[Federal Register Volume 62, Number 163 (Friday, August 22, 1997)]
[Rules and Regulations]
[Pages 44872-44875]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-22368]



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Part IX





Environmental Protection Agency





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40 CFR Part 86



Extension of Interim Revised Durability Procedures for Light-Duty 
Vehicles and Light-Duty Trucks; Final Rule

  Federal Register / Vol. 62, No. 163 / Friday, August 22, 1997 / Rules 
and Regulations  

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 86

[AMS-FRL-5879-2]


Extension of Interim Revised Durability Procedures for Light-Duty 
Vehicles and Light-Duty Trucks

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: Today's action extends the applicability of light duty vehicle 
and light duty truck durability procedures to beyond the 1998 model 
year.
    On January 12, 1993, EPA published a final rule establishing 
interim durability procedures used for demonstrating compliance with 
light duty vehicle and light duty truck emission standards, applicable 
in model years 1994-1996 only. On July 18, 1994, EPA published a direct 
final rule extending the applicability of the original rule to the end 
of the 1998 model year. Today's final rule extends the applicability of 
those durability procedures indefinitely. The Agency intends to conduct 
a separate rulemaking to implement a long-term durability program; 
however, such an action will be linked to other actions as part of a 
broad-based streamlining initiative for all vehicle emission compliance 
activities. It is difficult to predict with any precision when this 
subsequent action will occur. The Agency currently estimates that new 
compliance regulations will be promulgated such that they would become 
effective no earlier than the 2000 model year. Because the current 
durability regulations expire at the end of the 1998 model year, 
failure to adopt today's action would result in less effective and 
inefficient durability regulations beginning with the 1999 model year. 
The Agency believes that it is appropriate to extend indefinitely the 
existing interim procedures because so doing addresses lead time 
concerns for model year 1999 and beyond, accounts for the uncertainty 
of the anticipated revised compliance regulations and adds no new 
requirements, but rather simply allows the continuation of the current 
program.

DATES: This final rule is effective September 22, 1997.

ADDRESSES: Materials relevant to this final rule have been placed in 
Docket No. A-93-46. Additional documents of relevance may be found in 
Docket No. A-90-24. The docket is located at the above address in room 
M-1500, Waterside Mall, and may be inspected weekdays between 8:30 a.m. 
and noon, and between 1:30 p.m. and 3:30 p.m. A reasonable fee may be 
charged by EPA for copying docket materials.

FOR FURTHER INFORMATION CONTACT: Linda Hormes, Vehicle Programs and 
Compliance Division, U.S. Environmental Protection Agency, National 
Vehicle and Fuel Emissions Laboratory, 2565 Plymouth Road, Ann Arbor, 
MI 48105. Telephone (313) 668-4502.

SUPPLEMENTARY INFORMATION:

    The preamble and regulatory language are also available 
electronically from the EPA internet Web site. This service is free of 
charge, except for any cost you already incur for internet 
connectivity. The electronic version of this final rule is made 
available on the day of publication on the primary Web site listed 
below. The EPA Office of Mobile Sources also publishes these notices on 
the secondary Web site listed below.
Internet (Web)
http://www.epa.gov/docs/fedrgstr/EPA-AIR/ (either select desired date 
or use Search feature)
http://www.epa.gov/OMSWWW/ (look in What's New or under the specific 
rulemaking topic)

    Please note that due to differences between the software used to 
develop the document and the software into which the document may be 
downloaded, changes in format, page length, etc. may occur.

