Repeal of Emission Requirements for Glider Vehicles, Glider Engines, and Glider Kits |
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E. Scott Pruitt
Environmental Protection Agency
16 November 2017
[Federal Register Volume 82, Number 220 (Thursday, November 16, 2017)]
[Proposed Rules]
[Pages 53442-53449]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-24884]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 1037 and 1068
[EPA-HQ-OAR-2014-0827; FRL-9970-61-OAR]
RIN 2060-AT79
Repeal of Emission Requirements for Glider Vehicles, Glider
Engines, and Glider Kits
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
repeal the emission standards and other requirements for heavy-duty
glider vehicles, glider engines, and glider kits based on a proposed
interpretation of the Clean Air Act (CAA) under which glider vehicles
would be found not to constitute ``new motor vehicles'' within the
meaning of CAA section 216(3), glider engines would be found not to
constitute ``new motor vehicle engines'' within the meaning of CAA
section 216(3), and glider kits would not be treated as ``incomplete''
new motor vehicles. Under this proposed interpretation, EPA would lack
authority to regulate glider vehicles, glider engines, and glider kits
under CAA section 202(a)(1).
DATES:
Comments: Comments on all aspects of this proposal must be received
on or before January 5, 2018.
Public Hearing: EPA will hold a public hearing on Monday, December
4, 2017. The hearing will be held at EPA's Washington, DC campus
located at 1201 Constitution Avenue NW., Washington, DC. The hearing
will start at 10:00 a.m. local time and continue until everyone has had
a chance to speak. More details concerning the hearing can be found at
https://www.epa.gov/regulations-emissions-vehicles-and-engines/regulations-greenhouse-gas-emissions-commercial-trucks.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2014-0827, at http://www.regulations.gov. Follow the online
instructions for submitting comments. Once submitted, comments cannot
be edited or removed from Regulations.gov. The EPA may publish any
comment received to its public docket. Do not submit electronically any
information you consider to be Confidential Business Information (CBI)
or other information whose disclosure is restricted by statute.
Multimedia submissions (audio, video, etc.) must be accompanied by a
written comment. The written comment is considered the official comment
and should include discussion of all points you wish to make. The EPA
will generally not consider comments or comment contents located
outside of the primary submission (i.e., on the Web, cloud, or other
file sharing system). For additional submission methods, the full EPA
public comment policy, information about CBI or multimedia submissions,
and general guidance on making effective comments, please visit http://www.epa.gov/dockets/commenting-epa-dockets.
Docket: All documents in the docket are listed on the
www.regulations.gov Web site. Although listed in the index, some
information is not publicly available, e.g., confidential business
information or other information whose disclosure is restricted by
statute. Certain other material, such as copyrighted material, is not
placed on the Internet and will be publicly available only in hard copy
form. Publicly available docket materials are available either
electronically through www.regulations.gov or in hard copy at the
following location:
Air and Radiation Docket and Information Center, EPA Docket Center,
EPA/DC, EPA WJC West Building, 1301 Constitution Ave. NW., Room 3334,
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, and the telephone
number for the Air Docket is (202) 566-1742.
FOR FURTHER INFORMATION CONTACT: Julia MacAllister, Office of
Transportation and Air Quality, Assessment and Standards Division,
Environmental Protection Agency, 2000 Traverwood Drive, Ann Arbor, MI
48105; telephone number: 734-214-4131; email address:
hearing_registration-asd@epa.gov.
SUPPLEMENTARY INFORMATION:
Does this action apply to me?
This action relates to a previously promulgated final rule that
affects companies that manufacture, sell, or import into the United
States glider vehicles. Proposed categories and entities that might be
affected include the following:
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Examples of
Category NAICS code \a\ potentially affected
entities
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Industry...................... 336110, 336111, Motor Vehicle
336112, 333618, Manufacturers,
336120, 441310. Engine
Manufacturers,
Engine Parts
Manufacturers, Truck
Manufacturers,
Automotive Parts and
Accessories Dealers.
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Note: \a\ North American Industry Classification System (NAICS).
This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely covered by these rules.
This table lists the types of entities that we are aware may be
regulated by this action. Other types of entities not listed in the
table could also be regulated. To determine whether your activities are
regulated by this action, you should carefully examine the
applicability criteria in the referenced regulations. You may direct
questions regarding the applicability of this action to the persons
listed in the preceding FOR FURTHER INFORMATION CONTACT section.
[[Page 53443]]
I. Introduction
The basis for the proposed repeal of those provisions of the final
rule entitled Greenhouse Gas Emissions and Fuel Efficiency Standards
for Medium- and Heavy-Duty Engines and Vehicles--Phase 2 (the Phase 2
rule) \1\ that apply to glider vehicles, glider engines, and glider
kits is EPA's proposed interpretation of CAA section 202(a)(1) and
sections 216(2) and 216(3), which is discussed below. Under this
proposed interpretation: (1) Glider vehicles would not be treated as
``new motor vehicles,'' (2) glider engines would not be treated as
``new motor vehicle engines,'' and (3) glider kits would not be treated
as ``incomplete'' new motor vehicles. Based on this proposed
interpretation, EPA would lack authority to regulate glider vehicles,
glider engines, and glider kits under CAA section 202(a)(1).
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\1\ 81 FR 73478 (October 25, 2016).
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This proposed interpretation is a departure from the position taken
by EPA in the Phase 2 rule. There, EPA interpreted the statutory
definitions of ``new motor vehicle'' and ``new motor vehicle engines''
in CAA section 216(3) as including glider vehicles and glider engines,
respectively. The proposed interpretation also departs from EPA's
position in the Phase 2 rule that CAA section 202(a)(1) authorizes the
Agency to treat glider kits as ``incomplete'' new motor vehicles.
