29102 Federal Register / Vol. 72, No. 100 / Thursday, May 24, 2007 / Proposed Rules 

deliveries are only accepted during the 

Regional Office’s normal hours of 

operation. The Regional Office’s official 

hours of business are Monday through 

Friday, 8:30 to 4:30, excluding Federal 

holidays. 

Please see the direct final rule which 

is located in the Rules section of this 

Federal Register for detailed 

instructions on how to submit 

comments. 

FOR FURTHER INFORMATION CONTACT: 

Stacy Harder, Regulatory Development 

Section, Air Planning Branch, Air, 

Pesticides and Toxics Management 

Division, U.S. Environmental Protection 

Agency, Region 4, 61 Forsyth Street, 

SW., Atlanta, Georgia 30303–8960. The 

telephone number is (404) 562–8965. 

Ms. Harder can also be reached via 

electronic mail at harder.stacy@epa.gov. 

SUPPLEMENTARY INFORMATION: For 

additional information see the direct 

final rule which is published in the 

Rules section of this Federal Register. 

Dated: May 14, 2007. 

Russell L. Wright, Jr., 

Acting Regional Administrator, Region 4. 

[FR Doc. E7–10059 Filed 5–23–07; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 601 

[EPA–HQ–OAR–2005–0173; FRL–8317–2] 

RIN 2060–AN68 

SAFETEA–LU High Occupancy Vehicle 

Facilities Exemption Rule 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The Safe, Accountable, 

Flexible, Efficient Transportation Equity 

Act: A Legacy for Users Act, which was 

signed into law on August 10, 2005, 

contains provisions which apply to state 

High Occupancy Vehicle (HOV) 

facilities. Among other exceptions, 

SAFETEA–LU Section 1121, which is 

codified at 23 United States Code 

(U.S.C.) 166 now allows an exemption 

from the HOV facility occupancy 

requirement for vehicles certified as 

‘‘low emission and energy-efficient.’’ As 

directed by the 2005 Transportation Act, 

EPA must issue regulations for 

certifying vehicles as ‘‘low emission and 

energy-efficient.’’ Specifically, this 

action proposes the requirements for 

‘‘low emission and energy-efficient’’, 

including procedures for making fuel 

economy comparisons and the 

requirements for labeling these vehicles. 

As the Department of Transportation 

(DOT) is responsible for the planning 

and implementation of HOV programs, 

any changes to HOV programs as a 

result of this action would also be 

implemented by DOT and enforced by 

the individual states that choose to 

adopt these requirements. As directed 

by the 2005 Transportation Act, the 

HOV multiple-occupancy exemption for 

low emission and energy-efficient 

vehicle expires September 30, 2009. 

DATES: Comments on this Notice of 

Proposed Rulemaking must be 

submitted on or before July 9, 2007. A 

public hearing will be held on June 8, 

2007. Requests to present oral testimony 

must be received on or before June 1, 

2007. If EPA receives no requests to 

present oral testimony by this date, the 

hearing will be canceled. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–HQ–

OAR–2005–0173, by one of the 

following methods: 

• www.regulations.gov: Follow the 

on-line instructions for submitting 

comments. 

• E-mail: pugliese.holly@epa.gov. 

• Fax: 734–214–4053. 

• Mail: EPA–OAR–2005–0173, 

Environmental Protection Agency, 2000 

Traverwood, Ann Arbor, MI 48105 

• Hand Delivery: Docket, EPA/DC, 

EPA West, Room 3334, 1301 

Constitution Ave., NW., Washington, 

DC. Such deliveries are only accepted 

during the Docket’s normal hours of 

operation, and special arrangements 

should be made for deliveries of boxed 

information. 

Instructions: Direct your comments to 

Docket ID No. EPA–HQ–OAR–2005–

0173. EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online at 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit information that you 

consider to be CBI or otherwise 

protected through www.regulations.gov 

or e-mail. The www.regulations.gov Web 

site is an ‘‘anonymous access’’ system, 

which means EPA will not know your 

identity or contact information unless 

you provide it in the body of your 

comment. If you send an e-mail 

comment directly to EPA without going 

through www.regulations.gov, your email address will be automatically 

captured and included as part of the 

comment that is placed in the public 

docket and made available on the 

Internet. EPA recommends that you 

include your name and other contact 

information in the body of your 

comment if you submit an electronic 

comment or with any disk or CD–ROM 

you submit. If EPA cannot read your 

comment due to technical difficulties 

and cannot contact you for clarification, 

EPA may not be able to consider your 

comment. Electronic files should avoid 

the use of special characters, any form 

of encryption, and be free of any defects 

or viruses. 

Docket: All documents in the docket 

are listed in the www.regulations.gov 

index. Although listed in the index, 

some information is not publicly 

available, e.g., CBI or other information 

whose disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, will be publicly 

available only in hard copy. Publicly 

available docket materials are available 

either electronically in 

www.regulations.gov or in hard copy at 

the Docket, EPA/DC, EPA West, Room 

3334, 1301 Constitution Ave., NW., 

Washington, DC. The Public Reading 

Room is open from 8:30 a.m. to 4:30 

p.m., Monday through Friday, excluding 

legal holidays. The telephone number 

for the Public Reading Room is (202) 

566–1744. 

FOR FURTHER INFORMATION CONTACT: 

Holly Pugliese, Compliance and 

Innovative Strategies Division, Office of 

Transportation and Air Quality, 

Environmental Protection Agency, 2000 

Traverwood, Ann Arbor, MI 48105; 

telephone number: 734–214–4288; fax 

number: 734–214–4053; e-mail address: 

pugliese.holly@epa.gov. 

Access to Rulemaking Documents 

Through the Internet: This action is 

available electronically on the date of 

publication from EPA’s Federal Register 

Web site listed below. Electronic 

versions of this preamble, regulatory 

language, and other documents 

associated with this proposal rule are 

available from the EPA Office of 

Transportation and Air Quality Web 

site, listed below, shortly after the rule 

is signed by the Administrator. These 

services are free of charge, except any 

cost that you already incur for 

connecting to the Internet. EPA Federal 

Register Web site: http://www.epa.gov/ 

docs/fedrgstr/epa-air/ (either select a 

desired date or use the Search feature). 

EPA Office of Transportation and Air 

Quality Web site: http://www.epa.gov/ 

otaq/ (look in What’s New or under 

specific rulemaking topic). 

Please note that due to differences 

between the software used to develop 

the documents and the software into 


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which the documents may be 

downloaded, changes in format, page 

length, etc., may occur. 

SUPPLEMENTARY INFORMATION: 

I. General Information 

A. Does This Action Apply to Me? 

Regulated categories and entities 

covered by this proposal are described 

in the following table: 

Category NAICS codes a SIC codes b Examples of potentially regulated parties 

State governments .............. 92 (Public Admin) .............. 9131 (Exec and Legislative 

Offices Cmb).

State governments involved with transportation and/or 

high occupancy vehicle facilities. 

a North American Industry Classification System (NAICS). 

bStandard Industrial Classification (SIC) System. 

This list is not intended to be 

exhaustive, but rather provides a guide 

regarding entities likely to be regulated 

by this action. To determine whether 

particular activities may be regulated by 

this action, you should carefully 

examine the proposed regulations. You 

may direct questions regarding the 

applicability of this action to the person 

listed in FOR FURTHER INFORMATION

CONTACT. 

B. What Should I Consider as I Prepare 

My Comments for EPA? 

1. Submitting Comments With 

Confidential Business Information (CBI) 

Commenters who wish to submit 

proprietary information or CBI for 

consideration should clearly separate 

such information from other comments 

by (1) labeling proprietary information 

‘‘Confidential Business Information’’

and (2) sending proprietary information 

directly to the contact person listed (see 

FOR FURTHER INFORMATION CONTACT). Do 

not submit CBI to EPA through the 

docket, regulations.gov or e-mail. 

Clearly mark the part or all of the 

information that you claim to be CBI. 

For CBI information in a disk or CD–

ROM that you mail to EPA, mark the 

outside of the disk or CD–ROM as CBI 

and then identify electronically within 

the disk or CD–ROM the specific 

information that is claimed as CBI. In 

addition to one complete version of the 

comment that includes information 

claimed as CBI, a copy of the comment 

that does not contain the CBI must be 

submitted for inclusion in the public 

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. 

2. Tips for Preparing Your Comments 

When submitting comments, 

remember to: 

• Identify the rulemaking by docket 

number and other identifying 

information (subject heading, Federal 

Register date and page number). 

• Follow directions—The agency may 

ask you to respond to specific questions 

or organize comments by referencing a 

Code of Federal Regulations (CFR) part 

or section number. 

• Explain why you agree or disagree, 

suggest alternatives, and substitute 

language for your requested changes. 

• Describe any assumptions and 

provide any technical information and/ 

or data that you used. 

• If you estimate potential costs or 

burdens, explain how you arrived at 

your estimate in sufficient detail to 

allow for it to be reproduced. 

• Provide specific examples to 

illustrate your concerns, and suggest 

alternatives. 

• Explain your views as clearly as 

possible, avoiding the use of profanity 

or personal threats. 

• Make sure to submit your 

comments by the comment period 

deadline identified. 

Table of Contents 

I. Why Is This Action Being Taken? 

II. What Are EPA’s Proposed Requirements 

for the Certification of Low Emission and 

Energy-Efficient Vehicles? 

A. How Is EPA Proposing To Determine a 

Low Emission Vehicle? 

B. How Is EPA Proposing To Determine an 

Energy-Efficient Vehicle? 

1. What Fuel Economy Values Are Being 

Used To Determine if a Vehicle Is 

Energy-Efficient? 

2. How Is EPA Proposing To Determine a 

‘‘Comparable Vehicle’’? 

3. What Other Methods Did EPA Consider 

for Determining a ‘‘Comparable 

Vehicle’’? 

C. Will All Hybrid Vehicles Qualify for the 

HOV Facilities Exemption? 

D. What Alternative Fuel Vehicles Could 

Qualify for the HOV Facilities 

Exemption? 

E. How Will EPA Make Available the List 

of Eligible Vehicles? 

F. What Labeling Requirements Is EPA 

Proposing for Low Emission and EnergyEfficient Vehicles? 

G. What Impacts Are Associated With This 

Rulemaking? 

III. Request for Comments 

IV. What Are the Opportunities for Public 

Participation? 

A. Copies of This Proposal and Other 

Related Information 

B. Public Hearing 

V. What Are the Administrative 

Requirements for This Proposed Rule? 

A. Executive Order 12866: Regulatory 

Planning and Review 

B. Paperwork Reduction Act 

C. Regulatory Flexibility Act 

D. Unfunded Mandates Reform Act 

E. Executive Order 13132: Federalism 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

I. National Technology Transfer 

Advancement Act 

VI. What Are the Statutory Provisions and 

Legal Authority for This Proposed Rule? 

I. Why Is This Action Being Taken? 

On August 10, 2005, President Bush 

signed into law the Safe, Accountable, 

Flexible, Efficient Transportation Equity 

Act: A Legacy for Users (SAFETEA–LU) 

(Pub. L. 109–59). In general, SAFETEA–

LU builds on the Intermodal Surface 

Transportation Efficiency Act of 1991 

(ISTEA) and the Transportation Equity 

Act for the 21st Century (TEA–21) to 

supply funds and improve the 

programmatic framework for 

investments needed to maintain and 

grow the U.S. transportation 

infrastructure. SAFETEA–LU 

specifically covers Federal surface 

transportation programs for highways, 

highway safety, and transit from 2005 

until 2009. The HOV facilities 

provisions of Section 1121 of 

SAFETEA–LU, which are codified at 23 

U.S.C. 166, are the subject of this 

proposal. 

With a number of exceptions 

described more fully in Section 1121 of 

SAFETEA–LU, vehicles using HOV 

facilities must have two or more 

occupants. One of those exceptions is 

contained in 23 U.S.C. 166 and provides 


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1The National Highway Traffic Safety 

Administration recently finalized a rulemaking, 

‘‘Average Fuel Economy Standards for Light Trucks 

Model Years 2008–2011’’ (March 29, 2005), that 

extends fuel economy provisions for CAFE for 

medium-duty passenger vehicles weighing 8501–

10,000 lbs. GVWR. However, these provisions do 

not take effect until 2011 and thus will not impact 

this notice. http://www.nhtsa.dot.gov/staticfiles/ 

DOT/NHTSA/Rulemaking/Rules/ 

Associated%20Files/2006FinalRule.pdf, last viewed 

4/5/06. 

2 In actuality, there are up to 11 Bins for Tier 2. 

However, Bins 9–11 are only interim phase-in bins 

that expired at the end of the 2006 model year for 

cars and light trucks. 

3http://www.arb.ca.gov/msprog/levprog/levii/ 

levii.htm, last viewed 4/5/06. 

4California passenger cars include light-duty 

vehicles and light-duty trucks, including most sport 

utility vehicles and most large pickup trucks. 

an exemption to this occupancy 

requirement for ‘‘inherently low 

emission’’ vehicles and other ‘low 

emission and energy-efficient’ vehicles. 

Specifically, SAFETEA–LU added 

section 166(b)(5)(A) to title 23 of the 

U.S.C., which permits states to allow 

vehicles certified as ‘‘inherently low 

emission’’ vehicles to be exempted from 

the HOV facility occupancy 

requirements. ‘‘Inherently low emitting’’

vehicles are defined in title 40 section 

88.311–93 of the Code of Federal 

Regulations (CFR). In addition, 23 

U.S.C. 166 allows, but does not require, 

states to include a new occupancy 

exemption for the use of ‘‘low emission 

and energy-efficient’’ vehicles that do 

not meet the minimum occupancy 

requirement in HOV facilities. Section 

166(e) of 23 U.S.C. lays the groundwork 

for this proposal. Specifically, it directs 

EPA to issue regulations for certifying 

‘‘low emission and energy-efficient 

vehicles,’’ establishing procedures for 

making fuel economy comparisons in 

order to determine qualifying vehicles, 

and providing requirements for labeling 

these vehicles. States with HOV 

facilities may optionally adopt this 

exemption, which expires September 

30, 2009. This expiration date means 

that, unless Congress issues a 

reauthorization for the provisions in 23 

U.S.C. 166, state programs allowing low 

emission and energy-efficient vehicles 

that do not meet the minimum 

occupancy requirement to use HOV 

facilities will no longer be federally 

permitted and low emission and energyefficient vehicles that do not meet the 

established occupancy requirement will 

no longer be eligible to use HOV 

facilities. 