I. Background

    On January 12, 1993, the Agency published interim procedures for 
motor vehicle manufacturers to use in demonstrating compliance with 
emission standards for light-duty vehicles and light-duty trucks (58 FR 
3994). That rule, referred to as the ``RDP I'' rule, made the interim 
procedures applicable to model years 1994 through 1996, but not 
thereafter. The Agency now plans to revise the RDP I interim procedures 
through a separate rulemaking in conjunction with other activities 
associated with a compliance initiative currently being undertaken by 
the Agency.
    The Agency initially planned to promulgate a separate durability 
regulation, hereafter referred to as ``RDP II'' which was to become 
effective beginning with the 1997 model year. However, that became 
impractical due to lead time constraints for manufacturers wishing to 
certify vehicles in that model year and the uncertainty that sufficient 
lead time existed for implementation in the 1998 model year as well. 
Consequently, the Agency promulgated a direct final rule which extended 
the applicability of the RDP I interim rulemaking through model year 
1998 (59 FR 36368). This was intended to provide manufacturers with 
timely notice of the regulations applicable for certifying vehicles 
through model year 1998 while EPA continued work on preparing and 
finalizing further technical and procedural improvements to the RDP II 
program. While work on the RDP II rule proceeded, various new events 
and actions precluded the timely completion of this project. In 
particular, in 1995 the Agency undertook an initiative to revise the 
current vehicle compliance program, including the durability protocols. 
The Agency is currently considering promulgating regulations which 
would become effective with the 2000 model year. Because, as of today's 
date, these regulations are still in the pre-proposal stage, it is not 
possible to provide manufacturers with a firm effective date. 
Therefore, the Agency believes today's action of indefinitely extending 
the existing RDP I regulations will satisfy the industry's need to plan 
its durability programs and will retain the current durability options 
which can be improved upon in future actions.
    The rule being adopted today was previously promulgated as a direct 
final rule (61 FR 58618), but due to adverse comment submitted to EPA, 
the DFR was withdrawn (62 FR 11082) and a proposal was simultaneously 
published (62 FR 11138).

II. Comments and EPA Response

A. Comments

    A total of six written comments were received during the public 
comment period for the NPRM. Three were from the automotive 
manufacturing industry, one from a group of associations representing 
an industry commonly referred to the as the automotive ``aftermarket'', 
that is, manufacturers of automotive parts and components to be used as 
replacements in existing cars and trucks, one from the Ethyl 
Corporation, a manufacturer of fuel additives for use in gasoline, and 
one from Envirotest Systems, a provider of centralized vehicle 
emissions testing programs for states and municipalities.
    The automotive industry comments were from Ford, General Motors and 
a joint submission from Association of International Automobile 
Manufacturers (AIAM) and American Automobile Manufacturers Association 
(AAMA), which represent the majority of automotive manufacturers with 
U.S. markets. All of the automotive

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comments were consistently supportive of the extension of the RDP I 
regulations. GM and Ford specifically commented that the final rule 
should be promulgated as soon as possible due to their plans to utilize 
RDP I procedures in the 1999 model year. All automotive comments 
supported the indefinite extension of RDP I because of the uncertainty 
of the implementation date for the new certification compliance 
regulations planned by the Agency.
    All automotive comments expressed a concern that the manufacturer-
derived durability processes allowed under the RDP I regulation be held 
by EPA as proprietary and confidential, as allowed under section 
7542(c) of the Clean Air Act. GM expressed the opinion that their 
alternative durability processes constitute trade secrets and 
commercial information within the meaning of Section 1905 of Title 18 
of the United States Code and is therefore entitled to confidential 
treatment pursuant to section 208(c) of the Clean Air Act, Sections 
552(b)(4) and 552(c)(4) of the USC (Exemption 4 of the Freedom of 
Information Act), and Part 2, of Title 40 of the Code of Federal 
Regulations.
    Envirotest Systems stated that it did ``not oppose EPA's 
proposal''. But it requested that EPA ``provide assurance to the public 
that information describing the nature of any undefined test procedures 
upon which the Agency's certification decisions are based [be] made 
available to the public upon request'', citing EPA's Freedom of 
Information Act regulations which require information which is emission 
data to not be considered confidential. It also expressed ``strong 
reservations'' about any plans the Agency may have for replacing the I/
M 240 Inspection/Maintenance program with a program which inspected the 
vehicles' on-board diagnostic (OBD II) systems to determine pass fail 
emission status.
    Ethyl Corporation, represented by Hunton & Williams, similarly 
stated that it did ``not oppose per se reliance upon the range of test 
procedures which would be authorized by EPA's proposal''. However, it 
presented three arguments for requiring the public release of certain 
information which manufacturers may have provided to EPA during the RDP 
I process. First, Ethyl argued that any information that EPA relies 
upon to support its certification decisions cannot be deemed 
confidential, because such decisions are subject to judicial review, 
and any information used to make certification decisions which is 
relevant to that decision must be subject to public review. Second, 
similarly to Envirotest, Ethyl claimed that any information qualifying 
as ``emission data'' or a ``standard or limitation'' under the Clean 
Air Act is not eligible for confidential treatment, citing the EPA FOIA 
regulations at 40 CFR 2.301. The third argument Ethyl presents is that 
General Motors, in its comments on this rulemaking, has not stated 
valid grounds to support a trade secret claim, under the FOIA 
requirements at 40 CFR 2.204(e)(4)(viii).
    The consortium of aftermarket parts associations opposed the 
proposal because it did not require ``that a description of [certain 
manufacturer-specific procedures], including onboard diagnostic-related 
information, is made available for public inspection and review.'' 
Again, FOIA was cited as well as the Clean Air Act sec. 208(c), 202(m), 
and 206.