It is settled law that EPA has inherent authority to reconsider,
revise, or repeal past decisions to the extent permitted by law so long
as the Agency provides a reasoned explanation. This authority exists in
part because EPA's interpretations of the statutes it administers ``are
not carved in stone.'' Chevron U.S.A. Inc. v. NRDC, Inc. 467 U.S. 837,
863 (1984). If an agency is to ``engage in informed rulemaking,'' it
``must consider varying interpretations and the wisdom of its policy on
a continuing basis.'' Id. at 863-64. This is true when, as is the case
here, review is undertaken ``in response to . . . a change in
administration.'' National Cable & Telecommunications Ass'n v. Brand X
Internet Services, 545 U.S. 967, 981 (2005). A ``change in
administration brought about by the people casting their votes is a
perfectly reasonable basis for an executive agency's reappraisal of the
costs and benefits of its programs and regulations,'' and so long as an
agency ``remains within the bounds established by Congress,'' the
agency ``is entitled to assess administrative records and evaluate
priorities in light of the philosophy of the administration.'' Motor
Vehicle Manufacturers Ass'n. v. State Farm Mutual Automobile Insurance
Co., 463 U.S. 29, 59 (1983) (Rehnquist, J., concurring in part and
dissenting in part).
After reconsidering the statutory language, EPA proposes to adopt a
reading of the relevant provisions of the CAA under which the Agency
would lack authority under CAA section 202(a)(1) to impose requirements
on glider vehicles, glider engines, and glider kits and therefore
proposes to remove the relevant rule provisions. At the same time,
under CAA section 202(a)(3)(D), EPA is authorized to ``prescribe
requirements to control'' the ``practice of rebuilding heavy-duty
engines,'' including ``standards applicable to emissions from any
rebuilt heavy-duty engines.'' 42 U.S.C. 7521(a)(3)(D).\2\ If the
interpretation being proposed here were to be finalized, EPA's
authority to address heavy-duty engine rebuilding practices under CAA
section 202(a)(3)(D) would not be affected.
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\2\ EPA has adopted regulations that address engine rebuilding
practices. See, e.g., 40 CFR 1068.120. EPA is not proposing in this
action to adopt additional regulatory requirements pursuant to 42
U.S.C. 7521(a)(3)(D) that would apply to rebuilt engines installed
in glider vehicles.
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II. Background
A. Factual Context
A glider vehicle (sometimes referred to simply as a ``glider'') is
a truck that utilizes a previously owned powertrain (including the
engine, the transmission, and usually the rear axle) but which has new
body parts. When these new body parts (which generally include the
tractor chassis with frame, front axle, brakes, and cab) are put
together to form the ``shell'' of a truck, the assemblage of parts is
referred to collectively as a ``glider kit.'' The final manufacturer of
the glider vehicle, i.e., the entity that takes the assembled glider
kit and combines it with the used powertrain salvaged from a ``donor''
truck, is typically a different manufacturer than the original
manufacturer of the glider kit. See 81 FR 73512-13 (October 25, 2016).
B. Statutory and Regulatory Context
Section 202(a)(1) of the CAA directs that EPA ``shall by regulation
prescribe,'' in ``accordance with the provisions'' of section 202,
``standards applicable to the emission of any air pollutant from any .
. . new motor vehicles or new motor vehicle engines.'' 42 U.S.C.
7521(a)(1). CAA section 216(2) defines ``motor vehicle'' to mean ``any
self-propelled vehicle designed for transporting persons or property on
a street or highway.'' 42 U.S.C. 7550(2). A ``new motor vehicle'' is
defined in CAA section 216(3) to mean, as is relevant here, a ``motor
vehicle the equitable or legal title to which has never been
transferred to an ultimate purchaser.'' 42 U.S.C. 7550(3) (emphasis
added). A ``new motor vehicle engine'' is similarly defined as an
``engine in a new motor vehicle'' or a ``motor vehicle engine the
equitable or legal title to which has never been transferred to the
ultimate purchaser.'' Id. \3\
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\3\ The definitions of both ``new motor vehicle'' and ``new
motor vehicle engine'' are contained in the same paragraph (3),
reflecting the fact that ``[w]henever the statute refers to `new
motor vehicle' the phrase is followed by `or new motor vehicle
engine.' '' See Motor and Equipment Manufacturers Ass'n v. EPA, 627
F.2d 1095, 1102 n.5 (D.C. Cir. 1979). As Title II currently reads,
the term ``new motor vehicle'' appears some 32 times, and in all but
two instances, the term is accompanied by ``new motor vehicle
engine,'' indicating that, at the inception of Title II, Congress
understood that the regulation of engines was essential to control
emissions from ``motor vehicles.''
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Comments submitted to EPA during the Phase 2 rulemaking stated that
gliders are approximately 25% less expensive than new trucks,\4\ which
makes them popular with small businesses and owner-operators.\5\ In
contrast to an older vehicle, a glider requires less maintenance and
yields less downtime.\6\ A glider has the same braking, lane drift
devices, dynamic cruise control, and blind spot detection devices that
are found on current model year heavy-duty trucks, making it a safer
vehicle to operate, compared to the older truck that it is
replacing.\7\
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\4\ Response to Comments for Joint Rulemaking, EPA-426-R-16-901
(August 2016) at 1846.
\5\ EPA-HQ-OAR-2014-0827-1964.
\6\ EPA-HQ-OAR-2014-0827-1005.
