Federal Register, Volume 60 Issue 195 (Tuesday, October 10, 1995)

[Federal Register Volume 60, Number 195 (Tuesday, October 10, 1995)]
[Proposed Rules]
[Pages 52734-52790]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-24563]

[[Page 52733]]

_______________________________________________________________________

Part II

Environmental Protection Agency

_______________________________________________________________________

40 CFR Parts 51, 85 and 86

Control of Air Pollution From New Motor Vehicles and New Motor Vehicle
Engines: Voluntary Standards for Light-Duty Vehicles; Proposed Rule

Federal Register / Vol. 60, No. 195 / Tuesday, October 10, 1995 /
Proposed Rules

[[Page 52734]]

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 51, 85 and 86

[AMS-FRL-5311-2]
RIN 2060-AF75

Control of Air Pollution From New Motor Vehicles and New Motor
Vehicle Engines: Voluntary Standards for Light-Duty Vehicles

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of Proposed Rulemaking (NPRM).

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SUMMARY: Today EPA is proposing regulations to establish a National Low
Emission Vehicle (National LEV) program. Under these regulations, auto
manufacturers would be able to volunteer to comply with more stringent
tailpipe standards for cars and light-duty trucks. Once a manufacturer
opted into the program, the standards would be enforced in the same
manner as any other federal motor vehicle pollution control
requirement. EPA is proposing that this program would relieve the 13
states in the Northeastern part of the country (the Ozone Transport
Region or OTR) of the December, 1994, regulatory obligation to adopt
their own motor vehicle programs. Today's NPRM also proposes to
harmonize federal and California motor vehicle standards and test
procedures to enable manufacturers to design and test vehicles to one
set of standards nationwide.
This NPRM is another step in an on-going process to achieve cleaner
air in the OTR. The OTR States submitted a petition in February, 1993,
requesting EPA to require all states in the OTR to adopt the more
stringent California motor vehicle program. Since then, under EPA's
leadership, the OTR States, auto manufacturers, environmental groups,
fuel providers and other interested parties have worked together with
EPA to develop a program that is agreeable to all parties, achieves
equivalent or better emission reductions from motor vehicles in the OTR
(compared to state-by-state adoption of the California program),
reduces pollution nationwide, and does so in a cost-effective manner.
If National LEV is implemented, it will demonstrate how cooperative,
partnership efforts can produce a smarter, cheaper program that reduces
regulatory burden while increasing protection of the environment and
public health.

DATES: Written comments on this NPRM must be submitted by November 9,
1995. Please direct all correspondence to the address specified below.
EPA will hold a public hearing on this NPRM on November 1, 1995 if one
is requested by October 20, 1995. The public hearing, if requested,
would begin at 9:00 a.m. and continue until 4:30 p.m. or until all
commenters have the opportunity to testify.

ADDRESSES: Interested parties may submit written comments (in
triplicate if possible) to Public Docket No. A-95-26, at: Air Docket
Section, U.S. Environmental Protection Agency, 401 M Street SW,
Washington, DC 20460 (Telephone 202-260-7548; FAX 202-260-4000).
Materials relevant to this proposed rulemaking have been placed in
Docket No. A-95-26. The docket is located at the above address in Room
M-1500, Waterside Mall, and may be inspected weekdays between 8:30 a.m.
and 5:30 p.m. A reasonable fee may be charged by EPA for copying docket
materials.
Members of the public may call the contact person indicated below
to find out whether a hearing will be held and, if so, the exact
location. Requests for a public hearing should be directed to the
contact person indicated below. The hearing, if requested, will be held
in Washington, DC.

FOR FURTHER INFORMATION CONTACT: Michael Shields, Office of Mobile
Sources, U.S. Environmental Protection Agency, 401 M Street SW,
Washington, DC 20460. Telephone (202) 260-7757. FAX (202) 260-6011.

SUPPLEMENTARY INFORMATION:

I. Obtaining Electronic Copies of the Regulatory Language

Electronic copies (on 3.5'' diskettes) of the proposed regulatory
language may be obtained free of charge by visiting, calling, or
writing the Environmental Protection Agency, Certification Division,
2565 Plymouth Road, Ann Arbor, MI 48105, (313) 668-4384. Refer to
Docket A-95-26. A copy is available for inspection in the docket (see
Addresses).
The proposed regulatory language is also available electronically
on the Technology Transfer Network (TTN). TTN is an electronic bulletin
board system (BBS) operated by EPA's Office of Air Quality Planning and
Standards. Users are able to access and download TTN files on their
first call. The steps required to access information on this rulemaking
are listed below. The service is free, except for the cost of the phone
call.

TTN BBS: 919-541-5742 (1,200-14,400 bps, no parity, eight data bits,
one stop bit)
Voice help: 919-541-5384
Internet address: TELNET ttnbbs.rtpnc.epa.gov
Off-line: Mondays from 8:00-12:00 Noon ET
1. Technology Transfer Network Top Menu: GATEWAY TO TTN TECHNICAL
AREAS (Bulletin Boards) (Command: T)
2. TTN TECHNICAL INFORMATION AREAS: OMS--Mobile Sources Information
(Command: M)
3. OMS BBS === MAIN MENU FILE TRANSFERS: Other OMS Documents
(Command: O)

At this stage, the system will list all available files in this
area. To download a file, select a transfer protocol that will match
the terminal software on your computer, then set your own software to
receive the file using that same protocol. If unfamiliar with handling
compressed (that is, ZIP'd) files, go to the TTN top menu, System
Utilities (Command: 1) for information and the necessary program to
download in order to unZIP the files of interest after downloading to
your computer. After getting the files you want onto your computer, you
can quit TTN BBS with the oodbye command.

II. Outline and List of Acronyms

A. Outline

This proposed rule preamble is organized into the following
sections:

I. Obtaining Electronic Copies of the Regulatory Language
II. Outline and List of Acronyms
A. Outline
B. List of Acronyms
III. Introduction and Background
A. Introduction
B. Benefits of National LEV Program
C. Background
1. Current Federal Motor Vehicle Emissions Control Program
2. California Low-Emission Vehicle Program
3. OTC LEV Decision
4. Public Process
D. National LEV Program
1. Agreement--A Necessary Predicate for the National LEV Program
2. Description of National LEV Program
IV. Provisions of National LEV Program
A. Program Structure
1. Opt-In to National LEV and In Effect Finding
2. Opt-Out From National LEV
a. Conditions Allowing Opt-Out
(1) Changes to Stable Standards
(2) OTC States' Failure to Meet or Keep Their Commitments
b. Effective Date of Opt-Out
3. Duration of Program
B. Voluntary Tailpipe and Related Standards and Phase-In
1. Emission Standards for Categories of National LEV Vehicles
a. Certification Standards
b. In-Use Standards

[[Page 52735]]

2. Non-Methane Organic Gases (NMOG) Fleet Average Standards
3. Fleet Average NMOG Credit Program
4. Five Percent Cap on Sale of Tier I Vehicles and TLEVs
5. Tailpipe Emissions Testing
a. California Phase II Reformulated Gasoline
b. NMOG vs. NMHC
6. On-Board Diagnostics Systems Requirements
7. Fuel Provisions and Reactivity Adjustment Factors
8. Hybrid Electric Vehicles (HEVs)
C. Low Volume and Small Volume Manufacturers
D. Legal Authority
E. Enforceability and Prohibited Acts
V. National LEV Deemed to Satisfy OTC LEV SIP Obligation
A. Acceptable LEV-Equivalent Program
1. Criteria for Finding Acceptable LEV-Equivalent Program
2. Application of Criteria to Voluntary Program
a. Emissions Reduction Equivalence Determination
b. Enforceability
c. Opportunities for Technology
B. Finding LEV-Equivalent Program in Effect
VI. Other Applicable Federal Requirements and Harmonization With
California Requirements
A. Introduction
B. Harmonization of Federal and California Standards and
Requirements
1. On-Board Refueling Vapor Recovery
2. Evaporative Emissions
3. Certification Short Test (CST)
4. Federal Test Procedure Revisions
5. High Altitude
C. Federal Compliance Requirements
1. Selective Enforcement Auditing and Quality Audit Programs
2. Imports
3. In-Use and Warranty Requirements
VII. Effective Date
VIII. Public Participation
A. Comments and the Public Docket
B. Public Hearing
IX. Administrative Requirements
A. Administrative Designation
B. Regulatory Flexibility Act
C. Unfunded Mandates Reform Act
D. Reporting and Recordkeeping Requirements

B. List of Acronyms

AAMA: American Automobile Manufacturers Association
AQL: Acceptable Quality Level
ATV(s): Advanced Technology Vehicle(s)
CAA: Clean Air Act
CAAA: Clean Air Act Amendments
CALLEV: California Low Emission Vehicle Program
CARB: California Air Resources Board
CFR: Code of Federal Regulations
CFV: Clean Fuel Vehicle
CO: Carbon Monoxide
CST: Certification Short Test
EPA: U.S. Environmental Protection Agency
EPAct: Energy Policy Act
FID: Flame Ionization Detector
FR: Federal Register
FTP: Federal Test Procedure
GVWR: Gross Vehicle Weight Rating
HC: Hydrocarbon
HCHO: Formaldehyde
HEV(s): Hybrid Electric Vehicle(s)
HLDT(s): Heavy Light-Duty Truck(s)
ICI(s): Independent Commercial Importer(s)
I/M: Inspection and Maintenance
LDT(s): Light-Duty Truck(s)
LDV(s): Light-Duty Vehicle(s)
LEV(s): Low Emission Vehicle(s)
LLDT(s): Light Light-Duty Truck(s)
LVW: Loaded Vehicle Weight
MIL: Malfunction Indicator Light
MY: Model Year
NAAQS: National Ambient Air Quality Standards
National LEV: National Low Emission Vehicle
NLEV: National Low Emission Vehicle
NMHC: Non-methane Hydrocarbons
NMOG: Non-methane Organic Gases
NOX: Oxides of Nitrogen
NPRM: Notice of Proposed Rulemaking
OBD: On-Board Diagnostics
OBD II: On-Board Diagnostics Requirements
OEM(s): Original Engine Manufacturer(s)
ORVR: On-Board Refueling Vapor Recovery
OTC: Ozone Transport Commission
OTC LEV: Ozone Transport Commission Low Emission Vehicle
OTR: Ozone Transport Region
PM: Particulate Matter
RAF(s): Reactivity Adjustment Factor(s)
RIA: Regulatory Impact Analysis
RVP: Reid Vapor Pressure
SEA: Selective Enforcement Audit
SFTP: Supplemental Federal Test Procedure
SIP: State Implementation Plan
THC: Total Hydrocarbon
TLEV(s): Transitional Low Emission Vehicle(s)
ULEV(s): Ultra Low Emission Vehicle(s)
VOC(s): Volatile Organic Compounds
ZEV(s): Zero Emission Vehicle(s)

III. Introduction and Background

Today EPA is proposing regulations for the National Low Emission
Vehicle (LEV) program--EPA believes this is a cleaner, smarter, cheaper
pollution control program for new motor vehicles. Under the program,
auto manufacturers would have the option of agreeing to comply with
tighter tailpipe emission standards--standards that EPA does not have
authority to impose now. Once manufacturers committed to the program,
the standards would be enforceable--just as all other federal motor
vehicle standards are enforceable. Manufacturers have indicated that
they would be willing to volunteer to meet these tighter standards if
EPA and the states in the northeastern part of the country (the OTR
States) are willing to agree to a program that meets certain
conditions, including providing manufacturers with regulatory
stability, recognizing that establishing advanced technology vehicles
in the Northeast is a shared responsibility (rather than the sole
responsibility of auto manufacturers), and reducing regulatory burden
by harmonizing federal and California motor vehicle standards.
The National LEV proposal is another step in an unprecedented,
cooperative effort by the Ozone Transport Commission (OTC) States, auto
manufacturers, environmentalists, fuel providers, EPA and other
interested parties to improve air quality. The OTC States and
environmentalists provided the opportunity for this cooperative effort
by pushing for adoption of the California LEV program throughout the
Ozone Transport Region (OTR). Under EPA's leadership, the states, auto
manufacturers, environmentalists and other interested parties then
embarked on a process that was marked by extensive public
participation, a willingness to work with each other and to solve
problems jointly, and the development of trust between the various
participants. This working relationship is particularly remarkable
given the adversarial and litigious nature of the interactions between
the parties in the recent past. EPA applauds the efforts of these
parties, particularly the leadership shown by the OTC States and the
auto manufacturers.
Given statutory constraints, National LEV will be implemented only
if it is agreed to by the OTC States and the auto manufacturers. EPA
does not have authority to force either side to sign up to the program.
Although the OTR States and the automobile industry have reached
agreement on many aspects of a 49-state program, agreement has not yet
been reached on all issues. However, because EPA believes agreement is
close, and to allow National LEV to be implemented promptly once an
agreement is reached, EPA today is proposing regulations that would
provide the regulatory framework for the National LEV program.
National LEV benefits the environment by reducing air pollution
nationwide. This program is designed to address air pollution problems
and will produce public health and environmental benefits both inside
and outside the OTR. This should assist states outside the OTR that
were considering adopting the California program in meeting their
obligations under the Clean Air Act (CAA).
EPA has determined that the National LEV program will result in
emissions reductions in the Northeast OTR that are equivalent to or
better than the emissions reductions that would be achieved by state-
by-state adoption of the California LEV program (including Zero
Emission Vehicle (ZEV) mandates). Thus, EPA is proposing that National
LEV would relieve the OTR States of

[[Page 52736]]
their regulatory obligation to adopt and implement a state motor
vehicle program. This obligation arose when the OTR States had
requested that EPA require all the OTR States to adopt the more
stringent California Low Emission Vehicle (LEV) program, and EPA
granted the request in December, 1994, based on the finding that the
region needed the emission reductions to achieve and maintain the ozone
National Ambient Air Quality Standards (NAAQS). Not only will National
LEV provide emissions reductions benefits to the OTC States, it will
reduce states' costs of providing their citizens with healthy air by
avoiding the costs of state programs that duplicated each others' and
EPA's efforts.
National LEV would also provide important relief from certain
regulatory requirements to the auto manufacturers. Rather than having a
fleet of California vehicles that are designed and tested to California
standards and a fleet of federal vehicles that are designed and tested
to different federal standards, in most instances manufacturers will
have harmonized standards that will allow them to sell most vehicles
nationwide. Not only will this reduce testing and design costs, it
should allow more efficient distribution and marketing of vehicles
nationwide.
The cooperative nature of the program by itself should provide
environmental benefits sooner and in a way that greatly reduces
regulatory transaction costs from what would otherwise be the case.
Focusing energy on implementing the program the parties helped jointly
design will be a better use of resources than continued fighting over
whether any program should be implemented at all.

A. Introduction

In this document, EPA is proposing a voluntary, National Low
Emission Motor Vehicle (National LEV) program. The National LEV program
would include a set of motor vehicle emission standards that would
significantly reduce emissions of ozone-producing pollutants from new
motor vehicles. The program would include a manufacturer fleet average
standard for non-methane organic gases (NMOG) applicable in the
Northeast OTR states \1\ beginning in model year 1997, and applicable
nationwide (except for California) beginning in model year 2001.
Manufacturers would not be required to meet the standards in this
program unless they choose to opt into the program. However, if a
manufacturer were to opt into the program and EPA were to find that the
program was in effect, then the manufacturer would be bound by the
program's requirements. A manufacturer could opt out of the program in
certain limited circumstances.

\1\ The OTR is made up of: Maine, New Hampshire, Vermont,
Massachusetts, Connecticut, Rhode Island, New York, New Jersey,
Pennsylvania, Delaware, Maryland, the District of Columbia, and the
part of Virginia that is within the Consolidated Metropolitan
Statistical Area that includes the District of Columbia
(collectively OTR or OTC States).
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In this notice, EPA is also proposing that the National LEV program
would relieve OTR States of an existing regulatory requirement. On
December 19, 1994, EPA approved a petition submitted by the Northeast
Ozone Transport Commission (OTC) to require OTR States to adopt the
California Low Emission Vehicle (LEV) program (which it called the
Ozone Transport Commission's Low Emission Vehicle (OTC LEV)
program).\2\ EPA found that the reduction of emissions from new motor
vehicles throughout the OTR is necessary to mitigate the effects of air
pollution transport in the region, and to bring ozone nonattainment
areas in the OTR into attainment (including maintenance) by the dates
specified in the Clean Air Act, as amended in 1990 (CAA, or the Act).
60 FR 4712 (January 24, 1995) (OTC LEV decision). Under the OTC's
recommended program, all new motor vehicles sold in the OTR beginning
in model year 1999 would be required to be certified by the California
Air Resources Board (CARB) to any one of the California motor vehicle
emissions standards (i.e., California Tier 1, Transitional Low-Emission
Vehicle (TLEV), LEV, Ultra Low-Emission Vehicle (ULEV), or ZEV).
Manufacturers could choose any mix of California-certified vehicles to
comply with annual fleet average NMOG standards, which become
increasingly stringent over time. Pursuant to the OTC recommendation,
individual states in the OTR would be permitted (but not required) to
adopt the ZEV mandate. See 60 FR 4712, 4724 (January 24, 1995).

\2\ Under the OTC LEV decision, the States also have the option
of submitting a ``shortfall'' SIP, as described in Section III.C.3.
See 60 FR at 4730.
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EPA is proposing that National LEV is an acceptable alternative to
OTC LEV.\3\ National LEV would be an enforceable program that would
achieve reductions in new motor vehicle emissions that are at least
equivalent to the reductions that would be achieved through
implementation of the OTC LEV program. Therefore, if EPA finds that the
National LEV program is in effect, OTC States would not be required to
adopt the OTC LEV program to meet the State Implementation Plan (SIP)
call EPA issued in the OTC LEV decision.

\3\ In today's notice, EPA is proposing the criteria that must
be met for an alternative program to qualify as an acceptable LEV-
equivalent.
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EPA provided numerous opportunities for public participation in the
decision-making process leading to OTC LEV and National LEV, as
described more fully in Section C.4. EPA established a subcommittee of
the Clean Air Act Advisory Committee, pursuant to the Federal Advisory
Committee Act, to evaluate issues relating to obtaining reductions in
emissions from motor vehicles in the OTR. The Subcommittee has also
served as a public forum to discuss voluntary, 49-state motor vehicle
standards, and provided comments to EPA regarding today's proposal.

B. Benefits of National LEV Program

The national motor vehicle emissions control program proposed today
represents a significant step towards the goal of reducing smog in
heavily populated urban areas, both in the northeastern United States
and in the rest of the country. The National LEV program would also
achieve reductions in emissions of other pollutants, including
particulate matter (PM), and formaldehyde (HCHO).
Ground-level ozone, the principal harmful component in smog, is
produced by a complex set of chemical reactions involving volatile
organic compounds (VOCs) and oxides of nitrogen (NOX) in the
presence of sunlight. Ground-level ozone causes health problems,
including damaging lung tissue, reducing lung function, and sensitizing
the lungs to other irritants. Scientific evidence indicates that the
ambient levels of ozone affect healthy adults and children, as well as
people with impaired respiratory systems, such as asthmatics. A
reduction in lung function during periods of moderate exercise has been
found following exposure to ozone for 6 to 7 hours at concentrations at
or near the current standard. This decrease in lung function may be
accompanied by symptoms such as chest pain, coughing, nausea, and
pulmonary congestion. Studies, to date, indicate that the acute health
effects of exposure to ozone at the level of the current national
standard (such as coughing, chest pain, and shortness of breath) are
reversible in most people when the exposure stops. However, the extent
of such reversibility depends on factors such as the length of exposure
and individual activity level. With repeated exposure to ozone over
time, many of these symptoms attentuate but some indicators of cell
damage suggest continued lung inflamation. Ground-

[[Page 52737]]
level ozone is also responsible for significant agricultural crop yield
losses each year. Studies also indicate that the current ambient levels
of ozone are responsible for damage to both terrestrial and aquatic
ecosystems, including acidification of surface waters, reduction in
fish populations, damage to forests and wildlife, soil degradation, and
reduced visibility.
The National LEV program would result in significant environmental
and public health benefits nationwide. There are 57 ozone nonattainment
areas in the U.S. outside the OTR and California, including several
areas classified as ``serious'' or ``severe'' for ozone. Houston and
the upper Midwest, in particular, experience high levels of ground-
level ozone pollution. The implementation of the National LEV program
nationwide in 2001 will advance the goal of emissions reductions in
those areas as well. A vehicle certified to the National LEV standards
would, over its lifetime, emit 400 pounds less pollution than a Tier 1
vehicle. Implementation of National LEV is expected to achieve
nationwide reductions of NOX emissions of 400 tons/day in 2005 and
1200 tons/day in 2015, and nationwide reductions in NMOG emissions of
279 tons/day in 2005 and 778 tons/day in 2015.
In evaluating the OTC petition, EPA analyzed the level of emissions
reductions that are needed throughout the OTR to attain (or maintain)
the national ambient air quality standard for ozone, given the serious
transport issue. The primary NAAQS for various pollutants, including
ozone, are set by EPA on the basis of air quality criteria and allowing
an adequate margin of safety, at a level that the Agency determines is
necessary to protect public health. EPA concluded, based on its
analysis in the context of the OTC LEV decision, that NOX
reductions of 50 to 75% from 1990 levels from every portion of the OTR
lying to the south, southwest, west, and northwest of each serious or
severe OTR nonattainment area, and VOC reductions of 50 to 75% from the
portion of the OTR in or near (and upwind of) each serious and severe
OTR nonattainment area, are necessary to bring each such nonattainment
area into attainment by the applicable date.
Motor vehicles are a significant contributor to smog because of
their emissions of VOCs and NOX. EPA has projected that, without a
program that achieves reductions in the northeastern United States
equivalent to those achieved by OTC LEV, on-highway vehicles will
account for approximately 38% of NOX emissions and 22% of
anthropogenic VOC emissions in 2005. More stringent motor vehicle
standards outside the OTR, such as those proposed today, will help the
OTR achieve necessary reductions (in addition to the benefits produced
in those states outside the OTR). EPA estimated that migration into the
OTR of non-LEV vehicles would result in a 16 ton/day increase in VOC
emissions and a 28 ton/day increase in NOX emissions in 2005
compared to EPA's estimates of highway vehicle emissions in the OTR
under the OTC LEV program. The National LEV program, when implemented
nationwide in 2001, would greatly reduce this migration effect.
As described in the OTC LEV decision, EPA's modelling analyses
support the conclusion that no combination of potentially broadly
practicable control measures in the OTR would be sufficient to achieve
the necessary level of emissions reductions without more stringent new
motor vehicle emission standards. Thus, EPA determined that all of the
emissions reductions in the OTR associated with implementing the OTC
LEV program, or a LEV-equivalent program, are necessary.
EPA has determined that the National LEV program proposed today
would provide at least equivalent emissions reductions in the OTR as
would OTC LEV, and do so in a more efficient and cost-effective manner.
The National LEV program would result in equal or greater reductions in
emissions of VOCs and NOX in the OTR for two reasons. First, the
National LEV program would provide for the introduction of transitional
low emission vehicles (TLEVs) in the OTR in 1997, two years earlier
than would be required under the OTC LEV program. Also, since the
National LEV program would apply nationwide (except for California) in
2001, vehicles purchased outside the OTR that move into the region
would be up to 70% cleaner than incoming vehicles (i.e., Tier 1
vehicles) would be under the OTC LEV program.
The National LEV program is also expected to achieve pollution
reduction benefits from motor vehicles beyond those associated with
ozone pollution. Under National LEV, motor vehicles across the nation
will also be required to meet emissions standards for PM and
formaldehyde (HCHO) that are more stringent than the comparable federal
Tier 1 standards. All states, not just those in the OTR, will realize
air quality benefits from implementation of these standards.
The National LEV program will require light-duty diesel motor
vehicles and light-duty diesel trucks to meet standards for emissions
of particulate matter that are more stringent than the comparable Tier
1 standards. Particulate matter (PM) is the generic term for a broad
class of chemically and physically diverse substances that exist as
discrete particles over a wide range of sizes. PM emissions have been
associated with numerous serious health effects, including upper and
lower respiratory illnesses such as pneumonia, chronic obstructive
pulmonary disease, chronic bronchitis, aggravation of the respiratory
system in children with preexisting illnesses, and premature mortality
in sensitive individuals (such as those with cardiovascular diseases).
In addition, studies have shown that PM emissions episodes can result
in a short-term decrease in lung function in small children. PM
emissions also contribute to impairment of visibility, acidic
deposition, and potential modification of the climate.
As discussed more fully in the RIA for this rulemaking, EPA's
modelling shows that implementation of the National LEV program will
result in a 28.6 ton/day effective PM-10 (particulates less than 10
microns in diameter) emissions reduction in 2005 (compared to expected
PM emissions in a situation where current Tier 1 standards apply
outside the OTC and OTC LEV is implemented within the OTC).
Furthermore, in western areas with a PM pollution problem caused by
nitrates (such as Denver), the NOX reductions achieved by the
National LEV program would provide additional PM emissions benefits.
The National LEV program also includes standards for formaldehyde
emissions from motor vehicles, unlike the current federal Tier 1
standards, which do not regulate emissions of formaldehyde.^{4 In
April 1993, pursuant to Sec. 202(l) of the CAA, EPA released its
assessment of the need for controlling emissions of toxic air
pollutants from motor vehicles and motor vehicle fuels (EPA Motor
Vehicle-Related Air Toxics Study). This study focused on the
carcinogenic risk associated with such emissions, and discussed the
health effects of the following specific toxic air pollutants: benzene,
formaldehyde, 1,3-butadiene, acetaldehyde, and selected metals and
motor vehicle-related pollutants identified as hazardous air pollutants
in Sec. 112(b) of the CAA. Interested readers should refer to this EPA
study for more information

[[Page 52738]]
regarding the health effects of toxic motor-vehicle-related air
pollutants.

\4\ If EPA promulgates standards for emissions of toxic air
pollutants from new motor vehicles, including benzene and
formaldehyde standards, pursuant to Section 202(l) of the Clean Air
Act, those standards would apply to vehicles certified under the
National LEV program.
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EPA has classified benzene as a Group A known human carcinogen,
based on studies on workers showing that long-term exposure to high
levels of benzene causes cancer. Exposure to benzene emissions has also
been associated with non-cancer health effects, including blood
disorders, adverse effects on the immune system, and damage to
reproductive organs. EPA has classified formaldehyde as a probable
human carcinogen, based on animal studies showing that long-term
exposure to and inhalation of formaldehyde is associated with certain
types of tumors. In addition, exposure to formaldehyde is associated
with non-cancer health effects, including irritation of the eyes, nose,
throat, and lower airway at low levels of exposure, and adverse effects
on the liver and kidneys. As discussed more fully in the RIA for this
rulemaking, EPA's modelling demonstrates that implementation of the
National LEV program will result in reduced emissions of benzene
(reduction of 7 tons/day) and formaldehyde (4 tons/day) nationwide in
2005.
EPA believes that the National LEV program is particularly
promising because it would provide these nationwide health and
environmental benefits while reducing some aspects of the auto
manufacturers' regulatory burden and compliance costs. Currently,
manufacturers design, test and produce two different types of vehicles
(California and federal), each of which must meet different standards
according to different test procedures. One of the goals of the
National LEV program is to use a single test procedure and standard for
each particular type of emission control requirement. Because of this
harmonization with California's program,^{5 implementation of the
National LEV program will streamline the process for certifying a
vehicle for sale, reduce auto manufacturers' design and testing costs,
and provide other efficiencies in the marketing of automobiles.^{6

\5\ In addition to using the same tailpipe standards as
California, this notice also proposes several changes to EPA
standards and test procedures that will further harmonize the
federal and California motor vehicle emission control programs. EPA
expects that the California Air Resources Board will reassess its
regulations shortly in order to further this harmonization.
Even if National LEV becomes effective, California will continue
to have its own program. Manufacturers could decide to sell some
vehicles (such as ULEVs or ZEVs) in California (or California and
the OTR), but not nationwide.
\6\ EPA recently received a letter from the Government of
Canada, indicating that government's interest in adopting national
motor vehicle emissions standards that are the same as those
contained in any national low emission vehicle program adopted in
the United States. Such harmonization of motor vehicle emission
control standards in the United States and Canada would provide even
greater efficiencies to the auto manufacturers, and would broaden
the geographical range of the emissions benefits of such a program,
including the specific benefit of reduced downwind pollution
transport.
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EPA also believes the National LEV program would be a preferable
alternative to OTC LEV because it will use fewer regulatory,
legislative and litigation resources than would OTC LEV since the
implementation of the National LEV program would be premised on
agreement reached by the OTR States, the auto manufacturers, and EPA.
The OTR States, the auto manufacturers, and EPA, with input from
environmental and public health groups, and other interested parties,
have made significant efforts that resulted in a broad outline for a
viable, cost-effective national low-emission vehicle program. EPA
believes that cooperation among the various interested parties is the
best way to achieve significant emissions reductions and to design a
practical, enforceable, and efficient program. It allows the OTR
States, EPA, auto manufacturers, other affected industry groups,
environmental groups and other interested parties to spend resources
making the program work instead of fighting each other on a state-by-
state basis over adoption of OTC LEV. The National LEV program is a
promising example of cooperation among state governments, the
automobile manufacturers, public health and environmental groups, and
the federal government, towards the goal of cleaner air in the
northeast U.S. and the rest of the country.
EPA has also analyzed the costs of the National LEV program based
on currently available information. The most recent detailed assessment
of the cost of LEVs was produced by the California Air Resources Board
(CARB) in 1994. CARB estimated the incremental cost of $114 per car for
LEVs only in California. EPA believes that the incremental cost for
National LEV will be considerably less expensive than the CARB estimate
for a variety of reasons. First, automotive pollution control
technology has advanced since CARB made its estimate. For example,
Honda recently announced the introduction of new LEV technology that
will add little or no cost to vehicles. Second, the national LEV
program includes numerous provisions to harmonize federal and
California motor vehicle requirements. The resulting cost-savings for
auto manufacturers (in areas such as vehicle design, certification
testing, mechanic training and inventory control) will be significant
and offset at least a portion of the LEV production tests. Third, the
nationwide production of LEVs will result in economics of scale for the
manufacturers. Finally, auto industry experience has consistently
demonstrated rapid price decreases in successive model years for newly-
introduced technology. Analysis discussed in the RIA yields an annual
incremental cost estimate compared to current regulatory obligations of
$700 million for the national LEV program, although EPA believes these
costs would actually be lower, as discussed above. The total
expenditure for new cars in the United States in 1993 was approximately
$225 billion.

C. Background

To provide a context for, and background to, the program proposed
in today's notice, it is necessary to discuss briefly the federal and
California motor vehicle programs and the circumstances leading to
EPA's OTC LEV decision. As described more fully below, EPA provided
extensive and numerous opportunities for public involvement in that
decision and in developing the framework for a national voluntary low
emission vehicle program.
1. Current Federal Motor Vehicle Emissions Control Program
The Clean Air Act prohibits the introduction into commerce of a new
motor vehicle that is not covered by a certificate of conformity issued
by EPA. To obtain such a certificate for a vehicle or engine family,
manufacturers must demonstrate compliance with all federal emissions
control standards and requirements that apply to new motor vehicles for
that class or category of vehicles for the relevant model year.
Emissions standards for model year (MY) 1994 new light-duty vehicles
(LDVs) and light-duty trucks (LDTs) are codified at 40 CFR 86.094-8 and
86.094-9. EPA's current standards for control of exhaust emissions of
non-methane hydrocarbon (NMHC), NOX, CO, and PM from new light-
duty vehicles and new light-duty trucks were established in June 1991,
and became effective beginning in model year 1994. See 56 FR 25724
(June 5, 1991).
The current standards (hereinafter ``Tier 1 standards'') are
applicable for the full useful life of the vehicle. Manufacturers must
certify new motor vehicles and engines to the Tier 1 standards using
the Federal Test Procedure. In model year 1996 and thereafter, all LDVs
and LDTs must

[[Page 52739]]
comply with the Tier 1 standards. Under section 207 of the Act,
manufacturers must warrant the emissions performance of their new,
certified motor vehicles for a portion of the vehicle's full useful
life. EPA enforces the Tier 1 standards through its Selective
Enforcement Audit program (assembly line testing) and through in-use
compliance testing and recall programs.
The current federal motor vehicle emission control program also
includes other standards and requirements that apply to new motor
vehicles, such as evaporative emissions, cold temperature CO, on-board
refueling vapor recovery, and on-board diagnostic equipment. The
program proposed by EPA in today's action would continue to require new
motor vehicles to comply with these requirements, but also proposes
revisions to them to achieve greater harmonization with comparable
California standards and requirements.
2. California Low Emission Vehicle Program
Section 209 of the Clean Air Act generally preempts states from
adopting and enforcing standards relating to emissions from new motor
vehicles and new motor vehicle engines.^{7 However, the Act provides
two exceptions. One allows EPA to waive preemption for the State of
California, permitting that state to adopt and enforce its own motor
vehicle emissions control program.^{8 The second exception allows
states other than California to adopt and enforce California's
standards, if certain specified conditions are met.^{9

\7\ 42 U.S.C. 7543(a).
\8\ 42 U.S.C. 7543(b).
\9\ Clean Air Act section 177; 42 U.S.C. 7507.
---------------------------------------------------------------------------

In 1990, California adopted the Low Emissions Vehicle (LEV)
program, containing three basic components. First, manufacturers must
certify new motor vehicles to one of the following five emissions
categories, each characterized by an increasingly stringent set of
emission standards: California Tier 1, Transitional Low Emission
Vehicles (TLEVs), Low Emission Vehicles (LEVs), Ultra Low Emission
Vehicles (ULEVs), and Zero Emission Vehicles (ZEVs). Second,
manufacturers must comply with an overall NMOG fleet average standard.
This requirement began in model year 1994 and becomes more stringent
over time. The third element is a ZEV production mandate, which
requires manufacturers to include a certain percentage of ZEVs each
year in their light-duty vehicle fleet for sale in California. The ZEV
mandate begins in model year 1998, when 2% of the light-duty fleet must
be ZEVs, and increases to 10% in model year 2003 and beyond. EPA
granted California a waiver of preemption for its LEV program in
January 1993. See 58 FR 4166 (January 13, 1993).
The States of New York, Massachusetts, and Connecticut, all of
which are members of the OTR, have adopted all or portions of the
California LEV program pursuant to Section 177 of the Act.
Massachusetts is currently implementing its LEV program, and New York
is initiating implementation with model year 1996. Connecticut has also
adopted the California LEV program. The automobile manufacturers have
challenged the New York and Massachusetts LEV programs in federal
court. Recent district and appellate court decisions have upheld the
New York and Massachusetts LEV programs.^{10

\10\ American Automobile Manufacturers Association (AAMA) v.
Commissioner, Massachusetts Department of Environmental Protection,
31 F.3d 18 (1st Cir. 1994); Motor Vehicle Manufacturers Association
v. New York State Department of Environmental Conservation, 17 F.3d
521 (2nd Cir. 1994); MVMA v. NYSDEC, No. 92-CV-869 (D. Mass. Oct.
24, 1994); and AAMA v. Greenbaum, No. 93-10799-MA (D. Mass. Oct. 27,
1993).
---------------------------------------------------------------------------

3. OTC LEV Decision
A summary of the OTC LEV decision is provided here. Interested
parties are referred to the OTC LEV decision Supplementary Notice of
Proposed Rulemaking, and Notice of Final Rulemaking for additional
information. 59 FR 48664 (September 22, 1994); and 60 FR 4712 (January
24, 1995).
In February, 1994, the OTC formally recommended, pursuant to
section 184(c) of the CAA, that EPA require all OTR States to adopt an
OTC LEV program in their State Implementation Plans (SIPs). The OTC LEV
program recommended by the OTC would require that, beginning in model
year 1999, all new light-duty vehicles and light-duty trucks sold or
otherwise introduced into commerce in the OTR be certified to
California LEV program standards. In addition, manufacturers would be
required to meet California's NMOG fleet average standard for such
vehicles. The OTC recommended that member states be allowed, but not
required, to adopt California's ZEV mandate, unless EPA determined that
the Clean Air Act required a state to adopt the ZEV mandate in order to
adopt the NMOG average part of the LEV program. In addition, the OTC
stated that it expected EPA to evaluate alternatives to OTC LEV.
On December 19, 1994, EPA approved the OTC recommendation. EPA
found that the emissions reductions resulting from OTC LEV or a LEV-
equivalent program are necessary for ozone nonattainment areas in the
OTR to achieve attainment (and maintenance) by the applicable deadline,
and that the OTC LEV program is consistent with the Clean Air Act. 60
FR 4712 (January 24, 1995). Based on that approval, EPA issued to each
OTC State a finding that its SIP is substantially inadequate to meet
certain requirements insofar as the SIP would not currently achieve
those necessary emissions reductions. The States are required to submit
a SIP revision on or before February 15, 1996, to cure this inadequacy.
In the OTC LEV decision, EPA found that states could satisfy the
finding of SIP inadequacy by adopting OTC LEV, or by submitting a
``shortfall'' SIP.^{11 The SIP inadequacy would also be satisfied if
EPA were to determine through rulemaking that a federal 49-state motor
vehicle emission control program was an acceptable LEV-equivalent
program, and found that such program was in effect. Thus, if EPA were
to find that auto manufacturers had opted into a LEV-equivalent federal
motor vehicle emissions control program that is deemed acceptable by
EPA through rulemaking action, then states would be relieved of the
obligation under the OTC LEV decision to adopt the OTC LEV program in
their SIPs.

\11\ As described in the OTC LEV decision, a ``shortfall'' SIP
program must contain adopted measures that make up the shortfall
between (1) the emission reductions necessary to prevent adverse
consequences on downwind nonattainment, as determined by EPA in the
OTC LEV decision, and (2) the emission reductions that would be
achieved by the measures mandated by the Clean Air Act and
potentially broadly applicable measures, as identified by EPA in the
OTC LEV decision. See 60 FR at 4730.
---------------------------------------------------------------------------

4. Public Process
Given the serious and complicated issues raised by the OTC petition
and the broad ramifications of these issues, EPA employed a public
process designed to achieve quick resolution and to provide maximum
opportunity for public participation in the decisionmaking process.
Following receipt of the OTC petition, EPA published a notice of
proposed rulemaking (NPRM) that detailed the Agency's analytic
framework for a decision on the OTC's recommendation, identified the
central issues EPA was considering, and proposed in the alternative to
approve, disapprove, or partially approve and disapprove the
recommendation. See 59 FR 21720 (April 26, 1994).

[[Page 52740]]

Following publication of the NPRM, EPA held a series of public
``roundtable'' meetings, in addition to a public hearing on the notice.
These roundtable meetings were designed to provide specific, detailed
analyses of the relevant issues through interactive discussion among
the various interested parties and members of the public, including
states, environmental and public health groups, automobile
manufacturers, and representatives from other industries in the OTR.
These discussions produced promising advances towards development of a
49-state motor vehicle emissions control program as an alternative to
the OTC LEV program. Interested parties should refer to the NPRM and
the Supplemental Notice of Proposed Rulemaking (SNPRM) for more
information. 59 FR 48664 (September 22, 1994). The written public
comments on the OTC LEV NPRM and SNPRM, and EPA's responses, are in the
public docket for the OTC LEV decision (Docket no. A-94-11).
The public interest in the OTC LEV decision process, and especially
in the development of a 49-state motor vehicle emissions control
program, prompted EPA to establish the Subcommittee on Mobile Source
Emissions and Air Quality in the Northeastern States (hereinafter ``the
Subcommittee'') of the Clean Air Act Advisory Committee in accordance
with the Federal Advisory Committee Act. The Subcommittee was charged
with evaluating the issues related to the petition and providing a
public forum to discuss alternative motor vehicle standards that could
apply in all states, except California. The Subcommittee members
represent the spectrum of interests potentially affected by the OTC
petition and any alternative programs. These interests include state
and local governments within and outside the OTR, public health and
environmental groups, automobile manufacturers and dealers, utilities,
fuel providers, alternative fuel vehicle proponents and labor. In
addition, the Subcommittee formed four working groups that allowed
additional participants to focus on specific issues implicated by a 49-
state motor vehicle emissions control program, including fuels,
enforcement, incentives for the development of advanced technology
vehicles, and emissions trading. The Subcommittee and the workgroups
met frequently from September through November 1994. Possible program
elements for this NPRM were discussed with the Subcommittee and
Committee in June, 1995.