According to section 1121(c) of 

SAFETEA–LU, it is the sense of 

Congress to provide additional 

incentives (including the use of HOV 

facilities on State and Interstate 

highways) for the purchase and use of 

hybrid and other fuel efficient vehicle 

technologies, which have been proven 

to reduce exhaust emissions and 

decrease fossil fuel consumption by the 

transportation sector. 

EPA believes that this proposed 

rulemaking appropriately meets the 

requirements of 23 U.S.C. 166 by 

providing a useful methodology for 

designating vehicles as low emission 

and energy-efficient, thereby furthering 

the intent of Congress. 

II. What Are EPA’s Proposed 

Requirements for the Certification of 

Low Emission and Energy-Efficient 

Vehicles? 

To fulfill the requirements of 23 

U.S.C. 166, a low emission and energyefficient vehicle must meet the 

definition provided in 23 U.S.C. 

166(f)(3). This definition includes 

separate components for emissions and 

energy efficiency. The sections below 

discuss EPA’s proposed criteria for 

determining a ‘‘low emission’’ and 

‘‘energy-efficient’’ vehicle, based on the 

statutory definition. 

A. How Is EPA Proposing To Determine 

a Low Emission Vehicle? 

Section 166(f)(3)(A) defines the ‘‘low 

emission’’ component of a ‘‘low 

emission and energy-efficient’’ vehicle 

to be a vehicle that has been certified by 

EPA as meeting ‘‘the Tier II emission 

level established in regulations 

prescribed by the EPA under section 

202(i) of the Clean Air Act (CAA) for 

that vehicle’s make, model, and model 

year’’ (‘‘Tier II’’ will hereafter be 

referred to as ‘‘Tier 2’’). The Tier 2 

emission certification standards phase 

in over time and by vehicle 

classification. The standards took effect 

beginning in model year 2004 and will 

be fully implemented for light-duty 

vehicles and light light-duty trucks, up 

to 6000 pounds (lbs.) gross vehicle 

weight rating (GVWR), in 2007 (40 CFR 

86.1811–04(k)). The standards for heavy 

light-duty trucks, 6000 to 8500 lbs. 

GVWR, will not be fully implemented 

until the 2009 model year. The Tier 2 

standards also apply to medium-duty 

passenger vehicles, 8501 to 10,000 lbs. 

GVWR, but these vehicles are not 

included in this proposal, as vehicles 

weighing over 8500 lbs. GVWR are 

statutorily exempted from federal fuel 

economy requirements until 2011,1 as 

described in 49 U.S.C. 32908(a). 

The Tier 2 emission standards are 

based on a system of emission bins in 

which light-duty vehicles and light-duty 

trucks are certified in one of eight bins; 2

Bin 1 represents the cleanest or lowest 

emitting vehicles, and Bin 8 represents 

the highest emitting vehicles of the Tier 

2 bins. Thus, some Tier 2 vehicles will 

be more polluting than others. The 

emission standards for a manufacturer’s 

vehicle fleet must comply on average 

with the Tier 2 Bin 5 level. Thus, the 

Tier 2 Bin 5 emission certification levels 

are the average of the Tier 2 emission 

levels with lower bins (i.e. 4, 3, 2, or 1) 

representing lower emitting vehicles 

and higher bins (i.e. 6, 7, or 8) 

representing vehicles that are more 

polluting. 

In addition, while 23 U.S.C. 166 

specifically mentions the Federal 

emission certification levels of Tier 2, 

not all vehicles are certified to comply 

with federal standards. California has 

separate emission standards (along with 

a number of states that have adopted 

California’s emission standards as 

permitted under Section 177 of the 

Clean Air Act (42 U.S.C. 7507.), which 

are generally equivalent to the Tier 2 

standards. The current California 

emission standards are known as Low 

Emission Vehicle–II (LEV–II) standards 

(Final Regulation Order as Filed with 

the Secretary of State, October 28, 

1999).3 California-certified vehicles 

were required to begin phasing-in to the 

LEV–II standards in 2004. 

The LEV–II standards are grouped in 

the following categories (listed in order 

of least to most stringent): Low emission 

vehicle (LEV), ultra low emission 

vehicle (ULEV), super low emission 

vehicle (SULEV), partial zero emission 

vehicle (PZEV), and zero emission 

vehicle (ZEV). There are separate 

emission standards under each of these 

categories for passenger cars,4 up to 

8500 lbs. GVWR and medium-duty 

vehicles, 8501–14,000 lbs. GVW. As 

discussed above, this proposal applies 

only to vehicles with vehicle weight at 

or below 8500 lbs. GVWR, so the 

standards for medium-duty vehicles are 

not relevant to the proposal. 

Since 23 U.S.C. 166 specifies that 

vehicles meet ‘‘the Tier II emission 

level’’, and since Tier 2 Bin 5 represents 

the required manufacturer fleet average, 

this action proposes that in order to be 

considered as a ‘‘low emission vehicle,’’

a vehicle must comply with Tier 2 Bin 

5 or better (Bins 5, 4, 3, 2 and 1). For 

the purpose of this proposal, we are 

considering vehicles certified to the 

California LEV II standards (13 CCR 

1961(a)(1)) for passenger cars and light 

trucks (LEV II, ULEV II, SULEV II, 

PZEV, and ZEV) as meeting the Tier 2 

emission level, because the emission 

levels required by those standards are 

equivalent to or more stringent than the 

Tier 2 Bin 5 level (13 CCR 1961(a)(1)). 

There are several reasons why EPA 

believes it is appropriate to propose that 


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a vehicle must meet EPA Tier 2 Bin 5 

or better to be designated as ‘‘low 

emission.’’ First, these standards meet 

the 23 U.S.C. 166 requirement that 

vehicles meet the Tier 2 emission level, 

which is best understood to mean the 

average level. Second, EPA believes it is 

appropriate to limit the bins to Tier 2 

Bin 5 or cleaner, because Bin 5 

represents the required manufacturer 

fleet average emission standard. Any 

vehicle certified to comply with a less 

stringent bin would have emission 

levels higher than the required fleet 

average, and thus is not reasonably 

considered a ‘‘low emission’’ vehicle. 

Third, this proposal is generally 

consistent with a separate statutory 

requirement in the Energy Policy Act of 

2005 (hereafter referred to as ‘‘Energy 

Act’’) (Pub. L. 109–58, August 8, 2005) 

which requires a vehicle to meet, at a 

minimum, the Tier 2 Bin 5 emission 

levels, along with a minimum fuel 

economy, in order to qualify for a motor 

vehicle tax credit. 

Therefore, based on the rationale 

described above, this action proposes 

that a ‘‘low emission’’ vehicle must be 

certified to the EPA Tier 2 Bin 5 or 

cleaner, or California LEV–II, ULEV–II, 

SULEV–II, PZEV, and ZEV emission 

levels for light-duty vehicles and lightduty trucks up to 8500 lbs. GVWR. 

B. How Is EPA Proposing To Determine 

an Energy-Efficient Vehicle? 

23 U.S.C. 166 states that a vehicle 

must be ‘‘energy-efficient’’ in order to be 

eligible for exemption from the HOV 

facility occupancy requirements. In 

particular, section 166(f)(3)(B) states 

that the term ‘‘energy-efficient’’ vehicle 

means: 

(1) A vehicle that achieves a 50 

percent increase in city fuel economy at 

a minimum or a 25 percent increase in 

combined city-highway fuel economy at 

a minimum relative to a comparable 

gasoline-fueled vehicle, excluding 

gasoline-hybrid technologies; or 

(2) An alternative fuel vehicle. 

EPA’s proposed methodology for 

determining a comparable gasolinefueled vehicle (excluding hybrid 

technology), and thus determining 

eligibility for an HOV occupancy 

exemption based on a fuel economy 

comparison, is described below. In 

addition, to help ensure HOV facility 

performance would not be degraded as 

a result of the occupancy exemption, 23 

U.S.C. 166 provides states with the 

discretion to require more stringent fuel 

economy criteria (that is, a greater city 

or city-highway fuel economy percent 

increase) for their HOV programs. 

In addition to defining an energyefficient vehicle based on the fuel 

economy criteria referenced above, 23 

U.S.C. 166 allows specified alternative 

fuel vehicles to be considered as energyefficient. The specified alternative fuels 

that are covered by 23 U.S.C. 166, and 

hence this proposal, are listed in section 

D below. 

1. What Fuel Economy Values Are Being 

Used To Determine if a Vehicle Is 

Energy-Efficient? 

To ensure that there is no added test 

burden imposed on manufacturers, we 

are proposing that the fuel economy 

values to be used to determine if a 

vehicle is energy-efficient are the 

unadjusted city, highway and combined 

fuel economy values obtained during 

the fuel economy testing required under 

the Energy Policy and Conservation Act 

of 1975 (EPCA). Under EPCA, EPA is 

required to determine the test methods 

and calculations for two major fuel 

economy programs: Corporate Average 

Fuel Economy (CAFE) and consumerfriendly fuel economy information (city 

and highway estimates posted on new 

vehicle labels). The underlying tests 

specified by EPA are the same for both 

programs; however, the resulting city, 

highway, and combined fuel economy 

results are different. 

The CAFE values are based on two 

tests—the city test and the highway test. 

The test results are combined by 

harmonically averaging them, with city 

weighted 55 percent and highway 

weighted 45 percent. The combined 

city-highway fuel economy value is then 

put through a series of complex 

calculations to determine the 

manufacturers’ average fuel economy 

values separately for their entire car and 

truck fleets. 

The label values for 2007 and earlier 

models are likewise based on the same 

two city and highway tests. However, 

the results are adjusted downward (the 

city by 10 percent and the highway by 

22 percent), to better match a driver’s 

real-world fuel economy experience. For 

2008 and later models, EPA recently 

finalized new regulations removing 

those adjustment factors and instead 

requiring data from three additional 

tests to be included in the calculations 

to bring the estimates even closer to 

drivers’ experience. (71 FR 77872, 

December 27, 2006). The fuel economy 

of 2008 and later models will not be 

able to be easily compared to that of 

earlier models. Not only would this be 

more complex to administer, it would 

create the possibility for consumer 

confusion in that a 2008 vehicle may 

not qualify whereas its identical 2007 

counterpart would (or vice versa). For 

that reason, it is less desirable to use the 

label values as the basis for determining 

if a vehicle is ‘‘energy efficient’’ under 

the meaning of 23 U.S.C. 166. 

For these reasons, we are therefore 

proposing that the fuel economy values 

to be used are the unadjusted city, 

highway and combined values used to 

determine CAFE (referred to hereafter as 

‘‘unadjusted’’ city, highway, and 

combined fuel economy). These values 

provide a more constant baseline for 

comparison. 

2. How Is EPA Proposing To Determine 

a ‘‘Comparable Vehicle’’? 

The Transportation Act did not 

specify what criteria EPA should use in 

determining what a ‘‘comparable’’

vehicle is. There are considerable 

challenges in determining a 

‘‘comparable’’ vehicle. There are infinite 

parameters against which a comparison 

could be made. For instance, should the 

comparison parameters consider similar 

vehicle weights, similar body designs, 

similar power ratings, similar make/ 

model names, similar transmission 

types, similar drive trains, etc. 

Moreover, EPA, as well as other 

government agencies, has described, 

either by regulation or by policy, socalled ‘‘comparable’’ vehicle classes in 

which vehicles are lumped together 

based on some sorts of similarities. For 

the purpose of this proposed rule, we 

considered three different methods to 

look at ‘‘comparable’’ vehicles. These 

are: (1) A hybrid-to-gasoline vehicle 

comparison (the method we are 

proposing in this action), (2) a grouping 

of vehicles into inertia weight classes as 

specified in the 2005 Energy Act, and 

(3) a comparison to the ‘‘Best in Class’’, 

using the comparable classes used by 

EPA’s annual Fuel Economy Guide, 

which is jointly published by EPA and 

DOE. Further detail can be found in the 

Draft Technical Support Document, 

which has been placed in the docket for 

this rulemaking (EPA–HQ–OAR–2005–

0173). 

In choosing a comparison strategy for 

this proposal, we considered the intent 

of Congress which, according to 23 

U.S.C. 166, was to ‘‘provide additional 

incentives (including the use of HOV 

facilities on State and Interstate 

highways) for the purchase and use of 

hybrid and other fuel efficient vehicles’’

(23 U.S.C. 166(c)). We also considered 

the potential for lane degradation 

caused by allowing more vehicles in 

HOV facilities as determined by the 

number of vehicles that would qualify 

for the occupancy exemption under the 

comparison strategy. A shorter, more 

conservative list that highlights truly 

energy-efficient vehicles would help to 

minimize any additional vehicle volume 

added to HOV facilities. 


