DOE guidelines
and has concluded that it is consistent with applicable policies in
those guidelines.
J. Executive Order 13211
Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use,'' 66 FR 28355
(May 22, 2001) requires Federal agencies to prepare and submit to the
OMB, a Statement of Energy Effects for any proposed significant energy
action. A ``significant energy action'' is defined as any action by an
agency that promulgated or is expected to lead to promulgation of a
final rule, and that: (1) Is a significant regulatory action under
Executive Order 12866, or any successor order; and (2) is likely to
have a significant adverse effect on the
[[Page 36039]]
supply, distribution, or use of energy, or (3) is designated by the
Administrator of OIRA as a significant energy action. For any proposed
significant energy action, the agency must give a detailed statement of
any adverse effects on energy supply, distribution, or use should the
proposal be implemented, and of reasonable alternatives to the action
and their expected benefits on energy supply, distribution, and use.
Today's regulatory action would not have a significant adverse effect
on the supply, distribution, or use of energy and is therefore not a
significant energy action. Accordingly, DOE has not prepared a
Statement of Energy Effects.
Approval by the Office of Secretary
The Secretary of Energy has approved the issuance of this notice of
proposed rulemaking.
List of Subjects in 10 CFR Part 490
Energy, Energy conservation, Fuel, Motor vehicles, Petroleum, and
Recordkeeping and reporting requirements.
Issued in Washington, DC, on June 19, 2006.
Alexander A. Karsner,
Assistant Secretary, Energy Efficiency and Renewable Energy.
For the reasons set forth in the preamble, the Department of Energy
is proposing to amend Chapter II of title 10 of the Code of Federal
Regulations as set forth below:
PART 490--ALTERNATIVE FUEL TRANSPORTATION PROGRAM
1. The authority citation for part 490 is revised to read as
follows:
Authority: 42 U.S.C. 7191 et seq.; 42 U.S.C. 13201, 13211,
13220, 13251 et seq.
Sec. 490.600 [Amended]
2. Section 490.600 of subpart G is amended by replacing the word
``or'' after the number ``507'' with a comma and adding the words ``or
514'' after the number ``508''.
Sec. 490.603 [Amended]
3. Section 490.603 of subpart G is amended by removing the word
``or'' after the number ``503(b)'' and adding the words ``or 514''
after the number ``507''.
4. A new subpart I is added to read as follows:
Subpart I--Alternatve Compliance
Sec.
490.801 Purpose and scope.
490.802 Eligibility for alternative compliance waiver.
490.803 Application for waiver.
490.804 Action on an application for waiver.
490.805 Use of credits to offset petroleum reduction shortfall.
490.806 Rollover of excess petroleum reduction.
490.807 Reporting requirement.
490.808 Violations.
490.809 Record retention.
Subpart I--Alternative Compliance
Sec. 490.801 Purpose and scope.
This subpart implements section 514 of the Act (42 U.S.C. 13264)
which allows States and alternative fuel providers to petition for
alternative compliance waivers from the alternative fueled vehicle
acquisition requirements in subparts C and D of this part,
respectively.
Sec. 490.802 Eligibility for alternative compliance waiver.
Any State subject to subpart C of this part and any covered person
subject to subpart D of this part may apply to DOE for a waiver of the
applicable alternative fueled vehicle acquisition requirements if the
fleet owned, operated, leased, or otherwise controlled by the State or
covered person:
(a) Will achieve a reduction in the annual consumption of petroleum
fuels by its motor vehicles equal to the amount of alternative fuel the
fleet's inventory of alternative fueled vehicles, including alternative
fueled vehicles that the State or covered person would have been
required to acquire in model years for which a waiver is received,
would use if operated 100 percent of the time on alternative fuel; and
(b) Is in compliance with all applicable vehicle emission standards
established by the Administrator of the Environmental Protection Agency
under the Clean Air Act (42 U.S.C. 7401 et seq.).
Sec. 490.803 Application for waiver.
(a) A State or covered person must apply for an entire fleet for a
waiver for each full model year for which it requests alternative
compliance under this subpart. DOE does not grant a waiver for less
than an entire fleet or a full model year.
(b) To provide a sufficient amount of time for DOE action on the
request, a State or covered person must submit its application to DOE
no later than March 31 prior to the model year for which it seeks a
waiver.
(c) A waiver application must include verifiable data that is
sufficient to enable DOE to determine whether the State's or covered
person's fleet will achieve the amount of petroleum reduction required
for alternative compliance and whether the fleet is in compliance with
Clean Air Act vehicle emission standards. As a minimum, the State
entity or covered person must provide DOE with the following
information:
(1) The model year for which the waiver is requested;
(2) The anticipated total number of alternative fueled vehicles in
the fleet for the model year for which a waiver is requested, including
alternative fueled vehicle acquisition requirements accumulated in
previous waiver years, and excluding any covered vehicles that are to
be retired before the beginning of the waiver year;
(3) The average length of time a light-duty vehicle stays in the
fleet;
(4) The number of alternative fueled vehicles that the State or
covered person would, without a waiver, be required to acquire during
the model year for which a waiver is requested;
(5) The anticipated amount of gasoline and diesel and alternative
fuel (calculated in gasoline gallon equivalents (gge) using the
conversion table provided on the FreedomCAR and Vehicle Technologies
Program Web site at: http://www1.eere.energy.gov/vehiclesandfuels/epact/state/state_resources.html
) to be used by the light-duty
vehicles in the fleet for the waiver year including an estimate of per
vehicle average fuel use in these vehicles;
(6) A petroleum reduction plan as described in paragraph (d) of
this section; and
(7) Documents, or a certification by a responsible official of the
State or covered person, showing the fleet is in compliance with all
applicable vehicle emission standards established by the Administrator
of the Environmental Protection Agency under the Clean Air Act.
