44872 Federal Register / Vol. 62, No. 163 / Friday, August 22, 1997 / Rules and Regulations

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 86

[AMS–FRL–5879–2]

Extension of Interim Revised Durability

Procedures for Light-Duty Vehicles

and Light-Duty Trucks

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY: Today’s action extends the

applicability of light duty vehicle and

light duty truck durability procedures to

beyond the 1998 model year.

On January 12, 1993, EPA published

a final rule establishing interim

durability procedures used for

demonstrating compliance with light

duty vehicle and light duty truck

emission standards, applicable in model

years 1994–1996 only. On July 18, 1994,

EPA published a direct final rule

extending the applicability of the

original rule to the end of the 1998

model year. Today’s final rule extends

the applicability of those durability

procedures indefinitely. The Agency

intends to conduct a separate

rulemaking to implement a long-term

durability program; however, such an

action will be linked to other actions as

part of a broad-based streamlining

initiative for all vehicle emission

compliance activities. It is difficult to

predict with any precision when this

subsequent action will occur. The

Agency currently estimates that new

compliance regulations will be

promulgated such that they would

become effective no earlier than the

2000 model year. Because the current

durability regulations expire at the end

of the 1998 model year, failure to adopt

today’s action would result in less

effective and inefficient durability

regulations beginning with the 1999

model year. The Agency believes that it

is appropriate to extend indefinitely the

existing interim procedures because so

doing addresses lead time concerns for

model year 1999 and beyond, accounts

for the uncertainty of the anticipated

revised compliance regulations and

adds no new requirements, but rather

simply allows the continuation of the

current program.

DATES: This final rule is effective

September 22, 1997.

ADDRESSES: Materials relevant to this

final rule have been placed in Docket

No. A–93–46. Additional documents of

relevance may be found in Docket No.

A–90–24. The docket is located at the

above address in room M–1500,

Waterside Mall, and may be inspected

weekdays between 8:30 a.m. and noon,

and between 1:30 p.m. and 3:30 p.m. A

reasonable fee may be charged by EPA

for copying docket materials.

FOR FURTHER INFORMATION CONTACT:

Linda Hormes, Vehicle Programs and

Compliance Division, U.S.

Environmental Protection Agency,

National Vehicle and Fuel Emissions

Laboratory, 2565 Plymouth Road, Ann

Arbor, MI 48105. Telephone (313) 668–

4502.

SUPPLEMENTARY INFORMATION:

The preamble and regulatory language

are also available electronically from the

EPA internet Web site. This service is

free of charge, except for any cost you

already incur for internet connectivity.

The electronic version of this final rule

is made available on the day of

publication on the primary Web site

listed below. The EPA Office of Mobile

Sources also publishes these notices on

the secondary Web site listed below.

Internet (Web)

http://www.epa.gov/docs/fedrgstr/EPAAIR/ (either select desired date or use

Search feature)

http://www.epa.gov/OMSWWW/ (look

in What’s New or under the specific

rulemaking topic)

Please note that due to differences

between the software used to develop

the document and the software into

which the document may be

downloaded, changes in format, page

length, etc. may occur.

I. Background

On January 12, 1993, the Agency

published interim procedures for motor

vehicle manufacturers to use in

demonstrating compliance with

emission standards for light-duty

vehicles and light-duty trucks (58 FR

3994). That rule, referred to as the ‘‘RDP

I’’ rule, made the interim procedures

applicable to model years 1994 through

1996, but not thereafter. The Agency

now plans to revise the RDP I interim

procedures through a separate

rulemaking in conjunction with other

activities associated with a compliance

initiative currently being undertaken by

the Agency.

The Agency initially planned to

promulgate a separate durability

regulation, hereafter referred to as ‘‘RDP

II’’ which was to become effective

beginning with the 1997 model year.