B. EPA Response

    EPA is adopting as final the proposed extension of RDP I rules to 
beyond the 1998 model year. It is of no benefit to the Agency, to 
manufacturers, or to the general public to discontinue the RDP I 
regulation and revert back to the outdated 50,000-mile AMA durability 
procedures. The automotive industry uniformly and strongly supports the 
extension of RDP I. All negative comments center around the 
availability of information which manufacturers may have provided EPA 
during the RDP I approval process, not the actual process itself. EPA 
is not determining in today's rule the confidentiality of any 
information submitted by manufacturers. There is already a separate, 
well-established procedure for making such determinations. EPA's 
information disclosure process, as mandated by the Freedom of 
Information Act (FOIA), requires that the submitters of the information 
bear the burden of proof for substantiating claims of information 
confidentiality. Requests received for information which the 
manufacturer has identified as confidential business information are 
handled in accordance with the procedures in 40 CFR part 2, subpart B. 
The Agency will continue to follow these procedures to make 
confidentiality determinations of manufacturer information. Again, this 
process is separate from the certification process, hence the RDP I 
regulation will continue to be in effect, and information submitted to 
EPA during the RDP I approval process will be handled and disseminated 
in accordance with the existing regulations.
    The Agency is unable to determine how Envirotest's request that OBD 
II not be used to replace the I/M 240 test applies to the RDP I rule 
being promulgated today. Envirotest did not submit any information 
which tied the I/M 240 test or OBD II regulations to RDP I, other than 
stating that some manufacturers have made confidentiality claims on 
certain OBD information. OBD (CAA section 202(m)) issues and the 
relationship between OBD and I/M requirements have been addressed in 
separate rulemakings. See, for example, 61 FR 40940 (August 6, 1996). 
Therefore, the Agency is not addressing this comment in today's rule.
    As they discussed in their comments, Ethyl has previously requested 
manufacturer information held by EPA, which has been claimed as 
confidential. Ethyl has appealed this claim, which is currently under 
consideration by EPA's Office of General Counsel. Ethyl also takes 
issue with the legal arguments presented by GM in their comment 
submitted to the Docket for this rulemaking. The purpose of today's 
rule is not to make a determination under FOIA if manufacturer 
information is or is not confidential or if a manufacturer's 
justification for confidentiality is or is not valid. The purpose of 
today's rule is to provide effective regulations requiring 
manufacturers to demonstrate that the vehicles they make are durable 
and will comply with emission standards for their useful lives. As 
stated above, EPA will continue to uphold the statutes and regulations 
regarding the disclosure of information to the public using the 
procedures already established for this purpose. Those opposed to the 
determinations made have appeal rights under 40 CFR 2.205 through EPA's 
Office of General Counsel.
    The aftermarket associations requested that EPA in its RDP I rule 
require manufacturers to publicly disclose all information concerning 
RDP processes. EPA is not adopting this requirement because it did not 
propose to do so, and furthermore believes that the more appropriate 
venue to handle public disclosure of information is via the existing 
FOIA procedures, not through this rulemaking.