D. National LEV Program

1. Agreement--A Necessary Predicate for the National LEV Program
The National LEV program would be a voluntary program that could
not be implemented without the agreement of the auto manufacturers and
the OTC States. EPA cannot require the auto manufacturers to meet the
National LEV exhaust standards, absent the manufacturers' consent,
because Section 202(b)(1)(C) of the Clean Air Act prevents EPA from
mandating new exhaust standards applicable before model year 2004. The
auto manufacturers have said that they will not agree to be bound by
the National LEV program unless the OTC States accept National LEV as
an alternative to OTC LEV. EPA does not have authority to require the
OTC States to accept the National LEV program. Thus, National LEV is
dependent upon the auto manufacturers and the OTC States voluntarily
committing to the program.
The OTC States and auto manufacturers are negotiating a voluntary,
49-state low emission motor vehicle program that would include
committing to National LEV and to the introduction of advanced
technology vehicles in the OTR. It is envisioned that, if an agreement
is reached, it will be memorialized in a Memorandum of Understanding
(MOU) to be signed by all OTR States and all auto manufacturers with
sales in the United States. The National LEV program, which is the
subject of today's notice, would be finalized as EPA regulations. The
Advanced Technology Vehicle (ATV) component (which is discussed in more
detail in Section V.A.2.c below) would be a separate agreement between
the OTC States and auto manufacturers that would be contained in an
attachment to the MOU. Although the OTC States and auto manufacturers
have not yet reached final agreement, EPA believes it is appropriate to
propose the National LEV program at this time. First, consensus has
been reached on many of the elements to be proposed for the National
LEV program. Where consensus has not been reached, EPA is soliciting
comment on a broad range of issues and options raised by the proposed
program, so that the Agency can resolve issues, in light of comments
received on this notice, following signature of the MOU by the OTC
States and the auto manufacturers. States and manufacturers are
encouraged to provide comments on today's notice. Second, EPA does not
want implementation of the MOU and the National LEV program to be
delayed unnecessarily. The OTC States' obligations to submit OTC LEV
SIP revisions on February 16,1996, creates a need for the OTC States to
know soon whether the National LEV program will come into being.
Although several important issues are still under discussion, EPA
understands that one of the primary unresolved issues between the OTC
States and the auto manufacturers centers on the ZEV mandates that have
been adopted or could be adopted in the future. EPA believes that this
is a decision that must be left up to each individual OTC State. As EPA
stated in the OTC LEV decision, 60 FR at 4724, states have the right to
decide whether to adopt a ZEV mandate pursuant to Section 177 of the
Clean Air Act, 42 U.S.C Sec. 7507. EPA also believes that states have
the right to decide to use other innovative approaches to increase the
use of ZEVs and other advances in motor vehicle technology in their
states. For example, states may develop programs such as cooperative
efforts and other measures to advance infrastructure development and
increase consumer demand for advanced technology vehicles to be used in
conjunction with mandates measures or as stand alone programs. EPA
understands that negotiations are continuing on this issue.
EPA also understands that another key area with important
unresolved issues between the OTC States and the auto manufacturers is
the area of state commitments. Specifically, full implementation of
National LEV is premised on agreement on the content and form of state
commitments regarding adoption or retention of a section 177 program
that does not allow compliance with National LEV as a full alternative
to compliance with the state program. Absent such an agreement, States
retain their full rights under section 177.
EPA is hopeful that an agreement will be reached soon because of
the many benefits of the National LEV program to the nation as a whole,
the OTC States and the auto manufacturers. A set of uniform, more
stringent standards that apply in 49 states is a more environmentally
beneficial and economically efficient approach to achieving emissions
reductions from new motor vehicles than a ``patchwork'' of California
standards in some states and federal standards in others. The National
LEV program would achieve at least the same level of emissions
reductions in the OTR as would the OTC LEV program. The introduction of
low emission vehicles nationwide would help alleviate pollution
transport problems in the OTC and in other states and would eliminate
concerns about

[[Page 52741]]
non-LEV vehicles being introduced into the OTR from states outside the
region that have not adopted the California LEV program (CAL LEV). In
addition, a 49-state program would impose less administrative burden on
the OTC States and other states than would state-by-state adoption and
enforcement of CAL LEV. Finally, it is beneficial to focus on
implementation of a 49-state program that is supported by the OTC
States, the auto manufacturers, and EPA, rather than expending
resources litigating the OTC LEV decision and each OTC State's adoption
of a LEV program.
2. Description of National LEV Program
In today's notice, EPA is proposing a set of national voluntary
emissions standards (the National LEV program) to control emissions of
ozone-forming pollutants from certain new motor vehicles. Under EPA's
proposal, the program would apply to new light-duty vehicles (LDVs) and
new light-duty trucks (LDTs) sold in the OTR beginning in model year
1997, and would expand to apply to all new LDVs and LDTs in the nation
(except California) in model year 2001. Manufacturers that choose to
opt into the National LEV program would be subject to this alternative
set of federal exhaust emission standards in lieu of the federal Tier 1
exhaust emission standards. The National LEV program would require
manufacturers to certify LDVs and LDTs to one of the following
certification categories: Tier 1, TLEV, LEV, ULEV, or ZEV. Each
certification category contains tailpipe emission standards for NMOG,
CO, NOX, HCHO, and PM.
The National LEV program would also require manufacturers to
produce and deliver for sale a combination of vehicles that complies
with an annual fleet average NMOG value. The National LEV program would
require the implementation of an increasingly stringent NMOG fleet
average standard in the OTR for light-duty vehicles and light-duty
trucks from model years 1997 to 2001. Beginning with model year 2001,
manufacturers would be required to comply with a nationwide NMOG fleet
average standard for LDVs and LDTs sold outside the OTR (except
California) that is equivalent to a 100% LEV fleet. An averaging,
banking and trading program comparable to California's could be used in
meeting the NMOG fleet average requirements. In addition, manufacturers
would be required to install on-board diagnostic systems that comply
with California's On-board Diagnostics Requirement (OBD II) regulations
on all National LEV vehicles.
As part of EPA's effort to reinvent environmental regulations by
reducing regulatory burden without sacrificing environmental benefits,
EPA is also proposing changes to harmonize federal and California
standards and test procedures. Vehicles in the proposed National LEV
program would continue to be required to comply with all other federal
requirements applicable to LDVs and LDTs for the appropriate model
year, including emissions standards and requirements, test procedures,
and compliance and enforcement provisions. EPA is committed to working
with CARB to harmonize federal and California standards and test
procedures to the extent possible. Thus, today's action proposes
changes designed to harmonize certain federal and California standards
and test procedures. This should reduce the regulatory burden on
manufacturers by facilitating the design, certification, and production
of the same vehicles to meet both the National LEV and the California
LEV program requirements.
Once manufacturers have voluntarily opted into the National LEV
program and the program becomes effective, manufacturers will be bound
by the provisions of the program. National LEV standards would be
enforced in the same manner as any other federal motor vehicle
standard. Manufacturers would have the ability to opt out of the
program only in certain limited circumstances: (1) if any OTC State
does not meet or keep the commitments it agrees it will make regarding
adoption of OTC LEV or ZEV mandates; or (2) if, over manufacturer
objections, EPA makes certain specified requirements more stringent,
except as needed to harmonize with corresponding California
requirements.

IV. Provisions of National LEV Program

The proposed regulations establish a voluntary federal program of
more stringent tailpipe emission standards for light-duty vehicles and
light-duty trucks. As proposed, National LEV would include a set of new
tailpipe emission standards and related requirements, which for most
vehicles would effectively replace the otherwise applicable Tier 1
tailpipe standards and would not change for the duration of the
program. The proposed National LEV standards and requirements would
include: (1) tailpipe emissions standards for NMOG, NOX, CO, HCHO,
and PM; (2) fleet average NMOG values; (3) allowance for the use of
California reformulated gasoline II as test fuel for the tailpipe
standards; (4) California on-board diagnostic system requirements (OBD
II); (5) averaging, banking and trading provisions; and (6) low volume
manufacturer provisions.
In general, the National LEV standards and related requirements are
patterned after California's more stringent tailpipe standards and NMOG
fleet averages. As National LEV is voluntary, manufacturers would only
have to comply with the National LEV standards if they chose to opt
into the program. Once they have opted in, however, emissions
equivalency and enforceability would be ensured by making continued
compliance with the standards mandatory. Opt-out would be limited to
certain triggering conditions which, if they occurred, would change the
basic presumptions upon which the manufacturers opted into the program.
Such conditions would be a change in one of the designated ``Stable
Standards'' (as discussed below), or an OTC State's failure to meet or
keep its commitment regarding adoption of a state motor vehicle program
under section 177.
Any manufacturer that opts into the National LEV program would be
fully subject to its requirements. Barring one of the limited and
unlikely events that would allow manufacturers to opt out of the
program, manufacturers would be required to meet the National LEV
standards and requirements for all of the model years covered by the
program. A manufacturer that failed to meet these requirements would be
subject to the same enforcement measures as exist for mandatory federal
programs.^{12 Once manufacturers opted into National LEV, they would
find administration and enforcement of its requirements
indistinguishable from a traditional federal motor vehicle emissions
program.

\12\ EPA would promulgate the voluntary standards under the
authority of CAA sections 202 and 301.
---------------------------------------------------------------------------

National LEV tailpipe emissions standards and related requirements
would apply to manufacturers beginning in model year 1997, in the OTR,
and extending at least through model year 2003. Manufacturers that opt
into the program prior to model year 1997 would have to comply with the
specified tailpipe emissions and related standards beginning in 1997
for light-duty vehicles and light-duty trucks offered for sale in the
OTR, and beginning in 2001 for those same vehicle categories offered
for sale in the rest of the country, except California. Any
manufacturer that opts into the program after model year 1996 would
have to comply with the standards beginning in the first model year
after the model year in which that

[[Page 52742]]
manufacturer opted in.^{13 The National LEV standards would continue
to apply through model year 2003 or until the first model year for
which manufacturers must meet federal standards promulgated under CAA
Sec. 202(i) (``Tier II'' standards) that are at least as stringent as
the National LEV standards, if certain conditions are met. By statute,
EPA could not promulgate Tier II standards applicable before model year
2004, so the National LEV standards would apply at least through model
year 2003.

\13\ EPA is also taking comment on whether, if National LEV were
not found to be in effect until after model year 1997 had already
begun, manufacturers should still comply with National LEV standards
for the 1997 model year.
---------------------------------------------------------------------------

While manufacturers may opt into the voluntary tailpipe and other
standards described above, other federal standards and requirements in
the federal motor vehicle control program remain mandatory. EPA is
proposing various changes to these other applicable federal motor
vehicle standards, which are designed to harmonize them with the
California standards. EPA expects these changes to reduce the burden on
manufacturers of dual compliance while retaining current levels of
emissions control. These standards would remain mandatory federal
standards, however, and are discussed in section VI below.

A. Program Structure

This section discusses basic structural elements of the National
LEV program: the process and timing for manufacturers to opt into the
program and for EPA to find that the program is ``in effect;'' the
conditions allowing, process for and ramifications of a manufacturer's
decision to opt out of the program; and the duration of the program.
1. Opt-in to National LEV and In Effect Finding
The opt-in provisions are designed to provide a simple mechanism
that allows EPA to determine readily when a manufacturer has opted in
and become legally subject to the National LEV program requirements.
EPA is proposing that a motor vehicle manufacturer would opt into the
program by submitting a written notification that unambiguously and
unconditionally states that the manufacturer is opting into the
program, subject only to the condition that EPA subsequently find the
program to be in effect by a certain date for purposes of satisfying
the SIP call issued in the OTC LEV decision. The notification would
also state that the manufacturer would not challenge EPA's authority to
establish and enforce the National LEV program.^{14 The proposed
regulations specify language that manufacturers would have to include
in the statement. The statement would have to be signed by a person or
entity within the corporation with authority to bind the corporation to
its choice. EPA requests comment on whether the regulations should
specifically identify the person or entity with such authority by title
or other means, and if so, who or what would have such authority. The
opt-in would become binding upon EPA's receipt of the statement, except
that if the Administrator fails to sign a finding that the program is
in effect within 60 days of signature of the final National LEV rule,
manufacturers could withdraw conditional opt-ins. EPA is proposing that
the ``in effect'' finding would not require further rulemaking if all
auto manufacturers with sales in the United States opted in.

\14\ EPA is requesting comment on whether, in light of potential
changes in requirements for agency analyses prior to rulemaking,
manufacturers should also include a commitment not to petition the
Agency for any additional analyses of or revisions to the program,
once it becomes effective.
---------------------------------------------------------------------------

EPA is requesting comment on whether it should establish time
limits for EPA to determine whether National LEV is in effect for
purposes of satisfying the OTC LEV SIP call. Early determination of the
status of National LEV is needed so manufacturers can plan their
production accordingly and the OTC States will have sufficient time to
cure the SIP inadequacy if National LEV does not come into effect. The
proposed regulations require EPA to make a finding on whether the
National LEV program is in effect within 60 days of signature of the
final National LEV regulations. (If signature is the start of the time
period for opt-in, EPA would provide directly affected parties actual
notice and make copies of the final rule available within a week of
signature.) Alternatively, EPA could establish a longer or shorter
period to make the finding, or key the time period off of publication,
instead of signature, of the final rule. On a longer timeframe, one
option would be for the regulations to set a deadline for an in effect
finding based on the agreed date for OTC States to submit their
commitments regarding adoption or retention of CAA section 177
programs.
EPA is also taking comment on whether it should establish a time
limit for manufacturers to opt in. While EPA is not proposing an
absolute deadline, the regulations commit the Agency to consider opt-in
notifications received within 45 days of signature of the final rule.
EPA is also taking comment on the following issues: Should the National
LEV regulations require manufacturers to opt in by a specific date, and
if so, by what date? Should the date be triggered by publication or
signature of the final rule? How long should manufacturers have to opt-
in? A short period (30-60 days) would give states and manufacturers
certainty about their obligations, but a longer period (90-120 days)
might be necessary to get requisite corporate sign-off. Should a
specific date be set (e.g. December 31, 1995) so that OTC States will
know prior to the start of state legislative sessions whether adoption
of OTC LEV is necessary to cure the SIP inadequacy. In addition, EPA is
requesting comment on whether manufacturers should be able to make
their opt-ins conditional upon any other factors such as a condition
that OTC States have made certain commitments regarding adoption or
retention of section 177 programs by a given date.
2. Opt-Out From National LEV
For the National LEV program to be useful and beneficial, it must
continue in effect for a substantial period of time stretching into the
next decade. States seek certainty regarding emissions benefits over
time, while motor vehicle manufacturers seek certainty regarding
emission standards to plan future production. The opt-out provisions
are structured to support the goal of program stability.
Once manufacturers have voluntarily chosen to opt into the program,
EPA is proposing that they could opt out of the program only under a
few specified circumstances, or ``offramps.'' As proposed, these
offramps are limited to: (1) EPA modification of certain specified
standards or requirements over the manufacturers' objection; or (2) an
OTC State's failure to meet or keep its commitment regarding adoption
or retention of a state motor vehicle program under section 177.
If a manufacturer were to opt out of the National LEV program, when
that opt-out became effective the manufacturer would become subject to
all standards that would apply if National LEV did not exist. The
federal Tier 1 tailpipe emissions and related standards would apply, as
would any state standards promulgated under section 177, regardless of
whether those standards allowed the alternative of compliance with
National LEV.
a. Conditions Allowing Opt-Out
(1) Changes to Stable Standards
EPA is proposing that certain specified standards and other
requirements be classified as ``Stable

[[Page 52743]]
Standards.'' With certain exceptions, any changes to the Stable
Standards applicable to vehicles produced for model years covered by
the National LEV rule would allow the auto manufacturers to opt out of
the National LEV program. The types of changes to the Stable Standards
that would not allow a manufacturer to opt out are changes that would
harmonize comparable federal and California standards, changes that do
not make a standard more stringent, and changes made without vehicle
manufacturers' objections.
The Agency believes that the appropriate Stable Standards fall into
two categories: (1) those core standards, procedures, and requirements
of the National LEV program that manufacturers would not have to meet
but for their voluntary commitment to comply with that program, and (2)
certain additional standards and requirements where the technical
indicators or the timing of candidate revisions make it unlikely EPA
would act under its discretionary authority to increase program
stringency. In balance, EPA believes that the low risk that EPA will
act to increase stringency in these areas does not make the program
unstable, while it gives the manufacturers greater clarity and
certainty about their obligations once they have entered into the
program, and the program is more stable as a result. The two categories
of proposed Stable Standards will be discussed separately.
A manufacturer that voluntarily chooses to be bound by standards
more stringent than EPA could impose (such as in the proposed National
LEV standards) should, in all fairness, only be required to comply with
future changes to these standards if it so chooses. If EPA does not
have authority to impose more stringent requirements, EPA does not
believe it would be appropriate for it to have unilateral authority to
change such requirements. Therefore, to protect the reasonable
expectations manufacturers will hold when they opt into the voluntary
standards of the National LEV program, it is reasonable to allow
manufacturers to opt out if there are changes in these voluntary
standards.
Consistent with this principle, EPA proposes that the first
category of Stable Standards includes the following core National LEV
program elements: [1] the TLEV, LEV, ULEV and ZEV tailpipe emission
standards (i.e., the ``LEV standards''); [2] use of the Federal Test
Procedure (FTP), including California phase II gasoline, for
determining compliance with the LEV standards; [3] the NMOG fleet
average standards; [4] banking and trading provisions used to meet the
NMOG average or the five percent cap on sales of TLEVs and Tier 1
vehicles in the OTR from model year 2001 on; and [5] requirements for
on-board diagnostics systems that meet California's OBD phase II
requirements.
Inclusion of the numerical standards in this category of Stable
Standards is justified because the LEV standards and the NMOG fleet
average standards (together with the associated banking and trading
provisions) are more stringent than current federal Tier 1 tailpipe
emission standards; the benefits associated with this greater
stringency are the foundation on which both the OTC LEV and National
LEV programs were built. The basis for including the OBD II
requirements in the first category of Stable Standards is the greater
stringency of California OBD II in the key areas of catalyst
deterioration, engine misfire, and evaporative emission system leak
detection.
The Agency proposes to include the FTP and the test fuel in the
Stable Standards because they are necessary to determine compliance
with the numerical standards. The Agency is conducting a parallel
effort to review the FTP as required by Section 206(h) of the Clean Air
Act, which has implications for the Stable Standards. On February 7,
1995, EPA published a notice proposing certain modifications to the
``conventional'' FTP, the addition of a new ``supplemental'' FTP (or
SFTP) incorporating ``off-cycle'' driving conditions (driving not
covered by the conventional FTP driving cycle), and new ``off-cycle''
emission standards (60 FR 7404). The proposal reflected an
unprecedented level of resources and input by the vehicle manufacturers
and the California Air Resources Board. The Agency is currently
evaluating comments on the February proposal and anticipates taking
final action to revise the FTP in October, 1995. EPA believes that CARB
will take consistent and coordinated action shortly thereafter.
EPA believes that the appropriate test procedure for use in
determining compliance of National LEV vehicles with the LEV standards
(and thus, for inclusion as a Stable Standard) is the conventional FTP
as modified by the imminent final revised FTP rulemaking. The Agency's
understanding is that the vehicle manufacturers acknowledge and support
this viewpoint. Thus, today's EPA proposal places the FTP among the
Stable Standards, but with the clear exception that any modifications
to the conventional FTP made under the statutory obligation of 42
U.S.C. Sec. 7525(h) will not trigger an offramp opportunity for the
vehicle manufacturers. Subsequent modifications to the conventional FTP
executed under EPA's discretionary authority would afford the
manufacturers an off-ramp, subject to the conditions stated elsewhere
in this notice.
The final revised FTP rule may also include ``off-cycle'' emission
standards or a Supplemental FTP. The Agency is proposing to include the
off-cycle standards and SFTP in the set of Stable Standards, but in the
second category of such standards, to be discussed next.
In addition to the core Stable Standards just described, EPA is
proposing a second category of non-core Stable Standards consisting of
the following elements of the federal motor vehicle emission control
program: [1] any ``off-cycle'' emission standards, associated test
procedures and implementation schedules promulgated by EPA under
Section 206(h) of the Clean Air Act; [2] the existing federal program
for control of on-board refueling vapor recovery (ORVR), including the
test procedures, test fuel, standards, and implementation schedules;
[3] the existing cold temperature carbon monoxide (Cold CO) program
effective through model year 2000, including the Cold CO test
procedure, test fuel, and standards; and [4] the existing federal
evaporative emissions control program, including the emissions
standards, test procedures, and implementation schedules. The Agency
has independent authority to impose or modify these standards and
requirements. Nevertheless, EPA believes it is appropriate to include
them as Stable Standards. This would provide increased certainty for
manufacturers that they can produce a single version of each vehicle
nationwide to comply with all applicable requirements. This increased
certainty should provide manufacturers added incentive to opt into the
National LEV program without making the program unstable. In reaching
this conclusion, EPA evaluated each program element on a case-by-case
basis, both for the timing of potential future action to revise that
program element and for the technical framework that might prompt EPA
into such action.
As noted previously, EPA anticipates final action to promulgate
off-cycle emission standards and an associated procedure by October 31,
1995. If adopted, this proposal would add a significant new set of
tailpipe emission requirements, phased in over model years 1998 through
2001. Conforming vehicles, which could serve as the basis for
evaluating the sufficiency of EPA's final off-cycle requirements, will
not

[[Page 52744]]
penetrate the fleet in significant numbers until the end of the
proposed National LEV program period. The Agency has no technical basis
at this time to conclude that an identified source of off-cycle
emissions will go unregulated as a consequence of the final off-cycle
rule. In the limited case where some form of high-impact, unregulated
off-cycle emissions behavior were to be subsequently identified, EPA
could still choose to promulgate new off-cycle regulations; the
leadtime required for promulgation of new rules might push the first
year of feasible implementation for such revisions past the period of
the National LEV rule. Even if an earlier rule seemed practical, EPA
could nonetheless choose to proceed, recognizing the possibility that
such action might prompt manufacturers to opt out of the National LEV
program.
The Agency anticipates that CARB will act in the near future to
finalize its own off-cycle requirements, consistent with EPA's actions
except for the stringency of the off-cycle standards. EPA's
understanding is that the vehicle manufacturers have volunteered to
meet whatever off-cycle FTP requirements California adopts, even if
they are of greater stringency than the federal requirements. On this
basis, EPA would propose to amend the first (core) category of Stable
Standards to include the new CARB off-cycle requirements, justified on
the basis that the vehicle manufacturers would be volunteering to meet
more stringent standards as part of the National LEV program.
The situation with the federal On-board Refueling Vapor Recovery
(ORVR) program is similar to the off-cycle standards and procedures,
except that this rule has been finalized (59 FR 16262). The ORVR phase-
in for LDVs begins in model year 1998 and ends for LDTs in model year
2003, so the availability of technical information from conforming in-
use vehicles will likewise occur, at best, near the end of the National
LEV program. Agency staff finalized the recent ORVR rule based on the
best currently available technical information, and with no indication
of significant technical shortcomings or unregulated refueling
emissions that would foreshadow the need for imminent, more stringent
ORVR rulemaking.
For Cold CO, EPA has a statutory obligation to revisit the Cold CO
standard under Section 202(j) of the Clean Air Act, and to make
changes, if necessary, effective with model year 2001. Given the
stringency of current standards, progress in reducing CO levels, and
the leadtime required for promulgating new rules, EPA does not believe
it will be necessary to revisit the Cold CO standard prior to the
statutorily mandated time, at which point, Cold CO would no longer be
included as a Stable Standard.
The final set of requirements proposed for inclusion in the second
category of Stable Standards is the federal evaporative emissions
control program, modified to specify California test fuel and test
temperature as explained in Section VI.B.2. Final evaporative emission
regulations were promulgated by EPA on March 24, 1993 (58 FR 16002). A
direct final rule promulgating a set of technical amendments to that
rule (including amendments designed to harmonize federal and CARB
evaporative emissions requirements) was published on August 23, 1995
(60 FR 43880). Based on the March 1993 rule, the first new conforming
vehicles have already been certified for model year 1996, and phase-in
of the requirements will be completed in model year 1999. As with the
ORVR final rule, EPA believes that the March 1993 evaporative emissions
final rule, together with the recently published technical amendments,
represents the best technical information available and an appropriate
level of stringency for the federal requirements, and that short-term
actions to increase the stringency of these requirements are not
necessary.
With the proposed Stable Standards, EPA cannot and does not propose
to forego any mandatory rulemaking activity, nor even to preclude
discretionary activity, related to the listed program elements. Rather,
EPA is proposing that if it takes discretionary action to increase the
stringency of certain program elements and the change does not
harmonize federal with California requirements, the manufacturers may
take discretionary action to remove themselves from the voluntary
program. The Agency believes that changes to the proposed Stable
Standards applicable to the model years of the National LEV program are
likely to be technical amendments that do not impact program
stringency, actions to harmonize with California, or actions where the
vehicle manufacturers agree with EPA's judgment that the change is
appropriate. Thus, EPA finds it unlikely that the proposed Stable
Standards would trigger an opportunity for manufacturers to opt out of
the program or create instability in the program.
EPA seeks comment on whether each proposed Stable Standard is
appropriate or whether one or more proposed Stable Standards should not
be included as such. If EPA were likely to change a Stable Standard,
then the National LEV program would probably be unstable and it would
be difficult to find that OTC States did not need to adopt OTC LEV as a
backstop. Thus, EPA also seeks comment on whether the proposed Stable
Standards are justifiably considered stable on a technical basis.
Changes to those portions of the existing requirements not cited in
the above itemization of the proposed Stable Standards (and the
parallel list incorporated in Section 86.1705 of the proposed National
LEV regulations) would not trigger an off-ramp opportunity for the
manufacturers. For example, EPA believes it must have the option to
guarantee attainment of the stringency of the requirements already in
force (as opposed to increasing the stringency of those requirements)
without providing manufacturers the opportunity to opt out of the
National LEV program. Thus, the Agency believes that the emissions
durability program and defeat device requirements, which are designed
to ensure that vehicles actually comply with the emissions standards
over their useful life, should not be included in the Stable Standards.
The importance of achieving the predicted stringency for elements
of the program is particularly important where the standards or
procedures have been newly promulgated. The Agency must have the
ability to modify the durability program to detect deterioration or
component durability shortcomings of new designs introduced by
manufacturers to meet these new requirements, and to prevent devices
that intentionally circumvent the intended emissions targeted by those
new requirements. In the evaporative emissions area, for example, EPA
noted in the March 1993 final rule that it could not yet anticipate the
penetration of pressurized fuel tank designs in response to the new
evaporative requirements; such systems present the possibility of
failure modes in the evaporative control system that would be most
efficiently addressed not through emissions recalls, but through
changes to the component durability program. Such changes would not
allow manufacturers to opt out of National LEV.
EPA is proposing that it could make the following types of changes
to the Stable Standards without providing an opportunity for auto
manufacturers to opt out of the program: changes to harmonize the
federal standards with the comparable then-current California standard,
changes that do not increase stringency, and changes to which
manufacturers do not object. If manufacturers need changes to existing

[[Page 52745]]
regulations because of minor problems that arise during implementation,
EPA could correct those problems either because the technical amendment
would not affect stringency or because manufacturers did not object to
the change. EPA also takes comment on whether the ability to make the
specified types of changes would minimize some of the possible
drawbacks of specifying non-core requirements as Stable Standards. For
example, if it were determined later that additional environmental
benefits could be achieved at minimal cost by modifying the ``off-
cycle'' FTP standards for TLEVs, LEVs or ULEVs, EPA could add those
environmental benefits to National LEV provided that California changed
its regulations.
EPA is also taking comment on whether other types of changes should
not provide an opportunity to opt out of the program, particularly if
non-core standards are specified as Stable Standards. For example,
rather than trying to determine whether stringency is affected by
technical amendments necessary to make the implementation-related
adjustments inevitably needed in a new regulatory program (if, for
example, adjustments are needed for the recently promulgated ORVR
regulations), perhaps EPA should be able to make any type of change for
the first year or two that a new regulatory obligation is in effect.
Another option might be to exclude specific program sub-elements from
the Stable Standards because the Agency might subsequently conclude
there are compelling reasons for EPA to increase the stringency of
those sub-elements in the model years of the National LEV program. If
the sub-elements were part of the broader list of Stable Standards,
such action might destablize the program by allowing manufacturers to
opt out. The Agency solicits comments on whether the proposed list of
Stable Standards includes any such program sub-elements and whether EPA
should act in a final National LEV rule to except them from the Stable
Standards.
(2) OTC States' Failure to Meet or Keep Their Commitments
The second condition allowing manufacturers to opt out is a failure
of any OTC State to meet its commitment (as finally agreed upon by the
OTC States and auto manufacturers) regarding adoption or retention of a
section 177 program that does not allow compliance with National LEV as
a full alternative to compliance with the state program. The
manufacturers and the states have not yet reached agreement on the
exact content and form of such a state commitment. Details that have
yet to be resolved concern what the OTC States will commit to do
regarding adoption or retention of section 177 programs (both LEV and
ZEV requirements) and the timing of any agreed upon actions. Possible
instruments for such state commitments include a commitment in a SIP
revision, a consent decree, a legislative resolution, a letter from the
State Attorney General, an Executive Order from the Governor, signature
of an MOU with the manufacturers, or any package of several of these
instruments. Since National LEV is intended to provide an alternative
to OTC LEV, manufacturers should not be bound to stay in the National
LEV program if an OTC state requires them to comply with a section 177
program contrary to the terms of the final agreement. This offramp not
only gives manufacturers recourse if a state does not fulfill its part
of the bargain, but also encourages states to fulfill their commitments
by setting a serious penalty for failure. EPA will provide further
notice on state commitments when more information is available.
b. Effective Date of Opt-Out
To opt out of the program, a manufacturer would follow the same
notification procedure used to opt in, additionally specifying the
condition allowing opt-out. EPA is proposing that manufacturers would
have to decide whether to exercise their option to opt out within 60
days of the occurrence of the condition triggering opt-out. This would
provide greater program stability by ensuring that if no manufacturer
takes an available opt-out within a certain period of time, that option
expires and the program will continue, barring another offramp being
triggered. EPA requests comment on whether an amount of time to allow
for exercise of an opt-out option should be specified and, if so, what
the length of time should be.
An opt-out would not become effective if, within 60 days of receipt
of the opt-out statement, the Administrator were to find that the
condition cited by the manufacturer had not actually occurred. Then, if
a dispute between a manufacturer and EPA over the existence of a
condition allowing opt-out had to be settled through litigation, EPA
could continue to enforce the National LEV program while a court was in
the process of resolving the dispute.
Unless EPA were to find that the opt-out condition had not
occurred, the effective date of an opt-out would depend on the
condition authorizing the opt-out. The effective date of the opt-out
would determine when the manufacturer would no longer have to comply
with the National LEV program and instead would become subject to
Federal Tier 1 tailpipe emissions and related standards and state
section 177 programs. EPA is considering three major factors in
determining when opt-outs should become effective. The first factor is
the burden that different effective dates place on manufacturers, in
terms of complying with emissions standards. A second factor is the
effect of different opt-out dates on emissions reductions. Third, EPA
will consider the extent to which different effective dates provide
program stability by providing disincentives for EPA or the OTC States
to trigger an offramp.
If EPA were to modify one of the specified Stable Standards or
requirements over the objection of a manufacturer, EPA is proposing
that opt-out would be effective for the first model year to which the
modified standard applied. Similarly, if after promulgation of the
final rule an OTC State were to adopt a state motor vehicle program
under section 177 in a way that violated a commitment it made, opt-out
would be effective for the first model year to which the state
regulations applied. EPA believes this approach achieves the best
balance between preservation of emissions reductions and minimization
of burden on manufacturers. This approach would ensure that there is no
loss of emissions reductions before the condition triggering an opt-out
actually imposed a compliance burden on the manufacturers. Also,
depending upon the effective date of the regulatory change made by EPA
or the state, delaying opt-out until that date may provide some
additional time for states without backstops in place to adopt section
177 programs.\15\ Yet this approach avoids placing any additional
burden on the manufacturers because as soon as manufacturers would need
to comply with the changed standard or the section 177 program, they
would no longer have to comply with National LEV. While this approach
does not provide an additional deterrent to triggering an offramp, EPA
believes the dissolution of the program and need to adopt and/or
implement section 177 programs is a very significant deterrent.

\15\ ``Backstops'' refers to OTC LEV programs that have been
adopted by states but do not become effective as long as National
LEV is in effect.
---------------------------------------------------------------------------

EPA is also requesting comment on a range of alternative approaches
to establishing the effective date of opt-outs that are allowed by an
EPA change to Stable Standards or an OTC State failure to keep its
commitment regarding a section 177 program. On one

[[Page 52746]]
end of the spectrum, opt-out could become effective immediately upon
trigger of the offramp. At the other end, EPA could make opt-out
effective only when all states had ample time to adopt OTC LEV, or even
had actually adopted OTC LEV. Another alternative would be to make opt-
out effective beginning in the first model year following the calendar
year in which EPA or the state acted, regardless of when the changed
federal or state standards would apply. While this approach would
result in higher emissions, this loss of emissions reductions from all
states without backstops would provide a greater disincentive for
either EPA or the OTR States to change the requirements. Still another
alternative would be to make opt-out effective for the first model year
three years after the calendar year in which EPA or the state acted, or
the first model year to which the changed regulations applied,
whichever is sooner. This approach could give most states without
backstops sufficient time to adopt OTC LEV and thereby provide greater
assurance that emissions reductions would not be lost. The Agency
requests comment on these or related approaches.
3. Duration of Program
If manufacturers do not opt out of the program, the proposed
regulations set an end date for the National LEV program that is tied
to the date of EPA's promulgation of future standards. EPA is also
taking comment on alternative end dates.
Under the proposed regulations, National LEV standards would remain
in place at least through model year 2003 and possibly through model
year 2006. If, by December 15, 2000, EPA has signed a final rule
establishing new, mandatory tailpipe standards at least as stringent as
National LEV that become effective in model year 2004, 2005 or 2006,
then National LEV would remain in effect until those new standards
became effective. If EPA did not issue regulations meeting those
conditions, then National LEV would end in model year 2003. In that
event, manufacturers would be required to meet federal Tier 1 standards
starting in model year 2004 in any state where they were not required
to meet California or OTC LEV standards.
The OTC States and auto manufacturers have expressed support for
this option. They believe it is important to have certainty regarding
new federal standards sooner rather than later. This would enable
manufacturers to design and plan future production and give states time
to adopt OTC or California LEV if EPA did not act by the specified
date. The OTC States and auto manufacturers believe that imposing a
hammer (i.e., return to Tier 1 standards nationwide in model year 2004)
will force EPA to act in the specified timeframe to give the parties
the certainty they feel they need.
EPA is also taking comment on having the National LEV program
extend until the first model year in which manufacturers must meet new,
mandatory tailpipe standards at least as stringent as National LEV.
This would not provide the incentive for EPA to issue such standards in
the specified time period, but it would avoid the confusion and
environmental harm that would occur if the nation were to go backwards
from National LEV to Tier 1 standards in model year 2004. EPA also
questions whether it is appropriate or necessary to address in this
rulemaking the rulemaking schedule for Tier II standards, given that
Congress has addressed this in section 202(i)(3) of the Clean Air Act,
42 U.S.C. Sec. 7521(i)(3).

B. Voluntary Tailpipe and Related Standards and Phase-In

1. Emission Standards for Categories of National LEV Vehicles
The exhaust emission standards being proposed today for vehicle
categories in the National LEV program are closely patterned after the
California LEV emission standards. The proposed National LEV standards
would apply to light-duty vehicles (LDVs), and the category of light-
duty trucks under 6000 lbs Gross Vehicle Weight Rating (GVWR) (i.e.,
light light-duty trucks (LLDTs)).^{16 Vehicles not in these
categories would continue to be certified and tested under applicable
federal regulations. Under the provisions of the proposed voluntary
program, once in the program, manufacturers would have to certify all
LDVs and LLDTs to one of five ``vehicle emission categories,'' each of
which has a unique set of emission standards. The least stringent set
of standards that vehicles could be certified to is the current set of
federal Tier 1 tailpipe standards. The Tier 1 standards include
standards for exhaust emissions of NMHC, CO, NOX, and PM.

\16\ The federal definitions of ``light-duty vehicle'' and
``light light-duty truck'' (40 CFR Sec. 86.094-2) correspond to the
California definitions of ``passenger car'' and ``light-duty
truck,'' respectively. In addition, both the federal and California
regulations divide the truck emission standards into two categories
based on identical loaded vehicle weights. Thus, California emission
standards can be applied directly to the corresponding federal
vehicle certification categories.
---------------------------------------------------------------------------

The remaining four sets of standards are as follows, in order of
increasing stringency: TLEVs, LEVs, ULEVs, and ZEVs. Each of these four
vehicle emission categories contains emission standards for NMOG, CO,
NOX, HCHO, and PM.
For the reason stated below, EPA is proposing that the following
federal Tier 1 standards apply to National LEV vehicles, in addition to
the California exhaust emission standards described above: total
hydrocarbon (THC) standard, 50,000-mile PM standard, and 100,000-mile
PM standard for non-diesel vehicles. The CAA requires that, beginning
in MY 1996, 100% of a manufacturer's fleet of vehicles complies with
the federal Tier 1 emissions standards. It is clear that a vehicle
certified to California TLEV, LEV, ULEV, or ZEV standards will meet the
applicable Tier 1 emission standards for NMHC, CO, and NOX.
However, the California program does not contain a THC emissions
standard or a 50,000-mile PM standard, and the California 100,000-mile
PM standard applies only to diesel vehicles.
Therefore, the California 100,000-mile PM standards, as adopted in
the National LEV program, would apply to diesel vehicles only. Non-
diesel vehicles covered by the National LEV program would be required
to meet the Tier 1 100,000-mile PM emissions standard. In addition, all
National LEV program vehicles would be required to meet the federal
Tier 1 50,000-mile PM standard, and the federal Tier 1 THC emissions
standard, since there are no comparable California standards.
The National LEV program would require compliance with these
exhaust emissions standards, as well as compliance with a fleet average
NMOG standard, which would be phased from MY 1997 through MY 2001. The
program would initially apply to all vehicles produced and offered for
sale in the OTR, beginning with MY 1997. Beginning in MY 2001, the
program would apply to all vehicles produced and offered for sale in
the rest of the nation (excluding California). Manufacturers would be
allowed, but not required, to produce and offer for sale TLEVs, LEVs,
ULEVs, and ZEVs outside the OTR prior to model year 2001.
The National LEV program would require manufacturers to comply with
a fleet average NMOG standard, by producing and delivering for sale a
combination of vehicle emission categories that, when averaged on a
sales-weighted basis, meets a fleet average NMOG value for each model
year that becomes increasingly stringent

[[Page 52747]]
through MY 2001 in the OTR. After MY 2000, a manufacturer would also
have to meet the average NMOG standard for its fleet of LDVs and LLDTs
sold in states outside the OTR (excluding California). Only vehicles
subject to the National LEV program sold in the OTR would be counted
towards a manufacturer's fleet average NMOG calculation during the MY
1997-2001 phase-in period. The fleet average NMOG standards are
described more fully in Section III.B.3 below.
a. Certification Standards
The proposed voluntary program would establish emission standards
with a structure similar to current federal Tier 1 regulations, in that
there would be separate emission standards for LDVs and for LDTs.
Current federal regulations divide the LDT vehicle category into two
subcategories, each of which is further divided into subcategories.
Light light-duty trucks (LLDTs) are those LDTs less than or equal to
6000 lbs GVWR, and heavy light-duty trucks (HLDTs) are those LDTs
greater than 6000 lbs but less than or equal to 8500 lbs GVWR. The
National LEV program proposes standards only for the LLDTs, therefore
the HLDT category would continue to be certified to the applicable Tier
1 standards. Emission standards proposed today that apply to LLDTs are
divided into two sets. One set, which is identical to the standards for
LDVs, would apply to LLDTs up through 3750 lbs loaded vehicle weight
(LVW), and another slightly less stringent set would apply to LLDTs
between 3750 and 5750 lbs LVW. Also consistent with current federal and
California regulations, separate sets of standards are proposed for the
vehicle's intermediate useful life (5 years or 50,000 miles, whichever
occurs first) and full useful life (10 years or 100,000 miles,
whichever occurs first).
As noted above, there would be five vehicle emission categories for
vehicles under the voluntary program, ranging in stringency from the
current federal Tier 1 vehicles to ZEVs. The Tier 1 standards have
already been codified in the current federal regulations with a phase-
in schedule that requires 100 percent of production of LDVs and LLDTs
to meet the Tier 1 standards by the 1996 model year. The proposed TLEV,
LEV, ULEV and ZEV certification standards for LDVs and LLDTs up through
3750 lbs LVW are shown in Table 1 and those proposed for LLDTs from
3750 to 5750 lbs LVW are shown in Table 2. As noted above, the National
LEV particulate standards would apply only to diesel vehicles.

Table 1.--Intermediate and Full Useful Life Standards (g/mi) for Light-Duty Vehicles and Light Light-Duty Trucks
to 3750 lbs LVW
----------------------------------------------------------------------------------------------------------------
PM
Vehicle useful life (miles) Vehicle emission category NMOG CO NOX HCHO (diesel
only)
----------------------------------------------------------------------------------------------------------------
50,000...................... TLEV....................... 0.125 3.4 0.4 0.015 .........
LEV........................ 0.075 3.4 0.2 0.015 .........
ULEV....................... 0.040 1.7 0.2 0.008 .........
100,000..................... TLEV....................... 0.156 4.2 0.6 0.018 0.08
LEV........................ 0.090 4.2 0.3 0.018 0.08
ULEV....................... 0.055 2.1 0.3 0.011 0.04
----------------------------------------------------------------------------------------------------------------

Table 2.--Intermediate and Full Useful Life Standards (g/mi) for Light Light-Duty Trucks From 3751 lbs LVW to
5750 lbs LVW
----------------------------------------------------------------------------------------------------------------
PM
Vehicle useful life (miles) Vehicle emission category NMOG CO NOX HCHO (diesel
only)
----------------------------------------------------------------------------------------------------------------
50,000...................... TLEV....................... 0.160 4.4 0.7 0.018 .........
LEV........................ 0.100 4.4 0.4 0.018 .........
ULEV....................... 0.050 2.2 0.4 0.009 .........
100,000..................... TLEV....................... 0.200 5.5 0.9 0.023 0.08
LEV........................ 0.130 5.5 0.5 0.023 0.08
ULEV....................... 0.070 2.8 0.5 0.013 0.04
----------------------------------------------------------------------------------------------------------------

The proposed voluntary standards also include two-tiered NMOG
standards for flexible-fuel and dual-fuel vehicles, based on
California's approach to standards for these vehicle types.\17\
Flexible- and dual-fuel vehicles would have to certify both on the
alternative fuel and on gasoline. When certifying on an alternative
fuel, these vehicles would have to meet the intermediate and full
useful life emission standards for TLEVs, LEVs or ULEVs laid out above.
Consistent with California's methodology, the measured NMOG mass
emissions would be adjusted by a Reactivity Adjustment Factor (RAF) for
the given type of alternative fuel before being compared to the
applicable emission standard. Determination of the applicable RAF is
discussed later in section III.B.5.