However, that became impractical due

to lead time constraints for

manufacturers wishing to certify

vehicles in that model year and the

uncertainty that sufficient lead time

existed for implementation in the 1998

model year as well. Consequently, the

Agency promulgated a direct final rule

which extended the applicability of the

RDP I interim rulemaking through

model year 1998 (59 FR 36368). This

was intended to provide manufacturers

with timely notice of the regulations

applicable for certifying vehicles

through model year 1998 while EPA

continued work on preparing and

finalizing further technical and

procedural improvements to the RDP II

program. While work on the RDP II rule

proceeded, various new events and

actions precluded the timely completion

of this project. In particular, in 1995 the

Agency undertook an initiative to revise

the current vehicle compliance program,

including the durability protocols. The

Agency is currently considering

promulgating regulations which would

become effective with the 2000 model

year. Because, as of today’s date, these

regulations are still in the pre-proposal

stage, it is not possible to provide

manufacturers with a firm effective date.

Therefore, the Agency believes today’s

action of indefinitely extending the

existing RDP I regulations will satisfy

the industry’s need to plan its durability

programs and will retain the current

durability options which can be

improved upon in future actions.

The rule being adopted today was

previously promulgated as a direct final

rule (61 FR 58618), but due to adverse

comment submitted to EPA, the DFR

was withdrawn (62 FR 11082) and a

proposal was simultaneously published

(62 FR 11138).

II. Comments and EPA Response

A. Comments

A total of six written comments were

received during the public comment

period for the NPRM. Three were from

the automotive manufacturing industry,

one from a group of associations

representing an industry commonly

referred to the as the automotive

‘‘aftermarket’’, that is, manufacturers of

automotive parts and components to be

used as replacements in existing cars

and trucks, one from the Ethyl

Corporation, a manufacturer of fuel

additives for use in gasoline, and one

from Envirotest Systems, a provider of

centralized vehicle emissions testing

programs for states and municipalities.

The automotive industry comments

were from Ford, General Motors and a

joint submission from Association of

International Automobile Manufacturers

(AIAM) and American Automobile

Manufacturers Association (AAMA),

which represent the majority of

automotive manufacturers with U.S.

markets. All of the automotive
Federal Register / Vol. 62, No. 163 / Friday, August 22, 1997 / Rules and Regulations 44873

comments were consistently supportive

of the extension of the RDP I

regulations. GM and Ford specifically

commented that the final rule should be

promulgated as soon as possible due to

their plans to utilize RDP I procedures

in the 1999 model year. All automotive

comments supported the indefinite

extension of RDP I because of the

uncertainty of the implementation date

for the new certification compliance

regulations planned by the Agency.

All automotive comments expressed a

concern that the manufacturer-derived

durability processes allowed under the

RDP I regulation be held by EPA as

proprietary and confidential, as allowed

under section 7542(c) of the Clean Air

Act. GM expressed the opinion that

their alternative durability processes

constitute trade secrets and commercial

information within the meaning of

Section 1905 of Title 18 of the United

States Code and is therefore entitled to

confidential treatment pursuant to

section 208(c) of the Clean Air Act,

Sections 552(b)(4) and 552(c)(4) of the

USC (Exemption 4 of the Freedom of

Information Act), and Part 2, of Title 40

of the Code of Federal Regulations.

Envirotest Systems stated that it did

‘‘not oppose EPA’s proposal’’. But it

requested that EPA ‘‘provide assurance

to the public that information describing

the nature of any undefined test

procedures upon which the Agency’s

certification decisions are based [be]

made available to the public upon

request’’, citing EPA’s Freedom of

Information Act regulations which

require information which is emission

data to not be considered confidential.

It also expressed ‘‘strong reservations’’

about any plans the Agency may have

for replacing the I/M 240 Inspection/

Maintenance program with a program

which inspected the vehicles’ on-board

diagnostic (OBD II) systems to

determine pass fail emission status.

Ethyl Corporation, represented by

Hunton & Williams, similarly stated that

it did ‘‘not oppose per se reliance upon

the range of test procedures which

would be authorized by EPA’s

proposal’’. However, it presented three

arguments for requiring the public

release of certain information which

manufacturers may have provided to

EPA during the RDP I process. First,

Ethyl argued that any information that

EPA relies upon to support its

certification decisions cannot be

deemed confidential, because such

decisions are subject to judicial review,

and any information used to make

certification decisions which is relevant

to that decision must be subject to

public review. Second, similarly to

Envirotest, Ethyl claimed that any

information qualifying as ‘‘emission

data’’ or a ‘‘standard or limitation’’

under the Clean Air Act is not eligible

for confidential treatment, citing the

EPA FOIA regulations at 40 CFR 2.301.