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5Alternate fuel vehicles are considered ‘‘energyefficient,’’ but not subject to this comparison 

criterion. 6See House Report 109–203, pp. 852–53: 

With respect to the determination of fuel 

economy performance requirements for a low 

emission or energy efficient vehicle not meeting 

occupancy requirements that is propelled by onboard hybrid technologies, the conferees have 

agreed to accept language in the Senate-passed 

legislation. Under this subsection, a low emission 

or energy efficient vehicle propelled by hybrid 

technology may access the HOV lane if the EPA 

certifies that it has achieved not less than a 50- 

percent increase in city fuel economy or not less 

than a 25-percent increase in combined cityhighway fuel economy * * * 

Based on our evaluation of each 

potential ‘‘comparison vehicle’’

methodology, we are proposing to 

compare hybrid-electric vehicles to their 

gasoline counterparts, that is, those of 

the same or similar make and model 

type, to see if the fuel economy of the 

hybrid had the prescribed percent 

increase over the gasoline model. This 

method only compares hybrid vehicles 

to gasoline vehicles, and does not 

compare any gasoline, diesel, or 

flexible-fuel vehicles to a gasoline 

vehicle.5

This methodology appears to best 

reflect the intent of Congress expressed 

in 23 U.S.C. 166(c) and in the legislative 

history of this provision.6

(1) How does EPA propose to develop 

baseline fuel economy values for the 

hybrid-to-gasoline vehicle comparison 

methodology? 

In this method, hybrid vehicles would 

be compared to their gasoline namesake 

counterparts (e.g. the Ford Escape 

Hybrid would be compared to the Ford 

Escape gasoline model). 

However, there are some hybrids that 

do not have similar gasoline 

counterparts (e.g. the Honda Insight and 

the Toyota Prius). For those vehicles, 

EPA is proposing that the comparison 

be based on gasoline vehicles within the 

same comparable class as used EPA’s 

annual Fuel Economy Guide, which is 

jointly published by EPA and DOE. The 

median unadjusted fuel economy of all 

the gasoline vehicles in that class would 

be determined, and then compared 

against the hybrid’s fuel economy. This 

comparison would be done separately 

for each model year. For example, the 

Honda Insight is classified as a ‘‘twoseater.’’ For each model year, we would 

identify all of the ‘‘two-seater’’ gasoline 

vehicles and determine the median 

unadjusted city and unadjusted 

combined city-highway fuel economy 

values. These fuel economy values 

would form the baseline fuel economy 

values to be used for the Honda Insight 

comparison. 

As fuel economy can vary from year 

to year, these comparisons must be 

made separately for each model year. 

(2) How is the comparison determined, 

based on a percent increase in vehicle 

fuel economy value? 

We are proposing the following 

process for making a fuel economy 

comparison using the hybrid-to-gasoline 

vehicle comparison methodology: 

(1) Determine the list of all hybrid 

vehicles (separately for each model 

year) emission-certified by EPA prior to 

September 30, 2009. 

(2) For hybrid vehicles with a similar 

gasoline counterpart, compare the 

unadjusted city and unadjusted 

combined city-highway fuel economy 

values to the similar gasoline 

counterpart. 

(3) For hybrid vehicles with no 

similar gasoline counterpart, calculate 

the median unadjusted city and/or 

unadjusted combined city-highway fuel 

economy values for all gasoline vehicles 

in the same EPA comparable vehicle 

class and then compare the hybrid 

vehicle fuel economy values to the 

median unadjusted city fuel economy 

value and the unadjusted city-highway 

value for the comparison gasoline 

vehicle. 

(4) Evaluate the results according to 

the following criteria: 

Æ If the candidate hybrid vehicle’s 

city fuel economy is 50 percent greater 

than the city fuel economy value of its 

gasoline counterpart then the vehicle 

would qualify as energy-efficient; 

Æ If the candidate hybrid vehicle’s 

combined city-highway fuel economy is 

25 percent greater than the combined 

city/fuel economy of its gasoline 

counter part, then the vehicle would 

qualify as energy-efficient; or 

Æ Conversely, if the hybrid vehicles 

do not meet either of these required fuel 

economy thresholds relative to their 

gasoline counterparts, then the vehicle 

would not qualify as energy-efficient. 

Based on the low emission and 

energy-efficient vehicle criteria using 

the hybrid-to-gasoline vehicle 

comparison methodology described 

above, the potential lists of vehicles 

eligible for an HOV occupancy 

exemption are shown in Tables 1 and 2 

below. These lists are based on the most 

recent certification data available to 

EPA through model year 2007. This list 

will be expanded as necessary to 

include additional 2007–2010 model 

year vehicles certified by EPA. It is also 

important to note that an individual 

state’s list may differ from these lists, 

since states have the option to increase 

the stringency of the designated fuel 

economy percent increase values. States 

do not have the option to increase the 

emission standard stringency. 

TABLE 1.—LIST OF ELIGIBLE LOW EMISSION AND ENERGY-EFFICIENT VEHICLES USING THE HYBRID-TO-GASOLINE VEHICLE

COMPARISON METHODOLOGY

MY Mfr Vehicle model Engine family Tran Fuel economy 

guide class 

Tier 

2 std 

Unadj city 

FE (mpg) 

City FE 

Inc over 

baseline 

(%) 

Unadj 

Cmb FE 

(mpg) 

Cmb FE 

Inc over 

baseline 

(%) 

CARS 

2003 Honda ............ Civic Hybrid ... 3HNXV01.36CV .. AV ... Compact ........ B5 ... 52.6 52 56.0 75 

2003 Honda ............ Civic Hybrid ... 3HNXV01.36CV .. M5 ... Compact ........ B5 ... 50.0 59 55.7 74 

2003 Honda ............ Insight ............ 3HNXV01.0PCE AV ... Two-seater ..... B5 ... 62.8 249 66.4 66 

2004 Honda ............ Civic Hybrid ... 4HNXV01.37CP .. AV ... Compact ........ B5 ... 52.6 50 56.0 75 

2004 Honda ............ Civic Hybrid ... 4HNXV01.37CP .. M5 ... Compact ........ B5 ... 50.0 42 55.7 74 

2004 Honda ............ Insight ............ 4HNXV01.0NCE AV ... Two-seater ..... B5 ... 62.8 214 66.4 66 

2004 Toyota ............ Prius ............... 4TYXV01.5MC1 .. AV ... Midsize ........... B3 ... 66.6 200 65.8 106 

2005 Honda ............ Civic Hybrid ... 5HNXV01.3YCV AV ... Compact ........ B2 ... 52.6 50 56.0 41 

2005 Honda ............ Civic Hybrid ... 5HNXV01.3YCV M5 ... Compact ........ B2 ... 50.0 42 55.7 40 

2005 Honda ............ Insight ............ 5HNXV01.0XCE AV ... Two-seater ..... B5 ... 62.8 224 66.4 185 

2005 Honda ............ Accord Hybrid 5HNXV03.01B4 .. L5 .... Midsize ........... B5 ... 32.2 37 37.48 32 

2005 Toyota ............ Prius ............... 5TYXV01.5MC1 .. AV ... Midsize ........... B3 ... 66.6 201 65.8 140 


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Federal Register / Vol. 72, No. 100 / Thursday, May 24, 2007 / Proposed Rules 29107 

TABLE 1.—LIST OF ELIGIBLE LOW EMISSION AND ENERGY-EFFICIENT VEHICLES USING THE HYBRID-TO-GASOLINE VEHICLE

COMPARISON METHODOLOGY—Continued 

MY Mfr Vehicle model Engine family Tran Fuel economy 

guide class 

Tier 

2 std 

Unadj city 

FE (mpg) 

City FE 

Inc over 

baseline 

(%) 

Unadj 

Cmb FE 

(mpg) 

Cmb FE 

Inc over 

baseline 

(%) 

2006 Honda ............ Civic Hybrid ... 6HNXV01.3XCP AV ... Compact ........ B2 ... 54.6 62 58.8 51 

2006 Honda ............ Insight ............ 6HNXV01.0VK5 .. AV ... Two-seater ..... B5 ... 62.8 211 66.4 173 

2006 Toyota ............ Prius ............... 6TYXV01.5MC1 .. AV ... Midsize ........... B3 ... 66.6 200 65.8 144 

2007 Honda ............ Accord Hybrid 7HNXV03.0ZMC L5 .... Midsize ........... B2 ... 31.3 37 36.3 31 

2007 Honda ............ Civic Hybrid ... 7HNXV01.3JCP .. AV ... Compact ........ B2 ... 54.6 67 58.8 51 

2007 Toyota ............ Camry Hybrid 7TYXV02.4HC1 .. AV ... Midsize ........... B3 ... 44.2 66 45.9 44 

2007 Toyota ............ Prius ............... 7TYXV01.5HC1 .. AV ... Midsize ........... B3 ... 66.6 210 65.8 154 

TRUCKS 

2005 Ford ............... Escape Hybrid 

2WD.

5FMXT02.31EE .. AV ... SUV ............... B4 ... 39.6 65 39.5 46 

2005 Ford ............... Escape Hybrid 

4WD.

5FMXT02.31EE .. AV ... SUV ............... B4 ... 36.6 78 36.7 57 

2006 Ford ............... Escape Hybrid 

4WD.

6FMXT02.32EE .. AV ... SUV ............... B4 ... 36.6 59 36.7 41 

2006 Ford ............... Escape Hybrid 

FWD.

6FMXT02.32EE .. AV ... SUV ............... B4 ... 39.6 59 39.5 42 

2006 Lexus ............. RX 400H 2WD 6TYXT03.3CC1 .. AV ... SUV ............... B3 ... 36.8 141 36.2 96 

2006 Lexus ............. RX 400H 4WD 6TYXT03.3CC1 .. AV ... SUV ............... B3 ... 34.3 124 34.3 86 

2006 Lexus ............. Tribute Hybrid 

4WD.

6FMXT02.32EE .. AV ... SUV ............... B4 ... 36.6 59 36.7 41 

2006 Mercury .......... Mariner Hybrid 

4WD.

6FMXT02.32EE .. AV ... SUV ............... B4 ... 36.6 75 36.7 53 

2006 Toyota ............ Highlander Hybrid 2WD.6TYXT03.3CC1 .. AV ... SUV ............... B3 ... 36.8 72 36.2 45 

2006 Toyota ............ Highlander Hybrid 4WD.6TYXT03.3CC1 .. AV ... SUV ............... B3 ... 34.3 67 34.3 42 

2007 Ford ............... Escape Hybrid 

2WD.

7FMXT02.32ZE .. AV ... SUV ............... B3 ... 35.8 55 36.5 39 

2007 Ford ............... Escape Hybrid 

FWD.

7FMXT02.32ZE .. AV ... SUV ............... B3 ... 41.1 64 40.6 45 

2007 Lexus ............. RX 400H 2WD 7TYXT03.3CC1 .. AV ... SUV ............... B3 ... 35.7 135 35.0 95 

2007 Lexus ............. RX 400H 4WD 7TYXT03.3CC1 .. AV ... SUV ............... B3 ... 34.3 126 34.3 91 

2007 Mercury .......... Mariner Hybrid 

4WD.

7FMXT02.32ZE .. AV ... SUV ............... B3 ... 35.8 55 36.5 39 

2007 Toyota ............ Highlander Hybrid 2WD.7TYXT03.3CC1 .. AV ... SUV ............... B3 ... 35.7 67 35.0 40 

2007 Toyota ............ Highlander Hybrid 4WD.7TYXT03.3CC1 .. AV ... SUV ............... B3 ... 34.3 52 34.3 32 

DEDICATED ALTERNATIVE FUEL (CNG) VEHICLES 

2003 Honda ............ Civic—CNG ... 3HNXV01.73W3 N/A B2 ... DEDICATED ALTERNATIVE FUEL (CNG) 

VEHICLE. 

2004 Honda ............ Civic—CNG ... 4HNXV01.74W0 N/A B2 ... DEDICATED ALTERNATIVE FUEL (CNG) 

VEHICLE. 

2005 Honda ............ Civic—CNG ... 5HNXV01.7BF3 .. N/A B2 ... DEDICATED ALTERNATIVE FUEL (CNG) 

VEHICLE. 

2003 Ford ............... Crown Victoria—CNG.3FMXV04.6VP5 .. N/A B3 ... DEDICATED ALTERNATIVE FUEL (CNG) 

VEHICLE. 

2004 Ford ............... Crown Victoria—CNG.4FMXV04.6VP5 .. N/A B3 ... DEDICATED ALTERNATIVE FUEL (CNG) 

VEHICLE. 

Unless noted as a dedicated alternative fuel vehicle, all of the listed vehicles operate on gasoline, and some may also be flexible-fuel vehicles. 