\17\ Flexible-fuel vehicles are those that can operate on either
of two different fuels or any combination of those fuels, while
dual-fuel vehicles can operate on either of two different fuels but
not on combinations of those fuels.
---------------------------------------------------------------------------

When certifying on gasoline, flexible-fuel and dual-fuel vehicles
would have to meet the next higher (less stringent) category of NMOG
standards than the standards the vehicle certified to on an alternative
fuel. However, the vehicle would have to meet all other standards
(NOX, CO, etc.) when operated on gasoline that it certified to on
an alternative fuel. For example, a flexible-fuel vehicle that
certified to ULEV standards on an alternative fuel would have to
certify to the LEV NMOG standard and ULEV CO, NOX, PM, and HCHO
standards when operated on gasoline. The same principle would hold true
for determining applicable in-use standards for flexible-fuel and dual-
fuel vehicles. This would allow manufacturers to optimize the emission
control system for the alternative fuel rather than for gasoline.
Consistent with California, for purposes of the NMOG fleet average
standard discussed below, such vehicles would be included based on
their NMOG certification levels on the alternative fuel. There is,
however, no requirement that such vehicles

[[Page 52748]]
operate on alternative fuels in-use, except as is already provided for
in the clean fuel fleet program.
b. In-Use Standards
The proposed National LEV program explicitly adopts California's
intermediate in-use standards, including intermediate in-use compliance
standards for LEVs and ULEVs for the 1997 and 1998 model years that are
less stringent than the certification standards for such vehicles.\18\
These less stringent standards apply for this short period after
introduction of the certification standards to allow manufacturers to
gain in-use experience with vehicles certified to LEV or ULEV
standards. Starting with the 1999 model year, vehicles must comply in-
use with the certification standards described above. Because
California is in the midst of transition to a LEV program, a straight
carryover of their in-use approach implies adoption of less stringent
in-use standards for LEVs and ULEVs through the 1998 model year. These
standards apply to the intermediate useful life of the vehicles;
compliance with in-use standards beyond the intermediate useful life is
not required for LEVs and ULEVs through the 1998 model year. The in-use
standards for vehicles certified under the voluntary National LEV
program would apply to vehicles sold both within and outside the OTR.
The applicable in-use standards for TLEVs would be equivalent to the
intermediate and full useful life certification standards starting with
the 1997 model year, whereas for LEVs and ULEVs the certification
standards would not apply in-use until after the 1998 model year. The
proposed intermediate in-use standards for LDVs and LLDTs to 3750 lbs
LVW are shown in Table 3 and the proposed intermediate in-use standards
for LLDTs from 3751 to 5750 lbs LVW are shown in Table 4.

\18\ California's less stringent in-use standards for TLEVs
expired after the 1995 model year. TLEVs must therefore meet
certification levels (intermediate and full useful life) in-use at
the start of the proposed National LEV program.

Table 3.--Intermediate Useful Life in-use Standards (g/mi) for Light-
Duty Vehicles and Light Light-Duty Trucks to 3750 lbs LVW
------------------------------------------------------------------------
NMOG (g/ CO (g/ NOX (g/ HCHO
Vehicle emission category mi) mi) mi) (mg/mi)
------------------------------------------------------------------------
LEV................................... 0.100 3.4 0.3 0.015
ULEV.................................. 0.058 2.6 0.3 0.012
------------------------------------------------------------------------

Table 4.--Intermediate Useful Life in-use Standards (g/mi) for Light
Light-Duty Trucks From 3751 lbs LVW to 5750 lbs LVW
------------------------------------------------------------------------
NMOG (g/ CO (g/ NOX (g/ HCHO
Vehicle emission category mi) mi) mi) (mg/mi)
------------------------------------------------------------------------
LEV................................... 0.128 4.4 0.5 0.018
ULEV.................................. 0.075 3.3 0.5 0.014
------------------------------------------------------------------------

2. Non-Methane Organic Gases (NMOG) Fleet Average Standards
As stated earlier, the proposed voluntary program would also
require manufacturers to meet an increasingly stringent fleet average
NMOG standard. The fleet average NMOG standards and schedule for LDVs
and LLDTs in the OTR are shown in Table 5. The fleet average NMOG
values shown in the table would apply, on a manufacturer-by-
manufacturer basis, to vehicles sold in the OTR from MY 1997 until the
end of the National LEV program. The NMOG values would also become
applicable to vehicles sold in every state outside the OTR, except
California, beginning with the 2001 model year. (Low volume
manufacturers, as defined in this proposal, would be exempt until model
year 2001, as discussed more fully in Section III.D below.)

Table 5.--Fleet Average NMOG Exhaust Emission Requirements (g/mi) for
LDV and LLDT Sold in the OTR
------------------------------------------------------------------------
Fleet
Vehicle type Model year Average
NMOG
------------------------------------------------------------------------
LDV and LLDT (0-3750 LVW)..... 1997.......................... 0.200
1998.......................... 0.200
1999.......................... 0.148
2000.......................... 0.095
2001 and later................ 0.075
LLDT (3751-5750 LVW).......... 1997.......................... 0.256
1998.......................... 0.256
1999.......................... 0.190
2000.......................... 0.124
2001 and later................ 0.100
------------------------------------------------------------------------

The decreasing fleet average values were derived by multiplying
certification emissions levels for various categories of vehicles by
achievable implementation rates for each vehicle category. The NMOG
values specified are equivalent to the production of 40% TLEVs in MYs
1997-1998, 40% TLEVs and 30% LEVs in MY 1999, 40% TLEVs and 60% LEVs in
MY 2000, and 100% LEVs in MY 2001. Manufacturers will be required to
meet separate NMOG averages for each of the two vehicle groupings shown
in Table 5, i.e., a fleet average will be calculated both for LDVs and
LLDTs from 0-3750 LVW and also for LLDTs from 3751-5750 LVW. Also, as
discussed below, beginning in MY 2001, manufacturers will have to meet
separate NMOG averages for two regions: states within the OTR and
states (except California) outside the OTR.
Manufacturers would be able to comply with the fleet average NMOG
standards by producing and delivering for sale any combination of
vehicles certified to the Tier 1, TLEV, LEV, ULEV, or ZEV levels such
that the overall LDV and LLDT fleet met the required fleet average
values. A sales-weighted fleet average would be calculated based on the
intermediate useful life (5 years, 50,000 mile) certification NMOG
standards of the vehicle categories. A manufacturer would multiply the
NMOG emission standard for each certification category by the number of
that type of vehicle that the manufacturer produced and delivered for
sale, add these products to the Hybrid Electric Vehicle (HEV)
contribution factor (discussed in section IV.C.8), and then divide by
the total number of vehicles produced and delivered for sale by the
manufacturer.
Because vehicles sold to locations in California and other
countries, including Canada and Mexico, are excluded from the National
LEV program, and because fleet average NMOG calculations are based on
regional limits described in the following section, manufacturers are
required to obtain data on the location of vehicle sales to demonstrate
accurate fleet average NMOG calculations. However, to ease the burden
on manufacturers of tracking vehicles to the end user, manufacturers
need only track vehicles to the location where the completed vehicle or
truck is purchased, otherwise known as the point of first retail sale.
In most cases, this will be the sale from the manufacturer to the
dealer. In cases where the end user purchases the completed vehicle
directly from the manufacturer, the location of the end user is the
point of first retail sale. Vehicle sales data pertaining to vehicles
already shipped to a point of first retail sale is also known as first
delivery information.
An additional proposed limitation on the vehicles manufacturers may
include in their fleet average NMOG calculations involves those
vehicles sold in the OTR to meet the requirements of the Energy Policy
Act (EPAct). EPA is including this proposal at the request of the OTC
states and auto

[[Page 52749]]

manufacturers. As proposed, manufacturers would not include in their
National LEV fleet calculations any alternative-fueled vehicles that
have been purchased by OTR State governments pursuant to EPAct
guidelines if the governments have reported their purchases of those
vehicles to the respective manufacturers no later than February 1 of
the calendar year following the end of a given model year. Reporting
should consist of a letter from the government official responsible for
the EPAct purchases to the manufacturer representative listed in that
manufacturer' s application for certification. Failure of the
government entities to report this data correctly would allow the
manufacturers to include these vehicles in their fleet average NMOG
requirements. EPA is taking comment on the method and timing for these
government reports. EPA is also taking comment on whether Federal
government EPAct purchases should also be excluded from manufacturers'
NMOG fleet average calculations, whether it is feasible for information
on Federal purchases to be reported to manufacturers, and if so,
through what mechanism.
3. Fleet Average NMOG Credit Program
As part of this voluntary program, EPA is proposing to allow
manufacturers to use a market-based approach to the fleet average NMOG
requirements for LDVs and LLDTs through averaging, banking, and trading
NMOG credits and debits. This would provide an incentive for early
emission reductions and allow manufacturers greater flexibility in
meeting the overall fleet average targets. Thus, manufacturers would
produce the same level of emissions reductions at less cost. Both this
overall approach and most of the specifics of program implementation
are modelled on California's trading program.^{19

\19\ The National LEV regulations would not preclude generation
of excess credits under National LEV for use in broader trading
programs if such programs are developed in the future. Excess
credits would be those credits left after a manufacturer met the
NMOG average.
---------------------------------------------------------------------------

Fleet average NMOG credits and debits would be calculated in the
same manner as under the California regulations. Credits and debits
would be calculated in units of g/mi as the difference between the
required fleet average NMOG and the fleet average NMOG achieved by the
manufacturer, multiplied by the total number of vehicles the
manufacturer produced in a given model year and delivered for sale in
the applicable regions, including ZEVs and HEVs. A manufacturer would
generate credits in a given year if its fleet average NMOG value was
lower than the fleet average NMOG requirement for that model year.
Debits would be incurred when a manufacturer achieved a fleet average
NMOG above the NMOG required for that model year. A manufacturer's
balance for the model year would equal the sum of the credits earned
and debits incurred.
As under the California regulations, the separate fleet average
NMOG standards for the two different vehicle classes would require that
manufacturers make separate fleet average NMOG value calculations for
each class. Class A represents the LDVs and LDTs 0-3750 lbs. LVW, and
Class B represents the LDTs 3751-5750 lbs. LVW. However, once
calculated, fleet average credits and debits are not specific to these
classes.
EPA is also proposing to include geographic limits on both
calculation of fleet average NMOG values and offset of debits with
credits. Prior to MY 2001, the fleet average NMOG standard would apply
only to vehicles produced and delivered for sale within the OTR. To
ensure that the voluntary program continues to produce emissions
reductions comparable to those that would be achieved by OTC LEV in the
OTR, from MY 2001 on, credit and debit averaging would be conducted in
two separate regions: the OTR and the remaining 37 States, excluding
both California and the OTR.^{20 The NMOG average, credits, and
debits for a regional fleet would be based on vehicles produced and
delivered for sale in each region, and each regional fleet average
would have to meet the applicable NMOG standard independently.

\20\ For administrative convenience, EPA is proposing to include
the entire state of Virginia in the OTR trading region, even though
only northern Virginia is in the OTR. EPA is taking comment on
whether only the portion of Virginia in the OTR should be included
in the OTR trading region.
---------------------------------------------------------------------------

Therefore, manufacturers would be required to calculate four
separate fleet average NMOG values for four separate averaging sets:
Class A in the OTR, Class A in the 37 States, Class B in the OTR, and
Class B in the 37 States. Each manufacturer would have a separate
balance for each of the two regions, which would be calculated by
summing all of the manufacturers' credits and debits within that
region.^{21 Only credits remaining after calculating the
manufacturer's balance for the region would be available for trading
and they could be traded only in that region.

\21\ Credits or debits earned or incurred in the National LEV
program would not be interchangeable with credits or debits earned
or incurred in California because the National LEV and California
LEV programs are separate.
---------------------------------------------------------------------------

As under the California regulations, the proposed National LEV
standards provide that manufacturers may incur a debit balance in a
given region and model year, but the manufacturer must equalize any
emission debits by the end of the following model year. Manufacturers
would be able to offset debits by (1) using credits generated by that
manufacturer in a previous year (discounted if appropriate), (2)
earning an equal amount of emission credits the year after incurring
the debit, or (3) presenting to EPA an equal amount of credits acquired
from another manufacturer. However, a manufacturer would have to use
any available banked credits to offset debits in the year those debits
were generated, rather than carrying over to the next model year both
credits and debits for the same region. The cause of action for failure
to equalize debits would be deemed to accrue at the end of the time
period for equalizing debits.
The voluntary standards would also incorporate the California
approach for discounting unused credits over time. Discounting helps to
protect the equivalency of credits earned and used in different years,
to account for less stringent in-use requirements, and to prevent
excessive accumulation. Over time, vehicles are likely to improve in
their durability and performance due to a longer development period and
experience gained from prior model years. Thus, emission reductions
from earlier vehicles may be less than those from the same type of
vehicle later on. Under the proposed regulations, unused credits that
are available at the end of the second, third and fourth model year
after the model year in which the credits were generated would be
discounted to 50%, 25%, and 0% of the original value of the credits,
respectively. For example, if a manufacturer generated 200 credits in
MY 1997, those credits would retain their full value in MY 1998.
However, in MY 1999, the credits would be discounted by 50%, so the
manufacturer would hold only 100 credits. In MY 2000, the manufacturer
would hold 50 credits, and in MY 2001, the credits would have no value.
EPA is proposing to allow manufacturers to generate credits in the
37 States prior to model year 2001 for use in the 37 States. This would
provide manufacturers added flexibility. However, EPA is concerned
about the possibility that this might generate windfall credits.
Windfall credits are credits that are generated without real emission
reductions being made by the manufacturer because the manufacturer

[[Page 52750]]
would have made those production choices regardless of the incentive of
earning credits. Given that such credits do not represent emission
reduction benefits over the status quo, they should not be used to
offset later deficits. EPA requests comment on these issues.
Compliance for vehicles subject to the fleet average NMOG standards
proposed in this regulation will be evaluated in two ways. First,
compliance of an individual vehicle with its certified NMOG tailpipe
emissions levels would be determined and enforced in the same manner as
compliance with any other emission standard. Each vehicle must meet its
certified emission standards as determined and enforced through
certification, Selective Enforcement Audit, in-use testing, and, for
certain vehicles, testing performed under some California assembly-line
and in-use testing programs. Second, manufacturers must show that they
meet the applicable NMOG fleet average standards. Manufacturers could
either report a fleet average NMOG level meeting the applicable fleet
average NMOG standard or present to EPA enough credits to offset any
debits by the end of the model year following the model year in which
the debits were incurred.
The proposed fleet average NMOG credit program would be implemented
and enforced through the certificate of conformity, which the
manufacturer would be required to obtain under proposed section
86.1721-97 for all vehicles prior to their introduction into commerce.
The certificate for each vehicle would be conditioned on each vehicle
meeting the applicable National LEV tailpipe and related emission
standards, and on the manufacturer demonstrating compliance with the
applicable NMOG fleet average standard. If a manufacturer failed to
meet both of these conditions, the vehicles causing the NMOG fleet
average violation would be considered not covered by the certificate
applicable to the engine family. EPA could then assess penalties on an
individual vehicle basis for sale of vehicles not covered by a
certificate.
If debits are not equalized within the specified time period, EPA
would calculate the number of noncomplying vehicles by dividing the
total amount of debits for the model year by the fleet average NMOG
requirement applicable for the model year and averaging set in which
the debits were first incurred. In the case where both averaging sets
are in debit, any applicable credits would first be split between the
sets. Then, noncompliance calculations would begin using the revised
debit values. Each noncomplying vehicle would be deemed to be in
violation of the conditions of its certificate. EPA would determine
these vehicles by designating vehicles in those engine families with
the highest certification NMOG emission values first and continuing
until a number of vehicles equal to the calculated number of
noncomplying vehicles as determined above is reached. EPA may void ab
initio the certificates of conformity for nonconforming vehicles.
If the Agency determines that an enforcement action is appropriate,
EPA would have some discretion in choosing the appropriate penalties.
The sale of vehicles not covered by a certificate is a violation under
CAA section 203(a). Civil penalties in the amount up to $25,000 per
vehicle are possible under section 205 of the Act. The applicable
penalties are listed in section 205(a) of the Act. The Agency would
consider appropriate mitigating factors.
EPA is taking comment on an additional enforcement requirement
associated with this trading program. Specifically, if a manufacturer
failed to equalize emission debits by the end of the year following the
year the debits were generated, that manufacturer would not only be
responsible for any of the appropriate penalties as discussed above,
but would also be required to make up the debit balance, which
represents emissions exceedances. Under the California program, once
penalties are imposed for holding debits, those debits are wiped out
and the manufacturer's credit balance returns to zero. However,
requiring debits to be made up, notwithstanding penalties, would ensure
that the environment is not harmed by an exceedance. EPA requests
comment on whether making up emissions exceedances should be required
automatically, whether EPA should have discretion to require that
exceedances be made up, or whether emissions exceedances should not be
required to be made up.
When credits are transferred between manufacturers, EPA proposes to
make both the provider and receiver of credits potentially liable for
any credit shortfall resulting from the trade, except in cases where
fraud is involved. The certificates of both parties issued for vehicles
involved in the violating trading transaction could be void ab initio
if the manufacturers fleet average NMOG values exceed the federal
standard as a result of the credits shortfall. This proposal differs
from California's fleet average NMOG program, which focuses only on the
party reporting a shortfall, reflecting California's confidence in the
validity of reported credits. However, holding both parties potentially
liable provides the same manufacturer accountability that is
incorporated in the other federal mobile source credit programs. Such a
policy would provide additional incentive for credit providers and
receivers to take the necessary steps to ensure the integrity of the
transactions, and to place contractual liability on the appropriate
party. EPA is also taking comment on limiting potential liability in
the same manner as California's program does.
Manufacturers would be required to prepare an annual report after
the end of each model year to demonstrate compliance with the
applicable fleet average NMOG standards. The report would have to be
submitted no later than May 1 of the calendar year following the end of
the given model year. Manufacturers would also be required to report
any credit transactions for the year as part of the annual report.
However, EPA is also taking comment on a modified approach to reporting
credit transactions, which would require parties to report a trade
within 30 days of the transaction. The California program requires
immediate reporting of trades, but EPA believes a 30 day reporting
period would be more practical. The purpose of a 30 day reporting
requirement would be to allow a purchaser to contact EPA and verify
that credits had not already been traded.
The integrity of the proposed fleet average NMOG credit program
depends on accurate recordkeeping and reporting by manufacturers and
effective tracking and auditing by EPA. If a manufacturer fails to
maintain the required records, EPA could void the certificates for the
affected vehicles ab initio. If a manufacturer violates reporting
requirements, the manufacturer could be subject to penalties of up to
$25,000 per day, as authorized by section 205 of the Clean Air Act.
EPA intends to develop an electronic reporting mechanism that is
similar to California's format. The format for reporting fleet average
NMOG data will be detailed in a Dear Manufacturer letter from EPA after
the final regulations have been published.
4. Five Percent Cap on Sale of Tier 1 Vehicles and TLEVs
Today's proposal includes a limit on the number of Tier 1 vehicles
and TLEVs produced and offered for sale in the OTR. Specifically,
beginning in the 2001 model year, manufacturers would be able to offer
Tier 1 vehicles or TLEVs for sale in the OTR only if the same engine
families are certified and offered for sale in California in the same
model

[[Page 52751]]
year. Additionally, the number of these vehicles would be limited on an
industry-wide basis to 5% of the total number of new motor vehicles
produced and offered for sale under the National LEV program in that
model year in the OTR. This 5% cap would be administered and enforced
using a credit trading system, which would allow manufacturers to
redistribute the compliance burden between different manufacturers and
over time, and thereby achieve industry-wide compliance at the least
cost. The purpose of limiting the sales of Tier 1 vehicles and TLEVs is
to give the OTR States additional assurance that the National LEV
program will produce NOX emissions reductions equivalent to those
that would flow from the OTC LEV program.
The concern about the equivalency of NOX emissions arises from
the use of a fleet average NMOG standard. Manufacturers may meet the
standard by producing and delivering for sale any combination of
categories of vehicles resulting in a complying sales-weighted fleet
average NMOG value. While this ensures that the fleet as a whole will
meet a given NMOG value, it does not guarantee that the fleet will meet
any particular average NOX value. NOX standards for the
different certification categories do not vary in the same manner as
the NMOG standards. While Tier 1 vehicles, TLEVs, LEVs and ULEVs all
have different NMOG standards, Tier 1 vehicles and TLEVs have NOX
standards of 0.4 g/mi, and LEVs and ULEVs have NOX standards of
0.2 g/mi. As a result, a fleet of Tier 1 vehicles, TLEVs, and ULEVs
could have higher NOX emissions than a fleet of LEVs, even if the
two fleets had the same NMOG average. The NOX emissions from Tier
1 vehicles and TLEVs, which are higher than from LEVs, would not be
offset by lower NOX emissions from ULEVs, which are the same as
from LEVs.
Both National LEV and OTC LEV have the potential to produce a range
of total NOX emissions, depending on the vehicle mix chosen by the
manufacturers. However, some parties have raised a concern that
National LEV would present a greater potential for higher NOX
emissions than would OTC LEV. This is because the lower final NMOG
average standard under OTC LEV may make it more difficult for
manufacturers to produce and offset the sale of Tier 1 vehicles or
TLEVs with ULEVs in the later years of the program.
EPA does not believe the effect of the lower NMOG standard under
OTC LEV is likely to be sufficient to affect the NOX equivalency
of the two programs. Based on the manufacturers' production
projections, EPA believes that the number of Tier 1 vehicles and TLEVs
produced after 2001 will be extremely low under either program,
yielding an insignificant difference in NOX emissions compared to
a fleet without those categories of vehicles.
Nevertheless, the OTC States and auto manufacturers have
recommended the 5% cap provision to address the concern over NOX
emissions, and EPA is proposing to include this recommendation in the
National LEV rule. Limiting sales of Tier 1 vehicles and TLEVs to those
engine families that are concurrently offered for sale in California
encourages the same sales mix under National LEV and OTC LEV,
preserving the relative emissions levels. Setting an industry-wide 5%
cap on the number of Tier 1 vehicles and TLEVs produced and offered for
sale under National LEV limits the exposure to increased NOX
emissions on an absolute basis.
EPA analyses indicate that if manufacturers took full advantage of
the 5% cap (i.e. they sold 5% Tier 1 vehicles every year), the
passenger car and light-duty truck portion of the OTR emissions
inventory in 2005 would increase by less than one half of one percent,
which is not enough to change the conclusion that the National LEV
program is equivalent to the OTC LEV program in the OTR.
EPA is taking comment on exempting low volume manufacturers, as
defined in section IV.D, from meeting the 5% cap. EPA recognizes that
these manufacturers may lack the flexibility in their product line that
would allow them to adjust the makeup of their fleet to meet this
requirement. EPA believes that the potential contribution of increased
NOX emissions from these manufacturers would be insignificant. EPA
wishes to take comment on this proposed provision, including whether
additional or no categories of manufacturers should be exempted from
the 5% cap.
EPA proposes to implement the 5% cap through a market-based banking
and trading program. This program could be structured in a number of
different ways, four of which are described below. EPA is not at this
time proposing regulatory language for any of these approaches, but is
requesting comment on the preferable way to structure a 5% cap trading
program through any of the described or other possible approaches.
The two basic types of trading systems that could be applied here
are a credit and debit system, as used for the NMOG average, and an
allowance trading system, similar to that established under Title IV of
the Act for control of acid rain. In a credit and debit system,
manufacturers generate credits or debits for vehicles according to
whether their production is above or below a specified individual
threshold number of vehicles. Thus, all reallocation of credits or
debits (representing production quantities) is done through trading. In
an allowance based system, the production limit is represented by a
pool of allowances, each entitling the holder to produce a certain
quantity of limited vehicles. The pool of allowances is distributed
among the manufacturers on some equitable basis, producing individual
limits, and manufacturers may conduct further adjustments in
allocations through the market.
The structure of a trading system to implement the proposed 5% cap
on Tier 1 vehicles and TLEVs is further complicated because the real
target of the limitation is industry-wide production, not an individual
5% cap on each manufacturer's production. The first two approaches
described below are the credit and debit approach and the allowance
approach, both of these modified to ensure that enforcement would
target only exceedances of the industry-wide 5% cap. The third approach
is a straight allowance trading system, while the fourth is a straight
allowance trading system with delayed implementation, linked to
exceedance of the industry-wide 5% cap. Each of the described
approaches would calculate vehicle production based on a manufacturer's
entire National LEV fleet (passenger cars and LDTs 0-5750 lbs LVW), and
calculations would only include vehicles delivered to a point of first
retail sale in the OTR. None of these approaches would allow
manufacturers to generate credits before the 2001 model year, although
EPA is taking comment on whether early banking would be appropriate
under any of these approaches.
Under the credit and debit approach, a manufacturer would generate
credits or debits based upon the number of Tier 1 vehicles or TLEVs it
produced and offered for sale in the OTR above or below a number equal
to 5% of the total number of National LEV vehicles the manufacturer
produced and offered for sale in the OTR. Credits and debits would be
calculated in units of number of vehicles. As under the fleet average
NMOG trading program, unused credits would be discounted over time.
In the instance where a debit situation arose, a manufacturer would
have to equalize any debits by the end of the following model year.
Offset of debits would be accomplished either through

[[Page 52752]]
earning an equal amount of credits in the model year after incurring
the debit, or presenting to EPA an equal amount of credits acquired
from another manufacturer. Credits and debits would not be generated
until the end of the model year, but manufacturers would then have an
opportunity to trade these credits prior to reporting annual totals as
part of the annual compliance report due in May of each year.
This approach would be modified to target industry-wide exceedances
or over-compliance, rather than individual limits. A manufacturer could
only carry over to the next model year and would only be responsible
for in the next model year, a balance of credits or debits that had
been offset to account for credits or debits generated industry-wide.
If EPA determines that the 5% industry-wide cap provision has been
exceeded, then for enforcement purposes, a specific manufacturer's
responsibility to make up debits in the next model year would be
calculated based on that manufacturer's proportional responsibility for
the industry-wide exceedance. Similarly, a manufacturer could only
carry over to the next model year its proportionate share of the total
credits generated industry-wide, after offset by any outstanding debits
industry-wide.
Enforcement of exceedances would work in the following manner. An
individual manufacturer's debits would be calculated based on the
number of Tier 1 vehicles and TLEVs that the manufacturer produced and
offered for sale in the OTR above a number equal to 5% of the total
number of vehicles in that manufacturer's National LEV fleet produced
and offered for sale in the OTR, plus any outstanding debits and minus
any credits held. EPA would identify the industry-wide level of
exceedance by determining the total number of Tier 1 vehicles and TLEVs
produced and offered for sale in the OTR in excess of 5% of the OTR
National LEV fleet (accounting for outstanding credits and debits),
which would equal the sum of all individual manufacturers' credits and
debits. Then, each manufacturer with debits would be responsible for a
pro-rated share of the industry-wide exceedance calculated in the step
above. This pro-rated share would be based on a manufacturer's number
of debits relative to the total number of debits held by all
manufacturers. For example, if the industry-wide production is 10,000,
the industry-wide cap would be 500 Tier 1 vehicles and TLEVs. If the
total number of Tier 1 vehicles and TLEVs produced and delivered for
sale is 700, there are 200 net debits industry-wide. Assuming
Manufacturers A, B, and C held 100, 200, and 300 debits, respectively,
then A's pro-rated responsibility would be 100/600*200, or 33 debits,
B's would be 200/600*200 or 67 debits, and C's would be 300/600*200, or
100 debits. This approach preserves the intent of the 5% cap by taking
into account the industry-wide extent of any exceedance of the cap,
rather than focusing on an individual manufacturer's exceedance, which
may be partially offset elsewhere. However, this approach does entail a
complicated enforcement scheme and may create some manufacturer
uncertainty regarding the possible extent of their individual levels of
liability in the event of an exceedance.
Similarly, in a year the industry-wide cap is not exceeded, a
manufacturer would only be able to carry over credits that reflect the
manufacturer's share of total credits available industry-wide, after
offset by any outstanding debits. For example, if the industry-wide
number of vehicles produced and offered for sale in the OTR is 10,000,
the industry-wide cap would be 500 vehicles. If the total number of
Tier 1 vehicles and TLEVs produced and offered for sale, after
accounting for outstanding credits and debits is 400, there would be
100 credits available for carry-over. Assume Manufacturer A held 50
credits at the end of the model year, Manufacturer B held 100 credits,
and Manufacturer C held 50 debits. Thus, the total number of credits
produced is 150, and A's share of the available 100 credits would be
\50/150\, or \1/3\, or 33, while B's share of the available 100 credits
would be \100/150\, or \2/3\, or 67.
A variation on this approach would hold each manufacturer
responsible for all of its excess vehicles above an individual 5% cap,
whenever the industry-wide 5% cap is exceeded. Each manufacturer that
produced and offered for sale Tier 1 vehicles and TLEVs in excess of 5%
of its OTR fleet would be determined to be in violation for all of
those vehicles above the individual 5% cap. Enforcing this method would
be easier than the method described above. This approach would also
create an additional incentive for manufacturers to limit their
production of Tier 1 vehicles and TLEVs. However, it does operate
against the intent of the 5% cap by holding each individual
manufacturer to an individual 5% cap without taking into account the
offsetting effect of some manufacturers producing well below the 5%
cap.
Establishment of a revenue-neutral auction could facilitate credit
trading under a credit and debit approach. An auction could reduce
transaction costs by enabling buyers to identify a ready source of
credits, and could promote competitive pricing of credits. Credits for
an auction could be obtained in a number of ways. First, EPA could
automatically withhold for auction the following year any credits
generated in years that industry-wide sales were below the 5% cap, with
proceeds distributed to the generators on a pro rata basis.
Alternatively, EPA could withhold in this manner some set portion of
credits generated, perhaps between 10% and 50%, leaving the rest to be
traded or banked by the generating manufacturer. Finally, the auction
could offer for sale only credits voluntarily contributed by
manufacturers that preferred to sell their credits through the auction.
EPA requests comment on the option of establishing a revenue-neutral
auction and details of its operation, including the source of credits
offered for sale.
The main alternative to a credit and debit trading system is an
allowance based system. Under an allowance approach, each manufacturer
would have to hold allowances equal to the number of Tier 1 vehicles
and TLEVs that manufacturer produced and offered for sale in the OTR in
that model year. The total pool of allowances distributed among
manufacturers should equal 5% of the total number of National LEV
vehicles produced and offered for sale in the OTR each model year. EPA
would need to estimate this number beforehand, however, so it would be
an approximation of vehicles actually produced and offered for sale.
EPA requests comment on how to project the number of vehicles that
manufacturers will produce and offer for sale in a given model year.
One way is to average the last three years' worth of the number of
vehicles produced and offered for sale, and perhaps multiply this
average by some number to account for possible growth and variability
in market size. Over the past 20 years, vehicles sales quantities
nationwide have generally fluctuated less than 15% from year to year,
so EPA could choose some number between 0 and 15% as a growth factor.
The number of allowances available for distribution would be equal
to 5% of the projected quantity of vehicles produced and offered for
sale. EPA could distribute these allowances according to each
manufacturer's pro rata share of total Tier 1 vehicles and TLEVs
produced and offered for sale in the previous model year in the OTR.
For example, a manufacturer that produced and offered for sale 15% of
the total number of Tier 1 vehicles and TLEVs produced and offered for
sale in the

[[Page 52753]]
OTR in the previous model year would receive 15% of the allowances to
be allocated in the next model year.
At the end of the reporting period, each manufacturer would have to
submit to EPA a quantity of allowances equal to the number of Tier 1
vehicles and TLEVs that manufacturer produced and offered for sale in
the OTR in the previous model year. Manufacturers could trade
allowances among themselves to make up for shortfalls. A manufacturer
with insufficient allowances to cover vehicles would have to make up
the shortfall in the subsequent model year, or be subject to penalties.
Manufacturers could bank excess allowances for use in future years, but
the allowances would be discounted over time. The discount factor could
be the same as under the proposed NMOG trading system, or could be
modified to reflect different circumstances here.
This allowance-based approach could be modified to better relate
allowance quantities and enforcement procedures to the actual vehicle
production and exceedance of the industry-wide 5% cap in a given model
year. One possibility is to require EPA to adjust the allowance pool to
account for actual quantities of vehicles produced and offered for sale
at the end of a model year. Under this scenario, if EPA had projected
production below the number of vehicles that manufacturers actually
produced and offered for sale in the OTR in a given model year, and
hence allocated an insufficient number of allowances, EPA could
distribute the additional allowances on the same proportional basis as
it had used for the initial allocation for that year. EPA probably
would not readjust the allowance pool in model years where it had
projected higher than actual production because this would seriously
undermine certainty for individual manufacturers. However, the system
could be structured to require EPA to compensate for such excess
allocated allowances in calculating the following year's available
pool.
Another possible refinement of an allowance system would provide
that EPA would only enforce against individuals based on exceedance of
the actual industry-wide cap, not just individual allowance
allocations. Similar to the modified credit and debit approach
described above, an individual manufacturer's exceedance of its own
allowance allocation (after any trading) would not be a violation
unless the industry-wide 5% cap were also exceeded. In such a situation
where there is an individual exceedance but no industry-wide
exceedance, the exceeding individual manufacturers are essentially
implicitly using other manufacturer's excess allowances to offset their
own shortfalls. Thus, any provision for banking excess allowances would
have to account for the degree to which some apparently excess
allowances have already been implicitly applied against other
manufacturers' shortfalls. The number of excess allowances available
industry-wide, after offset by any shortfalls, could be redistributed
on a pro rata basis to all those manufacturers that held excess
allowances, just as under the credit and debit approach. Manufacturers
could bank allowances for use in future years only after offset.
Alternatively, instead of requiring a pro rata redistribution of
allowances, EPA could allow manufacturers to bank all excess
allowances, regardless of their implicit use to make up other
manufacturers' shortfalls, but then impose more substantial
depreciation of banked allowances. For example, EPA could impose a
depreciation system under which banked allowances would be worth 50% of
their value in the first year following the year in which they were
initially allocated, 25% of their value in the second year, and would
expire in the third year. This would be simpler to administer than a
pro rata redistribution, but would still protect against double
counting credits by providing automatic significant devaluation.
In a year where manufacturers exceed both individual allowance
allocations (after any trading) and the industry-wide 5% cap,
violations could be calculated based on exceedances of the industry-
wide cap. Individual exceedances could again be implicitly offset by
any available excess allowances held by other manufacturers. A
manufacturer would only be responsible for its pro rata share of the
industry-wide shortfall, which would equal the actual number of
vehicles produced above the actual 5% cap after accounting for
outstanding credits and debits. However, under an allowance based
system, as opposed to a credit and debit system, there is also the
possibility that the allowances allocated are not equal to 5% of the
actual number of vehicles produced and offered for sale. Thus, in a
year where EPA had overestimated projected production and the allowance
pool is greater than the actual 5% cap, EPA should not apply allowances
to offset shortfalls industry-wide if those allowances do not represent
actual over compliance in terms of vehicle production.
Under this modified allowance-based approach, allocation of
allowances provides substantial protection to manufacturers that will
generally produce and offer for sale more than 5% of their own OTR
fleets as Tier 1 vehicles and TLEVs. Such manufacturers would not have
to purchase sufficient credits every year to cover all of their excess
production. However, in any trading system that provides for end-of-
year adjustments relative to a 5% cap on actual levels of vehicles
produced and offered for sale in the previous year, manufacturers will
experience substantial uncertainty regarding what number of Tier 1
vehicles and TLEVs would actually result in an exceedance.
Manufacturers would be better able to project what production is
necessary for compliance if they have as much information as possible
regarding industry-wide production levels, and therefore the likely
level of exceedance or compliance industry-wide. One way to provide
such information would be to require manufacturers to report quarterly,
perhaps in the trade press, on the numbers of Tier 1 vehicles and TLEVs
and the total size of their fleets that they have produced and offered
for sale in the OTR up to that time. This information may be of
somewhat limited value, however, given substantial short term variation
in vehicle sales. EPA requests comment on means of providing
manufacturers more information to improve production and compliance
decisions.
Another possible approach to implementing a 5% cap trading system
is to establish a simple allowance-based system, in which EPA would
enforce against individual manufacturers with insufficient allowances,
regardless of the actual number of vehicles produced and offered for
sale in a given model year. The industry-wide 5% cap would be
incorporated in this approach through the initial calculation of
available allowances and the provision for trading allowances. However,
EPA would make no further adjustments to calculate industry-wide versus
individual compliance. This approach would greatly simplify
administration. It would also provide individual manufacturers
certainty regarding what numbers and mixes of vehicles they would need
to produce and offer for sale to avoid noncompliance, and it would
enhance their ability to protect themselves through banking allowances.
This would give manufacturers somewhat less leeway in compliance by not
providing for adjustment with industry-wide offsets or recalibration of
the available allowance pool based on actual production. Any such
additional

[[Page 52754]]
burden could be reduced by means such as making depreciation of banked
credits less rigorous or building in a greater safety factor for
increased production in projecting production and offer for sale and
calculating the initial allowance pool.
The final approach described here would be to promulgate
regulations setting up a straightforward allowance trading system, but
to delay its implementation until the year following a year in which
manufacturers have actually exceeded the industry-wide 5% cap. A credit
and debit approach could similarly be subject to trigger by an
industry-wide exceedance. This approach would avoid the substantial
administrative costs for EPA and transaction costs for the
manufacturers of implementing a trading program in years when it would
provide no environmental benefit, and perhaps avoid such costs
altogether. The prospect of having to implement a trading program would
also provide manufacturers a powerful incentive to avoid an exceedance
of the industry-wide cap. This approach would not give manufacturers
the opportunity to bank allowances in the early years of the program,
but EPA has no reason to believe it would be easier for manufacturers
to comply with the 5% cap in the early years, so this may not be a real
disadvantage. While a basic allowance approach would sacrifice some
precision in terms of meeting an actual 5% cap each year, as opposed to
EPA's projected 5% cap, the degree of precision sacrificed depends on
how much of a buffer for growth is built into the projection. If it
were critical that the manufacturers meet an actual 5% number every
year, the allowance pool could be calculated based on something less
than 5% of the projected number of vehicles produced and offered for
sale. Alternatively, if the greater concern is to ensure that the
allowance pool is not less than 5% of the actual number of vehicles
produced and offered for sale, EPA could apply a larger growth factor
in projecting production, such as assuming the fleet produced and
offered for sale will be 15% greater than the average of the previous
three years. EPA requests comment on all of these basic trading
approaches, details of their implementation, and any other variations.
Any of these approaches to the 5% cap trading program would be
implemented and enforced through the certificate of conformity, as
under the NMOG trading program. The certificate for each Tier 1 vehicle
and TLEV produced and offered for sale in the OTR in the 2001 and later
model years would be conditioned on demonstrating compliance with the
5% cap provisions, as well as any other applicable conditions imposed
under other sections of the National LEV program. If a manufacturer did
not equalize its debits or make up its allowance shortfall within the
required time period, then each noncomplying vehicle would be deemed to
be in violation of the certificate of conformity. The number of
noncomplying vehicles would correspond to the number of outstanding
debits or the quantity of the allowance shortfall, since both debits
and allowances are in units of vehicles. EPA would determine these
noncomplying vehicles by first designating Tier 1 vehicles and then
TLEVs and continuing until a number equal to the calculated number of
noncomplying vehicles as determined above is reached. EPA may void ab
initio the certificates of conformity. As with the fleet average NMOG
trading program, EPA would have some discretion in choosing the
appropriate penalties and would consider mitigating factors.
EPA proposes to apply the same liability for credit or allowance
transfers between manufacturers as is found in the fleet average NMOG
trading program. This would preserve the similarity of the programs and
reduce any potential confusion as to their operation.
Manufacturers would not be required to prepare an annual report
demonstrating compliance with the 5% cap provision because all relevant
data will be provided to EPA under the guidelines of the fleet average
NMOG program. However, manufacturers would still be required to
maintain accurate records and failure to do so could result in EPA
voiding ab initio the certificates of the affected vehicles and
imposing any other applicable penalties. As with the fleet average NMOG
trading program, manufacturers would be required to report annually to
EPA any credit or allowance transactions and the quantity of credits or
allowances traded.
5. Tailpipe Emissions Testing
a. California Phase II Reformulated Gasoline
The Agency is proposing to allow manufacturers the option to show
compliance with emission standards for TLEVs, LEVs and ULEVs using
Phase II gasoline (the same option allowed by California in
implementing its regulations). EPA believes it cannot allow the use of
California Phase II gasoline to demonstrate compliance with Tier 1
standards because that would not demonstrate compliance with the
mandatory federal standards. EPA takes comment on this issue.
California allows the use of Phase II gasoline on emission data
vehicles during official emission testing and, as a result, the OTC
States would be accepting certifications using Phase II gasoline under
OTC LEV.
The use of California Phase II reformulated gasoline has a direct
impact on the stringency of the proposed emission standards. Data
presented by California and others during the adoption of California's
standards shows that the use of Phase II gasoline will reduce vehicle
emission levels during exhaust and evaporative testing compared to
testing using Federal Certification Fuel.
EPA promulgated a federal reformulated gasoline program in February
1994 (59 FR 7716, February 16, 1994). However, California Phase II
gasoline is substantially different and will not be available
nationwide. Consequently, testing performed using Phase II gasoline may
not produce the same emission levels that will result in-use. The
Agency has little data to evaluate the difference in in-use emission
levels based on use of either federal reformulated gasoline or
California phase II gasoline, and specifically invites commenters to
supply data on this difference.
There are several good logistical reasons to use Phase II in the
National LEV program. Using the same certification fuel in the
California and federal programs will reduce the manufacturers' cost of
demonstrating compliance. If they adopted the California LEV program,
all the OTC States would use Phase II gasoline for emission compliance
in any event. Consequently there is no emissions effect of using Phase
II gasoline for certification demonstrations in OTC states.
EPA believes that the possible effect of using California Phase II
reformulated fuel as certification fuel would have little impact on the
overall benefits of the National LEV program and reflects a worthwhile
savings in compliance demonstration costs.
Although EPA is proposing to allow use of California Phase II
gasoline as the test fuel for certification, the Agency is not
proposing any regulatory changes governing the fuel that is actually
used in vehicles, nor is the Agency suggesting now that states adopt
new fuel requirements. In-use fuels is one of the issues that was
addressed by the Subcommittee. Prior to the June, 1995 Subcommittee
meeting, EPA discussed the issues with representatives of the

[[Page 52755]]
auto industry, the oil industry and the OTC States, who agreed to the
following principles:
Adoption of the National LEV program does not impose
unique gasoline requirements on any State. Gasoline specified for use
by any State will have the same effect on the National LEV program as
on the OTC LEV program.
Testing is needed to evaluate the effects of non-
California gasoline on emissions control systems.
If testing results show a significant effect, EPA will
conduct a multi-party process to resolve the issue without adversely
affecting SIP credits or actual emission reductions when compared to
OTC LEV using fuels available in the OTR or imposing obligations on
manufacturers different from the obligations they would have had under
OTC LEV.
These principles were presented to the Subcommittee at its June,
1995 meeting. Because of some parties' continuing concerns, the Agency
intends to continue discussions on these issues with the relevant
parties during the public comment period.
One area where discussions have already started relates to current
auto and oil industry studies that address, among other things, the
possibility that changes in the MIL illumination criteria for National
LEV on-board diagnostics systems might be appropriate (see section
IV.B.6., ``On-Board Diagnostics''). Provided the above principles were
met and the manufacturers agreed, the National LEV program as proposed
would not preclude a future EPA rulemaking to change the MIL
illumination criteria for the OBD systems.
b. NMOG vs. NMHC
The proposed voluntary standards, like California's LEV program
standards, have a slightly different method of measuring hydrocarbons
than the current federal approach used for the Tier 1 standards. Under
the current federal standards, NMHC mass is determined by measuring THC
using a flame ionization detector (FID) and subtracting the methane,
which is measured using a gas chromatograph. Under California's test
procedures for the LEV program, the measurement of hydrocarbons
includes separate procedures for measuring additional organic
components, such as aldehydes and ketones, to account for differences
in FID response. The term used for hydrocarbon (HC) measured in this
way is nonmethane organic gas (NMOG). The measurement of oxygenated
hydrocarbons is more accurate under the NMOG procedures as compared to
the current FID method. Since there is currently no federal procedure
in place for measuring NMOG, EPA proposes to adopt California's NMOG
measurement procedure in its entirety for purposes of the National LEV
program. The Agency previously adopted those procedures for the clean
fuel vehicle (CFV) standards, where the applicable standards are also
expressed in terms of NMOG rather than NMHC.^{22

\22\ 59 FR 50042, September 30, 1994.
---------------------------------------------------------------------------

6. On-Board Diagnostics Systems Requirements
The voluntary standards would require on-board emissions
diagnostics systems that meet California's second phase OBD
requirements (OBD II). The on-board diagnostic system monitors
emission-related systems and components for proper operation, detecting
malfunctions or deterioration that can cause emission increases above
specific threshold levels. When a malfunction or deterioration is
detected, the OBD system stores critical diagnostic information geared
toward facilitating an accurate and efficiently performed repair. The
OBD system also illuminates a dashboard malfunction indicator light
(MIL) immediately informing the vehicle operator of the need for
service and, should that warning be ignored or neglected, the
illuminated MIL can serve to inform an inspection and maintenance (I/M)
official of the need for service. Thus, an OBD system is capable of
both detecting emission-related malfunctions and deterioration and
aiding in their proper diagnosis and timely repair. Both of these
factors should lead to significant emissions reductions for vehicles
equipped with OBD II.
EPA promulgated federal OBD requirements on February 19,
1993.^{23 The federal OBD rules apply to 1994 and later cars and
light trucks. California adopted its OBD II requirements in November of
1992, applicable to 1994 and later cars, light trucks, and medium duty
vehicles. The federal OBD regulations allow for optional compliance
with the California OBD II requirements through the 1998 model year.
The current federal OBD and California OBD II regulations achieve
similar results in terms of the type of OBD systems manufacturers need
to install, but have somewhat different approaches toward the OBD
requirements. The federal malfunction thresholds (i.e., the emission
levels above which a malfunction or deterioration must be flagged) are
stated as an absolute emission increase above the vehicle's normal
level. The California OBD II malfunction thresholds are stated as
relative emission increases above applicable standards. As a result, as
emission standards become more stringent, the California OBD II
malfunction thresholds decrease accordingly, while the federal
malfunction thresholds remain at the same absolute level. EPA expects
that manufacturers will design essentially identical systems to comply
with both federal and California regulations. However, the Agency
recognizes that, for vehicles certified to the LEV and ULEV standards,
the emission levels at which California OBD II must flag malfunctions
is lower than the federal OBD malfunction thresholds, thereby providing
the potential for more significant emission reductions from vehicles
equipped with OBD II.