\7\ Id.
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Some commenters questioned EPA's authority to regulate glider
vehicles as ``new motor vehicles,'' to treat glider engines as ``new
motor vehicle engines,'' or to impose requirements on glider kits.
Commenters also pointed out what they described as the overall
environmental benefits of gliders. For instance, one commenter stated
that ``rebuilding an engine and transmission uses 85% less energy than
manufacturing them new.'' \8\ Another commenter noted that the use of
glider vehicles ``improves utilization and reduces the number of trucks
required to haul the same tonnage of freight.'' \9\ This same commenter
further asserted that glider vehicles utilizing ``newly rebuilt
engines'' produce less ``particulate, NOX, and GHG emissions
[[Page 53444]]
. . . compared to [a] worn oil burning engine which is beyond its
useful life.'' \10\
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\8\ EPA-HQ-OAR-2014-0827-1964.
\9\ EPA-HQ-OAR-2014-0827-1005.
\10\ Id.
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In the Phase 2 rule, EPA found that it was ``reasonable'' to
consider glider vehicles to be ``new motor vehicles'' under the
definition in CAA section 216(3). See 81 FR 73514 (October 25, 2016).
Likewise, EPA found that the previously owned engines utilized by
glider vehicles should be considered to be ``new motor vehicle
engines'' within the statutory definition. Based on these
interpretations, EPA determined that it had authority under CAA section
202(a) to subject glider vehicles and glider engines to the
requirements of the Phase 2 rule. As for glider kits, EPA found that if
glider vehicles are new motor vehicles, then the Agency was authorized
to regulate glider kits as ``incomplete'' new motor vehicles. Id.
C. Petition for Reconsideration
Following promulgation of the Phase 2 rule, EPA received from
representatives of the glider industry a joint petition requesting that
the Agency reconsider the application of the Phase 2 rule to glider
vehicles, glider engines, and glider kits.\11\ The petitioners made
three principal arguments in support of their petition. First, they
argued that EPA is not authorized by CAA section 202(a)(1) to regulate
glider kits, glider vehicles, or glider engines. Petition at 3-4.
Second, the petitioners contended that in the Phase 2 rule EPA ``relied
upon unsupported assumptions to arrive at the conclusion that immediate
regulation of glider vehicles was warranted and necessary.'' Id. at 4.
Third, the petitioners asserted that reconsideration was warranted
under Executive Order 13783. Id. at 6.
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\11\ See Petition for Reconsideration of Application of the
Final Rule Entitled ``Greenhouse Gas Emissions and Fuel Efficiency
Standards for Medium- and Heavy-Duty Engines and Vehicles--Phase 2
Final Rule'' to Gliders, from Fitzgerald Glider Kits, LLC; Harrison
Truck Centers, Inc.; and Indiana Phoenix, Inc. (July 10, 2017)
(Petition). Available in the rulemaking docket, EPA-HQ-OAR-2014-
0827, and at https://www.epa.gov/sites/production/files/2017-07/documents/hd-ghg-fr-fitzgerald-recons-petition-2017-07-10.pdf.
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The petitioners took particular issue with what they characterized
as EPA's having ``assumed that the nitrogen oxide (`NOX')
and particulate matter (`PM') emissions of glider vehicles using pre-
2007 engines'' would be ``at least ten times higher than emissions from
equivalent vehicles being produced with brand new engines.'' Petition
at 5, citing 81 FR 73942. According to the petitioners, EPA had
``relied on no actual data to support this conclusion,'' but had
``simply relied on the pre-2007 standards.'' Id. In support, the
petitioners included as an exhibit to their petition a letter from the
President of the Tennessee Technological University (``Tennessee
Tech''), which described a study recently conducted by Tennessee Tech.
This study, according to the petitioners, had ``analyz[ed] the
NOX, PM, and carbon monoxide . . . emissions from both
remanufactured and OEM engines,'' and ``reached a contrary conclusion''
regarding glider vehicle emissions. Petition at 5.
The petitioners maintained that the results of the study ``showed
that remanufactured engines from model years between 2002 and 2007
performed roughly on par with OEM `certified' engines,'' and ``in some
instances even out-performed the OEM engines.'' Id. The petitioners
further claimed that the Tennessee Tech research `` `showed that
remanufactured and OEM engines experience parallel decline in emissions
efficiency with increased mileage.' '' Id., quoting Tennessee Tech
letter at 2. Based on the Tennessee Tech study, the petitioners
asserted that ``glider vehicles would emit less than 12% of the total
NOX and PM emissions for all Class 8 heavy duty vehicles . .
. not 33% as the Phase 2 Rule suggests.'' Id., citing 81 FR 73943.
Further, the petitioners complained that the Phase 2 rule had
``failed to consider the significant environmental benefits that glider
vehicles create.'' Petition at 6 (emphasis in original). ``Glider
vehicle GHG emissions are less than those of OEM vehicles,'' the
petitioners contended, ``due to gliders' greater fuel efficiency,'' and
the ``carbon footprint of gliders is further reduced by the savings
created by recycling materials.'' Id. The petitioners represented that
``[g]lider assemblers reuse approximately 4,000 pounds of cast steel in
the remanufacturing process,'' including ``3,000 pounds for the engine
assembly alone.'' Id. The petitioners pointed out that ``[r]eusing
these components avoids the environmental impact of casting steel,
including the significant associated NOX emissions.'' Id.
This ``fact,'' the petitioners argued, is something that EPA should
have been considered but was ``not considered in the development of the
Phase 2 rule.'' Id.