MY = Model Year 

Mfr = Manufacturer 

Tran = Transmission type 

Int Wgt = Inertia Weight Class 

Std = Standard 

Unadj = Unadjusted 

FE = Fuel Economy 

Inc = Increase 

Cmb = Combined city-highway 

B = Bin 

For states that have adopted the 

California emission certification 

standards, based on the California LEV–

II (LEV–II, ULEV–II, SULEV–II, and 

ZEV) emission standards for passenger 

vehicles and a comparison based on the 


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29108 Federal Register / Vol. 72, No. 100 / Thursday, May 24, 2007 / Proposed Rules 

hybrid-to-gasoline vehicle comparison 

methodology or a dedicated alternative 

fuel vehicle, the proposed list of 

vehicles eligible for the HOV occupancy 

exemption is as follows: 

TABLE 2.—LIST OF CALIFORNIA-CERTIFIED ELIGIBLE LOW EMISSION AND ENERGY-EFFICIENT VEHICLES USING THE

HYBRID-TO-VEHICLE VEHICLE COMPARISON METHODOLOGY

MY Mfr Vehicle model Engine family Tran Fuel economy 

guide class 

LEVII std Unadj city 

FE (mpg) 

City FE 

Inc over 

baseline 

(%) 

Unadj 

Cmb FE 

(mpg) 

Cmb FE 

Inc over 

baseline 

(%) 

CARS 

2003 ..... Honda ...... Civic Hybrid .... 3HNXV01.36CV ... AV ... Compact ......... S2 ... 52.6 52 56.0 45 

2003 ..... Honda ...... Civic Hybrid .... 3HNXV01.36CV ... M5 ... Compact ......... S2 ... 50.0 59 55.7 46 

2003 ..... Honda ...... Insight ............. 3HNXV01.0PCE .. AV ... Two-Seater ..... S2 ... 62.8 249 66.4 201 

2004 ..... Honda ...... Civic Hybrid .... 4HNXV01.37CP ... AV ... Compact ......... S2 ... 52.6 50 56.0 41 

2004 ..... Honda ...... Civic Hybrid .... 4HNXV01.37CP ... M5 ... Compact ......... S2 ... 50.0 42 55.7 40 

2004 ..... Honda ...... Insight ............. 4HNXV01.0NCE .. AV ... Two-seater ...... S2 ... 62.8 214 66.4 177 

2004 ..... Toyota ...... Prius ................ 4TYXV01.5MC1 ... AV ... Midsize ............ S2 ... 66.6 200 65.8 139 

2005 ..... Honda ...... Civic Hybrid .... 5HNXV01.3YCV .. AV ... Midsize ............ S2 ... 52.6 50 56.0 41 

2005 ..... Honda ...... Civic Hybrid .... 5HNXV01.3YCV .. M5 ... Compact ......... S2 ... 50.0 42 55.7 40 

2005 ..... Honda ...... Insight ............. 5HNXV01.0XCE .. AV ... Compact ......... S2 ... 62.8 224 66.4 185 

2005 ..... Honda ...... Accord Hybrid 5HNXV03.01B4 ... L5 .... Midsize ............ S2 ... 32.2 37 37.48 32 

2005 ..... Toyota ...... Prius ................ 5TYXV01.5MC1 ... AV ... Two-seater ...... S2 ... 66.6 201 65.8 140 

2006 ..... Honda ...... Civic Hybrid .... 6HNXV01.3XCP .. AV ... Midsize ............ S2 ... 54.6 62 58.8 51 

2006 ..... Honda ...... Insight ............. 6HNXV01.0VK5 ... AV ... Compact ......... S2 ... 62.8 211 66.4 173 

2006 ..... Toyota ...... Prius ................ 6TYXV01.5MC1 ... AV ... Two-seater ...... S2 ... 66.6 200 65.8 144 

2007 ..... Honda ...... Accord Hybrid 7HNXV03.0ZMC .. L5 .... Midsize ........... S2 ... 31.3 37 36.3 31 

2007 ..... Honda ...... Civic Hybrid .... 7HNXV01.3JCP ... AV ... Midsize ........... S2 ... 54.6 67 58.8 51 

2007 ..... Toyota ...... Camry Hybrid .. 7TYXV02.4HC1 ... AV ... Midsize ............ S2 ... 44.2 66 45.9 44 

2007 ..... Toyota ...... Prius ................ 7TYXV01.5HC1 ... AV ... Midsize ........... S2 ... 66.6 210 65.8 154 

TRUCKS 

2005 ..... Ford ......... Escape Hybrid 

2WD.

5FMXT02.31EE ... AV ... 4000 ................ S2 ... 39.6 65 39.5 46 

2005 ..... Ford ......... Escape Hybrid 

4WD.

5FMXT02.31EE ... AV ... 4000 ................ S2 ... 36.6 78 36.7 57 

2006 ..... Ford ......... Escape Hybrid 

4WD.

6FMXT02.32EE ... AV ... SUV ................ S2 ... 36.6 59 36.7 41 

2006 ..... Ford ......... Escape Hybrid 

FWD.

6FMXT02.32EE ... AV ... SUV ................ S2 ... 39.6 59 39.5 42 

2006 ..... Lexus ....... RX 400H 2WD 6TYXT03.3CC1 ... AV ... SUV ................ S2 ... 36.8 141 36.2 96 

2006 ..... Lexus ....... RX 400H 4WD 6TYXT03.3CC1 ... AV ... SUV ................ S2 ... 34.3 124 34.3 86 

2006 ..... Mazda ...... Tribute Hybrid 

4WD.

6FMXT02.32EE ... AV ... SUV ................ S2 ... 36.6 59 36.7 41 

2006 ..... Mercury .... Mariner Hybrid 

4WD.

6FMXT02.32EE ... AV ... SUV ................ S2 ... 36.6 75 36.7 53 

2006 ..... Toyota ...... Highlander Hybrid 2WD.6TYXT03.3CC1 ... AV ... SUV ................ S2 ... 36.8 72 36.2 45 

2006 ..... Toyota ...... Highlander Hybrid 4WD.6TYXT03.3CC1 ... AV ... SUV ................ S2 ... 34.3 67 34.3 42 

2007 ..... Ford ......... Escape Hybrid 

4WD.

7FMXT02.32ZE ... AV ... SUV ................ S2 ... 35.8 55 36.5 39 

2007 ..... Ford ......... Escape Hybrid 

FWD.

7FMXT02.32ZE ... AV ... SUV ................ S2 ... 41.1 64 40.6 45 

2007 ..... Lexus ....... RX 400H 2WD 7TYXT03.3CC1 ... AV ... SUV ................ S2 ... 35.7 135 35 95 

2007 ..... Lexus ....... RX 400H 4WD 7TYXT03.3CC1 ... AV ... SUV ................ S2 ... 34.3 126 34.3 91 

2007 ..... Mercury .... Mariner Hybrid 7FMXT02.32ZE ... AV ... SUV ................ S2 ... 35.8 55 36.5 39 

2007 ..... Toyota ...... Highlander Hybrid 2WD.7TYXT03.3CC1 ... AV ... SUV ................ S2 ... 35.7 103 35 69 

2007 ..... Toyota ...... Highlander Hybrid 4WD.7TYXT03.3CC1 ... AV ... SUV ................ S2 ... 34.3 52 34.3 32 

DEDICATED ALTERNATIVE FUEL (CNG) VEHICLES 

2004 ..... Honda ...... Civic—CNG .... 4HNXV01.74W2 .. N/A S2 ... DEDICATED ALTERNATIVE FUEL (CNG) 

VEHICLE. 

2005 ..... Honda ...... Civic—CNG .... 5HNXV01.7BF4 ... N/A S2 ... DEDICATED ALTERNATIVE FUEL (CNG) 

VEHICLE. 

Unless noted as a dedicated alternative fuel vehicle, all of the listed vehicles operate on gasoline, and some may also be flexible-fuel vehicles. 

MY = Model Year 

Mfr = Manufacturer 

Tran = Transmission 


rmajette on PROD1PC67 with PROPOSALS
Federal Register / Vol. 72, No. 100 / Thursday, May 24, 2007 / Proposed Rules 29109 

7 Inertia weight classes are determined by EPA 

regulations at 40 CFR 86.129–94. Inertia weight 

class is the class into which a vehicle is grouped 

for testing purposes based on its loaded vehicle 

weight (nominal empty vehicle weight plus 300 lbs. 

used for cars and for light-duty trucks up through 

6000 lbs. GVWR) or adjusted loaded vehicle weight 

(average of nominal empty weight and gross vehicle 

weight rating used for light-duty trucks greater than 

6000 lbs. GVWR). 

8 § 30B.1(b)(2)(B)(i) of Internal Revenue Code, 26 

U.S.C. 

9Hellman, Karl, and Robert Heavenrich. ‘‘LightDuty Automotive Technology and Fuel Economy 

Trends: 1975 Through 2004’’ (FE Trends). EPA420–

R–04–001, 2004. 

Int Wgt = Inertia Weight Class 

Std = Standard 

Unadj = Unadjusted 

FE = Fuel Economy 

Inc = Increase 

Cmb = Combined city-highway 

S2 = SULEVII 

U2 = ULEVII 

3. What Other Methods Did EPA 

Consider for Determining a 

‘‘Comparable Vehicle’’? 

(a) Inertia Weight Class Methodology 

EPA also considered using inertia 

weight classes to determine comparable 

vehicles. This approach would consider 

all vehicles, regardless of fuel type or 

technology, as potentially energyefficient, rather than just hybrid 

vehicles, as under the hybrid-to-gasoline 

vehicle comparison method. Thus, any 

gasoline, diesel, flexible-fuel, or hybrid 

vehicle could be considered energyefficient, as long as it meets the fuel 

economy criteria referenced above. 

EPA considered this fuel-neutral 

approach because, while the legislative 

history of SAFETEA–LU indicates an 

intent by Congress to limit this 

provision to hybrid and alternative fuel 

vehicles, the statutory provisions 

enacted by Congress do not explicitly 

limit this option to those types of 

vehicles. Additionally, a fuel-neutral 

approach would encourage fuel 

efficiency for all types of vehicles, not 

just hybrid vehicles. On the other hand, 

this approach would increase the 

number of vehicles potentially eligible 

to use HOV facilities under this 

provision, which could create the 

potential for substantial HOV lane 

degradation. We are not proposing this 

method, but request comment on it. 

With the inertia weight class 

methodology, a comparable vehicle 

would be based on vehicle inertia 

weight classes,7 which are consistent 

with those prescribed by the 2005 

Energy Act. As the inertia weight classes 

are already defined in the 2005 Energy 

Act,8 with an associated baseline city 

fuel economy value, the definition of a 

comparable vehicle would be based on 

the average fuel economy of all gasoline 

vehicles within the same inertia weight 

class for a vehicle type (car or truck). A 

baseline city fuel economy value and a 

baseline combined city-highway fuel 

economy value would then be used as 

the basis for the fuel economy 

comparison for each inertia weight 

class, separately for cars and trucks. 

The baseline city fuel economy value 

would be the unadjusted CAFE city fuel 

economy as described above in section 

B.1 for the 2002 model year, as specified 

in the 2005 Energy Act. EPA believes 

that the baseline city fuel economy in 

the 2005 Energy Act was derived from 

gasoline vehicles only (excluding any 

gasoline-fueled hybrids) based on 

reverse-calculations using a salesweighted harmonic average. Further 

detail on how these calculations were 

performed can be found in the Draft 

Technical Support Document, which 

has been placed in the docket for this 

rulemaking (EPA–HQ–OAR–2005–

0173). 

With regard to the baseline model for 

comparison using the inertia weight 

class method, we considered it most 

appropriate to use the model year 2002 

data as a baseline for fuel economy 

comparisons for two reasons. First, the 

model year 2002 data was chosen in the 

2005 Energy Act for alternative motor 

vehicle tax credit purposes. Second, the 

EPA Fuel Economy Trends Report 

(EPA420–R–06–011, July 2006) shows 

that overall fuel economy has been 

relatively constant over the past eight 

model years, except for light truck fuel 

economy, which has increased for two 

years. This increase is likely due, at 

least in part, to higher light-truck CAFE 

standards. Overall, fuel economy has 

been influenced by marginal changes in 

gasoline technology prior to the 

introduction of hybrid technology.9

Thus, choosing a 2002 baseline can still 

be considered an appropriate baseline 

value for vehicle fuel economy 

comparisons, as it was calculated with 

gasoline vehicles whose overall fuel 

economy performance has remained 

somewhat constant for many years, 

except for the increase seen in light 

trucks over the last two years. 

Furthermore, applying one baseline for 

all model year comparisons would 

reduce time spent generating annual 

baselines and reduces the need to 

analyze annual sales data, which is 

often provided later in the model year 

than the date when a baseline would be 

required. Overall, EPA believes this 

approach would have a benefit of 

streamlining the implementation of the 

rule without impacting its effectiveness. 

For the inertia weight class 

methodology, the following process 

would be used for making a fuel 

economy comparison: 

(1) Sort the list of all potential 

vehicles (all model years available for 

sale prior to September 30, 2009) into 

two categories—car and light-duty 

truck. 

(2) Sort both the car list and the lightduty truck list by inertia weight classes. 

(3) Compare each vehicle’s 

unadjusted city and unadjusted 

combined city-highway fuel economy 

values to the baseline values separately 

for cars and trucks. 

(4) Calculate the percent increase in 

fuel economy for a candidate vehicle 

compared to the baseline for its given 

inertia weight class. 

(5) Evaluate the results according to 

the following criteria: 

a. If the percent increase for city fuel 

economy is greater than 50 percent over 

the baseline city fuel economy for the 

given inertia weight class, then the 

vehicle would qualify as energyefficient; 

b. If the percent increase for combined 

city-highway fuel economy is greater 

than 25 percent over the baseline 

combined city-highway fuel economy 

for the given inertia weight class, then 

the vehicle would qualify as energyefficient; or 

c. Conversely, if the candidate 

vehicle’s fuel economy does not meet 

these required thresholds when 

compared to the baseline fuel economy 

for that inertia weight class category of 

that vehicle, then the vehicle would not 

qualify as energy-efficient. 

Therefore, to qualify under the inertia 

weight class methodology, a candidate 

vehicle must achieve 25 percent or 

better city fuel economy or 50 percent 

or better combined city-highway fuel 

economy than the average of all vehicles 

in its inertia weight class. 

Using this approach, the lists of 

potentially qualifying vehicles include a 

few models that fail to achieve the level 

of the CAFE standard. Therefore, we 


rmajette on PROD1PC67 with PROPOSALS
29110 Federal Register / Vol. 72, No. 100 / Thursday, May 24, 2007 / Proposed Rules 

believe that an additional criterion is 

necessary to determine if a vehicle is 

fuel efficient, not only on a relative 

basis, but on an absolute basis as well. 

Thus it is appropriate to add an 

additional comparison criterion, to be 

used as a ‘‘floor’’ to prevent the 

inclusion of vehicles which may be fuel 

efficient relative to others in the same 

inertia weight class, but which fail to 

have a combined fuel economy that is 

higher than 25 percent above the 

applicable CAFE car or truck standard. 