\23\ 40 CFR Sec. 86.094-017; 58 FR 9468.
---------------------------------------------------------------------------

The voluntary standards would not require that vehicles comply with
the tampering protection requirements of the California OBD II
regulations. For reasons specified in the Federal Register notice of
court decisions regarding Agency regulations ^{24 the Agency has
vacated and subsequently deleted OBD-related tampering protection
requirements from the federal OBD regulations. Likewise, the Agency has
also determined that California OBD II tampering protection provisions
^{25 are not required for compliance with federal regulations.

\24\ 59 FR 51114, October 7, 1994.
\25\ Title 13 California Code section 1968.1(d).
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7. Fuel Provisions and Reactivity Adjustment Factors
As described above, EPA is proposing to use California phase II
reformulated gasoline as the test fuel for gasoline-fueled vehicles
certifying to today's proposed tailpipe standards for TLEVs, LEVs, and
ULEVs. EPA is also proposing to adopt California's fuel specifications
for alternative fuels. In some cases California has certification fuel
specifications for alternative fuels where there is no federal
specification. In the cases where there are both federal and California
specifications for a given alternative fuel, the California
specifications are more stringent and fuels meeting the California
specifications also comply with the federal specifications. Thus, the
adoption of California's certification specifications for alternative
fuels will not create a conflict with any current federal requirements.
However, EPA also takes comment on retaining federal specifications
(when they exist) rather

[[Page 52756]]
than adopting California's specifications.
The proposed voluntary standards follow California's approach, as
described below, of adjusting the emission standard to reflect
differences in the impact on ozone formation between an alternative-
fueled vehicle and a vehicle fueled with conventional gasoline. The use
of reactivity adjustment factors (RAFs) reflects the understanding that
different hydrocarbons and mixes of hydrocarbons exhibit varying
capacities for ozone formation, partially depending on whether the
hydrocarbons are emitted by vehicles fueled with conventional gasoline
or alternative-fueled vehicles.^{26 In general, alternative-fueled
vehicles tend to contribute less to ozone formation for a given mass of
NMOG emissions than do gasoline-fueled vehicles. The primary goal of
controlling vehicle emissions of HC and NOX is to reduce ambient
ozone levels. It is reasonable to adjust NMOG emission control levels
expressed in terms of mass emissions amounts, to account for different
alternative-fueled vehicles' relative potentials for ozone formation,
rather than to simply control on the basis of mass emissions. Thus, the
proposed voluntary program would adopt RAFs to allow equally stringent
NMOG standards to be set for gasoline- and alternative-fueled vehicles,
taking into account the different reactivities of their emissions in
ozone formation. The RAF is defined as the ozone-forming potential of
alternative-fueled vehicle exhaust divided by the ozone-forming
potential of gasoline-fueled vehicles. The measured NMOG mass emissions
from an alternative-fueled vehicle are multiplied by the applicable RAF
before being compared to the applicable NMOG standard to determine
compliance.

\26\ Under the California LEV program, California phase II
gasoline has been determined to have slightly lower ozone forming
potential than conventional gasoline. Accordingly, RAFs have been
adopted by CARB for phase II gasoline.
---------------------------------------------------------------------------

California has already developed RAFs for some fuel types and has a
process in place for the development of RAFs for fuels that do not yet
have them. Additionally, California allows manufacturers to use this
process to develop their own engine family-specific RAFs and RAFs for
fuel types for which California has not yet developed them. EPA
proposes to use the RAFs already adopted by California for alternative-
fueled vehicles certifying to the proposed voluntary standards.
Further, EPA expects to accept the use of new RAFs that California
develops for other fuels, as California develops and adopts them.
Finally, EPA proposes to allow manufacturers certifying to the proposed
voluntary standards to develop their own RAFs, subject to Agency
approval, using the California process for RAF development. EPA
requests comment on the adoption of California RAFs in the manner
described here.
8. Hybrid Electric Vehicles (HEVs)
The proposed voluntary standards also adopt California's approach
to regulating emissions from HEVs. HEVs are powered by batteries, but
also use a small combustion engine for additional range. The emissions
from HEVs range from none, when running off the battery, to levels
similar to TLEVs, when using the combustion engine. For certification,
HEVs would be tested with the engine operating at worst case conditions
over the standard test cycle. An HEV would have to meet the emission
standards for one of the vehicle categories, TLEV, LEV, or ULEV, based
on emissions from its combustion engine. This ensures that in the worst
case situation, HEVs will not exceed minimum emission control
requirements. However, some HEVs would have to demonstrate compliance
with different, somewhat less stringent, useful life standards for
certification, depending upon the type of HEV being certified. In
addition, an HEV's contribution to the manufacturer's NMOG fleet
average would be calculated as described below to account for the
emissions benefits of its battery-powered operations.
The voluntary standards would follow California in recognizing
three different categories of HEVs based on a vehicle's battery-powered
range. Under the proposed standards, a ``Type A HEV'' must achieve a
minimum range of 60 miles over California's All-Electric Range Test,
while a ``Type B HEV'' and a ``Type C HEV'' must achieve ranges of 40-
59 miles and 0-39 miles, respectively over that test. For
certification, Type A HEVs would only have to meet 50,000 mile emission
standards. Type B HEVs would have to meet 50,000 mile emission
standards (using 50,000 mile deterioration factors) and 100,000 mile
emission standards (using 75,000 mile deterioration factors).
Certification only to 50,000 miles and use of the lower mileage
deterioration factors account for the portion of the mileage
accumulated while running off of the battery. Finally, Type C HEVs
would have to meet both 50,000 and 100,000 mile standards (using 50,000
and 100,000 mile deterioration factors, respectively). Deterioration
factors would be based on the emissions and mileage accumulation of the
vehicle's combustion engine.
An HEV contribution factor would account for the NMOG emission
contribution of HEVs to the fleet average NMOG. The contribution factor
would be calculated by taking the number of each type of HEV (A, B, or
C) produced and delivered for sale in each certification category,
multiplying each number by a value representing the expected emissions
levels from that type of vehicle, and summing all of these products.
This contribution factor is then incorporated into the equation used to
calculate a manufacturer's NMOG fleet average, as described in Section
IV.B.2. above.

C. Low Volume and Small Volume Manufacturers

The California LEV program has some special provisions for
manufacturers of smaller quantities of vehicles. The Agency is
proposing to adopt a new terminology, ``low volume'' manufacturer, to
denote those manufacturers that California defines as ``small volume
manufacturers.'' This definition would be used solely for purposes of
determining the NMOG fleet average applicable to certain manufacturers.
The Agency would continue to apply the federal small volume
manufacturer provisions, which provide relief from emission-data and
durability showings and reduce the amount of information required to be
submitted, to small volume manufacturers (as defined in current federal
regulations) under the National LEV program.
``Low volume'' manufacturers (as EPA proposes to define them) are
provided flexibility in the California LEV program through special
phase-in schedules for NMOG average standards. California provides this
flexibility to each manufacturer with sales in California of no more
than 3000 passenger cars, light-duty trucks, and medium duty vehicles
per model year, based on the average annual sales over the last three
model years. Under California regulations, such manufacturers are not
subject to an NMOG average standard until model year 2001, when they
must meet a fleet average NMOG standard for passenger cars and light-
duty trucks of 0.075 g/mi.^{27

\27\ In addition, California provides such manufacturers with
reduced durability and emission testing requirements, as well as
abbreviated requirements for submittal of information. EPA is not
proposing to adopt these additional requirements as part of National
LEV, but is taking comment on doing so. Instead, for all purposes
other than determination of the applicable NMOG average, EPA would
retain its existing definition of ``small volume'' and the
corresponding federal durability data and emission data requirements
and other certification procedures that currently apply to small
volume manufacturers. See 40 CFR 86.096-14 (b)(1).

[[Page 52757]]

In this voluntary program, EPA believes it would be inappropriate
to require low volume manufacturers to sell LEVs sooner nationwide than
would be required in California or under OTC LEV. For that reason, the
Agency is proposing that low volume manufacturers would not be subject
to the NMOG average until model year 2001, at which time they would be
subject to the same NMOG average standard applicable to them in
California and applicable to other manufacturers in the National LEV
program (0.075 g/mi).
EPA is concerned that defining a low volume manufacturer solely on
the basis of sales in California could create an incentive for
manufacturers with large nationwide sales to reduce their sales in
California. To ensure no abuse of the low volume NMOG fleet average
provisions, EPA is proposing to expand the definition of a low volume
manufacturer to include an additional nationwide sales limit.
Therefore, a low volume manufacturer would be defined as a manufacturer
with no more than 3000 sales in California of passenger cars, light-
duty trucks, and medium duty vehicles per model year, based on the
average sales over the last three model years; and with no more than a
specified amount of sales nationwide of passenger cars and light light-
duty trucks per model year, based on the average sales over the last
three model years. EPA takes comment on where to set this amount, and
is specifically considering amounts in the range of 25,000 to 40,000.

D. Legal Authority

EPA has statutory authority to promulgate the voluntary standards
under sections 202(a) and 301(a) of the Clean Air Act. Section
202(a)(1) directs the Administrator to prescribe standards for control
of air pollutant emissions from motor vehicles. EPA's establishment of
voluntary, as well as mandatory, standards is authorized by section
202(a)(1). Establishment of voluntary standards is not precluded by
section 202(b)(1)(C), which states that it is the intent of Congress
that the Administrator shall not modify the emissions standards
established under section 202(g), prior to MY 2004. Section 202(g)
provides mandatory standards for emissions of NMHC, CO, NOX, and
PM from light-duty vehicles and light-duty trucks up to 6000 lbs GVWR,
and EPA is not proposing to modify those mandatory standards. In
addition, section 301(a) authorizes the Administrator to promulgate
regulations necessary to carry out her functions under the Act. The
voluntary standards proposed here fall within the Administrator's duty
to implement the broad air pollution reduction purposes of the Act, and
specifically to control air pollution from motor vehicles. Because
these standards would be promulgated under section 202, this is a
section 307(d) rulemaking, subject to the procedural requirements
specified in that section.
Section 202(a)(1) gives the Administrator authority to promulgate
regulatory standards for emissions of air pollutants from motor
vehicles. This subsection provides

[t]he Administrator shall by regulation prescribe (and from time to
time revise) in accordance with the provisions of this section,
standards applicable to the emission of any air pollutant from any
class * * * of new motor vehicles * * * , which in his judgment
cause, or contribute to, air pollution which may reasonably be
anticipated to endanger public health or welfare.

This is a broad grant of authority to the Administrator to prescribe
standards to regulate emissions that contribute to air pollution. The
National LEV program would regulate HCs, CO and NOX. These three
pollutants are among the most significant contributors to air pollution
in the United States. The strong CAA focus on controlling these
pollutants indicates Congress' concern about the harm they cause and
the need for their reduction. As discussed more extensively in section
II.B above, air pollution from HCs, CO and NOX is known to have
negative impacts on human health and the environment, and thus ``may
reasonably be anticipated to endanger public health or welfare.'' The
Administrator's authority under section 202(a)(1) is further limited
only by the requirement that such standards be ``in accordance with the
provisions of'' section 202. Nothing in section 202 bars EPA from
adopting emission standards that would be binding if and only if a
manufacturer were to opt into them. Nor is any provision of section 202
inconsistent with a voluntary approach, so as to implicitly bar EPA's
proposed action.
The proposed voluntary standards comply with section 202(a)(2),
which requires any regulation prescribed under section 202(a)(1) to
provide leadtime for technology development. Section 202(a)(2) mandates
that any regulation under section 202(a)(1) may only ``take effect
after such period as the Administrator finds necessary to permit the
development and application of the requisite technology, giving
appropriate consideration to the cost of compliance within such
period.'' The voluntary standards would not impose emissions limits
until MY 1997. The technology required by the voluntary standards would
already be in production on California vehicles before the voluntary
standards applied. TLEVs went into production for California in MY
1994, compared to MY 1997 in the OTR; while manufacturers would likely
produce LEVs for California starting in MY 1997 or 1998, rather than MY
1999. Also, in granting California a waiver of preemption for its LEV
program, EPA found that the state standards are not inconsistent with
section 202(a). See 58 FR 4166 (Jan. 13, 1993) (announcing availability
of Waiver of Federal Preemption; California Low-Emission Vehicle
Standards (Jan. 8, 1993)). In making this decision, EPA already found
that the California LEV standards are technologically feasible,
considering the costs of compliance within the timeframe established.
The voluntary character of the standards would provide further evidence
of their feasibility. By opting into the voluntary program the
manufacturers themselves would be affirming that the standards were
feasible and that no further time would be ``necessary'' for them to
meet the standards.
The voluntary standards also do not conflict with section
202(b)(1)(C), which prohibits EPA from changing the Tier 1 emissions
standards prior to MY 2004. Section 202(b)(1)(C) states that ``[i]t is
the intent of Congress that the numerical emission standards specified
in subsection (a)(3)(B)(ii), (g), (h), and (i) shall not be modified by
the Administrator * * * for any model year before the model year
2004.'' This language shows a narrow intent to prohibit modification of
the mandatory federal Tier 1 standards. The promulgation of voluntary
standards would not modify the Tier 1 standards. The Tier 1 standards
would stay in effect, but manufacturers could choose to meet them by
opting into National LEV. For manufacturers that did not opt into
National LEV, the Tier 1 standards would be fully applicable. Congress
did not intend to prevent manufacturers from voluntarily agreeing to
meet reduced emission standards. See Implementation of Federal Low-
Emission Vehicle Program, Appendix to AAMA Comments on Legal Issues
Raised by the OTC Recommendation, Docket A-94-11, Document No. IV-D-46,
at 9-10.
Compliance with National LEV would ensure that vehicles would
continue to

[[Page 52758]]
meet the Tier 1 standards specified in CAA Sec. 202(g). Federal Tier 1
is the vehicle emissions category with the highest allowable tailpipe
emissions levels under National LEV. Due to the fleet average NMOG
standard, however, the vast majority of covered vehicles under National
LEV will certify to the tighter tailpipe emissions standards of the
vehicle emissions categories of TLEV, LEV, ULEV, or ZEV. Intermediate
and full useful life standards for these vehicle emissions categories
are correspondingly more stringent as well. An individual vehicle
certified to any of the allowable vehicle emissions categories under
National LEV will necessarily also comply with the statutory Tier 1
standards.
Moreover, the voluntary standards approach does not violate the
intent of section 202(b)(1)(C) because it would expand, not restrict,
motor vehicle manufacturers' options. Congress passed section
202(b)(1)(C) to protect manufacturers from EPA actions mandating a more
restrictive national motor vehicle emissions program. However, in the
context of the OTC LEV recommendation, the voluntary regulations
actually have the effect of allowing manufacturers more flexibility in
meeting their legal requirements. Were the voluntary standards program
not promulgated, manufacturers would have to meet the OTC LEV program
in the northeast. The promulgation of the voluntary standards provides
manufacturers with another method of meeting emission requirements in
the northeast.
Section 301(a) provides a further source of EPA authority to
promulgate the voluntary standards. Section 301(a) authorizes the
Administrator ``to prescribe such regulations as are necessary to carry
out his functions under this chapter.'' The primary purpose of the CAA
is to protect and enhance the quality of the Nation's air resources by
reducing air pollution. Controlling emissions from mobile sources is a
key means for achieving the Act's purpose, and Congress recognized this
in enacting the mobile source provisions. Congress also found that air
pollution control is the primary responsibility of state and local
governments. In addition, in numerous places throughout the Act,
Congress demonstrated its concern that these goals be achieved in an
efficient and cost-effective manner, minimizing the costs of air
pollution control to the extent possible. In promulgating these
voluntary standards, the Administrator would further the basic
pollution reduction goals of the CAA in a manner that would support
state efforts and would be relatively cost-effective compared to the
OTC LEV recommendation. Because the decision to be subject to these
standards would be voluntary, EPA would simply be providing an
opportunity for an alternate means of compliance, rather than mandating
new requirements for manufacturers. These actions are consistent with
section 202 and the rest of the Act, and are well within the Agency's
broad authority under section 301(a).

E. Enforceability and Prohibited Acts

Once manufacturers have opted into the voluntary program, the
program would become fully enforceable against them.\28\ Manufacturers
would be liable for compliance with these regulations to the same
extent they are liable for compliance with other federal motor vehicle
regulations. The manufacturers would have to comply with virtually the
same testing regime (certification, Selective Enforcement Audit (SEA),
and in-use recall testing) and the same warranty requirements as for
other standards.

\28\ Any challenges to the legality of these regulations must
occur within sixty days after publication of the final regulations
in the Federal Register. See Clean Air Act section 307(b), 42 U.S.C.
Sec. 7607(b).
---------------------------------------------------------------------------

Moreover, any manufacturer that has opted into the program and
subsequently fails to comply with the requirements of the program would
be subject to sanctions under sections 203, 204 and 205 of the Act. The
proposed regulations contain specific language from section 203
indicating that a violation of these standards shall be considered a
violation of section 203 (including violations regarding tampering) and
shall subject manufacturers (or any other persons) to injunctive and
monetary penalties under sections 204 and 205. Manufacturers and other
violators would not have a defense regarding the applicability of these
sections to the voluntary program because such applicability will be
explicitly found in the regulations. Under section 307(b), any
challenge to the National LEV provisions would have to be made within
60 days of publication of the final rule. Failure to challenge these
regulations within the 60 day period for judicial review will prevent
any person from subsequently challenging the enforceability of these
regulations. In addition, in their opt-in notifications, manufacturers
would have committed not to challenge EPA's legal authority to
establish and enforce the National LEV program, and committed to seek
to certify vehicles only in compliance with the National LEV
requirements.

V. National LEV Deemed to Satisfy OTC LEV SIP Obligation

In the OTC LEV decision, EPA required states to cure the SIP
inadequacy by either adopting OTC LEV or a ``short-fall'' SIP. 60 FR
4712, 4716, 4736 (January 24, 1995). However, EPA provided that the SIP
inadequacy would be deemed cured if EPA determined through rule-making
that a national LEV-equivalent new motor vehicle emission control
program is an acceptable alternative for OTC LEV, and EPA finds it is
in effect. 40 CFR Sec. 51.120(a). In this rulemaking, EPA proposes to
find that National LEV is an acceptable LEV-equivalent program. Also,
EPA is proposing criteria for a subsequent finding that National LEV is
in effect for purposes of satisfying the OTC LEV SIP call. If these
criteria are satisfied, EPA will find that the program is in effect and
will publish that finding in a Federal Register notice. Such an
effectiveness finding would be deemed to cure the SIP inadequacy found
in the OTC LEV decision without the need for further rulemaking. The
SIP inadequacy would be deemed cured for the period of time when
National LEV remains in effect, or would be deemed permanently cured
when National LEV is replaced by new mandatory Tier 2 standards that
are at least as stringent as National LEV.

A. Acceptable LEV-Equivalent Program

1. Criteria for Finding Acceptable LEV-Equivalent Program
EPA recognizes two key criteria for approval as an acceptable LEV-
equivalent program. One criterion is that the VOC and NOX
emissions reductions within the OTR produced by National LEV must be
equivalent to or greater than the emissions reductions produced by OTC
LEV. The other is that the alternative program must be enforceable.
These criteria arise from the legal standards guiding EPA's
decision to approve the recommendation from the OTC. EPA approved the
recommended measures under section 184 based on a determination that
they were necessary for any area in the OTR to attain or maintain the
ozone NAAQS. The same determination of necessity led EPA to issue a SIP
call to address interstate pollutant transport, under section
110(k)(5). This finding of necessity was based on an analysis of the
need for VOC and NOX emissions reductions from new motor vehicles
in the OTR. Since it is VOC and NOX emissions reductions from new
motor vehicles that

[[Page 52759]]
are actually necessary for attainment or maintenance, and to address
interstate transport, an acceptable alternative must produce the
equivalent emissions reductions from new motor vehicles.
The enforceability criterion is designed to ensure that the
emissions reductions expected from the alternative program will occur
or are so likely to occur that it is appropriate to credit a state with
those expected emission reductions in its SIP. This stems from the
statutory and regulatory requirement that SIP provisions and reductions
relied on in the SIP must be enforceable in order for EPA to approve
SIP credits for those provisions and reductions. OTC LEV would be
implemented as such an enforceable SIP provision. An acceptable
alternative to states adopting an enforceable state LEV program would
likewise have to be enforceable and adequately assure that the expected
emissions reductions will in fact occur.
A number of parties have suggested that advancing motor vehicle
pollution control technology is an important benefit of OTC LEV and
should be a criterion for determining whether National LEV is an
acceptable LEV-equivalent program. Although EPA agrees that advancing
technology is an important policy goal, EPA does not believe that it is
or should be a legally-required criterion for approval of a LEV-
equivalent program. EPA granted the OTC LEV petition and issued the SIP
call under CAA sections 110 and 184, which allow EPA to require
emission reductions, not to require advances in technology. Thus, a
program could cure the SIP deficiency without advancing technology. As
long as an alternative program will achieve emissions reductions
equivalent to anticipated reductions under the OTC recommendation, EPA
need not mandate that the states achieve those reductions by forcing
development of advanced technology.
Although advancing technology is not a legal requirement, it is a
practical one. EPA recognizes that including some advanced technology
component is important for all the parties to find the alternative
acceptable and could provide additional environmental benefits beyond
emissions reduction equivalency. For example, the promotion of
technology in this program may promote the long-term development of new
control technologies that may be beneficial for reduction of emissions
in the future. OTC LEV would advance technology by requiring the phase-
in of cleaner vehicles (ULEVs and, possibly, ZEVs) over time. Thus,
while promotion of advanced technology is not a necessary criterion for
EPA to approve an alternative program, EPA recognizes that inclusion of
such a component would enhance the long term environmental benefits of
an alternative and its acceptability to all parties.
2. Application of Criteria to Voluntary Program
a. Emissions Reduction Equivalence Determination
EPA proposes to find that the National LEV program meets the
criterion that emissions reductions within the OTR must be equivalent
to those produced by the OTC LEV program, based on EPA's own modeling
of the two programs. Data to support the contention that the two
programs were equivalent in terms of emissions reductions were
presented to the Subcommittee at a September 30, 1994 meeting and were
included in the Notice of Data Availability. 59 FR 53396, 53401
(October 24, 1994). At that meeting, and during subsequent meetings in
October and November of 1994, many questions were raised regarding
factors that may have been left out of the analysis comparing the two
programs which could affect the equivalency determination. These
factors were addressed in subsequent memoranda to the Subcommittee.
Memoranda from Gary Dolce, Office of Mobile Sources, USEPA to
Subcommittee and Work Group Members on Mobile Source Emissions and Air
Quality in the Northeast States, ``Analyses and Background Material
Requested by the Subcommittee'', October 25, 1994, and ``Further
Analyses and Background Material Requested by the Subcommittee''
(November 3, 1994), Docket No. A-94-11, IV-E-51, IV-E-56. In addition,
EPA has since completed a more thorough analysis of the benefits of the
two programs as part of the required Regulatory Impact Analysis for the
OTC LEV Final Rule and for this proposed rule. All of EPA's analyses of
this issue lead to the same conclusion: given current assumptions about
future vehicle performance and given the best currently available
information about the migration of people and vehicles, it is
reasonable to conclude that the emissions benefits in the OTR of the
National LEV program and the OTC LEV program are essentially
equivalent.
The results of EPA's current analysis of the equivalency issue, as
presented in the Regulatory Impact Analysis, are presented in the
following table. This analysis includes the effects of vehicle
migration as discussed below. The OTC LEV case shown here assumes that
a ZEV sales mandate exists only in states that have already adopted
this mandate. However, even if it is assumed that there are ZEV sales
mandates throughout the OTR, it does not result in a change in EPA's
conclusion that the emissions benefits of the OTC LEV, including ZEV
mandates in all OTR States, and National LEV programs are essentially
equivalent.

Table 6.--Ozone Season Weekday Emissions for Highway Vehicles in the OTR
(tons/day)
------------------------------------------------------------------------
National
Year Pollutant OTC LEV LEV
------------------------------------------------------------------------
2005..................... NMOG 1,491 1,483
NOX 2,385 2,389
2007..................... NMOG 1,361 1,353
NOX 2,218 2,212
2015..................... NMOG 1,152 1,144
NOX 1,943 1,894
------------------------------------------------------------------------

EPA identified two factors that would clearly be most important to
the equivalency determination. The National LEV program would begin in
the OTR with the 1997 model year, two years earlier than the OTC LEV
program. In addition, beginning with the 2001 model year, vehicles that
migrate into the OTR from other states would be substantially cleaner
under the National LEV program than under the OTC LEV program because
the National LEV program applies nationally. In order for the National
LEV program to show equivalent emissions reductions to the OTC LEV
program, these two factors would have to outweigh the additional
benefits attributable to the OTC LEV program due its lower fleet
average NMOG standard.
EPA's analysis indicates that the impact of the earlier start date
for the National LEV program is not enough by itself to compensate for
the higher fleet average NMOG standard for this program, except in the
earlier years of the program. This analysis is based on existing EPA
models and standard assumptions about the future performance of
vehicles under both programs.
The effects of vehicle migration are much more difficult to assess.
Because actual state-by-state vehicle migration data were not
available, EPA used human migration data as a surrogate. Using state-
by-state human migration data from the Internal Revenue Service, EPA
estimated the annual migration rate of people into and out of the OTR.
Assuming that vehicles migrate at the same rate as people, EPA then
constructed a simple model to determine what percentage of vehicles

[[Page 52760]]
in the OTR vehicle fleet in any year would have been originally sold
outside the OTR, taking into account annual in and out migration rates
as well as motor vehicle scrappage rates. Using this approach, EPA
determined that approximately 6.5% of the motor vehicle fleet in the
OTR originated outside the OTR. When the National LEV and OTC LEV
programs are compared including this migration assumption, the
emissions reductions associated with the two programs are essentially
equivalent.
During the Subcommittee meetings in October and November of 1994,
members of the Subcommittee raised questions about additional factors
which might affect the conclusion that these two programs are
equivalent. Subsequent EPA analysis, presented to the Subcommittee,
indicates that none of the issues raised changes the estimated
emissions benefits enough to change the conclusion that the two
programs result in equivalent emissions reductions within the OTR. The
results of this analysis are presented in the memoranda referenced
above.
b. Enforceability
EPA also proposes to find that National LEV meets the criterion
that it provide enforceable emissions reductions. There are two aspects
of the enforceability criterion. First, the National LEV program
emissions standards and requirements must be enforceable against those
manufacturers that have opted into the program and are operating under
its provisions. Second, the program itself must be sufficiently stable
for EPA to conclude that offramps will not be triggered and the program
will remain in effect for its expected lifetime, thus retaining the
enforceability of the standards. EPA proposes to find that the
manufacturers would be subject to the program until standards at least
as stringent as National LEV are adopted as mandatory federal
standards. EPA is also proposing that, if the program ends prior to
adoption of mandatory federal standards at least as stringent as
National LEV, then the SIP call would no longer be cured and the OTC
States would be required to meet the SIP call contained in 40 CFR
Sec. 51.120.
EPA believes that National LEV is fully enforceable against those
manufacturers that have bound themselves to comply with the program.
Once a manufacturer opts into the National LEV program, compliance with
the applicable standards is mandatory. Because the National LEV
regulations would be promulgated under CAA sections 202 and 301, a
manufacturer that chooses to be covered by these regulations would be
subject to the same enforcement procedures as exist for the current
mandatory federal motor vehicle program. For example, violations of the
National LEV standards provisions would be subject to sanctions under
CAA sections 204 and 205. The certification, selective enforcement
audit (SEA), recall, and warranty provisions of the current federal
motor vehicle program would also apply to the National LEV program, as
well as all other federal motor vehicle requirements not explicitly
superseded by National LEV requirements.\29\ The applicability of
federal enforcement provisions would ensure that National LEV is an
enforceable program. As a result, as long as manufacturers continue to
be subject to the National LEV program, the standards and requirements
of the program will be clearly enforceable.

\29\ The certification procedures would be harmonized with
California's certification procedures to the extent possible, as
part of this rulemaking. See Section VI.B.
---------------------------------------------------------------------------

In addition to National LEV being legally enforceable, there will
also be strong practical disincentives to manufacturers either
challenging the enforceability of the standards or even taking
advantage of a potential offramp, unless the triggering event is
something the manufacturers consider a substantial burden. The
manufacturers strongly support National LEV as an alternative to OTC
LEV and as long as one or more states have the ability to swiftly
require compliance with OTC LEV, in the absence of National LEV,
manufacturers will be reluctant to destabilize National LEV. New York,
Massachusetts and Connecticut have adopted LEV programs. One or more of
these States is likely to keep its LEV program as a ``backstop,'' which
would automatically apply to any manufacturer not subject to National
LEV. This would ensure that if National LEV were not in effect,
manufacturers would have to comply with OTC LEV, in one or more States,
without the delay of those States having first to adopt OTC LEV. EPA
believes that having OTC LEV as a backstop in one or more States that
already have a LEV program would provide an important extra measure of
program stability and would support EPA findings that National LEV is
enforceable.
EPA is proposing to find that the National LEV program will remain
in effect for the intended duration of the program (i.e., at least
through model year 2003, and perhaps through model year 2004 or 2005)
because the circumstances allowing the program to terminate prematurely
are limited and unlikely to occur. The only circumstances allowing the
program to terminate prematurely would be certain EPA changes to Stable
Standards or an OTR State's failure to meet whatever commitments it
makes regarding adoption of motor vehicle programs under section 177 of
the Act. There are a variety of disincentives for either EPA or the OTR
States to act in a manner that would trigger an offramp.
The Agency believes that it is unlikely to change any of the Stable
Standards in a manner that would give the auto manufacturers the right
to opt out of the program. In the case of the conventional tailpipe
emission standards, the Clean Air Act explicitly prohibits the Agency
from mandating greater stringency than the Tier 1 standards prior to
model year 2004. The tailpipe standards proposed for the National LEV
program are already more stringent than (or in some cases, equivalent
to) those statutory standards; thus EPA is prohibited by statute from
requiring manufacturers to comply with any more stringent standards
that would trigger the offramp opportunity. The remaining program
elements proposed for inclusion in the Stable Standards are those where
EPA's technical analysis of the current Federal provisions reveals no
significant shortcoming that will require new, more stringent
rulemaking action applicable during the model years of the proposed
NLEV program. A more detailed discussion of the Agency's rationale for
the proposed set of Stable Standards may be found in Section IV.A.4.
EPA would retain substantial flexibility to make certain types of
adjustments to requirements designated as Stable Standards without
triggering an offramp. First, EPA would be able to make any changes to
which manufacturers did not object. Nor could EPA unknowingly trigger
an offramp under this provision, because a manufacturer would have had
to have objected to a proposed change during the public comment period
in order to use it as a basis for opt out. Second, EPA could make
modifications that do not affect stringency, which would allow EPA to
fine tune standards or other requirements without putting the program
in jeopardy. Third, EPA would be able to make modifications that
harmonize the federal standard with the California standard without
triggering an offramp. This would allow further refinement of the
program and allow EPA to make even major corrections if California
similarly views the change as necessary.

[[Page 52761]]

EPA will also need to find that the OTR States are unlikely to
break their commitments regarding adoption or retention of motor
vehicle programs under section 177 of the Act. To date, the OTR States
and manufacturers have not yet decided the details of how the OTR
States should commit themselves to the National LEV program, either in
terms of the exact substance of what the States will commit to, or the
legal instruments for such a commitment. EPA will incorporate in the
final rule whatever the OTR States and manufacturers agree the States
should commit to, and State violation of such commitments would allow
manufacturers to opt out of the program. EPA believes the final
agreement will contain sufficiently firm commitments that the Agency
will be able to find in the final rule that the States are unlikely to
break those commitments. EPA will provide an opportunity for comment on
this issue once more is known about the OTR States' commitments.
Based on the ongoing discussions, the OTR States are likely to make
some kind of commitment not to adopt a motor vehicle program under
section 177 of the Act without allowing compliance with National LEV as
a full alternative. In addition, States with section 177 programs
already in place might agree to modify those programs within a certain
timeframe to allow alternative compliance with National LEV. These
commitments could be embodied in one or several legal instruments,
including a memorandum of understanding, consent decrees, a SIP
revision incorporating the State's commitment, letters of commitment
from the Governor or Attorney General, and others. EPA will make
information regarding the final agreement available to the public prior
to promulgation of the final rule.
c. Opportunities for Technology
EPA believes that the 49 State LEV program, together with the
agreement between the parties on which it is based, would provide
important opportunities to promote ATVs. The regulatory portion of the
National LEV program proposed here does not address ATVs, as they are
not a legally necessary component of a substitute for OTC LEV. However,
the agreement pursuant to which the States and manufacturers would
implement the National LEV program includes an ``ATV component'' to
meet the parties' interest in promoting the development of ATVs. EPA
supports the thoughtful, innovative approach the OTR States and auto
manufacturers are proposing to take to introduce and establish ATVs in
the OTR.
The ATV component that the OTR States and auto manufacturers have
been discussing would be a unique agreement that would use an on-going,
cooperative relationship to focus on shared visions, commitments and
responsibilities. The parties will identify and address the means to
achieve a viable ATV market, including infrastructure development,
vehicle technology improvements, and incentive programs. The ATV
component would rely on California's laws to force technology
development, and ensure that technology takes hold in the OTR by having
all parties working together to establish and maintain a sustainable,
viable market for ATVs at the retail level. The ATV component
anticipates that OTR States, major motor vehicle manufacturers, other
states, EPA, the Department of Energy, fuel providers, converters,
fleet operators, and other manufacturers of specialty motor vehicles
would each have roles to play to facilitate the introduction of ATVs.
EPA strongly supports this innovative approach and looks forward to
participating in this effort.
Under the ATV component, the OTR States and auto manufacturers are
looking at defining advanced technology vehicles as vehicles that are
certified for sale in California and that are (1) certified as ULEVs or
ILEVs using any fuel, (2) dedicated or hybrid electric vehicles, or (3)
other alternative fuel vehicles as defined by the Energy Policy Act
(certification level and timing are not resolved on this category).
The ATV component, which would be based on and build upon the
requirements of the Energy Policy Act, would outline a process to
orchestrate introduction of ATVs. The parties would jointly identify
vehicle sales estimates. Then there would be integrated development and
execution of tasks necessary to create and maintain a viable,
sustainable market for ATVs. The process would also include measurement
and public reporting of the parties' performance towards achieving the
goals and accomplishing the necessary tasks.
Three phases of ATV introduction would be suggested by the ATV
component. First, from 1996 to 1998, the parties would focus on
developing ATV markets for federal, state and fuel provider fleets.
This phase would include marketing ATVs to fleets, beginning
development of refueling infrastructure, and surveying the potential
demand for ATVs from 1999 to 2001. Second, from 1999 to 2001, municipal
and private ATV fleets would also be developed. This would include
expanding product offerings, infrastructure, and incentives; surveying
potential demand for 2002 to 2004, and identifying criteria needed to
sustain retail sales. In the third phase, from 2002 to 2004, retail
consumer offerings would be added.
The ATV component presents the parties with an important
opportunity to show that government/industry partnerships can achieve
important environmental benefits and do so in a way that provides the
parties with greater flexibility, while still holding them responsible
for achieving the end goal. EPA is aware that this approach involves
risks that are not present in traditional regulatory approaches--the
ATV component is not legally enforceable; no one can go to court if the
parties do not follow through on their commitments. However, by
focusing resources on cooperative efforts to make a market-oriented
program work, this approach has great potential for benefits. EPA
believes this is an appropriate opportunity to take the risk and try to
use a different model to achieve environmental benefits.
EPA will work with each state individually to determine the
appropriate SIP credit for the ATV component. Current uncertainty
concerning the number and types of ATVs that will be introduced into
each state precludes EPA from providing SIP credit now. However, EPA
expects that SIP credits will become available as the program is
implemented. As ATVs are bought in individual states, EPA and the state
will be able to calculate the emissions benefits for the life of the
ATVs. In addition, EPA will also work with states to determine whether
and what SIP credit is appropriate for specific measures (such as
commitments to buy a specified number of ATVs).

B. Finding LEV-Equivalent Program in Effect

EPA is proposing certain regulatory criteria for finding that the
acceptable LEV-equivalent program described in these proposed
regulations has come into effect for purposes of satisfying the OTC LEV
SIP call. Upon EPA making such a finding, which would be published in
the Federal Register, the SIP inadequacy found in the OTC LEV decision
would be deemed cured without the need for further Agency rulemaking or
state action.^{30 In addition,

[[Page 52762]]
to the extent that manufacturers have conditioned their opt-ins upon
EPA making such a finding, the opt-ins would become fully and
unconditionally binding. The SIP inadequacy would remain cured as long
as National LEV continued in effect or had been replaced by standards
at least as stringent promulgated under section 202(i) of the Act.