III. Environmental Effects and Economic Impacts

A. Economic Impacts

    This action extends an existing program without modification, and 
as such, the Agency does not expect any new economic impacts over and 
above those described in the interim rulemaking. In general, the RDP-I 
interim rulemaking projected annual cost savings with respect to the 
previously existing program of approximately $8.6 million, and

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although this number is highly dependent upon the interaction of 
several variables, all modeled scenarios resulted in some level of 
savings. A complete description of those impacts is contained in 58 FR 
3994 (January 12, 1993).

B. Environmental and Cost-Benefit Impacts

    The RDP I rulemaking revised testing and administrative procedures 
necessary to determine the compliance of light-duty vehicles and light-
duty trucks with the Tier 1 emission standards promulgated in June 
1991, and no environmental benefit was claimed over and above that 
already accounted for in the Tier 1 rule. Today's action will similarly 
claim no environmental benefit. A detailed discussion of the Tier 1 
environmental impacts can be found in 56 FR 25734 (June 5, 1991).

IV. Public Participation and Effective Date

    This final rule is effective on September 22, 1997.
    A public hearing was scheduled, but canceled due to the lack of any 
participants.
    During the public comment period, six written comments were 
received. These are addressed in Section II. above.

V. Statutory Authority

    Authority for the actions promulgated in this final rule is granted 
to EPA by sections 202, 203, 205, 206, 207, 208, 215, 216, 217, and 
301(a), of the Clean Air Act, as amended (42 U.S.C. 7521, 7522, 7524, 
7525, 7541, 7542, 7549, 7550, 7552, and 7601(a), and 5 U.S.C. 553(b)).

VI. Administrative Designation

    Under Executive Order 12866, the Agency must determine whether the 
regulatory action is ``significant'' and, therefore, subject to OMB 
review and the requirements of the Executive Order. The order defines a 
``significant regulatory action'' as one that is likely to result in a 
rule that may:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, productivity, 
competition, jobs, the environment, public health or safety, or State, 
local or tribal governments or communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    It has been determined that this rule is not a ``significant 
regulatory action'' under the terms of Executive Order 12866 and is 
therefore not subject to OMB review.

VII. Impact on Small Entities

    The Regulatory Flexibility Act requires federal agencies to 
identify potentially adverse impacts of federal regulations upon small 
entities. In instances where significant impacts are possible on a 
substantial number of these entities, agencies are required to develop 
a proposed Regulatory Flexibility Analysis.
    EPA has determined that it is not necessary to prepare a regulatory 
flexibility analysis in connection with this rule. This rule will not 
have a significant adverse economic impact on a substantial number of 
small businesses subject to this rulemaking. This rulemaking will 
continue to provide regulatory relief to automobile manufacturers by 
offering options for durability demonstrations and at the same time by 
maintaining consistency with California durability requirements. It 
will not have a substantial impact on such entities.
    In the absence of the rule, the expiration of the Sec. 86.094-13 
provisions for light duty exhaust durability procedures would result in 
the need all manufacturers to perform time-consuming, expensive 
durability procedures. Manufacturers would also be required to perform 
separate durability demonstrations for California.
    Therefore, EPA has determined that this regulation does not have a 
significant impact on a substantial number of small entities.