For example, the 2007 CAFE standard 

for light trucks is 22.2 miles per gallon 

(MPG). In order for a light truck to 

qualify for use in HOV facilities using 

the inertia weight class method, it 

would have to meet a minimum fuel 

economy of 27.75 MPG in order to 

qualify. We believe that this additional 

criterion is in keeping with the 

Transportation Act requirement that the 

combined fuel economy be 25 percent 

better than a comparable gasoline 

vehicle. 

A complete discussion of the inertia 

weight class methodology, including the 

list of vehicles that would qualify using 

this approach, can be found in the Draft 

Technical Support Document located in 

the docket for this rulemaking. 

EPA requests comment on using the 

inertia weight class methodology as a 

means for defining a comparable 

vehicle. 

(b) ‘‘Best in Class’’ Methodology 

EPA also considered defining a 

‘‘comparable vehicle’’ as the vehicle 

with the best fuel economy of a 

particular class of vehicles as defined by 

the annual Fuel Economy Guide, which 

is jointly published by EPA and DOE. 

This approach is not a fuel and 

technology neutral approach, meaning 

that it only considers hybrid vehicles. 

No gasoline, diesel, or flexible-fuel 

would be considered for an HOV 

facilities exemption using this 

methodology. The primary benefit of 

this approach is that it would result in 

the smallest list of eligible vehicles and 

thus have the least potential impact on 

traffic congestion. 

For the ‘‘best in class’’ methodology, 

the following process would be used for 

making a fuel economy comparison: 

(1) Sort the list of all hybrid vehicles 

(all model years certified for sale prior 

to September 30, 2009) by the vehicle 

classes defined in the annual Fuel 

Economy Guide (http:// 

www.fueleconomy.gov/feg/feg2000.htm) 

for each model year. The vehicle classes 

are defined in the Fuel Economy Guide 

as follows: Two-seater, Minicompact 

Vehicle, Subcompact Vehicle, Compact 

Vehicle, Midsize Vehicle, Large Vehicle, 

Small Station Wagon, Midsize Station 

Wagon, Large Station Wagon, Small 

Pickup Truck, Standard Pickup Truck, 

Passenger Van, Cargo Van, Minivan, 

Sport Utility Vehicle (SUV), and Special 

Purpose Vehicle. 

(2) For each model year and each 

vehicle class, determine which gasoline 

vehicle has the highest unadjusted city 

and unadjusted city-highway combined 

fuel economy values. For example, for 

the 2006 model year, the compact 

vehicle with the highest unadjusted city 

and unadjusted combined city-highway 

fuel economy values is the Toyota 

Corolla. The Toyota Corolla would be 

the comparison vehicle for any 2006 

hybrid vehicle that is classified as a 

compact car. In this case, the 2006 

Honda Civic hybrid is the only hybrid 

classified as a compact car. 

(3) Compare the hybrid vehicle fuel 

unadjusted economy values to the 

unadjusted city fuel economy value and 

the unadjusted city-highway fuel 

economy value for the comparison 

gasoline vehicle. 

(4) Evaluate the results according to 

the following criteria: 

Æ If the percent increase for city fuel 

economy is greater than 50 percent over 

the baseline city fuel economy for the 

given specific vehicle, then the vehicle 

would qualify as energy-efficient; 

Æ If the percent increase for combined 

city-highway fuel economy is greater 

than 25 percent over the baseline 

combined city-highway fuel economy 

for the given specific vehicle, then the 

vehicle would qualify as energyefficient; or 

Æ Conversely, if the candidate 

vehicle’s fuel economy does not meet 

these required thresholds when 

compared to the baseline fuel economy 

for that class of vehicle, then the vehicle 

would not qualify as energy-efficient. 

A complete discussion of the ‘‘best in 

class’’ methodology, including the list of 

vehicles that would qualify using this 

approach, can be found in the technical 

support document located in the docket 

for this rulemaking. 

EPA requests comment on using the 

‘‘best in class’’ methodology as a means 

for defining a comparable vehicle. 

C. Will All Hybrid Vehicles Qualify for 

the HOV Facilities Exemption? 

(1) Hybrids That Do Not Meet the Low 

Emission Criterion 

As discussed in this proposal, in 

order for a vehicle to qualify for HOV 

exemptions, that vehicle must be 

considered both low-emission and 

energy-efficient. As discussed above, 

EPA is proposing that vehicles must be 

certified to comply with EPA’s Tier 2 

Bin 5 or cleaner emission standards (or 

the equivalent CARB emissions 

standards) in order to be considered as 

‘‘low emission.’’ When we apply this 

criterion, there are some hybrid electric 

vehicles which do not meet the Tier 2 

Bin 5 or better threshold. The 2003 

Toyota Prius would not qualify for the 

HOV exemption because it does not 

meet the Tier 2 Bin 5 or better criterion 

for ‘‘low emission’’ as proposed in this 

action. In addition, some versions of the 

Honda Insight and Honda Civic Hybrid 

in specific model years would not 

qualify. To distinguish which versions 

of the Insight and Civic Hybrid would 

qualify from those that would not, it is 

necessary to know the EPA engine 

family name (also referred to as ‘‘test 

group name’’), which is the unique EPA 

identifier pointing to the manufacturer’s 

emission certification for that vehicle. 

This identifier is required to be printed 

on the emission information label 

located under the hood of every vehicle. 

Table 3 below shows the Honda Civic 

Hybrid and Insight models which would 

not comply with Tier 2 Bin 5 or better 

emission standards, along with their 

model year counterparts which are Bin 

5 or better and would therefore qualify 

for an HOV facilities exemption. These 

vehicles would not qualify regardless of 

which fuel efficiency methodology is 

applied. 

TABLE 3.—COMPARISON OF ENGINE FAMILIES/TEST GROUPS THAT WOULD OR WOULD NOT QUALIFY BASED ON THE TIER

2 BIN 5 OR BETTER CRITERION

Model year and name Engine family/test groups that 

do not qualify 

Engine family/test group that 

would qualify 

2003 Honda Civic Hybrid ..................................................................................... 3HNXV01.34A5 3HNXV01.36CV 

2004 Honda Civic Hybrid ..................................................................................... 4HNXV01.35A6 4HNXV01.37CP 

2005 Honda Civic Hybrid ..................................................................................... 5HNXV01.33A6 5HNXV01.3YCV 

2003 Honda Insight ............................................................................................. 3HNXV01.01A4 3HNXV01.0PCE 


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10National Highway and Traffic Safety 

Administration. ‘‘Analysis of the Effects of on 

Energy Conservation and the Environment.’’

http://www.nhtsa.gov/cars/rules/rulings/CAFE/ 

alternativefuels/analysis.htm. 

TABLE 3.—COMPARISON OF ENGINE FAMILIES/TEST GROUPS THAT WOULD OR WOULD NOT QUALIFY BASED ON THE TIER

2 BIN 5 OR BETTER CRITERION—Continued 

Model year and name Engine family/test groups that 

do not qualify 

Engine family/test group that 

would qualify 

2004 Honda Insight ............................................................................................. 4HNXV01.02A6 4HNXV01.0NCE 

2005 Honda Insight ............................................................................................. 5HNXV01.02A6 5HNXV01.0XCE 

2006 Honda Insight ............................................................................................. 6HNXV01.0YJV 6HNXV01.0VK5 

(2) Hybrids That Would Not Meet the 

Fuel Efficiency Criteria 

With the hybrid-to-gasoline vehicle 

comparison methodology, the 2006 

Honda Accord Hybrid would not qualify 

because its unadjusted city and 

unadjusted city-highway fuel economy 

values are not above the 25 percent and 

50 percent thresholds when compared 

to the closest Honda Accord gasoline 

counterpart. In addition, the 2007 Lexus 

GS450H would not qualify either. 

Because the 2007 Lexus GS450H, which 

is classified as a compact car, does not 

have an identical gasoline counterpart, 

EPA compared its unadjusted city and 

unadjusted city-highway fuel economy 

to the median fuel economy values of all 

gasoline-fueled 2007 compact cars. 

When making this comparison, the GS 

450H unadjusted city and unadjusted 

city-highway fuel economy values are 

not above the 25 percent and 50 percent 

thresholds and therefore would not 

qualify for an HOV facilities exemption. 

D. What Alternative Fuel Vehicles Could 

Qualify for the HOV Facilities 

Exemption? 

Alternative fuel vehicles would also 

qualify as energy-efficient vehicles 

under the HOV provisions in 23 U.S.C. 

166. Congress specified that an 

alternative fuel vehicle must be 

operating on the alternative fuel in order 

to be eligible for an exemption from the 

HOV facility occupancy requirement. 

According to Section 166(f)(1) of 23 

U.S.C. 166, the term ‘‘alternative fuel 

vehicle’’ means a vehicle that is 

operating on: 

(1) Methanol, denatured ethanol, or 

other alcohols; 

(2) A mixture containing at least 85 

percent of methanol, denatured ethanol, 

and other alcohols by volume with 

gasoline or other fuels; 

(3) Natural gas; 

(4) Liquefied petroleum gas; 

(5) Hydrogen; 

(6) Coal derived liquid fuels; 

(7) Fuels (except alcohol) derived 

from biological materials; 

(8) Electricity (including electricity 

from solar energy); or 

(9) Any other fuel that the Secretary 

prescribes by regulation that is not 

substantially petroleum and that would 

yield substantial energy security and 

environmental benefits, including fuels 

regulated under section 490 of title 10, 

Code of Federal Regulations (or 

successor regulations). 

There are, however, typically three 

different types of vehicles that might be 

considered alternative fuel vehicles—

flexible-fuel vehicles, which can operate 

on a designated alternative fuel (such as 

85 percent ethanol, 15 percent gasoline, 

known as E85), on a conventional fuel 

(such as gasoline), or any blend of the 

two; dual-fuel vehicles, which have two 

separate fuel systems allowing them to 

operate on either an alternative fuel 

(such as compressed natural gas) or on 

a conventional fuel (such as gasoline); 

or dedicated alternative fuel vehicles, 

which operate solely on a designated 

alternative fuel. 

Since the statute specifies that the 

vehicle must be operating on the 

alternative fuel to qualify for the HOV 

facilities exemption, and there is no way 

to determine that flex-fuel and dual-fuel 

vehicles are actually using the 

designated alternative fuel while they 

are being operated in an HOV facility, 

we are proposing to exclude dual-fuel 

and flex-fuel vehicles from the HOV 

exemption as ‘‘alternative fuel’’

vehicles. While the computer systems 

on flex-fuel vehicles are calibrated to 

operate in different manners depending 

on what type of fuel the vehicle is 

operating, a state official trying to 

enforce the HOV facility exemptions 

would not be able to visually determine 

which fuel a flexible-fuel or dual-fuel 

vehicle is operating on at any given 

time. Since current enforcement of HOV 

requirements relies on vehicle labels 

that can be easily viewed from a 

distance, verifying that a vehicle is 

operating on a flexible fuel at any given 

time would require a more detailed (and 

potentially traffic-disrupting) 

interaction between enforcement 

officials and the driver, such as 

requiring a receipt showing recent proof 

of purchase of the alternative fuel. It is 

also important to note that the actual 

usage rate of an alternative fuel in a 

flexible or dual-fuel vehicle is estimated 

at somewhat less than one percent.10

Furthermore, while there are around 

five million flexible-fuel vehicles on the 

road today, the majority of alternative 

fuel refueling stations are located in the 

midwestern states, while the majority of 

HOV facilities reside in urban areas of 

Eastern and Western states, making it 

even more unlikely that these vehicles 

would actually be using the alternative 

fuel while in the HOV facilities. There 

is a national effort underway to increase 

the availability of alternative fueling 

stations, especially E85, but it is 

unlikely that the numbers will increase 

significantly before the expiration of 

these HOV exemption provisions. 

Therefore, to ensure the enforceability 

of the HOV occupancy exemption, this 

notice proposes to allow only dedicated 

alternative fuel vehicles to be eligible 

under the ‘‘energy-efficient’’ provision, 

provided that they also meet the 

proposed minimum ‘‘low-emission’’

criteria of Tier 2 Bin 5 or cleaner, as 

described in section II.A.1 above. 

The dedicated alternative fuel 

vehicles that qualify are show above in 

Tables 1 and 2. 

E. How Will EPA Make Available the 

List of Eligible Vehicles? 

EPA is proposing to annually update 

the list of vehicles which it certifies 

would be eligible for exemption from 

the HOV facility requirement based on 

the low emission and energy-efficient 

requirements. This list of eligible 

vehicles would be provided to the 

Department of Transportation, which is 

responsible for implementation of HOV 

facilities, including these new HOV 

exemption provisions. EPA would also 

consider the most appropriate way to 

make the information available to the 

general public including posting the list 

on EPA’s and DOT’s web sites and/or 

publishing a notice in the Federal 

Register. It is important to note that 

while states have the flexibility to 

incorporate this HOV occupancy 

exemption for low emission and energyefficient vehicles into their HOV facility 


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29112 Federal Register / Vol. 72, No. 100 / Thursday, May 24, 2007 / Proposed Rules 

programs, they are not required to offer 

it. In addition, because states have the 

option to increase the stringency of the 

designated fuel economy percent 

increase values, an individual state’s list 

may differ from the list of eligible 

vehicles made available by EPA. 

Therefore, a vehicle on EPA’s list may 

not qualify in one or more states 

depending on how DOT and the states 

choose to implement these regulations. 

Vehicle owners interested in the HOV 

facilities exemption must consult with 

their state and local transportation 

authorities to ensure that a particular 

vehicle qualifies in his or her particular 

state. 

F. What Labeling Requirements Is EPA 

Proposing for Low Emission and EnergyEfficient Vehicles? 

Under 23 U.S.C. 166(e)(1), EPA must 

supply requirements for labeling low 

emission and energy-efficient vehicles 

that are eligible for the HOV occupancy 

exemption. To date, there are 22 states 

(AZ, CA, CO, CT, FL, GA, HI, IL, MA, 

MD, MN, NC, NJ, NY, NV, OR, PA, TN, 

TX, UT, VA, and WA) in addition to 

Washington DC with existing HOV 

facilities. 