EPA responded to the glider industry representatives' joint
petition by separate letters on August 17, 2017, stating that the
petition had ``raise[d] significant questions regarding the EPA's
authority under the Clean Air Act to regulate gliders.'' \12\ EPA
further indicated that it had ``decided to revisit the provisions in
the Phase 2 Rule that relate to gliders,'' and that the Agency
``intends to develop and issue a Federal Register notice of proposed
rulemaking on this matter, consistent with the requirements of the
Clean Air Act.'' \13\
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\12\ See, e.g., Letter from E. Scott Pruitt, EPA Administrator,
to Tommy C. Fitzgerald, President, Fitzgerald Glider Kits (Aug. 17,
2017). Available in the rulemaking docket, EPA-HQ-OAR-2014-0827, and
at https://www.epa.gov/sites/production/files/2017-08/documents/hd-ghg-phase2-ttma-ltr-2017-08-17.pdf.
\13\ Id.
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III. Basis for the Proposed Repeal
A. Statutory Analysis
EPA is proposing that the statutory interpretations on which the
Phase 2 rule predicated its regulation of glider vehicles, glider
engines, and glider kits were incorrect. EPA proposes an interpretation
of the relevant language of the CAA under which glider vehicles are
excluded from the statutory term ``new motor vehicles'' and glider
engines are excluded from the statutory term ``new motor vehicle
engines,'' as both terms are defined in CAA section 216(3). Consistent
with this interpretation of the scope of ``new motor vehicle,'' EPA is
further proposing that it has no authority to treat glider kits as
``incomplete'' new motor vehicles under CAA section 202(a)(1).
As was noted, a ``new motor vehicle'' is defined by CAA section
216(3) to mean, in relevant part, a ``motor vehicle the equitable or
legal title to which has never been transferred to an ultimate
purchaser.'' 42 U.S.C. 7550(3). In basic terms, a glider vehicle
consists of the new components that make up a glider kit, into which a
previously owned powertrain has been installed. Prior to the time a
completed glider vehicle is sold, it can be said that the vehicle's
``equitable or legal title'' has yet to be ``transferred to an ultimate
purchaser.'' It is on this basis that the Phase 2 rule found that a
glider vehicle fits within the definition of ``new motor vehicle.'' 81
FR 73514 (October 25, 2016).
EPA's rationale for applying this reading of the statutory language
was that ``[g]lider vehicles are typically marketed and sold as `brand
new' trucks.'' 81 FR 73514 (October 25, 2016). EPA took note of one
glider kit manufacturer's own advertising materials that represented
that the company had `` `mastered the process of taking the `Glider
Kit' and installing the components to work seamlessly with the new
truck.' '' Id. (emphasis added in original). EPA stated that the
``purchaser of a `new truck' necessarily takes initial title to that
truck.'' Id. (citing statements
[[Page 53445]]
on the glider kit manufacturer's Web site). EPA rejected arguments
raised in comments that ``this `new truck' terminology is a mere
marketing ploy.'' Id. Rather, EPA stated, ``it obviously reflects
reality.'' Id.
In proposing a new interpretation of the relevant statutory
language, EPA now believes that its prior reading was not the best
reading, and that the Agency failed to consider adequately the most
important threshold consideration: i.e., whether or not Congress, in
defining ``new motor vehicle'' for purposes of Title II, had a specific
intent to include within the statutory definition such a thing as a
glider vehicle--a vehicle comprised both of new and previously owned
components. See Chevron, 467 U.S. at 843 n.9 (Where the ``traditional
tools of statutory construction'' allow one to ``ascertain[ ] that
Congress had an intention on the precise question at issue,'' that
``intention is the law and must be given effect.''). Where ``Congress
has not directly addressed the precise question at issue,'' and the
``statute is silent or ambiguous with respect to the specific issue,''
it is left to the agency charged with implementing the statute to
provide an ``answer based on a permissible construction of the
statute.'' Id. at 843.
Focusing solely on that portion of the statutory definition that
provides that a motor vehicle is considered ``new'' prior to the time
its ``equitable or legal title'' has been ``transferred to an ultimate
purchaser,'' a glider vehicle would appear to qualify as ``new.'' As
the Supreme Court has repeatedly counseled, however, that is just the
beginning of a proper interpretive analysis. The ``definition of words
in isolation,'' the Court has noted, ``is not necessarily controlling
in statutory construction.'' See Dolan v. United States Postal Service,
546 U.S. 481, 486 (2006). Rather, the ``interpretation of a word or
phrase depends upon reading the whole statutory text, considering the
purpose and context of the statute,'' and ``consulting any precedents
or authorities that inform the analysis.'' Id. Similarly, in seeking to
``determine congressional intent, using traditional tools of statutory
construction,'' the ``starting point is the language of the statute.''
See Dole v. United Steelworkers of America, 494 U.S. 26, 35 (1990)
(emphasis added) (internal citation omitted). At the same time, ``in
expounding a statute,'' one is not to be ``guided by a single sentence
or member of a sentence,'' but is to ``look to the provisions of the
whole law, and to its object and policy.'' Id. (internal citations
omitted).
Assessed in light of these principles, it is clear that EPA's
reading of the statutory definition of ``new motor vehicle'' in the
Phase 2 rule fell short. First, that reading failed to account for the
fact that, at the time this definition of ``new motor vehicle'' was
enacted, it is likely that Congress did not have in mind that the
definition would be construed as applying to a vehicle comprised of new
body parts and a previously owned powertrain. The manufacture of glider
vehicles to salvage the usable powertrains of trucks wrecked in
accidents goes back a number of years.\14\ But only more recently--
after the enactment of Title II--have glider vehicles been produced in
any great number.