The third argument Ethyl presents is

that General Motors, in its comments on

this rulemaking, has not stated valid

grounds to support a trade secret claim,

under the FOIA requirements at 40 CFR

2.204(e)(4)(viii).

The consortium of aftermarket parts

associations opposed the proposal

because it did not require ‘‘that a

description of [certain manufacturerspecific procedures], including onboard

diagnostic-related information, is made

available for public inspection and

review.’’ Again, FOIA was cited as well

as the Clean Air Act sec. 208(c), 202(m),

and 206.

B. EPA Response

EPA is adopting as final the proposed

extension of RDP I rules to beyond the

1998 model year. It is of no benefit to

the Agency, to manufacturers, or to the

general public to discontinue the RDP I

regulation and revert back to the

outdated 50,000-mile AMA durability

procedures. The automotive industry

uniformly and strongly supports the

extension of RDP I. All negative

comments center around the availability

of information which manufacturers

may have provided EPA during the RDP

I approval process, not the actual

process itself. EPA is not determining in

today’s rule the confidentiality of any

information submitted by

manufacturers. There is already a

separate, well-established procedure for

making such determinations. EPA’s

information disclosure process, as

mandated by the Freedom of

Information Act (FOIA), requires that

the submitters of the information bear

the burden of proof for substantiating

claims of information confidentiality.

Requests received for information which

the manufacturer has identified as

confidential business information are

handled in accordance with the

procedures in 40 CFR part 2, subpart B.

The Agency will continue to follow

these procedures to make

confidentiality determinations of

manufacturer information. Again, this

process is separate from the certification

process, hence the RDP I regulation will

continue to be in effect, and information

submitted to EPA during the RDP I

approval process will be handled and

disseminated in accordance with the

existing regulations.

The Agency is unable to determine

how Envirotest’s request that OBD II not

be used to replace the I/M 240 test

applies to the RDP I rule being

promulgated today. Envirotest did not

submit any information which tied the

I/M 240 test or OBD II regulations to

RDP I, other than stating that some

manufacturers have made

confidentiality claims on certain OBD

information. OBD (CAA section 202(m))

issues and the relationship between

OBD and I/M requirements have been

addressed in separate rulemakings. See,

for example, 61 FR 40940 (August 6,

1996). Therefore, the Agency is not

addressing this comment in today’s rule.

As they discussed in their comments,

Ethyl has previously requested

manufacturer information held by EPA,

which has been claimed as confidential.

Ethyl has appealed this claim, which is

currently under consideration by EPA’s

Office of General Counsel. Ethyl also

takes issue with the legal arguments

presented by GM in their comment

submitted to the Docket for this

rulemaking. The purpose of today’s rule

is not to make a determination under

FOIA if manufacturer information is or

is not confidential or if a manufacturer’s

justification for confidentiality is or is

not valid. The purpose of today’s rule is

to provide effective regulations

requiring manufacturers to demonstrate

that the vehicles they make are durable

and will comply with emission

standards for their useful lives. As

stated above, EPA will continue to

uphold the statutes and regulations

regarding the disclosure of information

to the public using the procedures

already established for this purpose.

Those opposed to the determinations

made have appeal rights under 40 CFR

2.205 through EPA’s Office of General

Counsel.

The aftermarket associations

requested that EPA in its RDP I rule

require manufacturers to publicly

disclose all information concerning RDP

processes. EPA is not adopting this

requirement because it did not propose

to do so, and furthermore believes that

the more appropriate venue to handle

public disclosure of information is via

the existing FOIA procedures, not

through this rulemaking.