Under TEA–21 (Pub. L. 105–178, June 

9, 1998), states were authorized to 

temporarily allow single-occupant clean 

fuel (i.e., alternative fuel) vehicles to use 

HOV facilities. As a result, many states 

already have labels. Label formats 

include decals and license plates, and 

these labels are used to identify the 

vehicle as eligible for the HOV 

occupancy exemption. 

An example of California’s 2005 decal 

is depicted in Figure 1. This decal is one 

of four California decals placed on a 

vehicle and is color-coded to represent 

either an alternative fuel (white) or 

hybrid vehicle (yellow). The sticker has 

a box where a vehicle identification or 

registration number is located 

(‘‘XXXXXXXX’’ in Figure 1). This 

number links the vehicle to the decal so 

that decals cannot be transferred from 

vehicle to vehicle. Since a vehicle that 

does not meet the minimum occupancy 

requirements for use in HOV facilities 

must have a special designation, the 

decal registration number provides the 

state with a method for tracking how 

many vehicles have qualified for use in 

HOV facilities. In addition, these 

existing formats are important for each 

state’s ability to enforce the occupancy 

exemption allowance of vehicles in its 

HOV facilities. 

We are proposing that vehicles 

allowed in the HOV facilities which do 

not meet the minimum occupancy 

requirement be labeled to identify this 

special occupancy exemption. We are 

also proposing to allow states to use 

their existing decals or license plates, 

provided the format requires the vehicle 

to be registered within the state of use. 

Other formats may also be deemed 

appropriate by the Department of 

Transportation if they meet all labeling 

requirements. 

We are not proposing to require a 

single standardized label for a number 

of reasons. First, EPA does not believe 

that a federally imposed label would be 

appropriate, since 23 U.S.C. 166 does 

not require states to allow low emission 

and energy-efficient vehicles that do not 

meet the established occupancy 

requirements in their HOV facilities. 

Thus, the requirements for labeling 

vehicles need to be limited to locales 

where they are eligible for use in HOV 

facilities. Moreover, since 23 U.S.C. 166 

allows states to increase the stringency 

of the fuel economy comparison criteria, 

thereby decreasing the Federal list of 

eligible vehicles to use HOV facilities, 

states need flexibility to label only the 

eligible vehicles, as opposed to labeling 

all federally eligible vehicles. 

Second, since certain states already 

have labeling methods, they have a 

developed knowledge and local 

experience enforcing HOV facilities 

based on their current labeling method. 

As a result, it would be potentially time 

consuming and costly to require states 

to revise or replace any current labeling 

method. It would also place an 

unnecessary inconvenience to vehicle 

owners to have to change labels. 

Third, the most important purpose of 

the label is to facilitate a state’s ability 

to enforce proper use of its HOV 

facilities, as well as monitor any 

degraded operational performance, by 

ensuring that only eligible low emission 

and energy-efficient vehicles are 

permitted in that state’s HOV facilities. 

Thus, the format for a label must 

provide flexibility for each state to 

adopt what it believes is most 

enforceable. 

This notice proposes that states would 

be responsible for printing and/or 

distributing the labels and, as a result, 

states could charge a registration fee for 

issuing a label to an owner. In addition, 

states would be responsible for tracking 

the labels by linking each label to a 

specific vehicle, through a registration 

number such as that depicted on Figure 

1 or by the license plate number on 


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Federal Register / Vol. 72, No. 100 / Thursday, May 24, 2007 / Proposed Rules 29113 

11Second Report of the High Occupancy Vehicle 

Enforcement Task Force, January 4, 2005, http:// 

www.vdot.virginia.gov/infoservice/news/

newsrelease.asp?ID=NOVA–NR05–02. 

license plate formats. States would have 

to include information on the label that 

distinguishes a vehicle as low emission 

and as energy-efficient; wording such as 

that on California’s decal (such as 

‘‘Clean Air Vehicle’’) in addition to 

color coding to distinguish between 

alternative fuel and meeting fuel 

economy requirements would be 

deemed acceptable. Thus options that 

states may want to consider for 

designating a vehicle as an eligible low 

emission and energy-efficient vehicle 

may include, but are not limited to, 

wording or color coding. 

EPA requests comment on how states 

with HOV facilities that border other 

states with HOV facilities (e.g. Virginia 

and Maryland), would address 

implementation and enforcement of the 

HOV facilities exemption. 

In summary, with respect to vehicle 

labeling requirements, this action 

proposes that: 

• Low emission and energy-efficient 

vehicles would be required to be labeled 

for the use in HOV facilities with easily 

visible labels for enforcement purposes; 

• Labels already implemented by 

States would be acceptable for 

continued use. Any state with an HOV 

facility that does not have an existing 

label would be required to develop one 

based on the formats already accepted 

or create a new format which includes 

all proposed requirements and subject 

to approval by the Department of 

Transportation; 

• Labels have a registration number 

that would link the label to the 

particular vehicle so that labels could 

not be transferred; 

• States are responsible for printing 

and/or distributing the labels; 

• Labels easily identify low emission 

and energy-efficient vehicles that are 

exempted from the HOV occupancy 

requirements and therefore permitted to 

use HOV facilities, based on factors 

such as, location, color, and wording 

that designates the vehicle as low 

emission and energy-efficient; and 

• States must include an expiration 

date on their labels. 

We believe it would be most 

appropriate for states to develop labels 

for purposes of identifying vehicles that 

qualify to be used in HOV facilities. 

However, we are seeking comment on 

the potential use of a federallydeveloped labeling program. By way of 

example, EPA has developed a 

voluntary ‘‘SmartWay’’ program that 

includes a variety of ways to reduce 

greenhouse gas and air pollution across 

a number of different industry sectors. 

While the program success to date has 

primarily been in the heavy-duty sector, 

SmartWay criteria have been established 

to designate light-duty vehicles that are 

environmental leaders, in terms of 

greenhouse gas and air pollution. There 

are two stringency levels for SmartWay 

vehicles: SmartWay and SmartWay 

Elite. Currently, these designations are 

used only on EPA’s Green Vehicle 

Guide web site, which is targeted at carbuyers. The SmartWay logo used is 

shown in Figure 2 below. 

There are currently no ‘‘decals’’ or 

‘‘stickers’’ to place on vehicles, nor has 

EPA established guidelines to car 

makers to do so. However, if EPA were 

to specify a format, the SmartWay logo 

could potentially serve this purpose. 

EPA seeks comment on the usefulness 

and feasibility of a permanent federal 

SmartWay label on eligible vehicles as 

a potential component of the HOV 

labeling requirement. 

G. What Impacts Are Associated With 

This Rulemaking? 

The main impact associated with this 

rulemaking is the impact consistent 

with the Congressional intent to provide 

non-financial incentives to increase the 

purchase of hybrids and other fuel 

efficient vehicles (23 U.S.C. 166(c)) as 

an alternative to higher emitting and 

less fuel efficient vehicles. There is 

some evidence supporting Congress’

intent that this incentive would help 

increase interest in purchasing low 

emission and fuel efficient vehicles. For 

instance, in the State of Virginia, the 

HOV allowance for hybrid-electric 

vehicles that do not meet the 

established occupancy requirement 

proved to increase the use of hybrids by 

threefold from 2003 to 2004.11 In 

Virginia, for 2004, an increase of 4300 

hybrid vehicles means a reduction in 

carbon dioxide of 430–1720 lbs. per 

mile. Even after the occupancy 

exemption for low emission and energyefficient vehicles in HOV facilities 

expires in September 2009, the benefit 

of introducing these vehicles into each 

state’s fleet remain due to the improved 

fuel efficiency. Thus, 23 U.S.C. 166 has 

predetermined that there are benefits to 

this allowance. There are no foreseen 

adverse economic or air quality impacts 

associated with providing a comparison 

methodology through this rulemaking, 

as described below. 

1. What Are the Economic Impacts? 

There are no anticipated economic 

impacts of this proposal as there are no 

associated costs. The HOV exemption 

for low emission and energy-efficient 

vehicles is an optional exemption. 23 

U.S.C. 166 is explicit that states are not 

required to implement this exemption, 

but may voluntarily choose to 

implement this exemption. Thus, there 

are no required costs for any state to 

implement an HOV exemption. While 

states that voluntarily choose to 

implement the HOV facility exemption 

are responsible for ensuring that HOV 

facilities do not become overcrowded; 

enforcing the use of HOV facilities by 

the exempted vehicles; and issuing 

labels for the vehicles, there are 

compensation mechanisms in place. For 

instance, states could charge for the 

label, and enforcement provisions can 

result in collected fines. Moreover, as 23 


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29114 Federal Register / Vol. 72, No. 100 / Thursday, May 24, 2007 / Proposed Rules 

12Second Report of the High Occupancy Vehicle 

Enforcement Task Force, January 4, 2005, http:// 

www.vdot.virginia.gov/infoservice/news/ 

newsrelease.asp?ID=NOVA–NR05–02. 

U.S.C. 166 prescribed, states have 

authority to charge a toll for low 

emission and energy-efficient vehicles 

that do not meet the occupancy 

requirement in HOV facilities. 

2. What Are the Congestion Impacts on 

HOV Facilities? 

Since there are relatively few HOV 

facilities that currently allow 

environmentally-friendly vehicles, data 

on the potential impact of hybrid 

vehicles on HOV facilities is limited. 

The best publicly available 

information comes from a report by the 

Virginia Department of Transportation’s 

High-Occupancy Vehicle Enforcement 

Task Force dated January 4, 2005. This 

report illustrates that the growth in the 

number of clean special fuel license 

plates issued in Virginia has increased 

significantly since hybrid vehicles 

became available. In fall 2003, hybrid 

vehicles accounted for between two 

percent and 12 percent of the peakperiod volumes in the HOV lanes in 

northern Virginia. In the fall of 2004, 

hybrid vehicles accounted for between 

11 percent and 17 percent of vehicles in 

the I–95 HOV lanes during the threehour morning peak-period. The actual 

number of hybrids during the morning 

peak period ranged from 844 to 1,422 

and the corresponding total vehicle 

volumes in the HOV lane ranged from 

7,994 to 8,450. While we do not have 

more current data, we would expect that 

these percentages have continued to 

grow over the last two years. 

The Task Force report concluded that, 

‘‘The rapid growth in hybrids has 

helped push the I–95 HOV lanes beyond 

the recommended HOV operating 

capacity, which is 1,500 to 1,800 

vehicles per lane, per hour. The Task 

Force recommends that only the 

cleanest hybrid vehicles be allowed to 

use the HOV lanes and that the current 

hybrid exemption from HOV restrictions 

expire in 2006, as provided in the 

current Virginia law.’’ 12 Subsequent to 

the report, Virginia did not let the 

hybrid exemption expire, but instead 

capped the number of hybrid vehicle 

plates. 

For demonstration purposes, EPA has 

also estimated the potential number of 

vehicles that are projected to be 

available for sale nationwide in the 2007 

model year for each of the comparable 

vehicle methodologies described above 

(see Table 4 below). 

TABLE 4.—POTENTIAL NUMBER OF ELIGIBLE VEHICLES BASED ON NATIONWIDE SALES FOR EACH VEHICLE COMPARISON

METHODOLOGY

Model year 

Hybrid-toGasoline 

comparison 

Inertia weight 

comparison 

Hybrid-to- 

‘‘Best in 

Class’’

comparison 

2003 ............................................................................................................................................. 33593 33593 1011 

2004 ............................................................................................................................................. 71334 71334 48513 

2005 ............................................................................................................................................. 105505 238424 79773 

2006 ............................................................................................................................................. 213338 328250 124536 

2007 ............................................................................................................................................. 326245 665157 147583 

Total ...................................................................................................................................... 750015 1336758 401416 

These values include actual sales data 

whenever it is available. In cases where 

actual sales data is unavailable, we used 

projected sales data that are provided to 

EPA by each manufacturer. In addition, 

these values reflect nationwide sales 

data. Without state by state vehicle 

registration data, it is not possible to 

estimate with any accuracy the actual 

vehicles that are used in areas with 

HOV occupancy exemptions. 

3. What Are the Other Impacts? 

There are no associated adverse air 

quality impacts of this proposal. 23 

U.S.C. 166 requires EPA to codify a 

procedure for certifying low emission 

and energy-efficient vehicles and places 

the responsibility on individual states to 

determine if an HOV exemption for low 

emission and energy-efficient vehicles 

benefits or impedes the air quality goals 

of that state. As a result, 23 U.S.C. 166 

provides mechanisms to ensure that 

such an exemption does not adversely 

impact air quality. 

First, 23 U.S.C. 166 designates the 

HOV exemption for low emission and 

energy-efficient vehicles as a voluntary 

program. Thus, a state chooses whether 

this exemption meets its needs or not. 

Second, 23 U.S.C. 166 allows states to 

increase the fuel economy thresholds 

per the energy-efficient designation in 

order to further minimize the number of 

vehicles which qualify as low emission 

and energy-efficient, thereby managing 

the number of exempted vehicles using 

the limited excess capacity of HOV 

facilities. Third, 23 U.S.C. 166 requires 

states that choose to implement this 

HOV exemption to ensure that the HOV 

facilities are not overburdened by the 

addition of exempted vehicles and 

provides minimum operating speed 

guidelines for assessing HOV facility 

degradation. Finally, EPA is proposing 

regulations to ensure that only the 

‘‘cleanest’’ of the Tier 2 fleet qualify as 

‘‘low emission’’ and the minimum 

number of truly energy-efficient 

vehicles qualify as ‘‘energy-efficient.’’

Therefore, these four safeguards form 

our belief that there would be no 

adverse environmental impacts due to 

the HOV exemption for low emission 

and energy-efficient vehicles. 