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\14\ EPA-HQ-OAR-2014-0827-1964.
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Furthermore, the concept of deeming a motor vehicle to be ``new''
based on its ``equitable or legal title'' not having been transferred
to an ``ultimate purchaser'' appears to have originated with an
otherwise unrelated federal statute that predated Title II by a few
years--i.e., the Automobile Information Disclosure Act of 1958, Public
Law 85-506 (Disclosure Act).\15\ The history of Title II's initial
enactment and subsequent development indicates that, in adopting a
definition of ``new motor vehicle'' for purposes of the Clean Air Act,
Congress drew on the approach it had taken originally with the
Disclosure Act.
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\15\ The provisions of the Disclosure Act are set forth at 15
U.S.C. 1231-1233.
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Among other things, the Disclosure Act requires that a label be
affixed to the windshield or side window of new automobiles, with the
label providing such information as the Manufacturer's Suggested Retail
Price. See 15 U.S.C. 1232 (``Every manufacturer of new automobiles
distributed in commerce shall, prior to the delivery of any new
automobile to any dealer, or at or prior to the introduction date of
new models delivered to a dealer prior to such introduction date,
securely affix to the windshield, or side window of such automobile a
label . . . .'') (emphases added). The Disclosure Act defines the term
``automobile'' to ``include[ ] any passenger car or station wagon,''
and defines the term ``new automobile'' to mean ``an automobile the
equitable or legal title to which has never been transferred by a
manufacturer, distributor, or dealer to an ultimate purchaser.'' See 15
U.S.C. 1231(c), (d).
In 1965, Congress amended the then-existing Clean Air Act, and for
the first time enacted provisions directed at the control of air
pollution from motor vehicles. See Clean Air Act Amendments of 1965,
Public Law 89-272 (1965 CAA). Included in the 1965 CAA was a brand new
Title II, the ``Motor Vehicle Air Pollution Control Act,'' the
structure and language of which largely mirrored key provisions of
Title II as it exists today. Section 202(a) of the 1965 CAA provided
that the ``Secretary [of what was then the Department of Health,
Education and Welfare] shall by regulation, giving appropriate
consideration to technological feasibility and economic costs,
prescribe . . . standards applicable to the emission of any kind of
substance, from any class or classes of new motor vehicles or new motor
vehicle engines, which in his judgment cause or contribute to, or are
likely to cause or to contribute to, air pollution which endangers the
health or welfare of any persons . . . .'' Public Law 89-272, 79 Stat.
992 (emphasis added).
Section 208 of the 1965 CAA defined ``motor vehicle'' in terms
identical to those in the CAA today: ``any self-propelled vehicle
designed for transporting persons or property on a street or highway.''
Public Law 89-272, 79 Stat. 995. The 1965 CAA defined ``new motor
vehicle'' and ``new motor vehicle engine'' to mean, as relevant here,
``a motor vehicle the equitable or legal title to which has never been
transferred to an ultimate purchaser; and the term `new motor vehicle
engine' '' to mean ``an engine in a new motor vehicle or a motor
vehicle engine the equitable or legal title to which has never been
transferred to the ultimate purchaser.'' Id. Again, in relevant part,
the 1965 CAA definitions of these terms were identical to those that
currently appear in CAA section 216(3).
While the legislative history of the 1965 CAA does not expressly
indicate that Congress based its definition of ``new motor vehicle'' on
the definition of ``new automobile'' first adopted by the Automobile
Information Disclosure Act of 1958, it seems clear that such was the
case. The statutory language of the two provisions is identical in all
pertinent respects,\16\ and there appears to be no other federal
statute, in existence prior to enactment of the 1965
[[Page 53446]]
CAA, from which Congress could have derived that terminology.
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\16\ Further, the 1965 CAA's definition of ``ultimate
purchaser,'' as set forth in section 208(5), for the most part
tracks the Disclosure Act's earlier-enacted definition: ``The term
`ultimate purchaser' means, with respect to any new automobile, the
first person, other than a dealer purchasing in his capacity as a
dealer, who in good faith purchases such new automobile for purposes
other than resale.'' Compare 1965 CAA section 208(5), Public Law 89-
272, 79 Stat. 995 with 15 U.S.C. 1231(g). Such is the case, too,
with respect to the 1965 CAA's definition of ``manufacturer.''
Compare 1965 CAA section 208(1), Public Law 89-272, 79 Stat. 994-995
with 15 U.S.C. 1231(a).
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Subsequently, the statutory language from the 1965 CAA, defining
the terms ``motor vehicle,'' ``new motor vehicle,'' ``new motor vehicle
engine,'' ``ultimate purchaser,'' and ``manufacturer'' was incorporated
verbatim in the Air Quality Act of 1967 (1967 AQA). See Public Law 148,
81 Stat. 503. The Clean Air Act Amendments of 1970 (1970 CAAA) did not
change those definitions, except to add the language regarding
``vehicles or engines imported or offered for importation'' that
currently appears in CAA section 216(3). See Public Law 91-604, 84
Stat. 1694, 1703.\17\
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\17\ The legislative history of both the 1967 AQA and 1977 CAAA
is silent with respect to the origin of Title II's definitions of
``new motor vehicle,'' ``new motor vehicle engine,'' ``ultimate
purchaser,'' and ``manufacturer,'' which further underscores that
Congress had originally derived those definitions from the
Disclosure Act.