\30\ Of course, OTC States would not be precluded from adopting
OTC LEV, as long as the State allows compliance with National LEV as
a full alternative to compliance with the State OTC LEV program.
States may need to take further action to commit to the National
LEV program pursuant to their agreement with the auto manufacturers.
---------------------------------------------------------------------------

EPA believes that the Agency could make a finding as to whether the
National LEV program has come into effect for purposes of satisfying
the OTC LEV SIP call, without the need for further notice-and-comment
rulemaking. EPA is providing full opportunity for public comment on
establishing the criteria for making an in effect finding. The proposed
criteria for making this finding are that all manufacturers listed in
the regulations have submitted opt-in notifications in accordance with
the requirements specified in the regulations. The submission of such
opt-in notifications is an easily verified objective criterion. The
manufacturers that would need to have submitted opt-ins are listed in
the proposed regulation. The regulation also specifies the operative
text that would have to be present in an opt-in notification and the
necessary legal authority of the person signing such a notification.
Because the satisfaction of the criteria is so clear as to be virtually
self-executing, EPA believes that conducting further notice-and-comment
rulemaking on whether the criteria were satisfied would produce
additional delay while serving no purpose.
All affected parties would benefit by a prompt determination of
whether or not the National LEV program has come into effect as an
acceptable alternative to OTC LEV. Thus, the proposed regulations
direct EPA to find whether or not National LEV is in effect within 60
days of publication of the final rule establishing the National LEV
program. EPA believes this would give the manufacturers sufficient time
to evaluate the provisions of the final rule and make a final decision
to opt in. It would also ensure that should EPA find that National LEV
is not in effect, the States would still have time to adopt OTC LEV so
that it would be effective for model year 1999. However, EPA is
requesting comment on whether it should instead adopt a different
timeline, or no deadline at all.
To achieve emissions equivalency with OTC LEV, EPA could find
National LEV to be in effect if all existing original engine
manufacturers (OEMs) opt in in compliance with the opt-in requirements
proposed in this rule. For the purposes of the National LEV program
only, EPA is proposing to refer to as ``existing'' OEMs, those
manufacturers that have received a certificate of conformity for a
light-duty engine family for the 1995 model year. EPA is proposing to
list in the rule the manufacturers meeting this criteria.^{31 If all
listed manufacturers opt in, the opt-ins will be binding on the
manufacturers and they will be subject to all of the provisions of the
National LEV program. Each opt-in must take the form of a letter signed
by a company official with clear authority to bind the company. The
letter must unambiguously declare the manufacturer's intention to
comply with and be bound by the terms of the National LEV program,
subject only to the condition that EPA find by the date specified in
the regulations for EPA to make an in effect finding that the program
is in effect for purposes of satisfying the OTC LEV SIP call. All of
these criteria are easily and objectively determined and there would be
no need for EPA to engage in further rulemaking to determine whether
the criteria were satisfied. Rather, EPA would make a straightforward,
objective determination of whether or not the criteria were satisfied,
and then would notify the public of a finding that National LEV is in
effect through publication in the Federal Register.

\31\ The list in the proposed regulations at Sec. 51.121(d) will
be updated, if necessary, in the final rule to reflect any
manufacturers that receive a certificate for the 1995 model year
after promulgation of this NPRM.
---------------------------------------------------------------------------

EPA is proposing that the OTC LEV SIP call would be deemed cured as
long as National LEV is in effect or deemed permanently cured once
National LEV has been replaced by new motor vehicle emissions standards
of at least equivalent stringency promulgated under Sec. 202(i). Under
the proposed provisions for program duration, if by December 15, 2000,
EPA had not promulgated new, mandatory tailpipe standards at least as
stringent as National LEV that took effect in model year 2004, 2005, or
2006; beginning in model year 2004, manufacturers would only have to
meet Tier 1 tailpipe standards in the 49 States. In that event, the
quantity of annual emissions reductions that would have been produced
by OTC LEV would be lost unless the OTC LEV SIP call were still in
effect. Similarly, in the highly unlikely event that the program does
not continue for its full expected duration (at least until 2004), the
lost emissions reductions from early program dissolution would need to
be made up through OTC LEV. In addition, retention of the OTC LEV SIP
call provides a further disincentive to program dissolution, as both
the manufacturers and OTR States view National LEV as a more cost-
effective and environmentally beneficial alternative to OTC LEV. Once
EPA has promulgated mandatory new motor vehicle tailpipe standards of
at least equivalent stringency under section 202(i) of the Act, these
would achieve equivalent emissions reductions and replace the voluntary
National LEV requirements. Consequently, the SIP deficiency would be
deemed permanently cured. EPA requests comment on this approach to when
the OTC LEV SIP call remains in effect and when it would be deemed
permanently cured.
In the event that an offramp were triggered and one or more
manufacturers opted out, National LEV would remain in effect for
purposes of satisfying the OTC LEV SIP call until EPA determined
through rulemaking that the program was no longer in effect. The
criteria for such a determination would also be established in that
later rulemaking.

VI. Other Applicable Federal Requirements and Harmonization With
California Requirements

A. Introduction

Given the automobile manufacturers' commitment to National LEV, EPA
has committed to work with CARB to harmonize federal and California
motor vehicle standards and test procedures to the extent possible.
This would allow manufacturers to design and test vehicles to one set
of specifications for sale nationwide, rather than designing and
testing to two sets (California's and EPA's). EPA believes that the
National LEV program plus harmonization of federal and California
standards is a smarter, cheaper way to regulate that increases
environmental and public health benefits. Under today's proposal and
existing regulations, EPA believes that manufacturers will have
harmonized standards and test procedures in the following areas:
tailpipe exhaust standards, revised Federal Test Procedure, on-board
refueling vapor recovery, evaporative emissions, and cold CO.
Today's proposal would add a new Code of Federal Regulations (CFR)
subpart (Subpart R of Title 40, Part 86) containing the essential,
regulatory elements of the voluntary National LEV program. The core of
the program is the set of proposed tailpipe emission standards, NMOG
fleet average requirements, and OBD requirements contained in the
Subpart R language just

[[Page 52763]]
described. These core provisions, based on the California program, are
intended to substitute for the OBD requirements and Tier 1 emission
standards in the framework of the current Federal motor vehicle control
program.
Beyond this core, the balance of the Federal motor vehicle
emissions control program (including other standards and requirements,
and both certification and compliance program elements) would continue
to apply to vehicles produced and sold by manufacturers opting into the
National LEV program. The relevant provisions would be amended as
necessary to accommodate changes resulting from the National LEV
program. Significant elements of the federal new motor vehicle
certification program that would apply to National LEV vehicles include
the cold temperature CO standards, on-board refueling vapor recovery
requirements, and the certification short test. Similarly, the current
federal compliance program, including the fees program, selective
enforcement audit program, emissions recall program, the federal
emissions warranties, and federal emissions defect reporting
requirements, would be used to implement the National LEV program. EPA
would retain the authority to add regulatory requirements to the motor
vehicle program, (e.g., as may be required under section 202(l) of the
Clean Air Act to address air toxics) or to modify existing requirements
(e.g., as it has proposed to do for the Federal Test Procedure). By
proposing the National LEV's Stable Standards, EPA is recognizing that
it does not intend to use the authority to modify certain existing
regulations except in limited circumstances.
In an effort to reduce duplicative testing burdens on the vehicle
manufacturers, EPA has committed to harmonize certain elements of the
federal motor vehicle regulations with the California counterparts. For
example, EPA and CARB are working actively to harmonize the federal and
California evaporative emission requirements of the respective parties.
Today's proposal is consistent with these efforts. To further the
objective of reducing duplicative testing and compliance requirements
on the manufacturers, EPA will seek consistency with California in
future regulatory actions where practicable.

B. Harmonization of Federal and California Standards and Requirements

Additional comments on the nature and status of harmonization
efforts currently underway are provided below.
1. On-Board Refueling Vapor Recovery
EPA anticipates that the federal and California on-board refueling
vapor recovery (ORVR) standards will be harmonized. As directed in the
1990 Clean Air Act Amendments (CAAA), EPA has set requirements for
vehicle-mounted systems to control the emissions of HC vapors during
refueling, called ORVR systems. 58 FR 16262 (April 6, 1994); 40 CFR
Secs. 86.001-9, 86.004-9, and 86.098-8. ORVR-equipped vehicles must
meet a standard of 0.20 grams of HC per gallon of fuel pumped during a
test described in the final ORVR rule. Although California currently
has no ORVR requirements separate from the federal standards, CARB
staff have expressed an intent to pursue the adoption of a program
similar to EPA's. EPA expects that this CARB action will produce
harmonized federal and California ORVR standards.
2. Evaporative Emissions
EPA and CARB are in the process of harmonizing the federal and
California evaporative emissions standards and test procedures. The
federal motor vehicle emissions requirements include standards for HC
emissions emanating from sources other than the exhaust system or
crankcase, called evaporative emissions. The effectiveness of these
standards is strongly dependent on the test procedure by which the
standards are measured. As required by the CAA, EPA finalized a new
test procedure and standards for enhanced evaporative emissions control
that will be phased in beginning with the 1996 model year 58 FR 16002
(March 24, 1993). CARB finalized a similar set of new standards and
test procedures that is being implemented in California according to a
somewhat earlier phase in schedule CARB mail-out #95-01, January 4,
1995.
EPA and CARB staff have in recent months made steady progress
toward harmonizing the two sets of test procedures and reducing testing
burden by enabling manufacturers to satisfy the certification test
requirements of both agencies in a single test, without sacrificing air
quality benefits. Both agencies are now in the process of promulgating
technical amendments to their regulations that will largely achieve
this goal. A direct final rule containing technical amendments to the
EPA test procedure (including amendments designed to harmonize federal
and CARB evaporative emissions requirements) was published on August
23, 1995 (60 FR 43880). CARB held a Board hearing regarding their
technical amendments on June 29, 1995, and expects to finalize their
actions no later than June, 1996. The one major area of difference
remaining concerns test fuel volatility and temperature conditions,
discussed below.
The CARB evaporative emissions test procedure requires the use of
gasoline with a volatility of 7 psi Reid Vapor Pressure (RVP) and a
test lab simulation of a 105 deg. F day. These fuel and temperature
specifications are appropriate for California because they are designed
to simulate a very hot day in California and the use of California
Phase II reformulated gasoline. EPA's test procedure specifies 9 psi
RVP fuel and simulation of a 96 deg. F day, reflecting the goal of
complying with CAA requirements for evaporative emissions control
across the varied conditions in the United States. Test fuel volatility
and test temperatures can have a major impact on the relative
stringency of the two procedures, but the differences in these factors
directionally tend to cancel each other out. As a result, the
magnitude, and even the direction, of the overall difference in
stringency between the two procedures is not obvious and must be
determined empirically.
Therefore, in an effort to minimize the regulatory burden on
manufacturers while maintaining effective control of evaporative
emissions, EPA and CARB have initiated an investigative program, with
support from the auto manufacturers, to resolve this relative
stringency issue. Data from this test program, as well as from other
relevant sources, will be placed in the public docket for this
rulemaking. If these investigations lead to a finding that one
procedure is significantly more stringent, manufacturers may be able to
use that procedure to satisfy both agencies' testing requirements,
although both agencies would have to find the procedure acceptable. EPA
expects this investigation to be completed by the end of September
1995.
EPA expects that the CARB and EPA evaporative emission requirements
will be harmonized (except for test fuel and temperature
specifications) before promulgation of the National LEV final rule. At
this time, EPA has insufficient data to conclude that use of the
California test conditions, as proposed in this notice, would represent
a significant loss in stringency relative to testing with the federal
fuel and test temperature. Therefore, EPA is proposing to conduct
certification of vehicles under the National LEV program using the
federal procedure contained in the CFR, modified to specify California
test fuel and test temperatures. Use of the CARB test fuel

[[Page 52764]]
for evaporative emissions testing would allow manufacturers to run the
evaporative test in sequence with the exhaust emission test, which
requires the CARB fuel, without switching fuels. If manufacturers had
to switch fuels between exhaust emissions testing and evaporative
emissions testing, the resulting testing required for certification
would be more complex and more costly to run. Therefore, the Agency
solicits comments on how the CARB procedure might be retained for use
in the National LEV program if EPA finds that the EPA procedure is
significantly more stringent. EPA specifically seeks comment on whether
use of federal fuel and test temperature should be required for
vehicles certified under the National LEV Program. If EPA's test fuel
and temperature conditions are found to be significantly more stringent
than CARB's, EPA would examine the impact of this finding on the
National LEV evaporative emissions requirements to ensure continued
compliance with Clean Air Act requirements for control of evaporative
emissions. Vehicles certified in the National LEV program will be
subject to the federal standards and implementation schedules set in
the evaporative emissions rule.
3. Certification Short Test (CST)
In November 1993, EPA promulgated the CST, based on Section 202(a)
of the amended CAA (58 FR 58382). The CST requires manufacturers to
demonstrate at the time of new-vehicle certification that their LDV and
LDT designs, when properly used and maintained, will pass the emissions
short test procedures approved by EPA for use in state and local I/M
programs.^{32 In addition to simulating the I/M test procedures
themselves, the CST protocol includes test conditions reasonably
expected to be encountered by vehicles in I/M programs, such as test
fuel, test temperatures, and simulated vehicle queue or wait times. The
Agency may revise the CST regulations as necessary to ensure the
ability of future vehicle designs to pass new performance warranty
procedures adopted under the authority of Section 207(b) of the Act.

\32\ These short tests are commonly referred to as the
``emissions performance warranty'' or ``207(b)'' procedures. The
Agency has promulgated a menu of these procedures based on the
requirements of Section 207(b) of the Act that the procedures are
available, consistent with good engineering practice, and show
reasonable correlation to the Federal Test Procedure. 40 CFR part
85, subpart W. I/M programs must choose from among the 207(b)
procedures if vehicle owners in their jurisdictions are to be
eligible for Federal emissions performance warranty coverage.
---------------------------------------------------------------------------

California I/M regulations lack the menu of I/M test procedures
that is available nationally, and CARB certification procedures do not
require manufacturers to verify the ability of their vehicles to pass
I/M tests across the range of I/M test conditions found nationwide. As
a consequence, EPA finds that there is no adequate California
counterpart to the Federal CST requirement. Thus, the National LEV
program would subject all vehicles, including those certified under the
National LEV program, to the Federal CST regulations.
4. Federal Test Procedure Revisions
On February 7, 1995, EPA proposed regulations under Section 206(h)
of the CAA for additions and revisions to the FTP, the core procedure
used for certification and compliance testing of LDVs and LDTs. 60 FR
7404 (February 7, 1995). The focus of this ``FTP Review'' proposal was
the addition of a Supplemental Federal Test Procedure (SFTP) and
associated emission standards. The current FTP only measures ``on-
cycle'' emissions. The SFTP, as proposed, is designed to add coverage
of ``off-cycle'' emissions to the FTP, including emissions arising from
aggressive (high-speed and/or high-acceleration) driving, rapid speed
fluctuations, driving behavior following startup, air conditioning, and
intermediate-duration periods where the engine is turned off. The
proposed FTP off-cycle emission standards took into consideration the
vehicle technologies that would prevail under the current (Tier 1)
Federal tailpipe emission standards. EPA is proposing that the National
LEV program would be structured such that vehicles certified under the
National LEV program would become subject to the revised FTP standards
and procedures once those regulations are finalized.
The California Air Resources Board is considering adoption of
similar FTP regulations applicable to the California light-duty fleet,
but final action by CARB is not likely to occur before final action on
the Federal FTP Review rulemaking. EPA and CARB have stated their
intent to harmonize the revised FTP procedures to the maximum extent
possible, and EPA anticipates that these efforts will be reflected both
in EPA's final revised FTP rule and in subsequent CARB action.
One example of this harmonization concerns the test fuel for SFTP
testing. As noted above in Section III.B.5, the fuel for conventional
FTP testing of National LEV vehicles will be California Phase II
reformulated test fuel. (The Agency anticipates that CARB will
ultimately employ this fuel for SFTP testing in California as well.) In
order to preclude the need for fuel switches between FTP and SFTP
testing of National LEV vehicles, EPA expects to incorporate in the
final FTP Review rulemaking the option for manufacturers who are
certifying National LEV vehicles to employ California Phase II fuel
during SFTP testing.
If CARB eventually adopts SFTP procedures that are harmonized with
EPA's, but applies more stringent standards based on the cleaner
technologies of California LEV and ULEV vehicles, EPA intends to amend
the revised FTP regulations such that National LEV vehicles would be
required to comply with the California off-cycle standards, rather than
the federal off-cycle standards based on the use of prevailing federal
(Tier 1) technologies.
5. High Altitude
Section 206(f) of the CAA requires that all LDVs manufactured after
MY 1985, and all LDTs manufactured after MY 1995, comply with the
requirements of section 202 regardless of the altitude at which they
are sold. EPA promulgated regulations to implement this requirement as
part of the Tier 1 tailpipe standards rulemaking (56 FR 25724) and the
enhanced evaporative emissions requirement (58 FR 16002). To ensure
that National LEV program vehicles comply with the mandatory section
202 emissions requirements at all altitudes, EPA is proposing to apply
the current high altitude regulations to the National LEV program.
Therefore, vehicles certifying to the National LEV program standards
must demonstrate compliance with the requirements that EPA has mandated
under section 202, including the Tier 1 tailpipe standards in sections
202 (g) and (h), the cold CO requirements in section 202(j), and the
evaporative emissions requirement in section 202(k). The high altitude
compliance requirements would require use of the appropriate federal
certification test fuel for the given test procedure, as defined in 40
CFR Sec. 86.113.

C. Federal Compliance Requirements

1. Selective Enforcement Auditing and Quality Audit Programs
Pursuant to CAA section 206(b), the Administrator is authorized to
test new motor vehicles to determine whether vehicles being
manufactured do, in fact, conform to the regulations with respect to
which a certificate of conformity was issued. Therefore, vehicles
certified to meet any of the National LEV emission

[[Page 52765]]
standards and requirements would be subject to those standards and
requirements in a Selective Enforcement Audit (SEA). These vehicles
would be additionally subject to all other federal emission standards
and requirements, including cold CO standards, fuel dispensing spitback
standards and/or on-board vapor recovery standards, and Certification
Short Test standards in an SEA.
During an SEA, a manufacturer will conduct testing of an engine
family configuration certified to the National LEV standards using the
same test procedures, test fuel, and reactivity adjustment factors, if
applicable, that were used in the certification process for that
family. Selected SEA vehicles will be tested until a pass decision has
been reached for all pollutants or a fail decision has been reached for
one pollutant. The National LEV standards are subject to the same 40%
Acceptable Quality Level (AQL) as conventional federal exhaust
standards.
In the event of an audit failure of a configuration certified to
the National LEV standards, the certificate of conformity for the
selected configuration may be suspended, and depending on the required
remedy for the nonconformity, revoked, as has historically occurred
with audit failures of configurations certified to conventional federal
standards.
EPA's authority to suspend and/or revoke certificates of conformity
in the manner described above is found in Sec. 206(b) (1) and (2) of
the CAA, which states that EPA may suspend and/or revoke certificates
in whole or in part (i.e., for a family or a configuration) if the
Administrator determines that vehicles in a family or configuration do
not conform with applicable regulations. This determination may be
based on tests conducted by EPA directly, or by a manufacturer in
accordance with conditions specified by EPA. Those conditions are
described in 40 CFR part 86: subpart B and R, the Federal Test
Procedure; subpart C, the Cold Temperature CO Test Procedure; and/or
subpart O, the Certification Short Test Procedure.
EPA expects that the promulgation of National LEV standards and the
harmonization of other federal and California requirements will allow
manufacturers to certify an increasing number of engine families to
both California and National LEV standards (50-state engine families).
This provides an opportunity for EPA to utilize its enforcement
resources more efficiently and reduce the testing burden on
manufacturers by coupling the SEA and corresponding CARB requirements
for 50-state families and configurations.
The California Assembly-Line Test Procedures for 1983 and
subsequent Model Year Passenger Cars, Light-Duty Trucks, and Medium-
Duty Vehicles require manufacturers to perform Quality-Audits on each
engine family in production. Engines are tested in a manner
substantially similar to comparable federal requirements. The Assembly-
Line Test Procedures also require manufacturers to perform an
Inspection Test on all 1985 and subsequent model year vehicles. The
Inspection Test consists of functionally testing the emission control
components and systems on each vehicle. Any vehicle that passes the
approved functional test is considered to be in compliance with the
Inspection Test Procedures. In addition to the Assembly-Line Test
Procedures, CARB has a program that is similar to EPA's SEA program.
The California New Vehicle Compliance Test procedures allows CARB to
order a manufacturer to deliver a reasonable number of vehicles for
compliance testing or inspection. Vehicles are selected at random and
if, based on the testing, CARB determines that an engine family or
subgroup exceeds emission standards for one or more pollutants, CARB
will require the manufacturer to bring the vehicles into compliance.
Historically, if manufacturer testing required by CARB led CARB to
determine that a 50-state engine family or configuration is in non-
compliance with an applicable standard, CARB would require the
manufacturer to take remedial action to correct the problem. However,
CARB may be concerned primarily about the vehicles that will be sold in
California, and the required remedial action may only address those
vehicles, possibly leaving the rest of the family in non-compliance.
EPA's only recourse upon discovering 50-state non-compliance through
CARB-required testing is to issue the manufacturer an SEA test order
for the configuration. The manufacturer would then have to conduct
duplicate testing for that configuration. If the configuration (which
CARB had already determined to be in non-compliance) failed the audit,
EPA would suspend and/or possibly revoke the certificate of conformity.
The manufacturer would then have to develop a fix for the non-
conformity and conduct and pass a re-audit to comply with EPA
requirements, as well as comply with CARB's remedial action plan.
This notice proposes a process to reduce this duplicative testing
and remediation. If CARB has determined that a 50-state engine family
or configuration is in non-compliance, based on manufacturer testing
required by CARB, EPA would be able to take appropriate action without
requiring the manufacturer to conduct duplicate testing. EPA would
evaluate test data received from CARB or directly from a manufacturer
for a family or configuration that CARB has determined to be in non-
compliance with any applicable standard. If testing was conducted in a
manner substantially similar to comparable federal requirements, EPA
would evaluate the test data with respect to the 40% AQL sampling plans
found in Appendices X and XI to part 86 to determine compliance with
applicable federal standards. EPA believes the random sampling
manufacturers use to select vehicles for CARB-required testing will
provide a representative family or configuration sample, which can be
appropriately evaluated with respect to the 40% AQL criteria. If the
test data for the family or configuration does not meet the 40% AQL,
EPA would determine the family or configuration to be in non-
compliance, and EPA would have authority to suspend and/or revoke the
certificate of conformity for the 50-state family or configuration.
Additionally, subsequent to a suspension or revocation, the proposal
allows EPA to reinstate or reissue a certificate, upon a manufacturer's
written request, after the manufacturer has agreed to comply with
remedial action required by CARB, if EPA believes the action is an
effective remedy for the entire family or configuration. The
manufacturer would not have to conduct a re-audit of the suspended/
revoked configuration.
Because EPA's authority to suspend or revoke certificates is based
on testing conducted by EPA or the manufacturer in accordance with
appropriate federal regulations, EPA will only suspend or revoke
certificates in the manner described above if the manufacturer has
conducted the testing. EPA will work cooperatively with CARB and
manufacturers in considering all information provided by the
manufacturer prior to suspending, revoking, and reissuing certificates
of conformity in these instances. As with any suspension or revocation
of a certificate of conformity, a manufacturer that disagrees with
EPA's decision to suspend or revoke a certificate may request a public
hearing within 15 days of EPA's suspension or revocation decision.
In the event these National LEV Standards are not promulgated, EPA
is proposing still to promulgate the

[[Page 52766]]
necessary regulation changes to subparts G and K to enable EPA to
suspend, revoke, and reinstate certificates of conformity for 50-state
families as described above.
2. Imports
EPA requires that non-conforming motor vehicles (i.e., motor
vehicles not covered by a certificate of conformity) being imported
into the U.S. for use in any state, including California, meet the
federal emission standards as well as all other certification
requirements, such as labeling and warranty. EPA generally permits only
independent commercial importers (ICIs) to import non-conforming
vehicles, and those vehicles must meet the emission standards
applicable to the year in which the vehicles are modified. Under
section 216 of the Act, an ICI is deemed to be a manufacturer. However,
ICIs do not generally build new vehicles, rather, they modify
previously manufactured nonconforming vehicles to comply with federal
emission standards. EPA does not expect that ICIs will opt into the
National LEV program, due to the very limited number and wide range of
model years of the annually imported vehicles.^{33 Therefore, EPA
proposes that vehicles imported under the imports program will not be
covered vehicles under the National LEV program and need not meet the
National LEV standards. However, EPA will allow ICIs to certify
imported nonconforming vehicles to any applicable emissions standard,
including the National LEV standards, if they so choose.

\33\ ICIs generally account for approximately 200 vehicles per
year in total sales.
---------------------------------------------------------------------------

EPA regulates imported nonconforming vehicles under the authority
of section 203(a)(1) and (b)(2). EPA's current imports regulations
depend on the age of the vehicle. 40 CFR Secs. 85.1503, 85.1509. EPA
requires that vehicles less than six years old be covered by a
certificate of conformity. EPA also requires that vehicles six years
old or older be modified (if necessary) and meet the certification
emission standards applicable to the year in which the vehicles are
modified (rather than the year the vehicles were originally
manufactured). EPA exempts non-conforming vehicles greater than 20
years old. 40 CFR Sec. 1511(f).
The CARB import regulations similarly impose different emissions
requirements depending on the age of the vehicles. Vehicles less than
two years old must meet all the certification requirements applicable
to manufacturers of new vehicles, while older vehicles are subject to
other less stringent requirements. CARB does not consider modifiers of
non-conforming vehicles to be manufacturers and indicates that no
modifier has thus far obtained new vehicle certification. If a modifier
of non-conforming vehicles does obtain new vehicle certification in the
future, CARB has not yet determined whether those vehicles will be
required to meet the weighted average NMOG standard for their model
year ``production'', as manufacturers must, or the California Tier 1
standard for every vehicle.
In a separate notice, EPA has proposed a number of amendments to
the federal importation requirements.^{34 One of those amendments
would allow imported non-conforming LDVs and LDTs to meet the emission
standards applicable to the year they were originally manufactured
(consistent with the CARB requirements), rather than the year they are
modified. Another of those amendments would prohibit the ICIs from
participating in the averaging, banking, and trading provisions of 40
CFR Part 86. EPA expects to promulgate these amendments later this
year.

\34\ 59 FR 13912, March 24, 1994.
---------------------------------------------------------------------------

Given that ICIs do not generally build new motor vehicles, EPA
believes it is not necessary for ICIs to opt into National LEV or
likely that they will do so. While the National LEV standards are
voluntary, they are potentially applicable standards. Therefore, EPA
proposes that ICIs be allowed to certify imported vehicles to any of
the applicable federal emissions standards, including the National LEV
standards. The ICIs will not, however, be permitted to participate in
averaging, banking or trading because ICIs do not control, nor can they
predict, their yearly production, making potential compliance with the
NMOG average unpredictable.
The imports provisions of the National LEV Program will depend on
promulgation of the amendments to the imports regulations at 40 CFR
Part 85, Subpart P proposed on March 24, 1994. If EPA promulgates the
proposed amendments to the imports regulations, EPA proposes one
additional change to the federal importation requirements to
accommodate the National LEV Program. The March 24, 1994 proposal would
require that each LDV and LDT originally manufactured in 1993 and
earlier model years and subsequently imported by an ICI (regardless of
the year of modification) be required to meet the emission standards of
the new section 85.1516 and that each LDV and LDT originally
manufactured after the 1993 model year be required to meet the
emissions standards of Part 86 applicable to the year in which the
vehicle was originally manufactured. Thus, non-conforming vehicles
manufactured on or after 1996 (the model year in which federal Tier 1
emission standards are applicable to small volume manufacturers, such
as ICIs) would be required to meet the federal Tier 1 emission
standards. Today's proposal would amend that requirement to allow the
ICIs to voluntarily certify or test vehicles to any of the federal
emission standards applicable to the year the vehicles were originally
manufactured, including National LEV emission standards. In all cases,
the ICIs would be prohibited from participating in any averaging,
banking or trading programs (see 40 CFR 85.1516(d) of the March 24,
1994 NPRM).
If EPA does not promulgate the proposed amendments to the imports
regulations, EPA proposes two changes to the federal importation
requirements to accommodate the National LEV Program. First, EPA is
including in today's proposal the provision from the March 24, 1994
NPRM that proposes that ICIs be prohibited from participating in
averaging, banking, and trading. Second, this proposal would allow the
ICIs to voluntarily certify or test vehicles to any of the federal
emission standards, including the National LEV standards, applicable
for the year in which the vehicles are modified, regardless of the year
they were originally manufactured.
3. In-Use and Warranty Requirements
The in-use testing and recall provisions of the federal program
would not be changed by the terms of the voluntary agreement. EPA would
continue to follow its procedures in conducting in-use testing to
determine vehicle compliance with the relevant certified emissions
standards. California would continue to implement its in-use testing
and recall program unaffected by the voluntary agreement. While the
operation of both recall programs is substantially similar, each
program has different enforcement goals necessitated by differing
statutory authority as well as considerations attributed to running a
state-wide versus a nationwide enforcement program. However, there is
no additional burden on the manufacturers attributed to operation of
two enforcement programs because vehicles will be tested using the same
procedures used in certification, thereby removing the need for
manufacturers to comply with two different sets of enforcement testing
procedures.

[[Page 52767]]

Similarly, the federal warranty requirements under section 207
would continue to apply to vehicles produced under the voluntary
standards program. California warranty requirements would apply only to
vehicles produced for California. EPA will also continue using its own
defect reporting requirements which, unlike California's regulations,
do not mandate different levels of reporting based on certain numbers
of warranty claims on specified emission control components.

VII. Effective Date

EPA is proposing to make these regulations effective upon signature
of the final rule. If EPA adopts this approach, it would make the final
rule available to interested parties upon signature. Although EPA
generally makes rules effective 30 days after date of publication, it
is not bound to do so. See section 307(d)(1) of the Clean Air Act, 42
U.S.C. 7607(d), and the Administrative Procedure Act, 5 U.S.C. 553(d).
EPA believes that it would be impracticable, unnecessary, and
contrary to the public interest to delay the effective date until 30
days after publication. States in the OTR that need to adopt OTC LEV in
the absence of the National LEV program must cure their SIP
deficiencies by February 15, 1996. Thus, the OTR States need to know
before then whether the motor vehicle manufacturers will opt in, which
would enable EPA to find National LEV to be in effect and be deemed to
satisfy the OTC LEV SIP call. In addition, these regulations will not
impose any immediate burden on affected parties requiring lead time for
compliance. Rather, the regulations will merely allow manufacturers to
voluntarily opt into the program. Moreover, once a manufacturer has
opted in, there would be significant leadtime before it must comply
with the National LEV tailpipe emissions standards.
EPA is also taking comment on making the rule effective upon
publication in the Federal Register or 30 days after such publication.

VIII. Public Participation

A. Comments and the Public Docket

The Agency welcomes comments on all aspects of this proposed
rulemaking. All comments (preferably in triplicate), with the exception
of proprietary information, should be directed to the EPA Air Docket
Section, Docket No. A-95-26 (see ADDRESSES). Commenters who wish to
submit proprietary information for consideration should clearly
separate such information from other comments by:
labeling proprietary information ``Confidential Business
Information'' and
sending proprietary information directly to the contact
person listed (see FOR FURTHER INFORMATION CONTACT) and not to the
public docket.
This will help ensure that proprietary information is not
inadvertently placed in the docket. If a commenter wants EPA to use a
submission labeled as confidential business information as part of the
basis for the final rule, then a nonconfidential version of the
document, which summarizes the key data or information, should be sent
to the docket.
Information covered by a claim of confidentiality will be disclosed
by EPA only to the extent allowed and by the procedures set forth in 40
CFR Part 2. If no claim of confidentiality accompanies the submission
when it is received by EPA, the submission may be made available to the
public without notifying the commenters.

B. Public Hearing

Anyone wishing to present testimony about this proposal at the
public hearing, should one be requested, (see DATES) should, if
possible, notify the contact person (see FOR FURTHER INFORMATION
CONTACT) at least two business days prior to the day of the hearing.
The contact person should be given an estimate of the time required for
the presentation of testimony and notification of any need for audio/
visual equipment. A sign-up sheet will be available at the registration
table the morning of the hearing for scheduling those who have not
notified the contact earlier. This testimony will be scheduled on a
first-come, first-served basis, and will follow the testimony that is
arranged in advance.
The Agency recommends that approximately 50 copies of the statement
or material to be presented be brought to the hearing for distribution
to the audience. In addition, EPA would find it helpful to receive an
advance copy of any statement or material to be presented at the
hearing at least two business days before the scheduled hearing date.
This is to give EPA staff adequate time to review such material before
the hearing. Such advance copies should be submitted to the contact
person listed.

IX. Administrative Requirements

A. Administrative Designation

Under Executive Order 12866 (58 FR 51735), the Agency must
determine whether the regulatory action is ``significant'' and
therefore subject to OMB review and the requirements of the Executive
Order. The Order defines a ``significant regulatory action'' as one
that is likely to result in a rule that may:
(1) have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
(2) create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
Pursuant to the terms of Executive Order 12866, it has been
determined that this rule is a ``significant regulatory action''
because of annual impacts on the economy that are likely to exceed $100
million. As such, this action was submitted to OMB for review. Changes
made in response to OMB suggestions or recommendations will be
documented in the public record.

B. Regulatory Flexibility Act

The Regulatory Flexibility Act of 1990 requires federal agencies to
identify potentially adverse impacts of federal regulations upon small
entities. In instances where significant impacts are possible on a
substantial number of these entities, agencies are required to perform
a Regulatory Flexibility Analysis (RFA).
The Agency has determined that this action will not have a
significant impact on a substantial number of small entities. This
regulation will affect only manufacturers of motor vehicles, a group
which does not contain a substantial number of small entities.
Therefore, as required under section 605 of the Regulatory
Flexibility Act, 5 U.S.C. 601 et. seq., I certify that this regulation
does not have a significant impact on a substantial number of small
entities.

C. Unfunded Mandates Reform Act

Under section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA
must prepare a budgetary impact statement to accompany any proposed or
final rule that includes a federal mandate that may result in estimated
costs to state,

[[Page 52768]]
local, or tribal governments in the aggregate; or to the private
sector, of $100 million or more. For rules subject to section 202,
under section 205, EPA must select the most cost-effective and least
burdensome alternative that achieves the objectives of the rule and is
consistent with statutory requirements.
EPA has determined that the above requirements do not apply to the
rule proposed here, and thus do not require EPA to conduct further
analyses pursuant to those requirements. These unfunded mandates
provisions only apply to federal mandates. National LEV is a voluntary
program, which would implement an agreement reached between the OTR
States and the motor vehicle manufacturers. Because National LEV would
not impose a federal mandate on any party, and in fact would relieve
certain states of a regulatory obligation, these unfunded mandates
provisions do not apply to this proposed rule. Even if these unfunded
mandates provisions did apply to this proposal, they are met by the
Regulatory Impact Analysis prepared pursuant to E.O. 12866 and
contained in the docket.
Section 203 requires EPA to establish a plan for informing and
advising any small governments that may be significantly or uniquely
impacted by the rule. EPA has not prepared such a plan because small
governments would not be significantly or uniquely impacted by the
rule.

D. Reporting and Recordkeeping Requirements

The information collection requirements in this proposed rule have
been submitted for approval to the Office of Management and Budget
(OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. An
Information Collection Request (ICR) document has been prepared by EPA
(ICR No. 1761.01) and a copy may be obtained from Sandy Farmer,
Information Policy Branch, EPA, 401 M St., SW (Mail Code 2136),
Washington, DC 20460 or by calling (202) 260-2740.
The proposed information collection would be conducted to support
the averaging, banking and trading provisions included in the National
LEV program. These averaging, banking and trading provisions would give
automobile manufacturers a measure of flexibility in meeting the fleet
average NMOG standards and the five-percent cap on Tier 1 vehicles and
TLEVs in the OTR. EPA would use the reported data to calculate credits
and debits and otherwise ensure compliance with the applicable
production levels. When a manufacturer has opted into the voluntary
National LEV program, reporting would be mandatory as per the proposed
regulations included in this rulemaking. This rulemaking would not
change the requirements regarding confidentiality claims for submitted
information, which are generally set out in 40 CFR part 2.
The information collection burden associated with this rule
(testing, recordkeeping and reporting requirements) is estimated to
average 183.3 hours annually for a typical manufacturer. It is expected
that approximately 60 manufacturers will provide an annual report to
EPA. However, the hours spent annually on information collection
activities by a given manufacturer depends upon manufacturer-specific
variables, such as the number of engine families, production changes,
emissions defects, and so forth. The burden estimate includes such
things as reviewing instructions, searching existing data sources,
setting up and maintaining equipment, gathering and maintaining data,
performing analyses, and reviewing and submitting information.
This estimate also includes the time needed to: review
instructions; develop, acquire, install, and utilize technology and
systems for the purposes of collecting, validating, and verifying
information, processing and maintaining information, and disclosing and
providing information; adjust the existing ways to comply with any
previously applicable instructions and requirements; train personnel to
be able to respond to a collection of information; search data sources;
complete and review the collection of information; and transmit or
otherwise disclose the information.
An Agency may not conduct or sponsor, and a person is not required
to respond to a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations are listed in 40 CFR Part 9.
Comments are requested on the Agency's need for this information,
the accuracy of the provided burden estimates, and any suggested
methods for minimizing respondent burden, including through the use of
automated collection techniques. Send comments on the ICR to the
Director, OPPE Regulatory Information Division; U.S. Environmental
Protection Agency (2136); 401 M St., S.W., Washington, D.C. 20460; and
to the Office of Information and Regulatory Affairs, Office of
Management and Budget, 725 17th St., N.W., Washington, D.C. 20503,
marked ``Attention: Desk Officer for EPA.'' Include the ICR number in
any correspondence. Since OMB is required to make a decision concerning
the ICR between 30 and 60 days after October 10, 1995, a comment to OMB
is best assured of having its full effect if OMB receives it by
November 9, 1995. The final rule will respond to any OMB or public
comments on the information collection requirements contained in this
proposal.

List of Subjects

40 CFR Part 51

Administrative practice and procedure, Air pollution control,
Environmental protection, Carbon monoxide, Intergovernmental relations,
Nitrogen dioxide, Ozone, Particulate matter, Reporting and
recordkeeping requirements, Transportation, Volatile organic compounds.

40 CFR Part 85

Confidential business information, Imports, Labeling, Motor vehicle
pollution, Reporting and recordkeeping requirements, Research,
Warranties.

40 CFR Part 86

Administrative practice and procedure, Confidential Business
Information, Labeling, Motor vehicle pollution, Reporting and
recordkeeping requirements.
Dated: September 27, 1995.
Carol M. Browner,
Administrator.

For the reasons set out in the preamble, title 40 chapter I of the
Code of Federal Regulations is proposed to be amended as follows:

PART 51--REQUIREMENTS FOR PREPARATION, ADOPTION, AND SUBMITTAL OF
IMPLEMENTATION PLANS

1. The authority citation for part 51 continues to read as follows:

Authority: 42 U.S.C. 7401-7671q.

Subpart G--[Amended]

2. Section 51.121 is proposed to be added to subpart G, to read as
follows:

Sec. 51.121 National LEV program as alternative to OTC LEV.

(a) The voluntary national low emission vehicle (National LEV or
NLEV) program for the control of emissions from new motor vehicles
described in 40 CFR part 86, subpart R, is an acceptable alternative
for OTC LEV. If EPA finds that the NLEV program is in effect, then the
inadequacy of State Implementation Plans found in Sec. 51.120(a) shall
be

[[Page 52769]]
deemed cured until such time as the Administrator determines that the
NLEV program is no longer in effect.
(b)(1) EPA shall find that the NLEV program is in effect if the
following conditions have been met:
(i) All manufacturers listed in paragraph (d) of this section have
lawfully opted in pursuant to 40 CFR 86.1705-97;
(ii) No manufacturer has lawfully opted out or no opt-out has
become effective pursuant to 40 CFR 86.1705-97; and
(iii) The NLEV program has not terminated pursuant to 40 CFR
86.1701-97(c).
(2) On or before [date 60 days from date of signature of final
rule], EPA shall determine whether the NLEV program is in effect, and
shall subsequently publish this determination.
(3) In determining whether the NLEV program is in effect under
paragraph (b) of this section, EPA shall consider opt-in submissions
received by [date 45 days from signature of final rule], although
subsequent opt-in submissions may be considered at the Agency's
discretion.
(4) A finding pursuant to paragraph (b)(1) of this section shall
become effective at time of promulgation.
(c) Upon either a manufacturer's opt-out that has become effective
pursuant to 40 CFR 86.1705-97, or entry into the market by a motor
vehicle manufacturer not listed in paragraph (d) of this section, EPA
may reevaluate whether the NLEV program is still in effect for purposes
of curing the Sec. 51.120(a) State Implementation Plan inadequacy. If
EPA determines that the NLEV program is no longer in effect, the
inadequacy of State Implementation Plans found in Sec. 51.120(a) would
no longer be deemed cured.
(d) List of manufacturers of light-duty vehicles and light-duty
trucks:

Audi
Baker Equipment
BMW of North America
Chrysler Corporation
Diamond Star Motors
Ferrari
Fiat Auto S.p.A.
Ford Motor Company
Fuji Heavy Industries Ltd.
General Motors Corporation
Grumman Allied Industries
American Honda Motor Company, Inc.
Hyundai Motor Corporation
Isis Imports Ltd.
Isuzu Motors Ltd.
Jaguar Cars Inc.
Kia Motors Corporation
Lamborghini
Lotus Cars Ltd.
Mazda Motor Corporation
Mercedes-Benz of North America, Inc.
Mitsubishi Motors Australia Ltd.
Mitsubishi Motors Corporation
New United Motors Manufacturing, Inc.
Nissan Motor Company, Ltd.
Panoz Auto-Development Corporation
Dr.Ing.H.C.Porsche AG
Rolls-Royce Motor Cars Ltd.
Rover Group Ltd.
Saab
American Suzuki Motor Corporation
Toyota Motor Corporation
Volkswagen of America, Inc.
Volvo Cars of North America, Inc.

PART 85--CONTROL OF AIR POLLUTION FROM MOTOR VEHICLES AND MOTOR
VEHICLE ENGINES

3. The authority citation for part 85 is revised to read as
follows:

Authority: 42 U.S.C. 7521, 7522, 7524, 7525, 7541, 7542, 7546,
and 7601(a).

Subpart P--[Amended]

4. Section 85.1505 is proposed to be amended by revising paragraph
(b) to read as follows:

Sec. 85.1505 Final admission of certified vehicles.