III. Environmental Effects and

Economic Impacts

A. Economic Impacts

This action extends an existing

program without modification, and as

such, the Agency does not expect any

new economic impacts over and above

those described in the interim

rulemaking. In general, the RDP–I

interim rulemaking projected annual

cost savings with respect to the

previously existing program of

approximately $8.6 million, and
44874 Federal Register / Vol. 62, No. 163 / Friday, August 22, 1997 / Rules and Regulations

although this number is highly

dependent upon the interaction of

several variables, all modeled scenarios

resulted in some level of savings. A

complete description of those impacts is

contained in 58 FR 3994 (January 12,

1993).

B. Environmental and Cost-Benefit

Impacts

The RDP I rulemaking revised testing

and administrative procedures

necessary to determine the compliance

of light-duty vehicles and light-duty

trucks with the Tier 1 emission

standards promulgated in June 1991,

and no environmental benefit was

claimed over and above that already

accounted for in the Tier 1 rule. Today’s

action will similarly claim no

environmental benefit. A detailed

discussion of the Tier 1 environmental

impacts can be found in 56 FR 25734

(June 5, 1991).

IV. Public Participation and Effective

Date

This final rule is effective on

September 22, 1997.

A public hearing was scheduled, but

canceled due to the lack of any

participants.

During the public comment period,

six written comments were received.

These are addressed in Section II. above.

V. Statutory Authority

Authority for the actions promulgated

in this final rule is granted to EPA by

sections 202, 203, 205, 206, 207, 208,

215, 216, 217, and 301(a), of the Clean

Air Act, as amended (42 U.S.C. 7521,

7522, 7524, 7525, 7541, 7542, 7549,

7550, 7552, and 7601(a), and 5 U.S.C.

553(b)).

VI. Administrative Designation

Under Executive Order 12866, the

Agency must determine whether the

regulatory action is ‘‘significant’’ and,

therefore, subject to OMB review and

the requirements of the Executive Order.

The order defines a ‘‘significant

regulatory action’’ as one that is likely

to result in a rule that may:

(1) Have an annual effect on the

economy of $100 million or more or

adversely affect in a material way the

economy, productivity, competition,

jobs, the environment, public health or

safety, or State, local or tribal

governments or communities;

(2) Create a serious inconsistency or

otherwise interfere with an action taken

or planned by another agency;

(3) Materially alter the budgetary

impact of entitlements, grants, user fees,

or loan programs or the rights and

obligations of recipients thereof; or

(4) Raise novel legal or policy issues

arising out of legal mandates, the

President’s priorities, or the principles

set forth in the Executive Order.

It has been determined that this rule

is not a ‘‘significant regulatory action’’

under the terms of Executive Order

12866 and is therefore not subject to

OMB review.

VII. Impact on Small Entities

The Regulatory Flexibility Act

requires federal agencies to identify

potentially adverse impacts of federal

regulations upon small entities. In

instances where significant impacts are

possible on a substantial number of

these entities, agencies are required to

develop a proposed Regulatory

Flexibility Analysis.

EPA has determined that it is not

necessary to prepare a regulatory

flexibility analysis in connection with

this rule. This rule will not have a

significant adverse economic impact on

a substantial number of small

businesses subject to this rulemaking.

This rulemaking will continue to

provide regulatory relief to automobile

manufacturers by offering options for

durability demonstrations and at the

same time by maintaining consistency

with California durability requirements.

It will not have a substantial impact on

such entities.

In the absence of the rule, the

expiration of the § 86.094–13 provisions

for light duty exhaust durability

procedures would result in the need all

manufacturers to perform timeconsuming, expensive durability

procedures. Manufacturers would also

be required to perform separate

durability demonstrations for California.

Therefore, EPA has determined that

this regulation does not have a

significant impact on a substantial

number of small entities.

VIII. Reporting and Recordkeeping

Requirements

Today’s action does not impose any

new information collection burden,

because this action merely extends the

applicability of the previously existing

regulation, including information

collection. The Office of Management

and Budget (OMB) has previously

approved the information collection

requirements contained in 40 CFR

86.094–13 under the provisions of the

Paperwork Reduction Act, 44 U.S.C.

3501 et seq. and has assigned ICR No.

2060–0104.