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The fact that Congress, in first devising the CAA's definition of
``new motor vehicle'' for purposes of Title II, drew on the pre-
existing definition of ``new automobile'' in the Automobile Information
Disclosure Act of 1958 serves to illuminate congressional intent. As
with the Disclosure Act, Congress in the 1965 CAA selected the point of
first transfer of ``equitable or legal title'' to serve as a bright
line--i.e., to distinguish between those ``new'' vehicles (and engines)
that would be subject to emission standards adopted pursuant to CAA
section 202(a)(1) and those existing vehicles that would not be
subject. Insofar as the 1965 CAA definition of ``new motor vehicle''
was based on the Disclosure Act definition of ``new automobile,'' it
would seem clear that Congress intended, for purposes of Title II, that
a ``new motor vehicle'' would be understood to mean something
equivalent to a ``new automobile''--i.e., a true ``showroom new''
vehicle. It is implausible that Congress would have had in mind that a
``new motor vehicle'' might also include a vehicle comprised of new
body parts and a previously owned powertrain.
Given this, EPA does not believe that congressional intent as to
the meaning of the term ``new motor vehicle'' can be clearly
ascertained on the basis of an isolated reading of a few words in the
statutory definition, where that reading is divorced from the structure
and history of the CAA as a whole. Based on that structure and history,
it seems likely that Congress understood a ``new motor vehicle,'' as
defined in CAA Sec. 216(3), to be a vehicle comprised entirely of new
parts and certainly not a vehicle with a used engine. At a minimum,
ambiguity exists. This leaves EPA with the task of providing an
``answer based on a permissible construction of the statute.'' Chevron,
467 U.S. at 843.
1. Glider Vehicles
EPA is proposing to interpret ``new motor vehicle,'' as defined in
CAA Sec. 216(3), as not including glider vehicles. This is a
reasonable interpretation--and commonsense would agree--insofar as it
takes account of the reality that significant elements of a glider
vehicle (i.e., the powertrain elements, including the engine and the
transmission) are previously owned components. Under the Phase 2 rule's
interpretation, in contrast, the act of installing a previously owned
powertrain into a glider kit--i.e., something that, as is explained
further below, is not a ``motor vehicle'' as defined by the CAA--
results in the creation of a new ``motor vehicle.'' EPA believes that
Congress, in adopting a definition of ``new motor vehicle'' for
purposes of Title II, never had in mind that the statutory language
would admit of such a counterintuitive result.
In other words, EPA now believes that, in defining ``new motor
vehicle,'' Congress did not intend that a vehicle comprised of a new
outer shell conjoined to a previously owned powertrain should be
treated as a ``new'' vehicle, based solely on the fact that the vehicle
may have been assigned a new title following assembly. In this regard,
insofar as Title II's regulatory regime was at its inception directed
at the emissions produced by new vehicle engines,\18\ it is not at all
clear that Congress intended that Title II's reach should extend to a
vehicle whose outer parts may be ``new'' but whose engine was
previously owned.
---------------------------------------------------------------------------
\18\ See footnote 3, supra.
---------------------------------------------------------------------------
2. Glider Engines
EPA proposes to find that, since a glider vehicle does not meet the
statutory definition of a ``new motor vehicle,'' it necessarily follows
that a glider engine is not a ``new motor vehicle engine'' within the
meaning of CAA section 216(3). Under that provision, a motor vehicle
engine is deemed to be ``new'' in either of two circumstances: (1) The
engine is ``in a new motor vehicle,'' or (2) the ``equitable or legal
title'' to the engine has ``never been transferred to the ultimate
purchaser.'' The second of these circumstances can never apply to a
glider engine, which is invariably an engine that has been previously
owned.
As to the first circumstance, a glider engine is installed in a
glider kit, which in itself is not a ``motor vehicle.'' A glider kit
becomes a ``motor vehicle'' only after an engine (and the balance of
the powertrain) has been installed. But while adding a previously owned
engine to a glider kit may result in the creation of a ``motor
vehicle,'' the assertion that the previously owned engine thereby
becomes a ``new motor vehicle engine'' within the meaning of CAA
section 216(3), due to the engine's now being in a ``new motor
vehicle,'' reflects circular thinking. It presupposes that the
installation of a (previously owned) engine in a glider kit creates not
just a ``motor vehicle'' but a ``new motor vehicle.'' EPA is proposing
to interpret the relevant statutory language in a manner that rejects
the Agency's prior reliance on the view that (1) installing a
previously owned engine in a glider kit transforms the glider kit into
a ``new motor vehicle,'' and (2) that, thereafter, the subsequent
presence of that previously owned engine in the supposed ``new motor
vehicle'' transforms that engine into a ``new motor vehicle engine''
within the meaning of CAA section 216(3).
3. Glider Kits
Under EPA's proposed interpretation, EPA would have no authority to
regulate glider kits under CAA section 202(a)(1). If glider vehicles
are not ``new motor vehicles,'' which is the interpretation of CAA
section 216(3) that EPA is proposing here, then the Agency lacks
authority to regulate glider kits as ``incomplete'' new motor vehicles.
Further, given that a glider kit lacks a powertrain, a glider kit does
not explicitly meet the definition of ``motor vehicle,'' which, in
relevant part, is defined to mean ``any self-propelled vehicle.'' 42
U.S.C. 7550(2) (emphasis added). It is not obvious that a vehicle
without a motor could constitute a ``motor vehicle.''
4. Issues for Which EPA Seeks Comment
EPA believes that its proposed interpretation is the most
reasonable reading of the relevant statutory language, and that its
proposed determination, based on this interpretation, that regulation
of glider vehicles, glider engines, and glider kits is not authorized
by CAA section 202(a)(1) is also reasonable. EPA seeks comment on this
interpretation.