III. Request for Comments 

Although EPA requests comments on 

all aspects of this proposal, we are 

specifically requesting comment on the 

following topics proposed in this action: 

• Eligibility for a low emission 

vehicle based on Tier 2 Bin 5 or cleaner 

for light-duty vehicles, or comparable 

California LEV–II or cleaner for 

passenger vehicles to comply with the 

23 U.S.C. 166 Tier 2 requirements. 

• Use of a hybrid-to-gasoline vehicle 

comparison methodology to determine 

vehicle eligibility. 

• Use of a ‘‘best in class’’

methodology to determine vehicle 

eligibility. 

• Eligibility for an energy-efficient 

vehicle based on operating on an 

alternative fuel limited to dedicated 

alternative fuel vehicles only. 

• Necessity of a Federal versus stateby-state labeling system. 

• Proposed labeling requirements, as 

well as any necessary enforcement 


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Federal Register / Vol. 72, No. 100 / Thursday, May 24, 2007 / Proposed Rules 29115 

provisions that should be required on a 

label. 

The following topics were not 

proposed in this action, but EPA is 

specifically requesting comment on 

them: 

• Use of an inertia weight class 

methodology to determine vehicle 

eligibility. 

• For the inertia weight class 

methodology, the usefulness of 

requiring an additional criterion that 

any vehicle which meets the low 

emissions and criteria must also have an 

unadjusted combined fuel economy that 

is at least 25 percent higher than the 

applicable car or truck CAFE standard. 

• The availability of technology or 

other methodology that can demonstrate 

when a flexible-fuel vehicle is operating 

on an alternative fuel versus a 

conventional fuel. 

• Data indicating the extent to which 

flexible-fuel vehicles are operating on 

the alternative fuel in an area or region. 

IV. What Are the Opportunities for 

Public Participation? 

We request comment on all aspects of 

this proposal. This section describes 

how you can participate in this process. 

We are opening a formal comment 

period by publishing this document. We 

will accept comments for the period 

indicated under DATES above. If EPA 

receives requests to present oral 

testimony, a public hearing will be 

scheduled. Information regarding the 

timing for requesting a public hearing is 

indicated under DATES above. 

Your comments will be most useful if 

you include appropriate and detailed 

supporting rationale, data, and analysis. 

If you disagree with parts of the 

proposal, we encourage you to suggest 

and analyze alternate approaches to 

meeting the goals described in this 

proposal. You should send all 

comments, except those containing 

proprietary information, to our Docket 

(see ADDRESSES) before the end of the 

comment period. 

A. Copies of This Proposal and Other 

Related Information 

1. Docket 

EPA has established an official public 

docket for this action under Docket ID 

No. EPA–HQ–OAR–2005–0173. The 

official public docket consists of the 

documents specifically referenced in 

this action, any public comments 

received, and other information related 

to this action. Although a part of the 

official docket, the public docket does 

not include confidential business 

information (CBI) or other information 

whose disclosure is restricted by statute. 

The official public docket is the 

collection of materials that is available 

for public viewing by referencing 

Docket No. EPA–HQ–OAR–2005–0173 

(see ADDRESSES). 

You may submit comments 

electronically, by mail, or through hand 

delivery/courier as described below. To 

ensure proper receipt by EPA, identify 

the appropriate docket identification 

number in the subject line on the first 

page of your comment. Please ensure 

that your comments are submitted 

within the specified comment period. 

Comments received after the close of the 

comment period will be marked late. 

EPA is not required to consider these 

late comments. If you wish to submit 

CBI or information that is otherwise 

protected by statute, please follow the 

instructions in Section IV.C. Do not use 

EPA Dockets or e-mail to submit CBI or 

information protected by statute. 

2. Electronic Access 

You may access this Federal Register 

document electronically through the 

EPA Internet under the Federal Register 

listings at http://www.epa.gov/fedrgstr/. 

An electronic version of the public 

docket is available through EPA’s 

electronic public docket and comment 

system, EPA Dockets. You may use EPA 

Dockets at http://www.epa.gov/edocket/ 

to submit or view public comments, 

access the index listing of the contents 

of the official public docket, and to 

access those documents in the public 

docket that are available electronically. 

Once in the system, select search, then 

key in the appropriate docket 

identification number. 

Certain types of information will not 

be placed in the EPA Dockets. 

Information claimed as CBI and other 

information whose disclosure is 

restricted by statute, which is not 

included in the official public docket, 

will not be available for public viewing 

in EPA’s electronic public docket. EPA’s 

policy is that copyrighted material will 

not be placed in EPA’s electronic public 

docket but will be available only in 

printed, paper form in the official public 

docket. To the extent feasible, publicly 

available docket materials will be made 

available in EPA’s electronic public 

docket. When a document is selected 

from the index list in EPA Dockets, the 

system will identify whether the 

document is available for viewing in 

EPA’s electronic public docket. 

Although not all docket materials may 

be available electronically, you may still 

access any of the publicly available 

docket materials through the docket 

facility. EPA intends to work towards 

providing electronic access to all of the 

publicly available docket materials 

through EPA’s electronic public docket. 

For public commenters, it is 

important to note that EPA’s policy is 

that public comments, whether 

submitted electronically or in paper, 

will be made available for public 

viewing in EPA’s electronic public 

docket as EPA receives them and 

without change, unless the comment 

contains copyrighted material, CBI, or 

other information whose disclosure is 

restricted by statute. When EPA 

identifies a comment containing 

copyrighted material, EPA will provide 

a reference to that material in the 

version of the comment that is placed in 

EPA’s electronic public docket. The 

entire printed comment, including the 

copyrighted material, will be available 

in the public docket. 

Public comments submitted on 

computer disks that are mailed or 

delivered to the docket will be 

transferred to EPA’s electronic public 

docket. Public comments that are 

mailed or delivered to the Docket will 

be scanned and placed in EPA’s 

electronic public docket. Where 

practical, physical objects will be 

photographed, and the photograph will 

be placed in EPA’s electronic public 

docket along with a brief description 

written by the docket staff. 

B. Public Hearing 

Anyone wishing to present testimony 

about this proposal at the public hearing 

(see DATES) should notify the general 

contact person (see FOR FURTHER

INFORMATION CONTACT) no later than five 

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. Testimony will be 

scheduled on a first come, first served 

basis. 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 following 

the previously scheduled testimony. 

EPA requests 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 one week 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. 


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The official records of the hearing will 

be kept open for 30 days following the 

hearing to allow submission of rebuttal 

and supplementary testimony. All such 

submissions should be directed to 

Docket No. EPA–HQ–OAR–2005–0173 

(see ADDRESSES). The hearing will be 

conducted informally, and technical 

rules of evidence will not apply. A 

written transcript of the hearing will be 

placed in the above docket for review. 

Anyone desiring to purchase a copy of 

the transcript should make individual 

arrangements with the court reporter 

recording the proceedings. 

V. What Are the Administrative 

Requirements for This Proposed Rule? 

A. Executive Order 12866: Regulatory 

Planning and Review 

Under Executive Order (EO) 12866 

(58 FR 51735, October 4, 1993), this 

action is a ‘‘significant regulatory 

action.’’ Accordingly, EPA submitted 

this action to the Office of Management 

and Budget (OMB) for review under EO 

12866 and any changes made in 

response to OMB recommendations 

have been documented in the docket for 

this action. 

B. Paperwork Reduction Act 

This action does not impose an 

information collection burden under the 

provisions of the Paperwork Reduction 

Act, 44 U.S.C. 3501 et seq. This action 

does not require any state to implement 

the provisions of this action. In 

addition, this action does not require 

that any information is collected, but 

rather supplies guidance and a 

comparison methodology for generating 

a list of eligible low emission and 

energy-efficient vehicles that are 

exempted from the HOV occupancy 

requirements. 

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. 

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 in 40 

CFR are listed in 40 CFR part 9. 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) 

generally requires an agency to prepare 

a regulatory flexibility analysis of any 

rule subject to notice and comment 

rulemaking requirements under the 

Administrative Procedure Act or any 

other statute unless the agency certifies 

that the rule will not have a significant 

economic impact on a substantial 

number of small entities. Small entities 

include small businesses, small 

organizations, and small governmental 

jurisdictions. 

For purposes of assessing the impacts 

of this proposal on small entities, small 

entity is defined as: (1) A small business 

as defined by the Small Business 

Administration regulations at 13 CFR 

121.201; (2) a small governmental 

jurisdiction that is a government of a 

city, county, town, school district or 

special district with a population of less 

than 50,000; and (3) a small 

organization that is any not-for-profit 

enterprise which is independently 

owned and operated and is not 

dominant in its field. 

After considering the economic 

impacts of this proposed rule on small 

entities, EPA certifies that this action 

would not have a significant economic 

impact on a substantial number of small 

entities. This proposed rule would not 

impose any requirements on small 

entities. This action proposes 

regulations for defining low emission 

and energy-efficient vehicles and for 

labeling these vehicles in HOV facilities, 

according to the provisions defined by 

Congress in SAFETEA–LU. As also 

prescribed by Congress, these 

definitions and comparison strategies 

are implemented optionally by the 

states; there is no requirement that a 

state would have to allow low emission 

and energy-efficient vehicles to use the 

HOV facilities. Furthermore, this action 

proposes a flexible format for labeling 

vehicles, so as to minimize the burden 

on states with existing HOV programs 

and labeling strategies. We have 

therefore concluded that this proposed 

rule would not impact, or would have 

a neutral impact on, burden for all small 

entities. 

We continue to be interested in the 

potential impacts of the proposed rule 

on small entities and welcome 

comments on issues related to such 

impacts. 

D. Unfunded Mandates Reform Act 

Title II of the Unfunded Mandates 

Reform Act of 1995 (UMRA), Public 

Law 104–4, establishes requirements for 

Federal agencies to assess the effects of 

their regulatory actions on state, local, 

and tribal governments and the private 

sector. Under section 202 of the UMRA, 

EPA generally must prepare a written 

statement, including a cost-benefit 

analysis, for proposed and final rules 

with ‘‘Federal mandates’’ that may 

result in expenditures to State, local, 

and tribal governments, in the aggregate, 

or to the private sector, of $100 million 

or more in any one year. Before 

promulgating an EPA rule for which a 

written statement is needed, section 205 

of the UMRA generally requires EPA to 

identify and consider a reasonable 

number of regulatory alternatives and 

adopt the least costly, most costeffective or least burdensome alternative 

that achieves the objectives of the rule. 

The provisions of section 205 do not 

apply when they are inconsistent with 

applicable law. Moreover, section 205 

allows EPA to adopt an alternative other 

than the least costly, most cost-effective 

or least burdensome alternative if the 

Administrator publishes with the final 

rule an explanation why that alternative 

was not adopted. Before EPA establishes 

any regulatory requirements that may 

significantly or uniquely affect small 

governments, including tribal 

governments, it must have developed 

under section 203 of the UMRA a small 

government agency plan. The plan must 

provide for notifying potentially 

affected small governments, enabling 

officials of affected small governments 

to have meaningful and timely input in 

the development of EPA regulatory 

proposals with significant Federal 

intergovernmental mandates, and 

informing, educating, and advising 

small governments on compliance with 

the regulatory requirements. 

This proposal contains no Federal 

mandates (under the regulatory 

provisions of Title II of the UMRA) for 

state, local, or tribal governments or the 

private sector. This action proposes to 

implement mandates specifically and 

explicitly set forth by the Congress in 

SAFETEA–LU without the exercise of 

any policy discretion by EPA, and the 

proposal would impose no enforceable 

duty on any state, local or tribal 

governments or the private sector. This 

proposal provides clarification on 

determining whether a vehicle is low 

emission and energy-efficient and a 

comparison strategy for designating a 

comparable vehicle for performing fuel 

economy percent increase calculations. 

This action was prescribed by Congress, 


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and SAFETEA–LU is explicit that states 

are not required to adopt these 

provisions. Instead, participation in this 

program would be voluntary and would 

allow voluntary measures to increase 

the stringency of the comparison 

strategy to meet individual state’s needs. 

EPA has determined that this 

proposal does not contain a Federal 

mandate that may result in expenditures 

of $100 million or more for State, local, 

and tribal governments, in the aggregate, 

or the private sector in any one year. 

EPA has determined that this rule 

contains no regulatory requirements that 

might significantly or uniquely affect 

small governments. These provisions 

are applicable for states with existing 

HOV facilities and do not require any 

state to install HOV facilities. In 

addition, the labeling requirements have 

been proposed as flexible in order to 

avoid causing expenditures on a new 

method of labeling vehicles in states 

where labeling systems already exists. 

Thus, this proposal is not subject to the 

requirements of sections 202 and 205 of 

the UMRA. 

E. Executive Order 13132: Federalism 

Executive Order 13132, entitled 

‘‘Federalism’’ (64 FR 43255, August 10, 

1999), requires EPA to develop an 

accountable process to ensure 

‘‘meaningful and timely input by state 

and local officials in the development of 

regulatory policies that have federalism 

implications.’’ ‘‘Policies that have 

federalism implications’’ is defined in 

the Executive Order to include 

regulations that have ‘‘substantial direct 

effects on the states, on the relationship 

between the national government and 

the states, or on the distribution of 

power and responsibilities among the 

various levels of government.’’

This proposed rule does not have 

federalism implications. It will not have 

substantial direct effects on the states, 

on the relationship between the national 

government and the states, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132. The provisions 

in this proposed rule do not require that 

a state implement them, and the 

stringency of the provisions can be 

optionally increased. This proposed rule 

defines requirements that could be used 

to implement HOV occupancy 

exemptions for low emission and 

energy-efficient vehicles, but provides 

ample flexibility for states to decide 

whether or not to implement and/or 

whether or not to increase stringency. 