* * * * *
(b) EPA approval for final admission of a vehicle or engine under
this section shall be presumed not to have been granted if a vehicle
has not been properly modified to be in conformity in all material
respects with the description in the application for certification or
has not complied with the provisions of paragraph (a)(2) of this
section or its final FTP results, adjusted by the deterioration factor,
if applicable, do not comply with applicable emission standards. The
emissions standards of 40 CFR part 86, subpart R, may be considered
applicable emission standards at the option of the ICI, except that
emissions averaging, banking and trading under 40 CFR part 86, subpart
R, are prohibited.
* * * * *
5. Section 85.1509 is proposed to be amended by revising paragraph
(h) to read as follows:

Sec. 85.1509 Final admission of modification and test vehicles.

* * * * *
(h) EPA approval for final admission of a vehicle or engine under
this section shall be presumed not to have been granted if a vehicle's
final FTP results, adjusted by the deterioration factor, if applicable,
do not comply with applicable emission standards. The emissions
standards of 40 CFR part 86, subpart R, may be considered applicable
emissions standards at the option of the ICI, except that emissions
averaging, banking and trading under 40 CFR part 86, subpart R, are
prohibited.
* * * * *

PART 86--CONTROL OF AIR POLLUTION FROM NEW AND IN-USE MOTOR
VEHICLES AND NEW AND IN-USE MOTOR VEHICLE ENGINES: CERTIFICATION
AND TEST PROCEDURES

6. The authority citation for part 86 continues to read as follows:

Authority: Secs. 202, 203, 205, 206, 207, 208, 215, 216, 217,
and 301(a), Clean Air Act, as amended (42 U.S.C. 7521, 7522, 7524,
7525, 7541, 7542, 7549, 7550, 7552, and 7601(a)).

7. Section 86.1 is proposed to be amended by revising the entry for
ASTM E29-90 in the table in paragraph (b)(1) and by adding paragraph
(b)(5) to read as follows:

Sec. 86.1 Reference materials.

* * * * *
(b) * * *
(1) * * *

------------------------------------------------------------------------
Document no. and name 40 CFR part 85 reference
------------------------------------------------------------------------

* * * *
*
ASTM E29-90, Standard Practice for 89.609-84; 86.609-96; 86.609-97;
Using Significant Digits in Test 86.609-98; 86.1009-84; 86.1009-96;
Data to Determine Conformance with 86.1442; 86.1708-97; 86.1709-97;
Specifications. 86.1710-97
------------------------------------------------------------------------

* * * * *
(5) California Air Resources Board Test Procedures. The following
table sets forth material from Title 13, California Code of
Regulations, Sections 1900-2317, as amended by California Air Resources
Board Resolution 94-67 and published in California Air Resources Board
mail out #95-03'' which has been incorporated by reference. The first
column lists the number and name of the material. The second column
lists the section(s) of this part, other than Sec. 86.1, in which the
material is referenced. The second column is presented for information
only and may not be all-inclusive.

[[Page 52770]]
------------------------------------------------------------------------
Document no. and name 40 CFR part 86 reference
------------------------------------------------------------------------
State of California; Air Resources 86.1702-97, 86.1703-97, 86.1708-97,
Board: California Exhaust Emission 86.1709-97, 86.1713-97, 86.1716-
Standards and Test Procedures for 97, 86.1721-97, 86.1723-97,
1988 and Subsequent Model 86.1724-97, 86.1725-97, 86.1726-
Passenger Cars, Light-Duty Trucks, 97, 86.1728-97, 86.1734-97,
and Medium-Duty Vehicles, as 86.1738-97, 86.1739-97, 86.1771-
amended September 22, 1993. 97, 86.1772-97, 86.1773-97,
86.1775-97, 86.1776-97, 86.1777-97
State of California; Air Resources 86.1735-97
Board: California Motor Vehicle
Emission Control Label
Specifications.
State of California; Air Resources 86.1702-97, 86.1708-97, 86.1709-97,
Board: California Non-Methane 86.1772-97, 86.1774-97, 86.1775-
Organic Gas Test Procedures. 97, 86.1776-97
State of California; Air Resources 86.1717-97
Board: Amendments to Regulations
Regarding On-Board Diagnostic
System Requirements for 1994 and
Later Passenger Cars, Light-Duty
Trucks, and Medium-Duty Vehicles
and Engines (OBD II).
------------------------------------------------------------------------

Subpart A--[Amended]

8. Section 86.090-2 is proposed to be amended by revising the
definition for ``Flexible fuel vehicle (or engine)'' and adding a new
definition in alphabetical order for ``Dual fuel vehicle (or engine),''
to read as follows:

Sec. 86.090-2 Definitions.

* * * * *
Dual fuel vehicle (or engine) means any motor vehicle (or motor
vehicle engine) engineered and designed to be operated on two different
fuels, but not on a mixture of fuels.
* * * * *
Flexible fuel vehicle (or engine) means any motor vehicle (or motor
vehicle engine) engineered and designed to be operated on any mixture
of two or more different fuels.
* * * * *
9. A new Sec. 86.097-1 is proposed to be added to subpart A to read
as follows:

Sec. 86.097-1 General applicability.

Section 86.097-1 includes text that specifies requirements that
differ from those specified in Sec. 86.094-1. Where a paragraph in
Sec. 86.094-1 is identical and applicable to Sec. 86.097-1, this may be
indicated by specifying the corresponding paragraph and the statement
``[Reserved]. For guidance see Sec. 86.094-1.''
(a) through (b) [Reserved]. For guidance see Sec. 86.094-1.
(c) National Low Emission Vehicle Program for light-duty vehicles
and light light-duty trucks. A manufacturer may elect to certify 1997
and later model year light-duty vehicles and light light-duty trucks to
the provisions of the National Low Emission Vehicle Program contained
in subpart R of this part. Subpart R of this part is applicable only to
those manufacturers that opt into the National Low Emission Vehicle
Program, under the provisions of that subpart. All provisions of this
subpart A are applicable to vehicles certified pursuant to subpart R of
this part, except as specifically noted in subpart R of this part.
(d) [Reserved].
(e) through (f) [Reserved]. For guidance see Sec. 86.094-1.

Subpart B--[Amended]

10. Section 86.101 is proposed to be amended by adding a paragraph
(c) to read as follows:

Sec. 86.101 General applicability.

* * * * *
(c) National Low Emission Vehicle Program for light-duty vehicles
and light light-duty trucks. A manufacturer may elect to certify 1997
and later model year light-duty vehicles and light light-duty trucks to
the provisions of the National Low Emission Vehicle Program contained
in subpart R of this part. Subpart R of this part is applicable only to
those manufacturers that opt into the National Low Emission Vehicle
Program, under the provisions of subpart R of this part. All provisions
of this subpart B are applicable to vehicles certified pursuant to
subpart R of this part, except as specifically noted in subpart R of
this part.

Subpart G--[Amended]

11. Section 86.602-97 is proposed to be added to subpart G to read
as follows:

Sec. 86.602-97 Definitions.

Section 86.602-97 includes text that specifies requirements that
differ from those specified in Sec. 86.602-84. Where a paragraph in
Sec. 86.602-84 is identical and applicable to Sec. 86.602-97, this may
be indicated by specifying the corresponding paragraph and the
statement ``[Reserved]. For guidance see Sec. 86.602-84.''
(a) through (b)(8) [Reserved]. For guidance see Sec. 86.602-84.
(b)(9) Executive Officer means the Executive Officer of the
California Air Resources Board or his or her authorized representative.
(10) Executive Order means the document the Executive Officer
grants a manufacturer for an engine family that certifies the
manufacturer has verified the engine family complies with all
applicable standards and requirements pursuant to Title 13 of the
California Code of Regulations.
(11) 50-state engine family means an engine family that meets both
federal and California Air Resources Board motor vehicle emission
control regulations and has received a federal certificate of
conformity as well as an Executive Order.
12. Section 86.602-98 is proposed to be amended by adding
paragraphs (b)(9) through (b)(11) to read as follows:

Sec. 86.602-98 Definitions.

* * * * *
(b) * * *
(9) Executive Officer means the Executive Officer of the California
Air Resources Board or his or her authorized representative.
(10) Executive Order means the document the Executive Officer
grants a manufacturer for an engine family that certifies the
manufacturer has verified the engine family complies with all
applicable standards and requirements pursuant to Title 13 of the
California Code of Regulations.
(11) 50-state engine family means an engine family that meets both
federal and California Air Resources Board motor vehicle emission
control regulations and has received a federal certificate of
conformity as well as an Executive Order.
13. Section 86.603-97 is proposed to be added to subpart G to read
as follows:

Sec. 86.603-97 Test orders.

Section 86.603-97 includes text that specifies requirements that
differ from those specified in Sec. 86.603-88. Where a paragraph in
Sec. 86.603-88 is identical and applicable to Sec. 86.603-97, this may
be indicated by specifying the corresponding paragraph and the

[[Page 52771]]
statement ``[Reserved]. For guidance see Sec. 86.603-88.''
(a) through (e) [Reserved]. For guidance see Sec. 86.603-88.
(f) In the event evidence exists indicating an engine family is in
noncompliance, the Administrator may, in addition to other powers
provided by this section, issue a test order specifying the engine
family the manufacturer is required to test.
14. Section 86.603-98 is proposed to be amended by adding paragraph
(f) to read as follows:

Sec. 86.603-98 Test orders.

* * * * *
(f) In the event evidence exists indicating an engine family is in
noncompliance, the Administrator may, in addition to other powers
provided by this section, issue a test order specifying the engine
family the manufacturer is required to test.
15. Section 86.608-97 is proposed to be added to subpart G to read
as follows:

Sec. 86.608-97 Test procedures.

Section 86.608-97 includes text that specifies requirements that
differ from those specified in Secs. 86.608-90 and 86.608-96. Where a
paragraph in Sec. 86.608-90 or Sec. 86.608-96 is identical and
applicable to Sec. 86.608-97, this may be indicated by specifying the
corresponding paragraph and the statement ``[Reserved]. For guidance
see Sec. 86.608-90,'' or ``[Reserved]. For guidance see Sec. 86.608-
96.''
(a) The prescribed test procedures are the Federal Test Procedure,
as described in subpart B and/or subpart R of this part, whichever is
applicable, the cold temperature CO test procedure as described in
subpart C of this part, and the Certification Short Test procedure as
described in subpart O of this part. For purposes of Selective
Enforcement Audit testing, the manufacturer shall not be required to
perform any of the test procedures in subpart B of this part relating
to evaporative emission testing, except as specified in paragraph
(a)(2) of this section.
(1) [Reserved]. For guidance see Sec. 86.608-96.
(2) The following exceptions to the test procedures in subpart B
and/or subpart R of this part are applicable to Selective Enforcement
Audit testing:
(i) For mileage accumulation, the manufacturer may use test fuel
meeting the specifications for mileage and service accumulation fuels
of Sec. 86.113-94, or for vehicles certified to the National LEV
standards, the specifications of Sec. 86.1771-97. Otherwise, the
manufacturer may use fuels other than those specified in this section
only with the advance approval of the Administrator.
(ii) [Reserved]. For guidance see Sec. 86.608-90.
(iii) The manufacturer may perform additional preconditioning on
Selective Enforcement Audit test vehicles other than the
preconditioning specified in Sec. 86.132-96, or Sec. 86.1773-97 for
vehicles certified to the National LEV standards, only if the
additional preconditioning had been performed on certification test
vehicles of the same configuration.
(a)(2)(iv) through (a)(2)(vii) [Reserved]. For guidance see
Sec. 86.608-90.
(viii) The manufacturer need not comply with Sec. 86.142-90, or
Sec. 86.1775-97, since the records required therein are provided under
other provisions of this subpart G.
(a)(2)(ix) through (a)(3) [Reserved]. For guidance see Sec. 86.608-
90.
(a)(4) [Reserved]. For guidance see Sec. 86.608-96.
(b) through (i) [Reserved]. For guidance see Sec. 86.608-90.
16. Section 86.608-98 is proposed to be amended by revising
paragraphs (a) introductory text, (a)(2) introductory text, (a)(2)(i),
(a)(2)(iii), and (a)(2)(viii) to read as follows:

Sec. 86.608-98 Test procedures.

(a) The prescribed test procedures are the Federal Test Procedure,
as described in subpart B and/or subpart R of this part, whichever is
applicable, the cold temperature CO test procedure as described in
subpart C of this part, and the Certification Short Test procedure as
described in subpart O of this part. For purposes of Selective
Enforcement Audit testing, the manufacturer shall not be required to
perform any of the test procedures in subpart B of this part relating
to evaporative emission testing, other than refueling emissions
testing, except as specified in paragraph (a)(2) of this section.
* * * * *
(2) The following exceptions to the test procedures in subpart B
and/or subpart R of this part are applicable to Selective Enforcement
Audit testing:
(i) For mileage accumulation, the manufacturer may use test fuel
meeting the specifications for mileage and service accumulation fuels
of Sec. 86.113-94, or for vehicles certified to the National LEV
standards, the specifications of Sec. 86.1771-97. Otherwise, the
manufacturer may use fuels other than those specified in this section
only with the advance approval of the Administrator.
* * * * *
(iii) The manufacturer may perform additional preconditioning on
Selective Enforcement Audit test vehicles other than the
preconditioning specified in Sec. 86.132-96, or Sec. 86.1773-97, for
vehicles certified to the National LEV standards only if the additional
preconditioning was performed on certification test vehicles of the
same configuration.
* * * * *
(viii) The manufacturer need not comply with Sec. 86.142-90,
Sec. 86.155-98, or Sec. 86.1775-97, since the records required therein
are provided under other provisions of this subpart G.
* * * * *
17. Section 86.609-97 is proposed to be added to subpart G to read
as follows:

Sec. 86.609-97 Calculation and reporting of test results.

Section 86.609-97 includes text that specifies requirements that
differ from those specified in Secs. 86.609-84 and 86.609-96. Where a
paragraph in Sec. 86.609-84 or Sec. 86.609-96 is identical and
applicable to Sec. 86.609-97, this may be indicated by specifying the
corresponding paragraph and the statement ``[Reserved]. For guidance
see Sec. 86.609-84,'' or ``[Reserved]. For guidance see Sec. 86.609-
96.''
(a) through (b) [Reserved]. For guidance see Sec. 86.609-96.
(c) Final deteriorated test results--(1) For each test vehicle. The
final deteriorated test results for each test vehicle tested according
to subpart B, subpart C, or subpart R of this part are calculated by
first multiplying or adding, as appropriate, the final test results by
or to the appropriate deterioration factor derived from the
certification process for the engine or evaporative/refueling family
and model year to which the selected configuration belongs, and then by
multiplying the appropriate reactivity adjustment factor, if
applicable, and rounding to the same number of decimal places contained
in the applicable emission standard. Rounding is done in accordance
with the Rounding-Off Method specified in ASTM E29-90, Standard
Practice for Using Significant Digits in Test Data to Determine
Conformance with Specifications. This procedure has been incorporated
by reference (see Sec. 86.1). For the purpose of paragraph (c) of this
section, if a multiplicative deterioration factor as computed during
the certification process is less than one, that deterioration factor
is one. If an additive deterioration factor as computed during the
certification process is less than zero, that deterioration factor will
be zero.

[[Page 52772]]

(c)(2) [Reserved]. For guidance see Sec. 86.609-96.
(d) [Reserved]. For guidance see Sec. 86.609-84.
18. Section 86.609-98 is proposed to be amended by revising
paragraph (c)(1) to read as follows:

Sec. 86.609-98 Calculation and reporting of test results.

* * * * *
(c) Final deteriorated test results--(1) For each test vehicle. The
final deteriorated test results for each light-duty vehicle tested for
exhaust emissions and/or refueling emissions according to subpart B,
subpart C, or subpart R of this part are calculated by first
multiplying or adding, as appropriate, the final test results by or to
the appropriate deterioration factor derived from the certification
process for the engine or evaporative/refueling family and model year
to which the selected configuration belongs, and then by multiplying
the appropriate reactivity adjustment factor, if applicable, and
rounding to the same number of decimal places contained in the
applicable emission standard. Rounding is done in accordance with the
Rounding-Off Method specified in ASTM E29-90, Standard Practice for
Using Significant Digits in Test Data to Determine Conformance with
Specifications. This procedure has been incorporated by reference (see
Sec. 86.1). For the purpose of paragraph (c) of this section, if a
multiplicative deterioration factor as computed during the
certification process is less than one, that deterioration factor is
one. If an additive deterioration factor as computed during the
certification process is less than zero, that deterioration factor will
be zero.
* * * * *
19. Section 86.612-97 is proposed to be added to subpart G to read
as follows:

Sec. 86.612-97 Suspension and revocation of certificates of
conformity.

Section 86.612-97 includes text that specifies requirements that
differ from those specified in Sec. 86.612-84. Where a paragraph in
Sec. 86.612-84 is identical and applicable to Sec. 86.612-97, this may
be indicated by specifying the corresponding paragraph and the
statement ``[Reserved]. For guidance see Sec. 86.612-84.''
(a) The certificate of conformity is immediately suspended with
respect to any vehicle failing pursuant to Sec. 86.610-96(b) effective
from the time that testing of that vehicle is completed.
(b)(1) Selective Enforcement Audits. The Administrator may suspend
the certificate of conformity for a configuration that does not pass a
Selective Enforcement Audit pursuant to Sec. 86.610-96(c) based on the
first test, or all tests, conducted on each vehicle. This suspension
will not occur before ten days after failure to pass the audit.
(2) California Assembly-Line Quality Audit Testing. The
Administrator may suspend the certificate of conformity for a 50-state
family or configuration that the Executive Officer has determined to be
in non-compliance with one or more applicable pollutants based on the
``California Assembly-Line Quality Audit Test Procedures for 1983 and
Subsequent Model-Year Passenger Cars, Light-Duty Trucks and Medium-Duty
Vehicles,'' if the results of vehicle testing conducted by the
manufacturer do not meet the acceptable quality level criteria pursuant
to Sec. 86.610-96. The ``California Assembly-Line Quality Audit Test
Procedures for 1983 and Subsequent Model-Year Passenger Cars, Light-
Duty Trucks and Medium-Duty Vehicles'' are incorporated by reference.
See Sec. 86.1. A vehicle that is tested by the manufacturer pursuant to
California Assembly-Line Quality Audit Test Procedures and determined
to be a failing vehicle will be treated as a failed vehicle described
in Sec. 86.610-96(b), unless the manufacturer can show that the vehicle
would not be considered a failed vehicle using the test procedures
specified in Sec. 86.608. This suspension will not occur before ten
days after the manufacturer receives written notification that the
Administrator has determined the 50-state family or configuration
exceeds one or more applicable federal standards.
(c)(1) Selective Enforcement Audits. If the results of vehicle
testing pursuant to the requirements of this subpart indicates the
vehicles of a particular configuration produced at more than one plant
do not conform to the regulations with respect to which the certificate
of conformity was issued, the Administrator may suspend the certificate
of conformity with respect to that configuration for vehicles
manufactured by the manufacturer in other plants of the manufacturer.
(2) California Assembly-Line Quality Audit Testing. If the
Administrator determines that the results of vehicle testing pursuant
to the ``California Assembly-Line Quality Audit Test Procedures for
1983 and Subsequent Model-Year Passenger Cars, Light-Duty Trucks and
Medium-Duty Vehicles'' indicate the vehicles of a particular 50-state
engine family or configuration produced at more than one plant do not
conform to applicable federal regulations with respect to which a
certificate of conformity was issued, the Administrator may suspend,
pursuant to paragraph (b)(2) of this section, the certificate of
conformity with respect to that engine family or configuration for
vehicles manufactured in other plants of the manufacturer. The
``California Assembly-Line Quality Audit Test Procedures for 1983 and
Subsequent Model-Year Passenger Cars, Light-Duty Trucks and Medium-Duty
Vehicles'' are incorporated by reference. See Sec. 86.1.
(d) The Administrator will notify the manufacturer in writing of
any suspension or revocation of a certificate of conformity in whole or
in part: Except, that the certificate of conformity is immediately
suspended with respect to any vehicle failing pursuant to Sec. 86.610-
96(b) and as provided for in paragraph (a) of this section.
(e)(1) Selective Enforcement Audits. The Administrator may revoke a
certificate of conformity for a configuration when the certificate has
been suspended pursuant to paragraph (b)(1) or (c)(1) of this section
if the proposed remedy for the nonconformity, as reported by the
manufacturer to the Administrator, is one requiring a design change(s)
to the engine and/or emission control system as described in the
Application for Certification of the affected configuration.
(2) California Assembly-Line Quality Audit Testing. The
Administrator may revoke a certificate of conformity for an engine
family or configuration when the certificate has been suspended
pursuant to paragraph (b)(2) or (c)(2) of this section if the proposed
remedy for the nonconformity, as reported by the manufacturer to the
Executive Officer and/or the Administrator, is one requiring a design
change(s) to the engine and/or emission control system as described in
the Application for Certification of the affected engine family or
configuration.
(f) Once a certificate has been suspended for a failed vehicle as
provided for in paragraph (a) of this section, the manufacturer must
take the following actions:
(1) Before the certificate is reinstated for that failed vehicle--
(i) Remedy the nonconformity; and
(ii) Demonstrate that the vehicle's final deteriorated test results
conform to the applicable emission standards or family particulate
emission limits, as defined in this part 86 by retesting the vehicle in
accordance with the requirements of this subpart.
(2) Submit a written report to the Administrator within thirty days
after successful completion of testing on the failed vehicle, which
contains a description of the remedy and test results for the vehicle
in addition to

[[Page 52773]]
other information that may be required by this subpart.
(g) Once a certificate has been suspended pursuant to paragraph (b)
or (c) of this section, the manufacturer must take the following
actions before the Administrator will consider reinstating such
certificate:
(1) Submit a written report to the Administrator which identifies
the reason for the noncompliance of the vehicles, describes the
proposed remedy, including a description of any proposed quality
control and/or quality assurance measures to be taken by the
manufacturer to prevent the future occurrence of the problem, and
states the date on which the remedies will be implemented.
(2) Demonstrate that the engine family or configuration for which
the certificate of conformity has been suspended does in fact comply
with the requirements of this subpart by testing vehicles selected from
normal production runs of that engine family or configuration at the
plant(s) or the facilities specified by the Administrator, in
accordance with:
(i) The conditions specified in the initial test order pursuant to
Sec. 86.603-97 for a configuration suspended pursuant to paragraph
(b)(1) or (c)(1) of this section; or
(ii) The conditions specified in a test order pursuant to
Sec. 86.603-97 for an engine family or configuration suspended pursuant
to paragraph (b)(2) or (c)(2) of this section.
(3) If the Administrator has not revoked the certificate pursuant
to paragraph (e) of this section and if the manufacturer elects to
continue testing individual vehicles after suspension of a certificate,
the certificate is reinstated for any vehicle actually determined to
have its final deteriorated test results in conformance with the
applicable standards through testing in accordance with the applicable
test procedures.
(4) In cases where the Administrator has suspended a certificate of
conformity for a 50-state engine family or configuration pursuant to
paragraph (b)(2) or (c)(2) of this section, manufacturers may request
in writing that the Administrator reinstate the certificate of an
engine family or configuration when, in lieu of the actions described
in (g) (1) and (2) of this section, the manufacturer has agreed to
comply with section 2108, section 2109, and/or section 2110 of Title
13, Division 3, of the California Code of Regulations, provided an
Executive Order is in place for the engine family or configuration.
Title 13, Division 3, of the California Code of Regulations is
incorporated by reference. See Sec. 86.1.
(h) Once a certificate for a failed engine family or configuration
has been revoked under paragraph (e) (1) or (2) of this section and the
manufacturer desires to introduce into commerce a modified version of
that engine family or configuration, the following actions will be
taken before the Administrator may issue a certificate for the new
engine family or configuration:
(1) If the Administrator determines that the proposed change(s) in
vehicle design may have an effect on emission performance deterioration
and/or fuel economy, he/she shall notify the manufacturer within five
working days after receipt of the report in paragraph (g)(1) of this
section or after receipt of information pursuant to paragraph (g)(4) of
this section whether subsequent testing under this subpart will be
sufficient to evaluate the proposed change(s) or whether additional
testing will be required.
(2) After implementing the change(s) intended to remedy the
nonconformity, the manufacturer shall demonstrate:
(i) If the certificate was revoked pursuant to paragraph (e)(1) of
this section, that the modified vehicle configuration does in fact
conform with the requirements of this subpart by testing vehicles
selected from normal production runs of that modified vehicle
configuration in accordance with the conditions specified in the
initial test order pursuant to Sec. 86.603-97. The Administrator shall
consider this testing to satisfy the testing requirements of
Sec. 86.079-32 or Sec. 86.079-33 if the Administrator had so notified
the manufacturer. If the subsequent testing results in a pass decision
pursuant to the criteria in Sec. 86.610-96(c), the Administrator shall
reissue or amend the certificate, if necessary, to include that
configuration: Provided, that the manufacturer has satisfied the
testing requirements specified in paragraph (h)(1) of this section. If
the subsequent audit results in a fail decision pursuant to the
criteria in Sec. 86.610-96(c), the revocation remains in effect. Any
design change approvals under this subpart are limited to the
modification of the configuration specified by the test order.
(ii) If the certificate was revoked pursuant to paragraph (e)(2) of
this section, that the modified engine family or configuration does in
fact conform with the requirements of this subpart by testing vehicles
selected from normal production runs of that modified engine family or
configuration in accordance with the conditions specified in a test
order pursuant to Sec. 86.603-97. The Administrator shall consider this
testing to satisfy the testing requirements of Sec. 86.079-32 or
Sec. 86.079-33 if the Administrator had so notified the manufacturer.
If the subsequent testing results in a pass decision pursuant to
Sec. 86.610-96(c), the Administrator shall reissue or amend the
certificate as necessary: Provided, that the manufacturer has satisfied
the testing requirements specified in paragraph (h)(1) of this section.
If the subsequent testing results in a fail decision pursuant to
Sec. 86.610-96(c), the revocation remains in effect. Any design change
approvals under this subpart are limited to the modification of engine
family or configuration specified by the test order.
(3) In cases where the Administrator has revoked a certificate of
conformity for a 50-state engine family or configuration pursuant to
paragraph (e)(2) of this section, manufacturers may request in writing
that the Administrator reissue the certificate of an engine family or
configuration when, in lieu of the actions described in paragraphs
(h)(1) and (2) of this section, the manufacturer has complied with
section 2108, section 2109, and/or section 2110 of Title 13, Division
3, of the California Code of Regulations, provided an Executive Order
is in place for the engine family or configuration. Title 13, Division
3, of the California Code of Regulations is incorporated by reference.
See Sec. 86.1.
(i) and (j) [Reserved]. For guidance see Sec. 86.612-84.
(k) To permit a manufacturer to avoid storing non-test vehicles
when conducting testing of an engine family or configuration subsequent
to suspension or revocation of the certificate of conformity for that
engine family or configuration pursuant to paragraph (b), (c), or (e)
of this section, the manufacturer may request that the Administrator
conditionally reinstate the certificate for that engine family or
configuration. The Administrator may reinstate the certificate subject
to the condition that the manufacturer consents to recall all vehicles
of that engine family or configuration produced from the time the
certificate is conditionally reinstated if the engine family or
configuration fails the subsequent testing and to remedy any
nonconformity at no expense to the owner.
20. Section 86.614-84 is proposed to be amended by revising
paragraph (c)(2)(ii)(A) to read as follows:

Sec. 86.614-84 Hearings on suspension, revocation, and voiding of
certificates of conformity.

* * * * *
(c) * * *

[[Page 52774]]

(2) * * *
(ii) * * *
(A) Whether tests were conducted in accordance with applicable
regulations;
* * * * *

Subpart K--[Amended]

21. Section 86.1002-97 is proposed to be added to subpart K to read
as follows:

Sec. 86.1002-97 Definitions.

(a) The definitions in this section apply to this subpart.
(b) As used in this subpart, all terms not defined in this section
have the meaning given them in the Act.
Acceptable quality level (AQL) means the maximum percentage of
failing engines or vehicles, that for purposes of sampling inspection,
can be considered satisfactory as a process average.
Axle ratio means all ratios within <3% of the axle ratio specified
in the configuration in the test order.
Compliance level means an emission level determined during a
Production Compliance Audit pursuant to subpart L of this part.
Configuration means a subclassification, if any, of a heavy-duty
engine family for which a separate projected sales figure is listed in
the manufacturer's Application for Certification and which can be
described on the basis of emission control system, governed speed,
injector size, engine calibration, and other parameters which may be
designated by the Administrator, or a subclassification of a light-duty
truck engine family/emission control system combination on the basis of
engine code, inertia weight class, transmission type and gear rations,
axle ratio, and other parameters which may be designated by the
Administrator.
Executive Officer means the Executive Officer of the California Air
Resources Board or his or her authorized representative.
Executive Order means the document the Executive Officer grants a
manufacturer for an engine family that certifies the manufacturer has
verified the engine family complies with all applicable standards and
requirements pursuant to Title 13 of the California Code of
Regulations.
50-state engine family means an engine family that meets both
federal and California Air Resources Board motor vehicle emission
control regulations and has received a federal certificate of
conformity as well as an Executive Order.
Inspection criteria means the pass and fail numbers associated with
a particular sampling plan.
Test engine means an engine in a test sample.
Test sample means the collection of vehicles or engines of the same
configuration which have been drawn from the population of engines or
vehicles of that configuration and which will receive exhaust emission
testing.
Test vehicle means a vehicle in a test sample.
22. Section 86.1002-2001 is proposed to be amended by adding
paragraphs (b)(8) through (b)(11) to read as follows:

Sec. 86.1002-2001 Definitions.

* * * * *
(b) * * *
(8) Axle ratio means all ratios within <3% of the axle ratio
specified in the configuration in the test order.
(9) Executive Officer means the Executive Officer of the California
Air Resources Board or his or her authorized representative.
(10) Executive Order means the document the Executive Officer
grants a manufacturer for an engine family that certifies the
manufacturer has verified the engine family complies with all
applicable standards and requirements pursuant to Title 13 of the
California Code of Regulations.
(11) 50-state engine family means an engine family that meets both
federal and California Air Resources Board motor vehicle emission
control regulations and has received a federal certificate of
conformity as well as an Executive Order.
23. Section 86.1003-97 is proposed to be added to subpart K to read
as follows:

Sec. 86.1003-97 Test orders.

Section 86.1003-97 includes text that specifies requirements that
differ from those specified in Sec. 86.1003-90. Where a paragraph in
Sec. 86.1003-90 is identical and applicable to Sec. 86.1003-97, this
may be indicated by specifying the corresponding paragraph and the
statement ``[Reserved]. For guidance see Sec. 86.1003-90.''
(a) through (f) [Reserved]. For guidance see Sec. 86.1003-90.
(g) In the event evidence exists indicating an engine family is in
noncompliance, the Administrator may, in addition to other powers
provided by this section, issue a test order specifying the engine
family the manufacturer is required to test.
24. Section 86.1003-2001 is proposed to be amended by adding
paragraph (g) to read as follows:

Sec. 86.1003-2001 Test orders.

* * * * *
(g) In the event evidence exists indicating an engine family is in
noncompliance, the Administrator may, in addition to other powers
provided by this section, issue a test order specifying the engine
family the manufacturer is required to test.
25. Section 86.1008-97 is proposed to be added to subpart K to read
as follows:

Sec. 86.1008-97 Test procedures.

Section 86.1008-97 includes text that specifies requirements that
differ from those specified in Secs. 86.1008-90 and 86.1008-96. Where a
paragraph in Sec. 86.1008-90 or Sec. 86.1008-96 is identical and
applicable to Sec. 86.1008-97, this may be indicated by specifying the
corresponding paragraph and the statement ``[Reserved]. For guidance
see Sec. 86.1008-90,'' or ``[Reserved]. For guidance see Sec. 86.1008-
96.''
(a)(1) [Reserved]. For guidance see Sec. 86.1008-96.
(2) For light-duty trucks, the prescribed test procedures are the
Federal Test Procedure, as described in subpart B and/or subpart R of
this part, whichever is applicable, the idle CO test procedure as
described in subpart P of this part, the cold temperature CO test
procedure as described in subpart C of this part, and the Certification
Short Test procedure as described in subpart O of this part. For
purposes of Selective Enforcement Audit testing, the manufacturer shall
not be required to perform any of the test procedures in subpart B of
this part relating to evaporative emission testing, except as specified
in paragraph (a)(3) of this section. The Administrator may select and
prescribe the sequence of any Certification Short Tests. Further, the
Administrator may, on the basis of a written application by a
manufacturer, approve optional test procedures other than those in
subparts B, C, P, and O of this part for any motor vehicle which is not
susceptible to satisfactory testing using the procedures in subparts B,
C, P, and O of this part.
(3) When testing light-duty trucks the following exceptions to the
test procedures in subpart B and/or subpart R of this part are
applicable:
(i) For mileage accumulation, the manufacturer may use test fuel
meeting the specifications for mileage and service accumulation fuels
of Sec. 86.113-94 or, for vehicles certified to the National LEV
standards, the specifications of Sec. 86.1771-97. Otherwise, the
manufacturer may use fuels other than those specified in this section
only with the advance approval of the Administrator.
(ii) [Reserved]. For guidance see Sec. 86.1008-90.
(iii) The manufacturer may perform additional preconditioning on
Selective

[[Page 52775]]
Enforcement Audit test vehicles other than the preconditioning
specified in Sec. 86.132-96, or Sec. 86.1773-97 for vehicles certified
to the National LEV standards, only if the additional preconditioning
had been performed on certification test vehicles of the same
configuration.
(a)(3)(iv) through (a)(3)(vii) [Reserved]. For guidance see
Sec. 86.1008-90.
(a)(3)(viii) The manufacturer need not comply with Sec. 86.142-90
or Sec. 86.1775-97, since the records required therein are provided
under other provisions of this subpart.
(a)(3)(ix) [Reserved]. For guidance see Sec. 86.1008-90.
(a)(4) [Reserved]. For guidance see Sec. 86.1008-96.
(5) [Reserved]. For guidance see Sec. 86.1008-90.
(6) [Reserved]. For guidance see Sec. 86.1008-96.
(b) through (i) [Reserved]. For guidance see Sec. 86.1008-90.
26. Section 86.1008-2001 is proposed to be amended by revising
paragraphs (a)(2), (a)(3) introductory text, (a)(3)(i), (a)(3)(iii),
and (a)(3)(viii) to read as follows:

Sec. 86.1008-2001 Test procedures.

(a) * * *
(2) For light-duty trucks, the prescribed test procedures are the
Federal Test Procedure as described in subpart B and/or subpart R of
this part, whichever is applicable, the idle CO test procedure as
described in subpart P of this part, the cold temperature CO test
procedure as described in subpart C of this part, and the Certification
Short Test procedure as described in subpart O of this part.
(3) When testing light-duty trucks, the following exceptions to the
test procedures in subpart B and/or subpart R of this part are
applicable to Selective Enforcement Audit testing:
(i) For mileage accumulation, the manufacturer may use test fuel
meeting the specifications for mileage and service accumulation fuels
of Sec. 86.113-94 or, for vehicles certified to the National LEV
standards, the specifications of Sec. 86.1771-97. Otherwise, the
manufacturer may use fuels other than those specified in this section
only with the advance approval of the Administrator.
* * * * *
(iii) The manufacturer may perform additional preconditioning on
SEA test vehicles other than the preconditioning specified in
Sec. 86.132-96, or Sec. 86.1773-97 for vehicles certified to the
National LEV standards, only if the additional preconditioning was
performed on certification test vehicles of the same configuration.
* * * * *
(viii) The manufacturer need not comply with Sec. 86.142-90,
Sec. 86.155-98, or Sec. 86.1775-97 since the records required therein
are provided under other provisions of this subpart K.
* * * * *
27. Section 86.1009-97 is proposed to be added to subpart K to read
as follows:

Sec. 86.1009-97 Calculation and reporting of test results.

Section 86.1009-97 includes text that specifies requirements that
differ from those specified in Secs. 86.1009-84 and 86.1009-96. Where a
paragraph in Sec. 86.1009-84 or Sec. 86.1009-96 is identical and
applicable to Sec. 86.1009-97, this may be indicated by specifying the
corresponding paragraph and the statement ``[Reserved]. For guidance
see Sec. 86.1009-84,'' or ``[Reserved]. For guidance see Sec. 86.1009-
96.''
(a) and (b) [Reserved]. For guidance see Sec. 86.1009-96.
(c) Final deteriorated test results. (1) The final deteriorated
test results for each heavy-duty engine or light-duty truck tested
according to subpart B, C, D, I, N, P, or R of this part are calculated
by first multiplying or adding, as appropriate, the final test results
by or to the appropriate deterioration factor derived from the
certification process for the engine family control system combination
and model year to which the selected configuration belongs, and then by
multiplying by the appropriate reactivity adjustment factor, if
applicable. If the multiplicative deterioration factor as computed
during the certification process is less than one, that deterioration
factor will be one. If the additive deterioration factor as computed
during the certification process is less than zero, that deterioration
factor will be zero.
(c)(2) [Reserved].
(c)(3) through (c)(4) [Reserved]. For guidance see Sec. 86.1009-96.
(d) [Reserved]. For guidance see Sec. 86.1009-84.
28. Section 86.1009-2001 is proposed to be amended by revising
paragraph (c)(1) to read as follows:

Sec. 86.1009-2001 Calculation and reporting of test results.

* * * * *
(c) Final deteriorated test results. (1) The final deteriorated
test results for each light-duty truck, heavy-duty engine, or heavy-
duty vehicle tested according to subpart B, C, D, I, M, N, P, or R of
this part are calculated by first multiplying or adding, as
appropriate, the final test results by or to the appropriate
deterioration factor derived from the certification process for the
engine or evaporative/refueling family and model year to which the
selected configuration belongs, and then by multiplying by the
appropriate reactivity adjustment factor, if applicable. For the
purpose of paragraph (c) of this section, if a multiplicative
deterioration factor as computed during the certification process is
less than one, that deterioration factor will be one. If an additive
deterioration factor as computed during the certification process is
less than zero, that deterioration factor will be zero.
* * * * *
29. Section 86.1012-97 is proposed to be added to subpart K to read
as follows:

Sec. 86.1012-97 Suspension and revocation of certificates of
conformity.

Section 86.1012-97 includes text that specifies requirements that
differ from those specified in Sec. 86.1012-84. Where a paragraph in
Sec. 86.1012-84 is identical and applicable to Sec. 86.1012-97, this
may be indicated by specifying the corresponding paragraph and the
statement ``[Reserved]. For guidance see Sec. 86.1012-84.''
(a) The certificate of conformity is immediately suspended with
respect to any engine or vehicle failing pursuant to Sec. 86.1010-96(b)
effective from the time that testing of that engine or vehicle is
completed.
(b) (1) Selective Enforcement Audits. The Administrator may suspend
the certificate of conformity for a configuration that does not pass a
Selective Enforcement Audit pursuant to Sec. 86.1010-96(c) based on the
first test, or all tests, conducted on each engine or vehicle. This
suspension will not occur before ten days after failure to pass the
audit.
(2) California Assembly-Line Quality Audit Testing. The
Administrator may suspend the certificate of conformity for a 50-state
engine family or configuration that the Executive Officer has
determined to be in non-compliance with one or more applicable
pollutants based on the ``California Assembly-Line Quality Audit Test
Procedures for 1983 and Subsequent Model-Year Passenger Cars, Light-
Duty Trucks and Medium-Duty Vehicles'', if the results of vehicle
testing conducted by the manufacturer do not meet the acceptable
quality level criteria pursuant to Sec. 86.1010-96. The ``California
Assembly-Line Quality Audit Test Procedures for 1983 and Subsequent
Model-Year Passenger Cars, Light-Duty Trucks and Medium-Duty Vehicles''
are incorporated by reference. See Sec. 86.1. A vehicle that is tested
by the manufacturer and determined to be

[[Page 52776]]
a failing vehicle pursuant to California Assembly-Line Quality Audit
Test Procedures will be treated as a failed vehicle described in
Sec. 86.1010-96(b), unless the manufacturer can show that the vehicle
would not be considered a failed vehicle using the test procedures
specified in Sec. 86.1008. This suspension will not occur before ten
days after the manufacturer receives written notification that the
Administrator has determined the 50-state engine family or
configuration exceeds one or more applicable federal standards.
(c) (1) Selective Enforcement Audits. If the results of engine or
vehicle testing pursuant to the requirements of this subpart indicate
that engines or vehicles of a particular configuration produced at more
than one plant do not conform to the regulations with respect to which
the certificate of conformity was issued, the Administrator may suspend
the certificate of conformity with respect to that configuration for
engines or vehicles manufactured by the manufacturer in other plants of
the manufacturer.
(2) California Assembly-Line Quality Audit Testing. If the
Administrator determines that the results of vehicle testing pursuant
to the ``California Assembly-Line Quality Audit Test Procedures for
1983 and Subsequent Model-Year Passenger Cars, Light-Duty Trucks and
Medium-Duty Vehicles'' indicate the vehicles of a particular 50-state
engine family or configuration produced at more than one plant do not
conform to applicable regulations with respect to which a certificate
of conformity was issued, the Administrator may suspend, pursuant to
paragraph (b)(2) of this section, the certificate of conformity with
respect to that engine family or configuration for vehicles
manufactured by the manufacturer in other plants of the manufacturer.
The ``California Assembly-Line Quality Audit Test Procedures for 1983
and Subsequent Model-Year Passenger Cars, Light-Duty Trucks and Medium-
Duty Vehicles'' are incorporated by reference. See Sec. 86.1.
(d) The Administrator will notify the manufacturer in writing of
any suspension or revocation of a certificate of conformity in whole or
in part: Except, that the certificate is immediately suspended with
respect to any failed engines or vehicles as provided for in paragraph
(a) of this section.
(e) (1) Selective Enforcement Audits. The Administrator may revoke
a certificate of conformity for a configuration when the certificate
has been suspended pursuant to paragraph (b)(1) or (c)(1) of this
section if the proposed remedy for the nonconformity, as reported by
the manufacturer to the Administrator is one requiring a design
change(s) to the engine and/or emission control system as described in
the Application for Certification of the affected configuration.
(2) California Assembly-Line Quality Audit Testing. The
Administrator may revoke a certificate of conformity for an engine
family or configuration when the certificate has been suspended
pursuant to paragraph (b)(2) or (c)(2) of this section if the proposed
remedy for the nonconformity, as reported by the manufacturer to the
Executive Officer and/or the Administrator, is one requiring a design
change(s) to the engine and/or emission control system as described in
the Application for Certification of the affected engine family or
configuration.
(f) Once a certificate has been suspended for a failed engine or
vehicle as provided for in paragraph (a) of this section, the
manufacturer must take the following actions:
(1) Before the certificate is reinstated for that failed engine or
vehicle--
(i) Remedy the nonconformity; and
(ii) Demonstrate that the engine or vehicle's final deteriorated
test results conform to the applicable emission standards or family
particulate emission limits, as defined in this part 86 by retesting
the engine or vehicle in accordance with the requirements of this
subpart.
(2) Submit a written report to the Administrator within thirty days
after successful completion of testing on the failed engine or vehicle,
which contains a description of the remedy and test results for the
engine or vehicle in addition to other information that may be required
by this subpart.
(g) Once a certificate has been suspended pursuant to paragraph (b)
or (c) of this section, the manufacturer must take the following
actions before the Administrator will consider reinstating such
certificate:
(1) Submit a written report to the Administrator which identifies
the reason for the noncompliance of the vehicles, describes the
proposed remedy, including a description of any proposed quality
control and/or quality assurance measures to be taken by the
manufacturer to prevent the future occurrence of the problem, and
states the date on which the remedies will be implemented.
(2) Demonstrate that the engine family or configuration for which
the certificate of conformity has been suspended does in fact comply
with the requirements of this subpart by testing engines or vehicles
selected from normal production runs of that engine family or
configuration at the plant(s) or the facilities specified by the
Administrator, in accordance with:
(i) The conditions specified in the initial test order pursuant to
Sec. 86.1003-97 for a configuration suspended pursuant to paragraph
(b)(1) or (c)(1) of this section; or
(ii) The conditions specified in a test order pursuant to
Sec. 86.1003-97 for an engine family or configuration suspended
pursuant to paragraph (b)(2) or (c)(2) of this section.
(3) If the Administrator has not revoked the certificate pursuant
to paragraph (e) of this section and if the manufacturer elects to
continue testing individual engines or vehicles after suspension of a
certificate, the certificate is reinstated for any engine or vehicle
actually determined to have its final deteriorated test results in
conformance with the applicable standards through testing in accordance
with the applicable test procedures.
(4) In cases where the Administrator has suspended a certificate of
conformity for a 50-state engine family or configuration pursuant to
paragraph (b)(2) or (c)(2) of this section, manufacturers may request
in writing that the Administrator reinstate the certificate of an
engine family or configuration when, in lieu of the actions described
in paragraphs (g)(1) and (2) of this section, the manufacturer has
complied with section 2108, section 2109, and/or section 2110 of Title
13, Division 3, of the California Code of Regulations, provided an
Executive Order is in place for the engine family or configuration.
Title 13, Division 3, of the California Code of Regulations is
incorporated by reference. See Sec. 86.1.
(h) Once a certificate for a failed engine family or configuration
has been revoked under paragraph (e)(1) or (2) of this section and the
manufacturer desires to introduce into commerce a modified version of
that engine family or configuration the following actions will be taken
before the Administrator may issue a certificate for the new engine
family or configuration:
(1) If the Administrator determines that the proposed change(s) in
engine or vehicle design may have an effect on emission performance
deterioration and/or fuel economy, he/she shall notify the manufacturer
within 5 working days after receipt of the report in paragraph (g)(1)
of this section or after receipt of information pursuant to paragraph
(g)(4) of this section whether subsequent testing under this subpart
will be sufficient to evaluate the proposed change(s) or whether
additional testing will be required.