(d) The petroleum reduction plan required by paragraph (c)(7) of
this section must contain a well-documented explanation as to how the
State or covered person will meet the reduction in petroleum
consumption required by Sec. 490.802(a) of this subpart.
(1) The planned actions must be:
(i) Verifiable;
(ii) Involve a reduction in petroleum use by motor vehicles owned,
operated, leased, or otherwise controlled by the State or covered
person; and
(iii) Deliver a net reduction in petroleum consumption equal to the
amount of alternative fuel the fleet's inventory of alternative fueled
vehicles, including alternative fueled vehicles that the State or
covered person would have been required to acquire in waiver
[[Page 36040]]
years, would use if operated 100 percent of the time on alternative
fuel.
(2) The plan must provide for the reduction of petroleum motor fuel
by the State's or covered person's own vehicles and, therefore, may not
include incentives for third parties to reduce their petroleum use or
petroleum reductions that are not transportation-related.
(3) The documentation for the plan may include, but is not limited
to, published data on fuel efficiency, Government data, letters from
manufacturers, and data on actual usage.
(e) If DOE determines that the information provided in the
application is not sufficient for making a decision, it shall notify
the State or covered person of the information that must be submitted
before DOE can act on the application.
(f) A State or covered person must submit its application for an
alternative compliance waiver on official company or agency letterhead
and in triplicate to: Ms. Linda Bluestein, Regulatory Manager,
FreedomCAR and Vehicle Technologies Program, EE-2G/Forrestal Building,
U.S. Department of Energy, 1000 Independence Avenue, SW., Washington,
DC 20585.
Sec. 490.804 Action on an application for waiver.
(a) DOE shall grant or deny a waiver application within 45 working
days after it receives a complete application.
(b) DOE shall grant the State or covered person a waiver if it
determines that:
(1) The requirements for eligibility in Sec. 490.803 are met; and
(2) The State or covered person has complied with all of the
requirements in this subpart.
Sec. 490.805 Use of credits to offset petroleum reduction shortfall.
(a) A State or covered person granted a waiver under this subpart
may submit to DOE a request in writing to use alternative fueled
vehicle credits purchased or earned pursuant to subpart F of this part
to offset any shortfall in meeting the petroleum reduction required
under Sec. 490.802 of this subpart.
(1) The State or covered person must provide details about the
particular circumstances that led to the shortfall and demonstrate that
it did everything under its control to meet its petroleum reduction
requirement.
(2) DOE may ask the State or covered person to supply additional
information about the fleet and its operation if such information is
considered necessary for a decision on the request.
(b) If DOE grants the request, it shall notify the State or covered
person of the credit amount required to offset the shortfall. DOE shall
derive the credit amount using the fleet's fuel use per vehicle data.
(c) DOE shall give the State entity or covered person until March
31 following the model year for which the waiver is granted, to acquire
the number of credits required for compliance with this subpart.
Sec. 490.806 Rollover of excess petroleum reduction.
(a) A State or covered person that has achieved petroleum reduction
in excess of the amount required for alternative compliance in a model
year may submit to DOE a request that it be allowed to roll over the
excess petroleum reduction to meet the petroleum reduction requirement
in a future model year for which it requests a waiver.
(b) After considering the request and supporting information, DOE
shall notify the State or covered person of the amount of petroleum
reduction that it may apply towards meeting a future model year's
petroleum reduction requirement.
Sec. 490.807 Reporting requirement.
(a) By December 31 following a model year for which an alternative
compliance waiver is granted, a State or covered person must submit a
report to DOE that includes:
(1) A statement certifying:
(i) The total number of petroleum gallons and/or alternative fuel
gge used by the fleet during the waiver year in its covered light-duty
vehicles; and
(ii) The amount of petroleum motor fuel reduced by the fleet in the
waiver year through alternative compliance; and
(2) A projection of the baseline quantity of the petroleum motor
fuel reduction of the State or covered person during the following
model year, if the State or covered person intends to request
alternative compliance for that model year.
(b) A State or covered person must send its report to DOE on
official company or agency letterhead, and the report must be signed by
a responsible company or agency official.
Sec. 490.808 Violations.
If a State or covered person that receives a waiver under this
subpart fails to comply with the petroleum motor fuel reduction or
reporting requirements of this subpart, DOE shall revoke the waiver.
DOE also may impose on the State or covered person a penalty under
subpart G of this part.
Sec. 490.809 Record retention.
A State or covered person that receives a waiver under this subpart
must retain documentation pertaining to its waiver application and
alternative compliance, including petroleum fuel reduction by its
fleet, for a period of three years after the end of the model year for
which the waiver is granted.
[FR Doc. E6-9928 Filed 6-22-06; 8:45 am]
BILLING CODE 6450-01-P