Thus, Executive Order 13132 does not 

apply to this proposal. Although section 

6 of Executive Order 13132 does not 

apply to this proposal, EPA did consult 

with representatives of state and local 

governments in developing it. The 

conversations resulted in requests for 

flexibility in labeling and allowing 

states to determine any implementation 

or enforcement provisions. This action 

would allow both. 

In the spirit of Executive Order 13132, 

and consistent with EPA policy to 

promote communications between EPA 

and state and local governments, EPA 

specifically solicits comment on this 

proposed rule from State and local 

officials. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

Executive Order 13175, entitled 

‘‘Consultation and Coordination with 

Indian Tribal Governments’’ (65 FR 

67249, November 9, 2000), requires EPA 

to develop an accountable process to 

ensure ‘‘meaningful and timely input by 

tribal officials in the development of 

regulatory policies that have tribal 

implications.’’ This proposed rule 

would not have tribal implications, as 

specified in Executive Order 13175. 

This proposed rule would apply to state 

highways with HOV facilities, and 

involves state governments and/or 

transportation entities if a state chooses 

to implement the rule. Thus, Executive 

Order 13175 does not apply to this 

proposed rule. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

Executive Order 13045: ‘‘Protection of 

Children from Environmental Health 

Risks and Safety Risks’’ (62 FR 19885, 

April 23, 1997) applies to any rule that: 

(1) Is determined to be ‘‘economically 

significant’’ as defined under Executive 

Order 12866, and (2) concerns an 

environmental health or safety risk that 

EPA has reason to believe may have a 

disproportionate effect on children. If 

the regulatory action meets both criteria, 

the Agency must evaluate the 

environmental health or safety effects of 

the planned rule on children, and 

explain why the planned regulation is 

preferable to other potentially effective 

and reasonably feasible alternatives 

considered by the Agency. EPA 

interprets EO 13045 as applying only to 

those regulatory actions that concern 

health or safety risks, such that the 

analysis required under section 5–501 of 

the EO has the potential to influence the 

regulation. This proposed rule is not 

subject to EO 13045 because it does not 

establish an environmental standard 

intended to mitigate health or safety 

risks. 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This rule is not a ‘‘significant energy 

action’’ as defined in Executive Order 

13211, ‘‘Actions Concerning Regulations 

That Significantly Affect Energy Supply, 

Distribution, or Use’’ (66 FR 28355 (May 

22, 2001)) because it is not likely to 

have a significant adverse effect on the 

supply, distribution, or use of energy. 

This rule is the result of a directive by 

23 U.S.C. 166 to codify the certification 

of low emission and energy-efficient 

vehicles. The sense of Congress is to 

‘‘provide additional incentives 

(including the use of high occupancy 

vehicle facilities on State and Interstate 

highways) for the purchase and use of 

hybrid and other fuel efficient vehicles, 

which have been proven to minimize air 

emissions and decrease consumption of 

fossil fuels’’ (Section 1121(c) of 23 

U.S.C. 166). This intent demonstrates 

Congress’s belief that this rule would 

not have adverse effects on the supply, 

distribution, or use of energy. In fact, 

the HOV occupancy exemption 

provision for ‘‘low emission and energyefficient’’ vehicles should have a 

positive effect, reducing the effect on 

the supply, distribution, or use of 

energy by encouraging the purchase and 

use of fuel efficient vehicles. Thus, we 

have concluded that this rule is not 

likely to have any adverse energy 

effects. 

I. National Technology Transfer 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (‘‘NTTAA’’), Public Law No. 

104–113, 12(d) (15 U.S.C. 272 note) 

directs EPA to use voluntary consensus 

standards in its regulatory activities 

unless to do so would be inconsistent 

with applicable law or otherwise 

impractical. Voluntary consensus 

standards are technical standards (e.g., 

materials specifications, test methods, 

sampling procedures, and business 

practices) that are developed or adopted 

by voluntary consensus standards 

bodies. The NTTAA directs EPA to 

provide Congress, through OMB, 

explanations when the Agency decides 

not to use available and applicable 

voluntary consensus standards. This 

proposed rulemaking does not involve 

technical standards. Therefore, EPA is 

not considering the use of any voluntary 

consensus standards. 

EPA welcomes comments on this 

aspect of the proposed rulemaking and, 

specifically, invites the public to 

identify potentially-applicable 

voluntary consensus standards and to 


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explain why such standards should be 

used in this regulation. 

VI. What Are the Statutory Provisions 

and Legal Authority for This Proposed 

Rule? 

Statutory authority for this action is 

found in 23 U.S.C. 166. This action is 

being proposed under the 

administrative and procedural 

provisions of the Administrative 

Procedures Act, 5 U.S.C. 553. 

List of Subjects in 40 CFR Part 601 

Environmental protection, 

Administrative practice and procedure, 

Fuel economy, Reporting and 

recordkeeping requirements. 

Dated: May 16, 2007. 

Stephen L. Johnson, 

Administrator. 

For the reasons set forth in the 

preamble, title 40 Chapter I of the Code 

of Federal Regulations is proposed to be 

amended by adding a new part 601 as 

follows: 

PART 601—QUALIFICATION CRITERIA 

FOR LOW EMISSION AND ENERGYEFFICIENT VEHICLES 

Sec. 

601.1 General applicability. 

601.2 Definitions. 

601.3 Abbreviations. 

601.4 Criteria for qualifying as a low 

emission and energy-efficient vehicle. 

601.5 Criteria for qualifying as a low 

emission vehicle. 

601.6 Criteria for qualifying as an energyefficient vehicle. 

601.7 Criteria for determining a comparable 

gasoline-fueled vehicle based upon the 

unadjusted city fuel economy. 

601.8 Criteria for determining a comparable 

gasoline-fueled vehicle based upon the 

unadjusted combined city-highway fuel 

economy. 

601.9 How to determine if a candidate 

vehicle meets the ‘‘energy-efficient’’

criteria based on fuel economy. 

601.10 Certification requirements. 

601.11 Labeling requirements for low 

emission and energy-efficient vehicles. 

Authority: 23 U.S.C. 166. 

§ 601.1 General applicability. 

The provisions of this part are 

applicable to 2002 and later model year 

vehicles that may qualify for use in high 

occupancy vehicle facilities in states 

that elect to allow such use. These 

provisions expire on September 30, 

2009. 

§ 601.2 Definitions. 

Any terms defined in 40 CFR parts 86 

and 600 and not defined in this part 

shall have the meaning given them in 

§§ 86.1803 and 600.002 of this chapter. 

Alternative fuel vehicle means a 

vehicle that is operating on—

(1) Methanol, denatured ethanol, or 

other alcohols; 

(2) A mixture containing at least 85 

percent of methanol, denatured ethanol, 

and other alcohols by volume with 

gasoline or other fuels; 

(3) Natural gas; 

(4) Liquefied petroleum gas; 

(5) Hydrogen; 

(6) Coal derived liquid fuels; 

(7) Fuels (except alcohol) derived 

from biological materials; 

(8) Electricity (including electricity 

from solar energy); or 

(9) Any other fuel that the Secretary 

of Transportation prescribes by 

regulation that is not substantially 

petroleum and that would yield 

substantial energy security and 

environmental benefits, including fuels 

regulated under section 490 of title 10, 

Code of Federal Regulations (or 

successor regulations). 

Unadjusted city fuel economy means 

the model type city fuel economy as 

calculated in 40 CFR 600.207–93. 

Unadjusted combined city-highway 

fuel economy means the model type 

combined fuel economy as calculated in 

40 CFR 600.207–93. 

§ 601.3 Abbreviations. 

The abbreviations of 40 CFR parts 86 

and 600 also apply to this part. The 

abbreviations in this section apply to 

this part only. 

HOV means High Occupancy Vehicle. 

§ 601.4 Criteria for qualifying as a low 

emission and energy-efficient vehicle. 

In order to meet the criteria for being 

certified as a low emission and energyefficient vehicle under this part, a 

vehicle must meet the criteria for 

qualifying as a low emission vehicle 

under § 601.5 and must meet the criteria 

for qualifying as an energy-efficient 

vehicle under § 601.6. A state that elects 

to allow low emission and energyefficient vehicles to use HOV facilities 

may require that a vehicle meet a level 

of comparative percentage increase in 

fuel economy that is greater than the 

percentages in § 601.6(b) and (c) in 

order to qualify as a low emission and 

energy-efficient vehicle in that state. 

§ 601.5 Criteria for qualifying as a low 

emission vehicle. 

Light-duty vehicles and light-duty 

trucks up to 8500 lbs. GVWR must be 

certified by the U.S. Environmental 

Protection Agency as meeting emission 

standards that are as or more stringent 

than the Tier 2 Bin 5 emission standard 

as specified in Table S04–1 of 40 CFR 

86.1811–04. 

§ 601.6 Criteria for qualifying as an 

energy-efficient vehicle. 

Light-duty vehicles and light-duty 

trucks up to 8500 lbs. GVWR must be 

certified by the U.S. Environmental 

Protection Agency as meeting the 

criteria of either paragraph (a) or (b) of 

this section: 

(a) It is an alternative fuel vehicle. 

This does not include flexible-fuel or 

dual-fuel vehicles. 

(b) It meets one of the unadjusted fuel 

economy criteria in this paragraph: 

(1) The unadjusted city fuel economy 

of the vehicle must be at least 50 

percent higher than the city fuel 

economy of a comparable gasolinefueled vehicle, as determined in § 601.7; 

or 

(2) The unadjusted combined cityhighway fuel economy of the vehicle 

must be at least 25 percent higher than 

the unadjusted combined city-highway 

fuel economy of a comparable gasolinefueled vehicle, as determined in § 601.8. 

§ 601.7 Criteria for determining a 

comparable gasoline-fueled vehicle based 

upon unadjusted city fuel economy. 

(a) For hybrid vehicles with a similar 

gasoline counterpart (e.g. same make/ 

model), the Administrator will compare 

the unadjusted city fuel economy value 

as determined under 40 CFR 600.207–93 

of a candidate hybrid vehicle, to the 

unadjusted city fuel economy value of 

the similar gasoline counterpart. 

(b) For hybrid vehicles with no 

similar gasoline counterpart, the 

Administrator will determine the 

candidate vehicle by calculating the 

median unadjusted city fuel economy 

values for all gasoline vehicles in the 

same comparable vehicle class as 

defined in EPA’s annual Fuel Economy 

Guide, which is jointly published by 

EPA and DOE. The Administrator will 

then compare the unadjusted city fuel 

economy value of the candidate hybrid 

vehicle, as determined under 40 CFR 

600.207–93, to the median unadjusted 

city fuel economy value for the 

comparison gasoline vehicle in same 

vehicle class. 

§ 601.8 Criteria for determining a 

comparable gasoline-fueled vehicle based 

upon the unadjusted combined cityhighway fuel economy. 

(a) For hybrid vehicles with a similar 

gasoline counterpart (e.g. same make/ 

model), the Administrator will compare 

the unadjusted combined city-highway 

fuel economy value of the candidate 

hybrid vehicle, as determined under 40 

CFR 600.207–93, to the unadjusted 

combined city-highway fuel economy 

value of the similar gasoline 

counterpart. 


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(b) For hybrid vehicles with no 

similar gasoline counterpart, the 

Administrator will determine the 

candidate vehicle by calculating the 

median unadjusted combined cityhighway fuel economy values for all 

gasoline vehicles in the same 

comparable vehicle class as used in the 

annual Fuel Economy Guide published 

jointly by EPA and the Department of 

Energy. The Administrator will then 

compare the unadjusted combined cityhighway fuel economy value of the 

candidate hybrid vehicle, as determined 

under 40 CFR 600.207–93, to the 

median unadjusted combined cityhighway fuel economy value for the 

comparison gasoline vehicle in same 

vehicle class. 

§ 601.9 How to determine if a candidate 

vehicle meets the ‘‘energy-efficient’’ criteria 

based on fuel economy. 

(a) The Administrator will compare 

the candidate vehicle’s unadjusted city 

fuel economy and unadjusted combined 

city-highway fuel economy to the city 

fuel economy values and combined-city 

highway fuel economy values for the 

applicable gasoline comparable vehicle 

as described in §§ 601.7 and 601.8. 

(b) A candidate vehicle qualifies as 

energy-efficient if it meets either of the 

following fuel economy criteria: 

(1) The percent increase for the 

unadjusted city fuel economy is greater 

than 50 percent over the baseline city 

fuel economy of the comparable vehicle; 

or 

(2) The percent increase for the 

unadjusted combined city-highway fuel 

economy is greater than 25 percent over 

the baseline combined city-highway fuel 

economy of the comparable vehicle. 

§ 601.10 Certification requirements. 

The Administrator will annually 

certify those vehicles that qualify as low 

emission and energy-efficient vehicles, 

as determined in § 601.4 and provide a 

list of certified vehicles to the 

Department of Transportation. 

§ 601.11 Labeling requirements for low 

emission and energy-efficient vehicles. 

(a) States that elect to allow low 

emission and energy-efficient vehicles 

to use HOV facilities must label low 

emission and energy-efficient vehicles 

for usage in HOV facilities in a manner 

that allows state enforcement officials to 

easily identify these vehicles. 

(b) States with existing programs to 

allow the use of low emission and 

energy-efficient vehicles in HOV 

facilities may continue to use the labels 

they have designed for use in such 

programs, as long as they meet the other 

requirements of this section. States 

without labels must develop labels 

based on existing formats, i.e., decals or 

license plates, and the criteria in 

§ 601.11. 

(c) States are responsible for printing 

and/or distributing the labels and may 

charge a registration fee for issuing a 

label to an owner. 

(d) Labels must identify the vehicle as 

low emission and energy-efficient by 

such means as specific wording and/or 

color coding. 

(e) Labels must contain an identifier 

that is unique to the specific vehicle 

such that they could not be transferred. 

[FR Doc. E7–9821 Filed 5–23–07; 8:45 am] 

BILLING CODE 6560–50–P 


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