[[Page 52777]]

(2) After implementing the change(s) intended to remedy the
nonconformity, the manufacturer shall demonstrate:
(i) If the certificate was revoked pursuant to paragraph (e)(1) of
this section, that the modified configuration does in fact conform with
the requirements of this subpart by testing engines or vehicles
selected from normal production runs of that modified configuration in
accordance with the conditions specified in the initial test order
pursuant to Sec. 86.1003-97. The Administrator shall consider this
testing to satisfy the testing requirements of Sec. 86.079-32 or
Sec. 86.079-33 if the Administrator had so notified the manufacturer.
If the subsequent testing results in a pass decision pursuant to the
criteria in Sec. 86.1010-96(c), the Administrator shall reissue or
amend the certificate, if necessary, to include that configuration:
Provided, that the manufacturer has satisfied the testing requirements
specified in paragraph (h)(1) of this section. If the subsequent audit
results in a fail decision pursuant to the criteria in Sec. 86.1010-
96(c), the revocation remains in effect. Any design change approvals
under this subpart are limited to the modification of the configuration
specified by the test order.
(ii) If the certificate was revoked pursuant to paragraph (e)(2) of
this section, that the modified engine family or configuration does in
fact conform with the requirements of this subpart by testing vehicles
selected from normal production runs of that modified engine family or
configuration in accordance with the conditions specified in a test
order pursuant to Sec. 86.1003-97. The Administrator shall consider
this testing to satisfy the testing requirements of Sec. 86.079-32 or
Sec. 86.079-33 if the Administrator had so notified the manufacturer.
If the subsequent testing results in a pass decision pursuant to
Sec. 86.1010-96(c), the Administrator shall reissue or amend the
certificate as necessary: Provided, that the manufacturer has satisfied
the testing requirements specified in paragraph (h)(1) of this section.
If the subsequent testing results in a fail decision pursuant to
Sec. 86.1010-96(c), the revocation remains in effect. Any design change
approvals under this subpart are limited to the modification of the
engine family or configuration specified by the test order.
(3) In cases where the Administrator has revoked a certificate of
conformity for a 50-state engine family or configuration pursuant to
paragraph (e)(2) of this section, manufacturers may request in writing
that the Administrator reissue the certificate for an engine family or
configuration when, in lieu of the actions described in (h) (1) and (2)
of this section, the manufacturer has complied with section 2108,
section 2109, and/or section 2110 of Title 13, Division 3, of the
California Code of Regulations, provided an Executive Order is in place
for the engine family or configuration. Title 13, Division 3, of the
California Code of Regulations is incorporated by reference. See
Sec. 86.1.
(i) through (k) [Reserved].
(l) and (m) [Reserved]. For guidance see Sec. 86.1012-84.
(n) To permit a manufacturer to avoid storing non-test engines or
vehicles when conducting testing of an engine family or configuration
subsequent to suspension or revocation of the certificate of conformity
for that engine family or configuration pursuant to paragraph (b), (c),
or (e) of this section, the manufacturer may request that the
Administrator conditionally reinstate the certificate for that engine
family or configuration. The Administrator may reinstate the
certificate subject to the condition that the manufacturer consents to
recall all engines or vehicles of that engine family or configuration
produced from the time the certificate is conditionally reinstated if
the engine family or configuration fails the subsequent testing and to
remedy any nonconformity at no expense to the owner.
30. Section 86.1014-97 is proposed to be added to subpart K to read
as follows:

Sec. 86.1014-97 Hearings on suspension, revocation, and voiding of
certificates of conformity.

Section 86.1014-97 includes text that specifies requirements that
differ from those specified in Sec. 86.1014-84. Where a paragraph in
Sec. 86.1014-84 is identical and applicable to Sec. 86.1014-97, this
may be indicated by specifying the corresponding paragraph and the
statement ``[Reserved]. For guidance see Sec. 86.1014-84.''
(a) through (c)(2)(ii) introductory text [Reserved]. For guidance
see Sec. 86.1014-84.
(c)(2)(ii)(A) Whether tests have been properly conducted,
specifically, whether the tests were conducted in accordance with
applicable regulations and whether test equipment was properly
calibrated and functioning; and
(c)(2)(ii)(B) through (aa) [Reserved]. For guidance see
Sec. 86.1014-84.
31. A new subpart R consisting of Secs. 86.1701-97 through 86.1779-
97 is proposed to be added to part 86 to read as follows:
Subpart R--General Provisions for the Voluntary National Low-Emission
Vehicle Program for Light-Duty Vehicles and Light-Duty Trucks
Sec.
86.1701-97 General applicability.
86.1702-97 Definitions.
86.1703-97 Abbreviations.
86.1704-97 Section numbering; construction.
86.1705-97 General provisions; opt-in; opt-out.
86.1706-97 through 86.1707-97 [Reserved]
86.1708-97 Emission standards for 1997 and later light-duty
vehicles.
86.1709-97 Emission standards for 1997 and later light light-duty
trucks.
86.1710-97 Fleet average non-methane organic gas exhaust emission
requirements for light-duty vehicles and light light-duty trucks.
86.1711-97 through 86.1712-97 [Reserved]
86.1713-97 Light-duty exhaust durability programs.
86.1714-97 Small-volume manufacturers certification procedures.
86.1715-97 [Reserved]
86.1716-97 Prohibition of defeat devices.
86.1717-97 Emission control diagnostic system for 1997 and later
light-duty vehicles and light-duty trucks.
86.1718-97 through 86.1720-97 [Reserved]
86.1721-97 Application for certification.
86.1722-97 [Reserved]
86.1723-97 Required data.
86.1724-97 Test vehicles and engines.
86.1725-97 Maintenance.
86.1726-97 Mileage and service accumulation; emission measurements.
86.1727-97 [Reserved]
86.1728-97 Compliance with emission standards.
86.1729-97 through 86.1733-97 [Reserved]
86.1734-97 Alternative procedure for notification of additions and
changes.
86.1735-97 Labeling.
86.1736-97 through 86.1737-97 [Reserved]
86.1738-97 Maintenance instructions.
86.1739-97 Submission of maintenance instructions.
86.1740-97 through 86.1769-97 [Reserved]
86.1770-97 Evaporative emission testing.
86.1771-97 Fuel specifications.
86.1772-97 Test sequence; general requirements.
86.1773-97 Vehicle preconditioning.
86.1774-97 Exhaust sample analysis.
86.1775-97 Records required.
86.1776-97 Calculations; exhaust emissions.
86.1777-97 Calculations; particulate emissions.
86.1778-97 General enforcement provisions.
86.1779-97 Prohibited acts.

Subpart R--General Provisions for the Voluntary National Low-
Emission Vehicle Program for Light-Duty Vehicles and Light-Duty
Trucks

Sec. 86.1701-97 General applicability.

(a) The provisions of this subpart may be adopted by vehicle
manufacturers pursuant to the provisions specified in

[[Page 52778]]
Sec. 86.1705-97. The provisions of this subpart are generally
applicable to 1997 and later model year light-duty vehicles and light
light-duty trucks produced for sale in the Northeast Ozone Transport
Region, and 2001 and later model year light-duty vehicles and light
light-duty trucks produced for sale in the United States. In cases
where a provision applies only to certain vehicles based on model year,
vehicle class, motor fuel, engine type, vehicle emission category,
intended sales destination, or other distinguishing characteristics,
such limited applicability is cited in the appropriate section or
paragraph. The provisions of this subpart shall be referred to as the
``National Low-Emission Vehicle Program'' or ``National LEV'' or
``NLEV.''
(b) All requirements of 40 CFR parts 85 and 86, unless specifically
replaced or modified by the provisions of this subpart, shall apply to
the National LEV Program.
(c) The requirements of this subpart shall be effective until all
covered manufacturers are in the first model year for which EPA
promulgates emissions standards under Section 202(i) of the Act (42
U.S.C. 7521(i)) that are at least as stringent as the standards for
NMOG, NOX, and CO provided in this subpart, as determined by the
Administrator, and such standards commence no later than model year
2006, provided such standards are promulgated no later than December
15, 2000; otherwise, the requirements of this subpart are effective
through model year 2003.

Sec. 86.1702-97 Definitions.

(a) The definitions in subpart A of this part apply to this
subpart.
(b) In addition, the following definitions shall apply to this
subpart:
Alcohol fuel means either methanol or ethanol as those terms are
defined in these test procedures.
All-electric range test means a test sequence used to determine the
range of an electric vehicle or of a hybrid electric vehicle without
the use of its auxiliary power unit. The All-Electric Range Test cycle
consists of alternating the Highway Fuel Economy Schedule and Urban
Dynamometer Driving Schedule.
Applicable fleet average NMOG value is the fleet average NMOG value
calculated for a particular averaging set, based upon the applicable
production for that averaging set and the applicable fleet average NMOG
requirement listed in Tables R97-5 and R97-6 of this subpart.
Applicable production is the number of vehicles and/or trucks that
a manufacturer produces in a given model year that are subject to the
provisions of this subpart, and are included in the same averaging set.
Averaging sets are the categories of LDVs and LDTs for which the
manufacturer calculates a fleet average NMOG value. The four averaging
sets for fleet average NMOG value calculation purposes are:
(1) Class A delivered to a point of first retail sale in the
Northeast Ozone Transport Region (OTR);
(2) Class A delivered to a point of first retail sale in the 37
States region;
(3) Class B delivered to a point of first retail sale in the OTR;
and
(4) Class B delivered to a point of first retail sale in the 37
States region.
Battery assisted combustion engine vehicle means any vehicle which
allows power to be delivered to the driven wheels solely by a
combustion engine, but which uses a battery pack to store energy which
may be derived through remote charging, regenerative braking, and/or a
flywheel energy storage system or other means which will be used by an
electric motor to assist in vehicle operation.
Battery pack means any electrical energy storage device consisting
of any number of individual battery modules which is used to propel
electric or hybrid electric vehicles.
Class A comprises LDVs and LDTs 0-3750 lbs. LVW that are subject to
the provisions of this subpart.
Class B comprises LDTs 3751-5750 lbs. LVW that are subject to the
provisions of this subpart.
Continually regenerating trap oxidizer system means a trap oxidizer
system that does not utilize an automated regeneration mode during
normal driving conditions for cleaning the trap.
Covered manufacturer means an original equipment manufacturer
(OEM), as defined at Sec. 85.1502(9), that meets the conditions
specified under Sec. 86.1705(a).
Covered vehicle or engine means a vehicle specified in
Sec. 86.1701(a), or an engine in such a vehicle, that is manufactured
by a covered manufacturer.
Credits means fleet average NMOG credits as calculated from the
amount that the manufacturer's applicable fleet average NMOG value is
below the applicable fleet average NMOG requirement, times the
applicable production. NMOG credits have units of g/mi.
Debits means fleet average NMOG debits as calculated from the
amount that the manufacturer's applicable fleet average NMOG value is
above the applicable fleet average NMOG requirement, times the
applicable production. NMOG debits have units of g/mi.
Dedicated ethanol vehicle means any ethanol-fueled motor vehicle
that is engineered and designed to be operated solely on ethanol.
Dedicated methanol vehicle means any methanol-fueled motor vehicle
that is engineered and designed to be operated solely on methanol.
Diesel engine means any engine powered with diesel fuel, gaseous
fuel, ethanol, or methanol for which diesel engine speed/torque
characteristics and vehicle applications are retained.
Dual-fuel vehicle (or Engine) means any motor vehicle (or motor
vehicle engine) engineered and designed to be operated on two different
fuels, but not on a mixture of the fuels.
Electric vehicle means any vehicle which operates solely by use of
a battery or battery pack. This definition also includes vehicles which
are powered mainly through the use of an electric battery or battery
pack, but which use a flywheel that stores energy produced by the
electric motor or through regenerative braking to assist in vehicle
operation.
Element of design means any control system (i.e., computer
software, electronic control system, emission control system, computer
logic), and/or control system calibrations and/or the results of
systems interaction, and/or hardware items on a motor vehicle or motor
vehicle engine.
Ethanol means any fuel for motor vehicles and motor vehicle engines
that is composed of either commercially available or chemically pure
ethanol (CH\3\CH\2\OH) and gasoline as specified in Sec. 86.1771-97
(Fuel Specifications) of these test procedures. The required fuel blend
is based on the type of ethanol-fueled vehicle being certified and the
particular aspect of the certification procedure being conducted.
Ethanol vehicle means any motor vehicle that is engineered and
designed to be operated using ethanol as a fuel.
Executive Officer of the California Air Resources Board (ARB), as
used in the referenced materials listed in Sec. 86.1, means the
Administrator of the Environmental Protection Agency (EPA).
Flexible-fuel vehicle (or engine) means any motor vehicle (or motor
vehicle engine) engineered and designed to be operated on any mixture
of two or more different fuels.
Fuel-fired heater means a fuel burning device which creates heat
for the purpose of warming the passenger compartment of a vehicle but
does not contribute to the propulsion of the vehicle.

[[Page 52779]]

Gaseous fuels means liquefied petroleum gas, compressed natural
gas, or liquefied natural gas fuels for use in motor vehicles.
Hybrid electric vehicle (HEV) means any vehicle which is included
in the definition of a ``series hybrid electric vehicle,'' a ``parallel
hybrid electric vehicle,'' or a ``battery assisted combustion engine
vehicle.''
Low volume manufacturer means any vehicle manufacturer with
California sales of new passenger cars, light-duty trucks, and medium-
duty vehicles less than or equal to 3000 units and nationwide sales of
passenger cars and light-duty trucks less than or equal to 40,000 units
per model year based on the average number of vehicles sold by the
manufacturer for each of the three most recent model years. For
manufacturers certifying for the first time, model-year sales shall be
based on projected sales.
Low-emission vehicle (LEV) means any vehicle certified to the low-
emission vehicle standards specified in this subpart.
Methane reactivity adjustment factor means a factor applied to the
mass of methane emissions from natural gas fueled vehicles for the
purpose of determining the gasoline equivalent ozone-forming potential
of the methane emissions.
Methanol means any fuel for motor vehicles and motor vehicle
engines that is composed of either commercially available or chemically
pure methanol (CH3OH) and gasoline as specified in Sec. 86.1771-97
(Fuel Specifications) of these procedures. The required fuel blend is
based on the type of methanol-fueled vehicle being certified and the
particular aspect of the certification procedure being conducted.
Methanol vehicle means any motor vehicle that is engineered and
designed to be operated using methanol as a fuel.
Natural gas means either compressed natural gas or liquefied
natural gas.
Natural gas vehicle means any motor vehicle that is engineered and
designed to be operated using either compressed natural gas or
liquefied natural gas.
Non-methane organic gases (NMOG) means the sum of oxygenated and
non-oxygenated hydrocarbons contained in a gas sample as measured in
accordance with the ``California Non-Methane Organic Gas Test
Procedures.'' This procedure has been incorporated by reference. See
Sec. 86.1.
Non-regeneration emission test means a complete emission test which
does not include a regeneration.
Northeast Ozone Transport Region (OTR) means the transport region
for ozone established by law under the Clean Air Act section 184(a) and
comprised of the States of Connecticut, Delaware, Maine, Maryland,
Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, Rhode
Island, and Vermont, the District of Columbia, and that part of
Virginia within (as of November 15, 1990) the Consolidated Metropolitan
Statistical Area which includes the District of Columbia.
Organic material non-methane hydrocarbon equivalent (or OMNMHCE)
for methanol-fueled vehicles means the sum of the carbon mass
contribution of non-oxygenated hydrocarbons (excluding methane),
methanol, and formaldehyde as contained in a gas sample, expressed as
gasoline-fueled hydrocarbons. For ethanol-fueled vehicles, organic
material non-methane hydrocarbon equivalent (OMNMHCE) means the sum of
carbon mass contribution of non-oxygenated hydrocarbons (excluding
methane), methanol, ethanol, formaldehyde and acetaldehyde as contained
in a gas sample, expressed as gasoline-fueled hydrocarbons.
Ozone deterioration factor means a factor applied to the mass of
NMOG emissions from TLEVs, LEVs, or ULEVs which accounts for changes in
the ozone-forming potential of the NMOG emissions from a vehicle as it
accumulates mileage.
Parallel hybrid electric vehicle means any vehicle which allows
power to be delivered to the driven wheels by either a combustion
engine and/or by a battery powered electric motor.
Periodically regenerating trap oxidizer system means a trap
oxidizer system that utilizes, during normal driving conditions for
cleaning the trap, an automated regeneration mode which can be easily
detected.
Point of first retail sale is the location where the completed LDV
or LDT is purchased, also known as the final product purchase location.
The point of first retail sale may be a retail customer, dealer or
secondary manufacturer. In cases where the end user purchases the
completed vehicle directly from the manufacturer, the end user is the
point of first retail sale.
Reactivity adjustment factor means a fraction applied to the mass
of NMOG emission from a vehicle powered by a fuel other than
conventional gasoline for the purpose of determining a gasoline-
equivalent NMOG emission value. The reactivity adjustment factor is
defined as the ozone-forming potential of the exhaust from a vehicle
powered by a fuel other than conventional gasoline divided by the
ozone-forming potential of conventional gasoline vehicle exhaust.
Regeneration means the process of oxidizing accumulated particulate
matter. It may occur continually or periodically.
Regeneration emission test means a complete emission test which
includes a regeneration.
Regeneration interval means the interval from the start of a
regeneration to the start of the next regeneration.
Series hybrid electric vehicle means any vehicle which allows power
to be delivered to the driven wheels solely by a battery powered
electric motor, but which also incorporates the use of a combustion
engine to provide power to the battery and/or electric motor.
37 States is the trading region comprised of the United States
excluding California and the Ozone Transport Region.
Transitional low-emission vehicle (TLEV) means any vehicle
certified to the transitional low-emission vehicle standards specified
in this subpart.
Trap oxidizer system means an emission control system which
consists of a trap to collect particulate matter and a mechanism to
oxidize the accumulated particulate.
Type A hybrid electric vehicle means an HEV which achieves a
minimum range of 60 miles over the All-Electric Range Test as defined
in ``California Exhaust Emission Standards and Test Procedures for 1988
and Subsequent Model Passenger Cars, Light-Duty Trucks and Medium-Duty
Vehicles'' which is incorporated by reference. See Sec. 86.1.
Type B hybrid electric vehicle means an HEV which achieves a range
of 40-59 miles over the All-Electric Range Test as defined in
``California Exhaust Emission Standards and Test Procedures for 1988
and Subsequent Model Passenger Cars, Light-Duty Trucks and Medium-Duty
Vehicles'' which is incorporated by reference. See Sec. 86.1.
Type C hybrid electric vehicle means an HEV which achieves a range
of 0-39 miles over the all-Electric Range test and all other HEVs
excluding ``Type A'' and ``Type B'' HEVs as defined in ``California
Exhaust Emission Standards and Test Procedures for 1988 and Subsequent
Model Passenger Cars, Light-Duty Trucks and Medium-Duty Vehicles''
which is incorporated by reference. See Sec. 86.1.
Ultra-low-emission vehicle (ULEV) means any vehicle certified to
the ultra-low emission vehicle standards specified in this subpart.

[[Page 52780]]

Zero-emission vehicle (ZEV) means any vehicle which is certified to
produce zero emissions of any criteria pollutants under any and all
possible operational modes and conditions. Incorporation of a fuel
fired heater shall not preclude a vehicle from being certified as a ZEV
provided the fuel fired heater cannot be operated at ambient
temperatures above 40 degrees Fahrenheit and the heater is demonstrated
to have zero evaporative emissions under any and all possible
operational modes and conditions.

Sec. 86.1703-97 Abbreviations.

(a) The abbreviations in subpart A of this part apply to this
subpart. In addition, the following abbreviations shall apply to this
subpart:
(b) The abbreviations in the ``California Exhaust Emission
Standards and Test Procedures for 1988 and Subsequent Model Passenger
Cars, Light-Duty Trucks and Medium-Duty Vehicles,'' which is
incorporated by reference (see Sec. 86.1) also apply to this subpart.
In addition, the following abbreviations shall apply to this subpart:

HEV--hybrid electric vehicle
LEV--low-emission vehicle
NMOG--non-methane organic gases
OTR--Northeast Ozone Transport Region
TLEV--transitional low-emission vehicle
ULEV--ultra low-emission vehicle
ZEV--zero emission vehicle

Sec. 86.1704-97 Section numbering; construction.

(a) The model year of initial applicability is indicated by the
last two digits of the six-digit group of the section number. A section
remains in effect for subsequent model years until it is superseded.
(b) Where a section still in effect references a section that has
been superseded, the reference shall be interpreted to mean the
superseding section.
(c) Where a California regulation is incorporated by reference in
this subpart, and such regulation refers to a provision in the Code of
Federal Regulations that has been superseded by a subsequent CFR
provision, the superseded CFR section is considered the actual
reference and will apply to the specific model year cited. Such
references from California provisions will not be interpreted to mean
the superseding CFR section.

Sec. 86.1705-97 General provisions; opt-in; opt-out.

(a) Covered manufacturers must comply with the provisions in this
subpart, and in addition, must comply with the otherwise applicable
requirements of 40 CFR parts 85 and 86. A manufacturer shall be a
covered manufacturer if:
(1) The manufacturer has opted into the program pursuant to
paragraph (d) of this section;
(2) Where a manufacturer included the condition on opt-in provided
for in paragraph (d) of this section, that condition has not been
violated; and
(3) The manufacturer has not opted out or the manufacturer has
opted out but that opt-out has not become effective under paragraphs
(e) and (f) of this section.
(b) Compliance with the tailpipe emissions standards and other
requirements specified in paragraph (h) of this section shall be deemed
to be compliance with the corresponding tailpipe emissions standards
and other requirements specified in Secs. 86.096-8 and 86.097-9.
(c) Covered manufacturers must comply with the standards and
requirements specified in this subpart beginning in model year 1997,
except a covered manufacturer that opted into the program after model
year 1996 must comply with the standards and requirements of this
subpart beginning in the first model year after the model year in which
that manufacturer opted in. Covered manufacturers must comply with the
provisions of this subpart as long as the regulations are effective, as
specified in Sec. 86.1701-97(c).
(d) To opt into the National LEV program, a motor vehicle
manufacturer must submit a written statement to the Administrator
signed by a person or entity within the corporation or business with
authority to bind the corporation or business to its election. The
statement must unambiguously and unconditionally (apart from the
permissible condition specified below) indicate the manufacturer's
intent to opt into the program and be subject to the provisions in this
subpart, and include the following language: ``[xx company,] its
subsidiaries, successors and assigns hereby opts into the voluntary
National LEV program, as defined in 40 CFR part 86 subpart R, and
agrees to be legally bound by all of the standards, requirements and
other provisions of the National LEV program for the duration of the
program, as specified in subpart R. [xx company] further commits not to
challenge EPA's authority to establish or enforce the National LEV
program, and commits not to seek to certify any vehicle except in
compliance with the regulations in subpart R.'' The statement may
indicate that the manufacturer opts into the program subject to the
condition that the Administrator find under 40 CFR 51.121(b)(2) that
the program is in effect with the following language: ``This opt-in is
subject only to the condition that the Administrator make a finding on
or before [insert date 60 days from date of signature] pursuant to 40
CFR 51.121(b)(2) that the National LEV program is in effect for
purposes of substitution for OTC LEV.'' A manufacturer shall be
considered to have opted in upon the Administrator's receipt of the
opt-in notification.
(e) A covered manufacturer may opt out of the National LEV program
only if one of the specified conditions allowing opt-out occurs. A
manufacturer must exercise the opt-out option within sixty days of the
occurrence allowing opt-out, or the opt-out option expires. The opt-out
shall become effective upon the times specified below, unless the
Administrator finds within sixty days of receipt of the opt-out letter
that the condition submitted by the manufacturer has not actually
occurred. The following are the conditions allowing opt-out:
(1) EPA makes a revision not specified in paragraph (h)(2) of this
section to a standard or requirement listed in paragraph (h)(1) of this
section to which the covered manufacturer objected. Only a covered
manufacturer that objects to a revision may opt out if that revision is
adopted. An objection shall be valid for this purpose only if it was
filed during the public comment period on the proposed revision and the
objection specifies that it is being made to allow opt-out under
paragraph (e) of this section. An opt-out based on this provision shall
become effective starting the first model year to which EPA's modified
regulations apply.
(2) [Reserved for provisions relating to undetermined state
commitments regarding section 177 programs.]
(f) To opt out of the National LEV program, a covered manufacturer
must notify the Administrator as provided in paragraph (d) of this
section, except that the statement shall specify the condition under
paragraph (e) of this section allowing opt-out and shall indicate the
manufacturer's intent to opt out of the program and no longer to be
subject to the provisions in this subpart. The letter shall include the
following language: ``[xx company,] its subsidiaries, successors and
assigns hereby opt out of the voluntary National LEV program, as
defined in 40 CFR part 86 subpart R.''
(g) A manufacturer that has opted out and is no longer a covered
manufacturer under this subpart shall be subject to all provisions that
would apply to a manufacturer that had not opted in, including all
applicable standards and requirements promulgated under Title II

[[Page 52781]]
of the Act (42 U.S.C. 7521 et. seq.) and any state standards adopted
pursuant to section 177 of the Act (42 U.S.C. 7507).
(h) (1) The following are the emissions standards and requirements
that, if revised, may provide covered manufacturers the opportunity to
opt out pursuant to paragraph (e)(1) of this section:
(i) The tailpipe emissions standards for NMOG, NOX, CO, HCHO,
and PM specified in sections 86.1708-97 and 86.1709-97;
(ii) The compliance test procedure (Federal Test Procedure) as
specified in Sec. 86.130-96, Sec. 86.115-78, Sec. 86.108-79, and
Appendix I to part 86;
(iii) The compliance test fuel, as specified in Sec. 86.1771-97;
(iv) Fleet average NMOG values specified in Sec. 86.1710-97;
(v) The on-board diagnostic system requirements specified in
Sec. 86.1717-97;
(vi) The averaging, banking and trading provisions specified in
Sec. 86.1710-97;
(vii) The low volume manufacturer provisions specified in
Sec. 86.1714-97;
(viii) The evaporative emissions standards and provisions for
light-duty vehicles specified in Sec. 86.096-8(b), and the evaporative
emissions standards and provisions for light-duty trucks specified in
Sec. 86.097-9(b);
(ix) The light-duty vehicle refueling emissions standards and
provisions specified in Sec. 86.098-8(d) and the light-duty truck
refueling emissions standards and provisions specified in Sec. 86.001-
9(d);
(x) The cold temperature carbon monoxide standards and provisions
for light-duty vehicles specified in Sec. 86.096-8(k), and the cold
temperature carbon monoxide standards and provisions for light-duty
trucks specified in Sec. 86.097-9(k), except that changes to these
provisions effective after model year 2000 shall not provide an
opportunity for a covered manufacturer to opt out.
(xi) The Supplemental Federal Test Procedure emission standards and
provisions for light-duty vehicles specified in Sec. 86.098-8(e), and
the Supplemental Federal Test Procedure emission standards and
provisions for light-duty trucks specified in Sec. 86.098-9(d). [The
revisions to Secs. 86.098-8(e) and 86.098-9(d) have not been finalized;
references are to proposed regulations in 60 FR 7404, February 7,
1995.]
(2) The following types of revisions to the standards and
requirements in paragraph (h)(1) of this section do not provide covered
manufacturers the right to opt out of the National LEV program:
(i) Revisions that do not increase the stringency of the standard
or requirement; or
(ii) Revisions that harmonize the standard or requirement with the
comparable California standard or requirement for the same model year
(even if the harmonization increases the stringency of the standard or
requirement).

Sec. 86.1706-97 through Sec. 86.1707-97 [Reserved]

Sec. 86.1708-97 Emission standards for 1997 and later light-duty
vehicles.

(a) Light-duty vehicles certified under the provisions of this
subpart as TLEVs, LEVs, ULEVs, or ZEVs shall comply with the applicable
exhaust emission standards in this section. In addition to the exhaust
emission standards in this section, light-duty vehicles certified under
the provisions of this subpart as TLEVs, LEVs, ULEVs, or ZEVs shall
comply with all applicable emission standards in Sec. 86.096-8 (or
appropriate sections as they apply to later model years), as provided
in paragraphs (a) (1) and (2) of this section.
(1) Emission standards for total hydrocarbon (THC) and particulate
matter (PM) in Sec. 86.096-8(a)(1)(i) shall apply to vehicles certified
as TLEVs, LEVs, ULEVs, and ZEVs. Additional exhaust emission standards
in Sec. 86.096-8(a)(1)(i) shall not apply to vehicles certified as
TLEVs, LEVs, ULEVs, and ZEVs.
(2) Compliance with emission standards at high altitude conditions
shall be demonstrated using the applicable emission standards and
procedures in Sec. 86.096-8.
(b)(1) Standards. (i) Exhaust emissions from 1997 and later model
year light-duty vehicles classified as TLEVs, LEVs, ULEVs, and ZEVs
shall not exceed the standards in Tables R97-1 and R97-2 in rows
designated with the applicable vehicle emission category. These
standards shall apply equally to certification and in-use vehicles,
except as provided in paragraph (c) of this section:

Table R97-1.--Intermediate Useful Life Standards (g/mi) for Light-Duty Vehicles Classified as TLEVs, LEVs, and
ULEVs
----------------------------------------------------------------------------------------------------------------
Vehicle emission category NMOG CO NOX HCHO
----------------------------------------------------------------------------------------------------------------
TLEV........................................................ 0.125 3.4 0.4 0.015
LEV......................................................... .075 3.4 .2 .015
ULEV........................................................ .040 1.7 .2 .008
----------------------------------------------------------------------------------------------------------------

Table R97-2--Full Useful Life Standards (g/mi) for Light-Duty Vehicles Classified as TLEVs, LEVs, and ULEVs
----------------------------------------------------------------------------------------------------------------
Vehicle emission category NMOG CO NOX HCHO PM
----------------------------------------------------------------------------------------------------------------
TLEV........................................... 0.156 4.2 0.6 0.018 0.08
LEV............................................ .090 4.2 .3 .018 .08
ULEV........................................... .055 2.1 .3 .011 .04
----------------------------------------------------------------------------------------------------------------

(ii) The particulate matter (PM) standards in paragraph (b)(1)(i)
of this section are applicable to diesel light-duty vehicles only. All
other light-duty vehicles must comply with the applicable PM standards
in Sec. 86.096-8.
(iii) Flexible-fuel and dual-fuel light-duty vehicles shall be
certified to exhaust emission standards for NMOG established for the
operation of the vehicle on an available fuel other than gasoline, and
for the operation of the vehicle on gasoline.
(A) The applicable NMOG emission standards for flexible-fuel and
dual-fuel light-duty vehicles when certifying the vehicle for operation
on fuels other than

[[Page 52782]]
gasoline shall be the NMOG standards in paragraph (b)(1)(i) of this
section.
(B) The applicable NMOG emission standards for flexible-fuel and
dual-fuel light-duty vehicles when certifying the vehicle for operation
on gasoline shall be the NMOG standards in the rows designated with the
applicable vehicle emission category in tables R97-3 and R97-4:

Table R97-3.--Intermediate Useful Life NMOG Standards (g/mi) for
Flexible-Fuel and Dual-Fuel Light-Duty Vehicles Classified as TLEVs,
LEVs, and ULEVs
------------------------------------------------------------------------
Vehicle emission category NMOG
------------------------------------------------------------------------
TLEV...................................................... 0.25
LEV....................................................... 0.125
ULEV...................................................... 0.075
------------------------------------------------------------------------

Table R97-4.--Full Useful Life NMOG Standards (g/mi) for Flexible-Fuel
and Dual-Fuel Light-Duty Vehicles Classified as TLEVs, LEVs, and ULEVs
------------------------------------------------------------------------
Vehicle emission category NMOG
------------------------------------------------------------------------
TLEV...................................................... 0.31
LEV....................................................... 0.156
ULEV...................................................... 0.090
------------------------------------------------------------------------

(iv) The maximum projected NOX emissions measured on the
Highway Fuel Economy Test in subpart B of this part shall not be
greater than 1.33 times the applicable light-duty vehicle standards
shown in Tables R97-1 and R97-2. Both the projected emissions and the
Highway Fuel Economy Test standard shall be rounded to the nearest 0.1
g/mi in accordance with the Rounding-Off Method specified in ASTM E29-
90, Standard Practice for Using Significant Digits in Test Data to
Determine Conformance with Specifications, before being compared. These
procedures have been incorporated by reference. See Sec. 86.1.
(v) Deterioration factors for hybrid electric vehicles shall be
based on the emissions and mileage accumulation of the auxiliary power
unit. For certification purposes only, Type A hybrid electric vehicles
shall demonstrate compliance with 50,000 mile emission standards (using
50,000 mile deterioration factors), and shall not be required to
demonstrate compliance with 100,000 mile emission standards. For
certification purposes only, Type B hybrid electric vehicles shall
demonstrate compliance with 50,000 mile emission standards (using
50,000 mile deterioration factors) and 100,000 mile emission standards
(using 75,000 mile deterioration factors). For certification purposes
only, Type C hybrid electric vehicles shall demonstrate compliance with
50,000 mile emission standards (using 50,000 mile deterioration
factors) and 100,000 mile emission standards (using 100,000 mile
deterioration factors).
(2) [Reserved].
(c) Intermediate in-use emission standards. (1) 1997 and 1998 model
year light-duty vehicles certified as LEVs or ULEVs shall meet the
applicable intermediate useful life in-use standards in paragraphs
(c)(2) or (c)(3) of this section, according to the following
provisions:
(i) In-use compliance with standards beyond the intermediate useful
life shall be waived for LEVs and ULEVs through the 1998 model year.
(ii) After the 1998 model year, the applicable in-use standards
shall be the intermediate and full useful life standards in paragraph
(b) of this section.
(2) Light-duty vehicles, including flexible-fuel and dual-fuel
light-duty vehicles when operated on an available fuel other than
gasoline, shall meet all intermediate useful life standards for the
applicable vehicle emission category in Table R97-5:

Table R97-5.--Intermediate Useful Life Standards for Light-Duty Vehicles
----------------------------------------------------------------------------------------------------------------
Vehicle emission category NMOG (g/mi) CO (g/mi) NOX (g/mi) HCHO (g/mi)
----------------------------------------------------------------------------------------------------------------
LEV......................................................... 0.100 3.4 0.3 0.015
ULEV........................................................ 0.058 2.6 0.3 0.012
----------------------------------------------------------------------------------------------------------------

(3) Flexible-fuel and dual-fuel light-duty vehicles when operated
on gasoline shall meet all intermediate useful life standards for the
applicable vehicle emission category in Table R97-6:

Table R97-6.--Intermediate Useful Life Standards for Flexible-Fuel and
Dual-Fuel Light-Duty Vehicles When Operated on Gasoline
------------------------------------------------------------------------
NMOG (g/ NOX (g/ HCHO (g/
Vehicle emission category mi) CO (g/mi) mi) mi)
------------------------------------------------------------------------
LEV......................... 0.188 3.4 0.3 0.015
ULEV........................ 0.100 2.6 0.3 0.012
------------------------------------------------------------------------

(d) NMOG measurement. NMOG emissions shall be measured in
accordance with the ``California Non-Methane Organic Gas Test
Procedures.'' These procedures have been incorporated by reference. See
Sec. 86.1. NMOG emissions shall be compared to the applicable NMOG
emissions certification or in-use standard according to the following
calculation procedures:
(1) For TLEVs, LEVs, and ULEVs designed to operate exclusively on
any fuel other than conventional gasoline, and for flexible-fuel and
dual-fuel TLEVs, LEVs, and ULEVs when operated on a fuel other than
gasoline, manufacturers shall multiply NMOG exhaust emission levels by
the applicable reactivity adjustment factor set forth in section 13 of
the ``California Exhaust Emission Standards and Test Procedures for
1988 and Subsequent Model Passenger Cars, Light-Duty Trucks, and
Medium-Duty Vehicles'' (incorporated by reference, see Sec. 86.1), or
established by the Executive Officer pursuant to Appendix VIII of the
document referenced above and approved by the Administrator. The
product of the NMOG exhaust emission levels and the reactivity
adjustment factor shall be compared to the applicable certification or
in-use exhaust NMOG mass emission

[[Page 52783]]
standards established for the particular vehicle emission category to
determine compliance.
(2) In addition to multiplying the exhaust NMOG mass emission
levels by the applicable reactivity adjustment factor, TLEV, LEV, or
ULEV natural gas vehicles shall multiply the exhaust methane mass
emission level by the applicable methane reactivity adjustment factor
in section 13 of the ``California Exhaust Emission Standards and Test
Procedures for 1988 and Subsequent Model Passenger Cars, Light-Duty
Trucks, and Medium-Duty Vehicles'' (incorporated by reference, see
Sec. 86.1), or established by the Executive Officer pursuant to
Appendix VIII of the document referenced above and approved by the
Administrator. The reactivity-adjusted NMOG value shall be added to the
reactivity-adjusted methane value and then the sum shall be compared to
the applicable certification or in-use exhaust NMOG mass emission
standards established for the particular vehicle emission category to
determine compliance.
(3) The exhaust NMOG mass emission levels for fuel-flexible and
dual-fuel vehicles when operating on gasoline, or for vehicles designed
to operate exclusively on gasoline, shall not be multiplied by a
reactivity adjustment factor.

Sec. 86.1709-97 Emission standards for 1997 and later light light-duty
trucks.