Comments submitted in the Phase 2 rulemaking docket lead EPA to
believe that a glider vehicle is often a suitable option for those
small businesses and independent operators who cannot afford to
purchase a new vehicle, but
[[Page 53447]]
who wish to replace an older vehicle with a vehicle that is equipped
with up-to-date safety features. EPA solicits comment and further
information as to this issue. EPA also solicits comment and information
on whether limiting the availability of glider vehicles could result in
older, less safe, more-polluting trucks remaining on the road that much
longer. EPA particularly seeks information and analysis addressing the
question whether glider vehicles produce significantly fewer emissions
overall compared to the older trucks they would replace.
EPA also seeks comment on the matter of the anticipated purchasing
behavior on the part of the smaller trucking operations and independent
drivers if the regulatory provisions at issue were to repealed.
Further, EPA seeks comment on the relative expected emissions impacts
if the regulatory requirements at issue here were to be repealed or
were to be left in place.
Finally, EPA seeks comment on whether, if the Agency were to
determine not to adopt the interpretation of CAA sections 202(a)(1) and
216(3) being proposed here, EPA should nevertheless revise the
``interim provisions'' of Phase 2 rule, 40 CFR 1037.150(t)(1)(ii), to
increase the exemption available for small manufacturers above the
current limit of 300 glider vehicles per year. EPA seeks input on how
large an increase would be reasonable, were the Agency to increase the
limit in taking final action. Further, EPA seeks comment on whether, if
the Agency were to determine not to adopt the statutory interpretation
being proposed here, EPA should nevertheless extend by some period of
time the date for compliance for glider vehicles, glider engines, and
glider kits set forth in 40 CFR 1037.635. EPA seeks comment on what
would be a reasonable extension of the compliance date.
B. Conclusion
EPA has a fundamental obligation to ensure that the regulatory
actions it takes are authorized by Congress, and that the standards and
requirements that it would impose on the regulatory community have a
sound and reasonable basis in law. EPA is now proposing to find that
the most reasonable reading of the relevant provisions of the CAA,
including CAA sections 202(a)(1), 216(2), and 216(3) is that glider
vehicles should not be regulated as ``new motor vehicles,'' that glider
engines should not be regulated as ``new motor vehicle engines,'' and
that glider kits should not be regulated as ``incomplete'' new motor
vehicles. Based on this proposed interpretation, EPA is proposing to
repeal those provisions of the Phase 2 rule applicable to glider
vehicles, glider engines, and glider kits.
IV. Public Participation
We request comment by January 5, 2018 on all aspects of this
proposal. This section describes how you can participate in this
process.
Materials related to the Heavy-Duty Phase 2 rulemaking are
available in the public docket noted above and at: https://www.epa.gov/regulations-emissions-vehicles-and-engines/regulations-greenhouse-gas-emissions-commercial-trucks.
1. How do I prepare and submit information?
Direct your submittals to Docket ID No. EPA-HQ-OAR-2014-0827. EPA's
policy is that all submittals 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 submittal includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute.
Do not submit information to the docket that you consider to be CBI
or otherwise protected through www.regulations.gov. 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 submittal. If you submit an electronic
submittal, EPA recommends that you include your name and other contact
information in the body of your submittal and with any disk or CD-ROM
you submit. Electronic files should avoid the use of special
characters, any form of encryption, and be free of any defects or
viruses. For additional information about EPA's public docket visit the
EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
EPA will hold a public hearing on the date and at the location
stated in the DATES Section. To attend the hearing, individuals will
need to show appropriate ID to enter the building. The hearing will
start at 10:00 a.m. local time and continue until everyone has had a
chance to speak. More details concerning the hearing can be found at
https://www.epa.gov/regulations-emissions-vehicles-and-engines/regulations-greenhouse-gas-emissions-commercial-trucks.
2. Submitting CBI
Do not submit this information to EPA through www.regulations.gov
or email. 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 information claimed as CBI must be submitted for
inclusion in the public docket. Information so marked will not be
disclosed except in accordance with procedures set forth in 40 CFR part
2.
3. Tips for Preparing Your Comments
When submitting comments, remember to:
Identify the action by docket number and other identifying
information (subject heading, Federal Register date and page 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 in the DATES section above.
V. Statutory and Executive Order Reviews
(1) Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This action is a significant regulatory action that was submitted
to the Office of Management and Budget (OMB) for review. Any changes
made in response to OMB recommendations have been documented in the
docket.
(2) Executive Order 13771: Reducing Regulations and Controlling
Regulatory Costs
This action is expected to be an Executive Order 13771 deregulatory
action. This proposed rule is expected
[[Page 53448]]
to provide meaningful burden reduction by eliminating regulatory
requirements for glider manufacturers.
(3) Paperwork Reduction Act (PRA)
This action does not impose an information collection burden under
the PRA because it does not contain any information collection
activities. It would only eliminate regulatory requirements for glider
manufacturers.
(4) Regulatory Flexibility Act (RFA)
I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA. In
making this determination, the impact of concern is any significant
adverse economic impact on small entities. An agency may certify that a
rule will not have a significant economic impact on a substantial
number of small entities if the rule relieves regulatory burden, has no
net burden, or otherwise has a positive economic effect on the small
entities subject to the rule. Small glider manufacturers would be
allowed to produce glider vehicles without meeting new motor vehicle
emission standards. We have therefore concluded that this action will
have no adverse regulatory impact for any directly regulated small
entities.