VIII. Reporting and Recordkeeping Requirements

    Today's action does not impose any new information collection 
burden, because this action merely extends the applicability of the 
previously existing regulation, including information collection. The 
Office of Management and Budget (OMB) has previously approved the 
information collection requirements contained in 40 CFR 86.094-13 under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. 
and has assigned ICR No. 2060-0104.
    Burden means the total time, effort, or financial resources 
expended by persons to generate, maintain, retain, or disclose or 
provide information to or for a Federal agency. This includes the time 
needed to review instructions; develop, acquire, install, and utilize 
technology and systems for the purposes of collecting, validating, and 
verifying information, processing and maintaining information, and 
disclosing and providing information; adjust the existing ways to 
comply with any previously applicable instructions and requirements; 
train personnel to be able to respond to a collection of information; 
search data sources; complete and review the collection of information; 
and transmit or otherwise disclose the information.
    Copies of the ICR document(s) may be obtained from Sandy Farmer, 
Information Policy Branch; EPA; 401 M St., SW. (mail code 2137); 
Washington, DC 20460 or by calling (202) 260-2740. Include the ICR 
number in any correspondence.

IX. Submission to Congress and the General Accounting Office

    Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business 
Regulatory Enforcement Fairness Act of 1996, EPA submitted a report 
containing this rule and other required information to the U.S. Senate, 
the U.S. House of Representatives and the Comptroller General of the 
General Accounting Office prior to publication of the rule in today's 
Federal Register. This rule is not a ``major rule'' as defined by 5 
U.S.C. 804(2).

X. Unfunded Mandates

    Section 202 of the Unfunded Mandates Reform Act of 1995 (signed 
into law on March 22, 1995) requires that EPA prepare a budgetary 
impact statement before promulgating a rule that includes a federal 
mandate that may result in expenditure by state, local and tribal 
governments, in aggregate, or by the private sector, of $100 million or 
more in any one year. Section 203 of the Unfunded Mandates Reform Act 
requires EPA to establish a plan for obtaining input from and 
informing, educating and advising any small governments that may be 
significantly or uniquely affected by the rule.
    Under section 205 of the Unfunded Mandates Act, EPA must identify 
and consider a reasonable number of regulatory alternatives before 
promulgating a rule for which a budgetary impact statement must be 
prepared. EPA must select from those alternatives the least costly, 
most cost-effective, or least burdensome alternative that achieves the 
objectives of the rule, unless EPA explains why this alternative is not 
selected or the selection of this alternative is inconsistent with law.

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    Because this final rule is expected to result in the expenditure by 
state, local and tribal governments or private sector of less than $100 
million in any one year, EPA has not prepared a budgetary impact 
statement or specifically addressed selection of the least costly, most 
cost-effective or least burdensome alternative. Because small 
governments will not be significantly or uniquely affected by this 
rule, EPA is not required to develop a plan with regard to small 
governments.

List of Subjects in 40 CFR Part 86

    Environmental protection, Administrative practice and procedure, 
Confidential business information, Labeling, Motor vehicle pollution, 
Reporting and recordkeeping requirements.

    Dated: August 15, 1997.
Carol M. Browner,
Administrator.

    For the reasons set forth in the preamble, part 86 of chapter I, 
title 40 of the Code of Federal Regulations is amended as follows:

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

    1. The authority citation for part 86 is revised to read as 
follows:

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


Sec. 86.094-13  [Amended]

    2. In Sec. 86.094-13, paragraphs (a)(1), (c)(1), (d)(1), (e)(1), 
and (f)(1) are amended by revising the words ``1994 through 1998'' to 
read ``1994 and beyond''.


Sec. 86.094-26  [Amended]

    3. In Sec. 86.094-26, paragraphs (a)(2), (b)(2)(i), and (b)(2)(ii) 
are amended by revising the words ``1994 through 1998'' to read ``1994 
and beyond''.

[FR Doc. 97-22368 Filed 8-21-97; 8:45 am]
BILLING CODE 6560-50-P