(a) Light light-duty trucks certified under the provisions of this
subpart as TLEVs, LEVs, ULEVs, or ZEVs shall comply with the applicable
exhaust emission standards in this section. In addition to the exhaust
emission standards in this section, light light-duty trucks certified
under the provisions of this subpart as TLEVs, LEVs, ULEVs, or ZEVs
shall comply with all applicable emission standards in Sec. 86.097-9
(or appropriate sections as they apply to later model years), as
provided in paragraphs (a)(1) and (2) of this section.
(1) Emission standards for total hydrocarbon (THC) and particulate
matter (PM) in Sec. 86.097-9(a)(1)(i) shall apply to light light-duty
trucks certified as TLEVs, LEVs, ULEVs, and ZEVs. Additional exhaust
emission standards in Sec. 86.097-9 (a)(1)(i) shall not apply to light
light-duty trucks certified as TLEVs, LEVs, ULEVs, and ZEVs.
(2) Compliance with emission standards at high altitude conditions
shall be demonstrated using the applicable emission standards and
procedures in Sec. 86.097-9.
(b)(1) Standards. (i) Exhaust emissions from 1997 and later model
year light light-duty trucks classified as TLEVs, LEVs, ULEVs, and ZEVs
shall not exceed the standards in Tables R97-7 and R97-8 in rows
designated with the applicable vehicle emission category and loaded
vehicle weight. These standards shall apply equally to certification
and in-use vehicles, except as provided in paragraph (c) of this
section:

Table R97-7.--Intermediate Useful Life Standards (g/mi) for Light Light-
Duty Trucks Classified as TLEVs, LEVs, and ULEVs
------------------------------------------------------------------------
Vehicle
Loaded vehicle emission NMOG CO NO^{X HCHO
weight category
------------------------------------------------------------------------
0-3750.......... TLEV...... 0.125 3.4 0.4 0.015
LEV....... 0.075 3.4 0.2 0.015
ULEV...... 0.040 1.7 0.2 0.008
3751-5750....... TLEV...... 0.160 4.4 0.7 0.018
LEV....... 0.100 4.4 0.4 0.018
ULEV...... 0.050 2.2 0.4 0.009
------------------------------------------------------------------------

Table R97-8.--Full Useful Life Standards (g/mi) for Light Light-Duty Trucks Classified as TLEVs, LEVs, and ULEVs
----------------------------------------------------------------------------------------------------------------
Loaded vehicle weight Vehicle emission category NMOG CO NOX HCHO PM
----------------------------------------------------------------------------------------------------------------
0-3750........................ TLEV..................... 0.156 4.2 0.6 0.018 0.8
LEV...................... 0.090 4.2 0.3 0.018 0.8
ULEV..................... 0.055 2.1 0.3 0.011 0.4
3751-5750..................... TLEV..................... 0.200 5.5 0.9 0.023 0.8
LEV...................... 0.130 5.5 0.5 0.023 0.8
ULEV..................... 0.070 2.8 0.5 0.013 0.4
----------------------------------------------------------------------------------------------------------------

(ii) The particulate matter (PM) standards in paragraph (b)(1)(i)
of this section are applicable to diesel vehicles only. All other light
light-duty trucks must comply with the applicable PM standards in
Sec. 86.097-9.
(iii) Flexible-fuel and dual-fuel light light-duty trucks shall be
certified to exhaust emission standards for NMOG established for the
operation of the vehicle on an available fuel other than gasoline, and
for the operation of the vehicle on gasoline.
(A) The applicable NMOG emission standards for flexible-fuel and
dual-fuel light light-duty trucks when certifying the vehicle for
operation on fuels other than gasoline shall be the NMOG standards in
paragraph (b)(1)(i) of this section.
(B) The applicable NMOG emission standards for flexible-fuel and
dual-fuel light light-duty trucks when certifying the vehicle for
operation on gasoline shall be the NMOG standards in the rows
designated with the applicable vehicle emission category in tables R97-
9 and R97-10:

[[Page 52784]]
Table R97-9.--Intermediate Useful Life NMOG Standards (g/mi) for
Flexible-Fuel and Dual-Fuel Light Light-Duty Trucks Classified as TLEVs,
LEVs, and ULEVs
------------------------------------------------------------------------
Loaded vehicle weight Vehicle emission category NMOG
------------------------------------------------------------------------
0-3750............................ TLEV......................... 0.25
LEV.......................... 0.125
ULEV......................... 0.075
3751-5750......................... TLEV......................... 0.32
LEV.......................... 0.160
ULEV......................... 0.100
------------------------------------------------------------------------

Table R97-10.--Full Useful Life NMOG Standards (g/mi) for Flexible-Fuel
and Dual-Fuel Light Light-Duty Trucks Classified as TLEVs, LEVs, and
ULEVs
------------------------------------------------------------------------
Loaded vehicle weight Vehicle emission category NMOG
------------------------------------------------------------------------
0-3750............................ TLEV......................... 0.31
LEV.......................... 0.156
ULEV......................... 0.090
3751-5750......................... TLEV......................... 0.40
LEV.......................... 0.200
ULEV......................... 0.130
------------------------------------------------------------------------

(iv) The maximum projected NOX emissions measured on the
Highway Fuel Economy Test in subpart B of this part shall be not
greater than 1.33 times the applicable light light-duty truck standards
shown in Tables R97-7 and R97-8. Both the projected emissions and the
Highway Fuel Economy Test standard shall be rounded to the nearest 0.1
g/mi in accordance with the Rounding-Off Method specified in ASTM E29-
90, Standard Practice for Using Significant Digits in Test Data to
Determine Conformance with Specifications, before being compared. These
procedures have been incorporated by reference. See Sec. 86.1.
(v) Deterioration factors for hybrid electric vehicles shall be
based on the emissions and mileage accumulation of the auxiliary power
unit. For certification purposes only, Type A hybrid electric vehicles
shall demonstrate compliance with 50,000 mile emission standards (using
50,000 mile deterioration factors), and shall not be required to
demonstrate compliance with 100,000 mile emission standards. For
certification purposes only, Type B hybrid electric vehicles shall
demonstrate compliance with 50,000 mile emission standards (using
50,000 mile deterioration factors) and 100,000 mile emission standards
(using 75,000 mile deterioration factors). For certification purposes
only, Type C hybrid electric vehicles shall demonstrate compliance with
50,000 mile emission standards (using 50,000 mile deterioration
factors) and 100,000 mile emission standards (using 100,000 mile
deterioration factors).
(2) [Reserved].
(c) Intermediate in-use emission standards. (1) 1997 and 1998 model
year light light-duty trucks certified as LEVs or ULEVs shall meet the
applicable intermediate useful life in-use standards in paragraphs
(c)(2) or (c)(3) of this section, according to the following
provisions:
(i) In-use compliance with standards beyond the intermediate useful
life shall be waived for LEVs and ULEVs through the 1998 model year.
(ii) After the 1998 model year, the applicable in-use standards
shall be the intermediate and full useful life standards in paragraph
(b) of this section.
(2) Light light-duty trucks, including flexible-fuel and dual-fuel
light light-duty trucks when operated on an available fuel other than
gasoline, shall meet all intermediate useful life standards for the
applicable vehicle emission category in Table R97-11:

Table R97-11.--Intermediate Useful Life Standards for Light Light-Duty
Trucks
------------------------------------------------------------------------
Vehicle
Loaded vehicle emission NMOG (g/ CO (g/mi) NOX (g/ HCHO (g/
weight category mi) mi) mi)
------------------------------------------------------------------------
0-3750.......... LEV....... 0.100 3.4 0.3 0.015
ULEV...... 0.058 2.6 0.3 0.012
3751-5750....... LEV....... 0.128 4.4 0.5 0.018
ULEV...... 0.075 3.3 0.5 0.014
------------------------------------------------------------------------

(3) Flexible-fuel and dual-fuel light light-duty trucks when
operated on gasoline shall meet all intermediate useful life standards
for the applicable vehicle emission category in Table R97-12:

Table R97-12.--Intermediate Useful Life Standards for Flexible-Fuel and Dual-Fuel Light Light-Duty Trucks When
Operated on Gasoline
----------------------------------------------------------------------------------------------------------------
NMOG (g/ NO HCHO (g/
Loaded vehicle weight Vehicle emission category mi) CO (g/mi) (g/mi) mi)
----------------------------------------------------------------------------------------------------------------
0-3750............................ LEV.......................... 0.188 3.4 0.3 0.015
ULEV......................... 0.100 2.6 0.3 0.012
3751-5750......................... LEV.......................... 0.238 4.4 0.5 0.018
ULEV......................... 0.128 3.3 0.5 0.014
----------------------------------------------------------------------------------------------------------------

[[Page 52785]]
Exhaust Emission Standards and Test Procedures for 1988 and Subsequent
Model Passenger Cars, Light-Duty Trucks, and Medium-Duty Vehicles''
(incorporated by reference, see Sec. 86.1), or established by the
Executive Officer pursuant to Appendix VIII of the document referenced
above and approved by the Administrator. The product of the NMOG
exhaust emission levels and the reactivity adjustment factor shall be
compared to the applicable certification or in-use exhaust NMOG mass
emission standards established for the particular vehicle emission
category to determine compliance.
(2) In addition to multiplying the exhaust NMOG mass emission
levels by the applicable reactivity adjustment factor, TLEV, LEV, or
ULEV natural gas vehicles shall multiply the exhaust methane mass
emission level by the applicable methane reactivity adjustment factor
in section 13 of the ``California Exhaust Emission Standards and Test
Procedures for 1988 and Subsequent Model Passenger Cars, Light-Duty
Trucks, and Medium-Duty Vehicles'' (incorporated by reference, see
Sec. 86.1), or established by the Executive Officer pursuant to
Appendix VIII of the document referenced above and approved by the
Administrator. The reactivity-adjusted NMOG value shall be added to the
reactivity-adjusted methane value and then the sum shall be compared to
the applicable certification or in-use exhaust NMOG mass emission
standards established for the particular vehicle emission category to
determine compliance.
(3) The exhaust NMOG mass emission levels for fuel-flexible and
dual-fuel vehicles when operating on gasoline, or for vehicles designed
to operate exclusively on gasoline, shall not be multiplied by a
reactivity adjustment factor.

Sec. 86.1710-97 Fleet average non-methane organic gas exhaust emission
requirements for light-duty vehicles and light light-duty trucks.

(a)(1) Each manufacturer shall certify light-duty vehicles or light
light-duty trucks to meet the exhaust mass emission standards in this
subpart for TLEVs, LEVs, ULEVs, ZEVs, or the exhaust emission standards
of Sec. 86.096-8(a)(1)(i) or Sec. 86.097-9(a)(1)(i), such that the
manufacturer's fleet average NMOG values for light-duty vehicles and
light light-duty trucks produced and delivered for sale in the
applicable region according to the specifications of Tables R97-13 and
R97-14 are less than or equal to the standards in Tables R97-13 and
R97-14 in the rows designated with the applicable vehicle type, loaded
vehicle weight, and model year. These standards shall apply at the
applicable intermediate useful life:

Table R97-13.--Fleet Average Non-Methane Organic Gas Exhaust Emission
Requirements (G/MI) for Light-Duty Vehicles and Light Light-Duty Trucks
Produced for Sale in the Northeast Ozone Transport Region
------------------------------------------------------------------------
Fleet
Vehicle type Loaded vehicle Model year average
weight NMOG
------------------------------------------------------------------------
Light-duty vehicles.. All 1997 0.200
................... 1998 0.200
and.............. ................... 1999 0.148
................... 2000 0.095
Light-duty trucks.... 0-3750 2001 and later 0.075
Light-duty trucks.... 3751-5750 1997 0.256
................... 1998 0.256
................... 1999 0.190
................... 2000 0.124
................... 2001 and later 0.100
------------------------------------------------------------------------

Table R97-14.--Fleet Average Non-Methane Organic Gas Exhaust Emission
Requirements (G/MI) for Light-Duty Vehicles and Light Light-Duty Trucks
Produced for Sale in the United States
------------------------------------------------------------------------
Fleet
Vehicle type Loaded vehicle Model year average
weight NMOG
------------------------------------------------------------------------
Light-duty vehicles.. All 2001 and later 0.075
and.............. ................... ................... .......
................... ................... .......
Light-duty trucks.... 0-3750 ................... .......
Light-duty trucks.... 3751-5750 2001 and later 0.100
------------------------------------------------------------------------

(2)(i) For the purpose of calculating fleet average NMOG values, a
manufacturer may adjust the certification levels of hybrid electric
vehicles (or ``HEVs'') based on the range of the HEV without the use of
the engine. See Sec. 86.1702-97 for definitions of HEV types for
purposes of calculating adjusted NMOG emissions.
(ii) For the purpose of calculating fleet average NMOG values,
vehicles that have no tailpipe emissions but use fuel-fired heaters and
that are not certified as ZEVs shall be treated as ``Type A HEV
ULEVs.''
(3)(i) Each manufacturer's fleet average NMOG value for all light-
duty vehicles and light light-duty trucks from 0-3750 lbs loaded
vehicle weight produced and delivered for sale in the

[[Page 52786]]
applicable region according to Tables R97-13 and R97-14 shall be
calculated in units of g/mi NMOG according to the following equation,
where the term ``Produced'' means produced and delivered for sale in
the applicable region according to Tables R97-13 and R97-14, and the
term ``Vehicles'' means light-duty vehicles and light light-duty trucks
from 0-3750 lbs loaded vehicle weight: {[(No. of Vehicles Certified to
the Federal Tier I Exhaust Emission Standards and Produced) x (0.25)]
+ [(No. of TLEVs Produced excluding HEVs) x (0.125)] + [(No. of LEVs
Produced excluding HEVs) x (0.075)] + [(No. of ULEVs Produced
excluding HEVs) x (0.040)] + (HEV contribution factor)}/(Total No. of
Vehicles Produced, including ZEVs and HEVs).
(ii)(A) ``HEV contribution factor'' shall mean the NMOG emission
contribution of HEVs to the fleet average NMOG value. The HEV
contribution factor shall be calculated in units of g/mi as follows,
where the term ``Produced'' means produced and delivered for sale in
the applicable region according to Tables R97-13 and R97-14.
(B) HEV contribution factor = {[(No. of Type A HEV TLEVs Produced)
x (0.100)] + [(No. of Type B HEV TLEVs Produced) x (0.113)] + [(No.
of Type C HEV TLEVs Produced) x (0.125)]} + {[(No. of Type A HEV LEVs
Produced) x (0.057)] + [(No. of Type B HEV LEVs Produced) x
(0.066)] + [(No. of Type C HEV LEVs Produced) x (0.075)]} + {[(No. of
Type A HEV ULEVs Produced) x (0.020)] + [(No. of Type B HEV ULEVs
Produced) x (0.030)] + [(No. of Type C HEV ULEVs Produced) x
(0.040)]}.
(4)(i) Manufacturers that certify light light-duty trucks from
3751-5750 lbs loaded vehicle weight shall calculate a fleet average
NMOG value in units of g/mi NMOG according to the following equation,
where the term ``Produced'' means produced and delivered for sale in
the applicable region according to Tables R97-13 and R97-14, and the
term ``Vehicles'' means light light-duty trucks from 3751-5750 lbs
loaded vehicle weight: {[(No. of Vehicles Certified to the Federal Tier
I Exhaust Emission Standards and Produced) x (0.32)] + [(No. of TLEVs
Produced excluding HEVs) x (0.160)] + [(No. of LEVs Produced excluding
HEVs) x (0.100)] + [(No. of ULEVs Produced excluding HEVs) x
(0.050)] + (HEV Contribution factor)}/(Total No. of Vehicles Produced,
including ZEVs and HEVs).
(ii)(A) ``HEV contribution factor'' shall mean the NMOG emission
contribution of HEVs to the fleet average NMOG. The HEV contribution
factor shall be calculated in units of g/mi as follows, where the term
``Produced'' means produced and delivered for sale in the applicable
region according to Tables R97-13 and R97-14.
(B) HEV contribution factor = {[(No. of Type A HEV TLEVs Produced)
x (0.130)] + [(No. of Type B HEV TLEVs Produced) x (0.145)] + [(No.
of Type C HEV TLEVs Produced) x (0.160)]} + {[(No. of Type A HEV LEVs
Produced) x (0.075)] + [(No. of Type B HEV LEVs Produced) x
(0.087)] + [(No. of Type C HEV LEVs Produced) x (0.100)]} + {[(No. of
Type A HEV ULEVs Produced) x (0.025)] + [(No. of Type B HEV ULEVs
Produced) x (0.037)] + [(No. of Type C HEV ULEVs Produced) x
(0.050)]}.
(5) The calculation of the fleet average NMOG value in paragraphs
(a)(3) and (a)(4) of this section shall exclude the light-duty vehicles
and light light-duty trucks purchased in the Northeast Ozone Transport
Region by federal and state governments to comply with the Energy
Policy Act, 42 U.S.C. 13212(b), 13257(o). In determining the quantity
of vehicles excluded from the NMOG calculations, no covered
manufacturer shall be required to exclude any vehicles that are not
reported by the purchasing government in a timely letter to the
representative of the covered manufacturer listed in the manufacturer's
application. Such letter shall be considered timely only if it is
received no later than February 1 of the calendar year following the
end of the model year in which the purchases were made.
(6) Low volume manufacturers, as defined in Sec. 86.1702-97, shall
comply with the fleet average NMOG standards in paragraph (a)(1) of
this section according to the following provisions:
(i) Low volume manufacturers shall be exempt from the requirements
in paragraph (a)(1) of this section for model years prior to the 2001
model year. The requirements in paragraph (a)(1) of this section
applicable to the 2001 and later model years shall apply to low volume
manufacturers.
(ii) If a manufacturer's average California sales exceed 3000 units
of new passenger cars, light-duty trucks, and medium-duty vehicles or
average nationwide sales exceeds 40,000 units of new passenger cars and
light-duty trucks based on the average number of vehicles sold for any
three consecutive model years, the manufacturer shall no longer be
treated as a low volume manufacturer and shall comply with the fleet
average requirements applicable to all other manufacturers as specified
in paragraph (a)(1) of this section beginning with the fourth model
year after the last of the three consecutive model years.
(iii) If a manufacturer's average California sales are at or below
3000 units of new passenger cars, light-duty trucks, and medium-duty
vehicles and average nationwide sales are at or below 40,000 units of
new passenger cars and light-duty trucks based on the average number of
vehicles sold for any three consecutive model years, the manufacturer
shall be treated as a low volume manufacturer and shall be subject to
requirements for low volume manufacturers as specified in paragraphs
(a)(6)(i) and (ii) of this section beginning with the next model year.
(b) Fleet average NMOG credit and debit calculations. (1) For each
averaging set, manufacturers that achieve applicable fleet average NMOG
values lower than the fleet average NMOG requirement for the
corresponding model year may generate credits.
(2) For each averaging set, manufacturers that obtain applicable
fleet average NMOG values exceeding the fleet average NMOG requirement
for the corresponding model year shall generate debits.
(3) For each averaging set, credits and debits are to be calculated
according to the following equation and rounded, in accordance with the
Rounding-Off Method specified in ASTM E29-90, Standard Practice for
Using Significant Digits in Test Data to Determine Conformance with
Specifications, to the nearest whole number (intermediate calculations
will not be rounded) (This procedure has been incorporated by
reference. See Sec. 86.1.):

Number of Credits/Debits =
{[(Applicable Fleet Average NMOG Requirement) -
(Manufacturer's Applicable Fleet Average NMOG Value)] x
(Applicable Production)}.

(4) For each region, the annual value of a manufacturer's available
credits or level of debits shall be the sum of credits or debits
derived from the respective class A and class B averaging sets for that
region.
(c) Fleet average NMOG credits. (1) Credits may be used to offset
fleet average NMOG debits of the same region (Ozone Transport Region or
37 States) in the current or future model year or transferred to
another motor vehicle manufacturer.
(2) Credits may be used by the manufacturer that generated them or
may be transferred to other parties for use by another motor vehicle
manufacturer.
(3) Credits shall be earned on the last day of the model year and
may be used

[[Page 52787]]
or traded at any time after they are earned, except that available
credits must be used to offset any outstanding debits, prior to trading
or carryover to the next model year.
(4) Credits earned in any given model year shall retain full value
through the subsequent model year.
(5) Unused credits that are available at the end of the second,
third, and fourth model years after the year in which the credits were
generated shall be discounted to 50%, 25%, and 0% of the original value
of the credits, respectively. The discounting of credits also applies
to credits transferred between manufacturers.
(6) Credits may not be used to remedy any nonconformities
determined by a Selective Enforcement Audit, recall testing, or testing
performed with respect to Title 13, Chapter 2, Articles 1 and 2 of the
California Code of Regulations.
(7) Prior to model year 2001, low volume manufacturers may earn
credits in the OTR for transfer to other motor vehicle manufacturers
for use in the OTR. Credits will be based on vehicle certification to
NLEV standards and a fleet average NMOG below the applicable NLEV NMOG
level for the OTR for that model year.
(8) Manufacturers may earn and bank credits in the 37 states prior
to model year 2001. Credits will be based on vehicle certification to
NLEV standards and a fleet average NMOG below the NMOG equivalent of
the applicable emission standards and other requirements specified in
Secs. 86.096-8 and 86.097-9.
(d) Fleet average NMOG debits. (1) Manufacturers shall obtain
enough credits to offset any debits by the end of the model year
following the model year in which the debits were generated. Debits may
be offset by generating credits, or acquiring credits generated by
another manufacturer. Any credits used to offset debits shall be from
the same region (Ozone Transport Region or 37 States) in which the
debit was incurred.
(2) If debits are not equalized within the specified time period,
the number of vehicles not meeting the fleet average NMOG standards
shall be calculated by dividing the total amount of debits for the
model year by the fleet average NMOG requirement applicable for the
model year and averaging set in which the debits were first incurred.
In the case where both averaging sets are in debit, any applicable
credits would first be split between the sets. Then, noncompliance
calculations would begin using the revised debit values. Each
noncomplying vehicle will be deemed to be in violation of the
conditions of its certificate. EPA will determine these vehicles by
designating vehicles in those engine families with the highest
certification NMOG emission values first and continuing until a number
of vehicles equal to the calculated number of noncomplying vehicles as
determined above is reached. EPA may void ab initio the certificates of
conformity for these vehicles. Failure by a manufacturer to remedy a
debit situation within the specified time period may also result in
civil penalties.
(e) Maintenance of records. (1) The manufacturer producing any
vehicles and/or trucks subject to the provisions in this subpart shall
establish, maintain, and retain the following information in adequately
organized and indexed records for each averaging set of each model
year:
(i) Model year;
(ii) Averaging set;
(iii) Applicable fleet average NMOG value achieved; and
(iv) All values used in calculating the applicable fleet average
NMOG value achieved.
(2) The manufacturer producing any vehicles and/or trucks subject
to the provisions in this subpart shall establish, maintain, and retain
the following information in adequately organized and indexed records
for each vehicle or truck subject to the provisions of this subpart:
(i) Model year;
(ii) Averaging set;
(iii) EPA engine family;
(iv) Assembly plant;
(v) Vehicle identification number;
(vi) NMOG standard to which the vehicle or truck is certified; and
(vii) Information on the point of first retail sale, including the
purchaser, city, and state.
(3) The manufacturer shall retain all records required to be
maintained under this section for a period of eight years from the due
date for the annual report. Records may be retained as hard copy or
reduced to microfilm, ADP diskettes, and so forth, depending on the
manufacturer's record retention procedure; provided, that in every case
all information contained in the hard copy is retained.
(4) Nothing in this section limits the Administrator's discretion
in requiring the manufacturer to retain additional records or submit
information not specifically required by this section.
(5) Pursuant to a request made by the Administrator, the
manufacturer shall submit to the Administrator the information that the
manufacturer is required to retain.
(6) EPA may void ab initio certificates of conformity for vehicles
and engines for which the manufacturer fails to retain the records
required in this section or to provide such information to the
Administrator upon request.
(f) NMOG credit transfers. (1) EPA may reject NMOG credit transfers
if the involved manufacturers fail to submit the credit transfer
notification in the annual report.
(2) In the event of a credit shortfall resulting from a credit
transfer between manufacturers, both the credit provider and recipient
are liable, except in cases involving fraud. EPA may void the
certificates of those LDVs and LDTs contributing to the credit
shortfall.
(g) Reporting. (1) Each manufacturer shall submit an annual report.
The annual report shall contain, for each averaging set, the applicable
fleet average NMOG value achieved, all values required to calculate the
NMOG value, the number of credits generated or debits incurred, and all
the values required to calculate the credits/debits. For each region
(Ozone Transport Region and 37 States), the annual report shall contain
the resulting balance of credits or debits.
(2) The annual report shall also include documentation on all
credit transactions for that calendar year. Information for each
transaction shall include:
(i) Name of credit provider;
(ii) Name of credit recipient;
(iii) Date the transfer occurred;
(iv) Quantity of credits transferred;
(v) Model year in which the credits were earned; and
(vi) Region (Ozone Transport Region or 37 States) to which the
credits belong.
(3) Manufacturers shall submit annual reports after production ends
for all affected vehicles and trucks produced by the manufacturer
subject to the provisions of this subpart and no later than May 1 of
the calendar year following the given model year. Annual reports shall
be submitted to: Director, Manufacturers Operations Division (6405J),
U.S. Environmental Protection Agency, 401 M Street, SW, Washington, DC
20460.
(4) Failure by a manufacturer to submit the annual report in the
specified time period for all vehicles and trucks subject to the
provisions in this section is a violation of section 203(a)(1) of the
Clean Air Act for each subject vehicle and truck produced by that
manufacturer.
(5) If EPA or the manufacturer determines that a reporting error
occurred on an annual report previously submitted to EPA, the
manufacturer's

[[Page 52788]]
credit/debit calculations will be recalculated. EPA may void erroneous
credits and shall adjust erroneous debits.
(h) Notice of opportunity for hearing. Any voiding of the
certificate under this section will be made only after the manufacturer
concerned has been offered an opportunity for a hearing conducted in
accordance with Sec. 86.614-84 and, if a manufacturer requests such a
hearing, will be made only after an initial decision by the Presiding
Officer.

Sec. 86.1711-97 through Sec. 86.1712-97 [Reserved]

Sec. 86.1713-97 Light-duty exhaust durability programs.

When applying Sec. 86.094-13 to the National LEV Program, that
section shall be modified according to the provisions contained in
section 11.a. of the ``California Exhaust Emission Standards and Test
Procedures for 1988 and Subsequent Model Passenger Cars, Light-Duty
Trucks and Medium-Duty Vehicles'' as amended September 22, 1993. These
provisions are incorporated by reference. See Sec. 86.1.

Sec. 86.1714-97 Small volume manufacturers certification procedures.

When applying Sec. 86.096-14 to the National LEV Program,
manufacturers meeting the definition of ``low-volume manufacturer'' are
not entitled to the use of the provisions of Sec. 86.096-14 unless they
also meet the definition of ``small volume manufacturer.''

Sec. 86.1715-97 [Reserved]

Sec. 86.1716-97 Prohibition of defeat devices.

When applying Sec. 86.094-16 to the National LEV Program, that
section shall be modified according to the provisions contained in
section 11.l. of the ``California Exhaust Emission Standards and Test
Procedures for 1988 and Subsequent Model Passenger Cars, Light-Duty
Trucks and Medium-Duty Vehicles'' as amended September 22, 1993. These
provisions are incorporated by reference. See Sec. 86.1.

Sec. 86.1717-97 Emission control diagnostic system for 1997 and later
light-duty vehicles and light-duty trucks.

Demonstration of compliance with California OBD II requirements
(Title 13 California Code 1968.1, as modified pursuant to California
Mail Out #95-03 (January 19, 1995) (these procedures are incorporated
by reference; see Sec. 86.1), shall satisfy the requirements of this
section with the following exceptions:
(1) Compliance with Title 13 California Code 1968.1(d), pertaining
to tampering protection, is not required to satisfy the requirements of
this section.
(2) The provisions relating to fines for deficiencies in paragraphs
(m) (6.1) and (6.2) of the ``California Exhaust Emission Standards and
Test Procedures for 1988 and Subsequent Model Passenger Cars, Light-
Duty Trucks and Medium-Duty Vehicles'' as amended September 22, 1993,
do not apply. These procedures are incorporated by reference (see
Sec. 86.1).
(b) ``Small-volume manufacturer'' is defined in Sec. 86.096-14.

Sec. 86.1718-97 through Sec. 86.1720-97 [Reserved]

Sec. 86.1721-97 Application for certification.

When applying Sec. 86.096-21 to the National LEV Program, that
section shall be modified according to the provisions contained in
sections 4.a. and 11.f. of the ``California Exhaust Emission Standards
and Test Procedures for 1988 and Subsequent Model Passenger Cars,
Light-Duty Trucks and Medium-Duty Vehicles'' as amended September 22,
1993. These provisions are incorporated by reference. See Sec. 86.1.

Sec. 86.1722-97 [Reserved]

Sec. 86.1723-97 Required data.

When applying Sec. 86.096-23 to the National LEV Program, that
section shall be modified according to the provisions contained in
sections 4.b., 9.f., and 11.c., 11.e., and 11.k. of the ``California
Exhaust Emission Standards and Test Procedures for 1988 and Subsequent
Model Passenger Cars, Light-Duty Trucks and Medium-Duty Vehicles'' as
amended September 22, 1993. These provisions are incorporated by
reference. See Sec. 86.1.

Sec. 86.1724-97 Test vehicles and engines.

When applying Sec. 86.095-24 to the National LEV Program, that
section shall be modified according to the provisions contained in
section 4.c. of the ``California Exhaust Emission Standards and Test
Procedure for 1988 and subsequent Model Passenger Cars, Light-Duty
Trucks and Medium-Duty Vehicles'' as amended September 22, 1993. These
provisions are incorporated by reference. See Sec. 86.1.

Sec. 86.1725-97 Maintenance.

When applying Sec. 86.094-25 to the National LEV Program, that
section shall be modified according to the provisions contained in
section 5.a. of the ``California Exhaust Emission Standards and Test
Procedures for 1988 and Subsequent Model Passenger Cars, Light-Duty
Trucks and Medium-Duty Vehicles'' as amended September 22, 1993. These
provisions are incorporated, with the exception of section 5.a.
paragraph 5, by reference. See Sec. 86.1.

Sec. 86.1726-97 Mileage and service accumulation; emission
measurements.

When applying Sec. 86.096-26 to the National LEV Program, that
section shall be modified according to the provisions contained in
sections 6.a., 11.c., and 11.k. of the ``California Exhaust Emission
Standards and Test Procedures for 1988 and Subsequent Model Passenger
Cars, Light-Duty Trucks and Medium-Duty Vehicles'' as amended September
22, 1993. These provisions are incorporated by reference. See
Sec. 86.1.

Sec. 86.1727-97 [Reserved]

Sec. 86.1728-97 Compliance with emission standards.

When applying Sec. 86.094-28 to the National LEV Program, that
section shall be modified according to the provisions contained in
section 6.b. of the ``California Exhaust Emission Standards and Test
Procedures for 1988 and Subsequent Model Passenger Cars, Light-Duty
Trucks and Medium-Duty Vehicles'' as amended September 22, 1993. These
provisions are incorporated by reference. See Sec. 86.1.

Sec. 86.1729-97 through Sec. 86.1733-97 [Reserved]

Sec. 86.1734-97 Alternative procedure for notification of additions
and changes.

When applying Sec. 86.082-34 to the National LEV Program, that
section shall be modified according to the provisions contained in
section 8 of the ``California Exhaust Emission Standards and Test
Procedures for 1988 and Subsequent Model Passenger Cars, Light-Duty
Trucks and Medium-Duty Vehicles'' as amended September 22, 1993. These
provisions are incorporated by reference. See Sec. 86.1.

Sec. 86.1735-97 Labeling.

When applying Sec. 86.096-35 to the National LEV Program, that
section shall be modified according to the provisions contained in the
``California Motor Vehicle Emission Control Label Specifications'' as
amended July 12, 1991, with the exception of the provisions in
paragraph 3(d)(10). These provisions are incorporated by reference. See
Sec. 86.1.

Sec. 86.1736-97 through Sec. 86.1737-97 [Reserved]

Sec. 86.1738-97 Maintenance instructions.

When applying Sec. 86.087-38 to the National LEV Program, that
section shall be modified according to the provisions contained in
section 5.b. of the

[[Page 52789]]
``California Exhaust Emission Standards and Test Procedures for 1988
and Subsequent Model Passenger Cars, Light-Duty Trucks and Medium-Duty
Vehicles'' as amended September 22, 1993. These provisions are
incorporated by reference. See Sec. 86.1.

Sec. 86.1739-97 Submission of maintenance instructions.

When applying Sec. 86.079-39 to the National LEV Program, that
section shall be modified according to the provisions contained in
section 5.c. of the ``California Exhaust Emission Standards and Test
Procedures for 1988 and Subsequent Model Passenger Cars, Light-Duty
Trucks and Medium-Duty Vehicles'' as amended September 22, 1993. These
provisions are incorporated by reference. See Sec. 86.1.

Sec. 86.1740-97 through Sec. 86.1769-97 [Reserved]

Sec. 86.1770-97 Evaporative emissions testing.

(a) Testing for evaporative emissions shall be conducted according
to the provisions of Sec. 86.130-96, with the following exceptions:
(1) Section 86.107-96 shall be applied as follows:
(i) Where a temperature of 95 deg.F is specified, 105 deg.F shall
be used instead.
(ii) Where a temperature profile is specified, it shall be replaced
by a profile that cycles from 65 deg.F to 105 deg.F.
(2) Section 86.117-96 shall be applied as follows:
(i) Where a temperature of 96 deg.F is specified, 105 deg.F shall
be used instead.
(ii) Where a temperature profile is specified, it shall be replaced
by a profile that cycles from 65 deg.F to 105 deg.F.
(3) The temperature profile specified in Sec. 86.133-96 shall
instead be replaced by a profile that cycles from 65 deg.F to
105 deg.F.
(4) Where a temperature of 95 deg.F is specified in Sec. 86.134-96,
105 deg.F shall be used instead.
(5) Where a temperature of 95 deg.F is specified in Sec. 86.138-96,
105 deg.F shall be used instead.
(b) [Reserved]

Sec. 86.1771-97 Fuel specifications.

When applying Sec. 86.113 to the National LEV Program, except when
conducting exhaust emission testing at high altitude conditions and
evaporative emission testing at high altitude conditions, that section
shall be modified according to the provisions contained in section 9.a.
of the ``California Exhaust Emission Standards and Test Procedures for
1988 and Subsequent Model Passenger Cars, Light-Duty Trucks and Medium-
Duty Vehicles'' as amended September 22, 1993. These provisions are
incorporated by reference. See Sec. 86.1.

Sec. 86.1772-97 Test sequence; general requirements.

When applying Sec. 86.130 to the National LEV Program, that section
shall be modified according to the provisions contained in sections
9.c. and 11.k. of the ``California Exhaust Emission Standards and Test
Procedures for 1988 and Subsequent Model Passenger Cars, Light-Duty
Trucks and Medium-Duty Vehicles'' and ``California Non-Methane Organic
Gas Test Procedures'', both amended September 22, 1993. These
provisions are incorporated by reference. See Sec. 86.1.

Sec. 86.1773-97 Vehicle preconditioning.

When applying Sec. 86.132 to the National LEV Program, that section
shall be modified according to the provisions contained in section 9.d.
of the ``California Exhaust Emission Standards and Test Procedures for
1988 and Subsequent Model Passenger Cars, Light-Duty Trucks and Medium-
Duty Vehicles'' as amended September 22, 1993. These provisions are
incorporated by reference. See Sec. 86.1.

Sec. 86.1774-97 Exhaust sample analysis.

When applying Sec. 86.140 to the National LEV program, that section
shall be modified according to the provisions contained in ``California
Non-Methane Organic Gas Test Procedures'' as amended September 22,
1993. These provisions are incorporated by reference. See Sec. 86.1.

Sec. 86.1775-97 Records Required.

When applying Sec. 86.142 to the National LEV Program, that section
shall be modified according to the provisions contained in section 9
(except section 9.b paragraphs 1 through 4) and Appendix IV of the
``California Exhaust Emission Standards and Test Procedures for 1988
and Subsequent Model Passenger Cars, Light-Duty Trucks and Medium-Duty
Vehicles'' and ``California Non-Methane Organic Gas Test Procedures''
both amended September 22, 1993. These provisions are incorporated by
reference. See Sec. 86.1.

Sec. 86.1776-97 Calculations; exhaust emissions.

When applying Sec. 86.144 to the National LEV Program, that section
shall be modified according to the provisions contained in sections
9.g., 13, and Appendix V of the ``California Exhaust Emission Standards
and Test Procedures for 1988 and Subsequent Model Passenger Cars,
Light-Duty Trucks and Medium-Duty Vehicles'' and the ``California Non-
Methane Organic Gas Test Procedures'' both amended September 22, 1993.
These provisions are incorporated by reference. See Sec. 86.1.

Sec. 86.1777-97 Calculations; particulate emissions.

When applying Sec. 86.145 to the National LEV Program, that section
as it pertains to the testing of diesel particulate emissions shall be
modified according to the provisions contained in Appendix V of the
``California Exhaust Emission Standards and Test Procedures for 1988
and Subsequent Model Passenger Cars, Light-Duty Trucks and Medium-Duty
Vehicles'' as amended September 22, 1993. These provisions are
incorporated by reference. See Sec. 86.1.

Sec. 86.1778-97 General enforcement provisions.

(a) The provisions of sections 203-208 of the Act (42 U.S.C. 7522-
7525, 7541-7542) apply to all motor vehicles manufactured by a covered
manufacturer under this program, and to all covered manufacturers and
all persons with respect to such vehicles.
(b) Violation of the requirements of this subpart shall subject a
person to the jurisdiction and penalty provisions of sections 204-205
of the Act (42 U.S.C. 7522-7523).
(c) EPA may not issue a certificate of conformity to a covered
manufacturer, as defined in Sec. 86.1702-97, except based on compliance
with the standards and requirements in this subpart.

Sec. 86.1779-97 Prohibited acts.

(a) The following acts and the causing thereof are prohibited:
(1) In the case of a covered manufacturer, as defined by
Sec. 86.1702-97, of new motor vehicles or new motor vehicle engines for
distribution in commerce, the sale, or the offering for sale, or the
introduction, or delivery for introduction, into commerce, (or in the
case of any person, except as provided by regulation of the
Administrator), the importation into the United States of any new motor
vehicle or new motor vehicle engine subject to this subpart, unless
such vehicle or engine is covered by a certificate of conformity issued
(and in effect) under regulations found in this subpart (except as
provided in section 203(b) of the Act (42 U.S.C. 7522(b) or regulations
promulgated thereunder).
(2)(i) For any person to fail or refuse to permit access to or
copying of records or to fail to make reports or provide information
required under section 208

[[Page 52790]]
(42 U.S.C. 7542) with regard to covered vehicles.
(ii) For a person to fail or refuse to permit entry, testing, or
inspection authorized under section 206(c) (42 U.S.C. 7525(c)) or
section 208 (42 U.S.C. 7542) with regard to covered vehicles.
(iii) For a person to fail or refuse to perform tests, or to have
tests performed as required under section 208 (42 U.S.C. 7542) with
regard to covered vehicles.
(iv) For a person to fail to establish or maintain records as
required under Secs. 86.1723-97 and 86.1775-97 with regard to covered
vehicles.
(v) For any manufacturer to fail to make information available as
provided by regulation under section 202(m)(5) (42 U.S.C. 7521(m)(5))
with regard to covered vehicles.
(3)(i) For any person to remove or render inoperative any device or
element of design installed on or in a covered vehicle or engine in
compliance with regulations under this subpart prior to its sale and
delivery to the ultimate purchaser, or for any person knowingly to
remove or render inoperative any such device or element of design after
such sale and delivery to the ultimate purchaser.
(ii) For any person to manufacture, sell or offer to sell, or
install, any part or component intended for use with, or as part of,
any covered vehicle or engine, where a principal effect of the part or
component is to bypass, defeat, or render inoperative any device or
element of design installed on or in a covered vehicle or engine in
compliance with regulations issued under this subpart, and where the
person knows or should know that the part or component is being offered
for sale or installed for this use or put to such use.
(4) For any manufacturer of a covered vehicle or engine subject to
standards prescribed under this subpart:
(i) To sell, offer for sale, introduce or deliver into commerce, or
lease any such vehicle or engine unless the manufacturer has complied
with the requirements of section 207 (a) and (b) of the Act (42 U.S.C.
7541(a), (b)) with respect to such vehicle or engine, and unless a
label or tag is affixed to such vehicle or engine in accordance with
section 207(c)(3) (42 U.S.C. 7541(c)(3)).
(ii) To fail or refuse to comply with the requirements of section
207(c) or (e) of the Act (42 U.S.C. 7541(c) or (e)).
(iii) Except as provided in section 207(c)(3) of the Act (42 U.S.C.
7541(c)(3)), to provide directly or indirectly in any communication to
the ultimate purchaser or any subsequent purchaser that the coverage of
a warranty under the Act is conditioned upon use of any part,
component, or system manufactured by the manufacturer or a person
acting for the manufacturer or under its control, or conditioned upon
service performed by such persons.
(iv) To fail or refuse to comply with the terms and conditions of
the warranty under section 207 (a) or (b) of the Act (42 U.S.C. 7541(a)
or (b)).
(b) For the purposes of enforcement of this subpart, the following
apply:
(1) No action with respect to any element of design referred to in
paragraph (a)(4) of this section (including any adjustment or
alteration of such element) shall be treated as a prohibited act under
paragraph (a)(4) of this section if such action is in accordance with
section 215 (42 U.S.C. 7549);
(2) Nothing in paragraph (a)(4) of this section is to be construed
to require the use of manufacturer parts in maintaining or repairing a
covered vehicle or engine. For the purposes of the preceding sentence,
the term ``manufacturer parts'' means, with respect to a motor vehicle
engine, parts produced or sold by the manufacturer of the motor vehicle
or motor vehicle engine;
(3) Actions for the purpose of repair or replacement of a device or
element of design or any other item are not considered prohibited acts
under paragraph (a) of this section if the action is a necessary and
temporary procedure, the device or element is replaced upon completion
of the procedure, and the action results in the proper functioning of
the device or element of design;
(4) Actions for the purpose of a conversion of a motor vehicle or
motor vehicle engine for use of a clean alternative fuel (as defined in
Title II of the Act) are not considered prohibited acts under paragraph
(a) of this section if:
(i) The vehicle complies with the applicable standard when
operating on the alternative fuel, and the device or element is
replaced upon completion of the conversion procedure; and
(ii) In the case of engines converted to dual fuel or flexible use,
the action results in proper functioning of the device or element when
the motor vehicle operates on conventional fuel.

[FR Doc. 95-24563 Filed 10-6-95; 8:45 am]
BILLING CODE 6560-50-P}}}}}}}}}}}}}}}}}}}}}}}}}}}