(5) Unfunded Mandates Reform Act (UMRA)
This action does not contain any unfunded mandate as described in
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect
small governments. The action imposes no enforceable duty on any state,
local, or tribal governments.
(6) Executive Order 13132: Federalism
This action 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.
(7) Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have tribal implications as specified in
Executive Order 13175. This proposed rule will be implemented at the
Federal level and affects glider manufacturers. Thus, Executive Order
13175 does not apply to this action.
(8) Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
This action is not subject to Executive Order 13045 because it is
not an economically significant regulatory action as defined by
Executive Order 12866. However, the Emission Requirements for Glider
Vehicles, Glider Engines, and Glider Kits was anticipated to lower
ambient concentrations of PM2.5 and some of the benefits of
reducing these pollutants may have accrued to children. Our evaluation
of the environmental health or safety effects of these risks on
children is presented in Section XIV.H. of the HD Phase 2 Rule.\19\
Some of the benefits for children's health as described in that
analysis would be lost as a result of this action.
---------------------------------------------------------------------------
\19\ 81 FR 73478 (October 25, 2016).
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In general, current expectations about future emissions of
pollution from these trucks is difficult to forecast given
uncertainties in future technologies, fuel prices, and the demand for
trucking. Furthermore, the proposed action does not affect the level of
public health and environmental protection already being provided by
existing NAAQS and other mechanisms in the CAA. This proposed action
does not affect applicable local, state, or federal permitting or air
quality management programs that will continue to address areas with
degraded air quality and maintain the air quality in areas meeting
current standards. Areas that need to reduce criteria air pollution to
meet the NAAQS will still need to rely on control strategies to reduce
emissions. To the extent that states use other mechanisms in order to
comply with the NAAQS, and still achieve the criteria pollution
reductions that would have occurred under the CPP, this proposed
rescission will not have a disproportionate adverse effect on
children's health.
(9) Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This action is not a ``significant energy action'' because it is
not likely to have a significant adverse effect on the supply,
distribution, or use of energy.
(10) National Technology Transfer and Advancement Act (NTTAA)
This rulemaking does not involve technical standards.
(11) Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations, and Low-Income Populations
Pursuant to Executive Order 12898 (59 FR 7629, February 16, 1994),
EPA considered environmental justice concerns of the final HD Phase 2
rule. EPA's evaluation of human health and environmental effects on
minority, low-income or indigenous populations for the final HD Phase 2
rule is presented in the Preamble, Section VIII.A.8 and 9 (81 FR 73844-
7, October 25, 2016). We have not evaluated the impacts on minority,
low-income or indigenous populations that may occur as a result of the
proposed action to rescind emissions requirements for heavy-duty glider
vehicles and engines. EPA likewise has not considered the economic and
employment impacts of this rule specifically as they relate to or might
impact minority, low-income and indigenous populations.
List of Subjects in 40 CFR Parts 1037 and 1068
Environmental protection, Administrative practice and procedure,
Air pollution control, Confidential business information, Labeling,
Motor vehicle pollution, Reporting and recordkeeping requirements,
Warranties.
Dated: November 9, 2017.
E. Scott Pruitt,
Administrator.
For the reasons set out in the preamble, title 40, chapter I of the
Code of Federal Regulations is proposed to be amended as set forth
below.
PART 1037--CONTROL OF EMISSIONS FROM NEW HEAVY-DUTY MOTOR VEHICLES
0
1. The authority for part 1037 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
Subpart B--[Amended]
0
2. Section 1037.150 is amended by removing and reserving paragraph (t)
as follows:
Sec. 1037.150 Interim provisions.
* * * * *
(t) [Reserved]
* * * * *
Subpart G--[Amended]
Sec. 1037.635 [Removed]
0
3. Section 1037.635 is removed.
[[Page 53449]]
Subpart I--[Amended]
0
4. Section 1037.801 is amended by removing the definitions ``glider
kit'' and ``glider vehicle'' and revising the definitions of
``manufacturer'' and ``new motor vehicle'' to read as follows:
Sec. 1037.801 Definitions.
* * * * *
Manufacturer has the meaning given in section 216(1) of the Act. In
general, this term includes any person who manufactures or assembles a
vehicle (including a trailer or another incomplete vehicle) for sale in
the United States or otherwise introduces a new motor vehicle into
commerce in the United States. This includes importers who import
vehicles for resale.
* * * * *
New motor vehicle has the meaning given in the Act. It generally
means a motor vehicle meeting the criteria of either paragraph (1) or
(2) of this definition. New motor vehicles may be complete or
incomplete.
(1) A motor vehicle for which the ultimate purchaser has never
received the equitable or legal title is a new motor vehicle. This kind
of vehicle might commonly be thought of as ``brand new'' although a new
motor vehicle may include previously used parts. Under this definition,
the vehicle is new from the time it is produced until the ultimate
purchaser receives the title or places it into service, whichever comes
first.
(2) An imported heavy-duty motor vehicle originally produced after
the 1969 model year is a new motor vehicle.
* * * * *
PART 1068--GENERAL COMPLIANCE PROVISIONS FOR HIGHWAY, STATIONARY,
AND NONROAD PROGRAMS
0
5. The authority for part 1068 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
Subpart B--[Amended]
0
6. Section 1068.120 is amended by revising paragraph (f)(5) to read as
follows:
Sec. 1068.120 Requirements for rebuilding engines.
* * * * *
(f) * * *
(5) The standard-setting part may apply further restrictions to
situations involving installation of used engines to repower equipment.
* * * * *
[FR Doc. 2017-24884 Filed 11-15-17; 8:45 am]
BILLING CODE 6560-50-P