Burden means the total time, effort, or

financial resources expended by persons

to generate, maintain, retain, or disclose

or provide information to or for a

Federal agency. This includes the time

needed to review instructions; develop,

acquire, install, and utilize technology

and systems for the purposes of

collecting, validating, and verifying

information, processing and

maintaining information, and disclosing

and providing information; adjust the

existing ways to comply with any

previously applicable instructions and

requirements; train personnel to be able

to respond to a collection of

information; search data sources;

complete and review the collection of

information; and transmit or otherwise

disclose the information.

Copies of the ICR document(s) may be

obtained from Sandy Farmer,

Information Policy Branch; EPA; 401 M

St., SW. (mail code 2137); Washington,

DC 20460 or by calling (202) 260–2740.

Include the ICR number in any

correspondence.

IX. Submission to Congress and the

General Accounting Office

Under 5 U.S.C. 801(a)(1)(A) as added

by the Small Business Regulatory

Enforcement Fairness Act of 1996, EPA

submitted a report containing this rule

and other required information to the

U.S. Senate, the U.S. House of

Representatives and the Comptroller

General of the General Accounting

Office prior to publication of the rule in

today’s Federal Register. This rule is

not a ‘‘major rule’’ as defined by 5

U.S.C. 804(2).

X. Unfunded Mandates

Section 202 of the Unfunded

Mandates Reform Act of 1995 (signed

into law on March 22, 1995) requires

that EPA prepare a budgetary impact

statement before promulgating a rule

that includes a federal mandate that

may result in expenditure by state, local

and tribal governments, in aggregate, or

by the private sector, of $100 million or

more in any one year. Section 203 of the

Unfunded Mandates Reform Act

requires EPA to establish a plan for

obtaining input from and informing,

educating and advising any small

governments that may be significantly

or uniquely affected by the rule.

Under section 205 of the Unfunded

Mandates Act, EPA must identify and

consider a reasonable number of

regulatory alternatives before

promulgating a rule for which a

budgetary impact statement must be

prepared. EPA must select from those

alternatives the least costly, most costeffective, or least burdensome

alternative that achieves the objectives

of the rule, unless EPA explains why

this alternative is not selected or the

selection of this alternative is

inconsistent with law.
Federal Register / Vol. 62, No. 163 / Friday, August 22, 1997 / Rules and Regulations 44875

Because this final rule is expected to

result in the expenditure by state, local

and tribal governments or private sector

of less than $100 million in any one

year, EPA has not prepared a budgetary

impact statement or specifically

addressed selection of the least costly,

most cost-effective or least burdensome

alternative. Because small governments

will not be significantly or uniquely

affected by this rule, EPA is not required

to develop a plan with regard to small

governments.

List of Subjects in 40 CFR Part 86

Environmental protection,

Administrative practice and procedure,

Confidential business information,

Labeling, Motor vehicle pollution,

Reporting and recordkeeping

requirements.

Dated: August 15, 1997.

Carol M. Browner,

Administrator.

For the reasons set forth in the

preamble, part 86 of chapter I, title 40

of the Code of Federal Regulations is

amended as follows:

PART 86—CONTROL OF AIR

POLLUTION FROM NEW AND IN-USE

MOTOR VEHICLES AND NEW AND INUSE MOTOR VEHICLE ENGINES:

CERTIFICATION AND TEST

PROCEDURES

1. The authority citation for part 86 is

revised to read as follows:

Authority: 42 U.S.C. 7401–7671q.

§ 86.094–13 [Amended]

2. In § 86.094–13, paragraphs (a)(1),

(c)(1), (d)(1), (e)(1), and (f)(1) are

amended by revising the words ‘‘1994

through 1998’’ to read ‘‘1994 and

beyond’’.

§ 86.094–26 [Amended]

3. In § 86.094–26, paragraphs (a)(2),

(b)(2)(i), and (b)(2)(ii) are amended by

revising the words ‘‘1994 through 1998’’

to read ‘‘1994 and beyond’’.

[FR Doc. 97–22368 Filed 8–21–97; 8:45 am]

BILLING CODE 6560–50–P