Home Page About Us Contribute

American Government Special Collections Reference Desk



Escort, Inc.





Tweets by @CrittendenAuto








GM Icons
By accessing/using The Crittenden Automotive Library/CarsAndRacingStuff.com, you signify your agreement with the Terms of Use on our Legal Information page. Our Privacy Policy is also available there.

Repeal of Emission Requirements for Glider Vehicles, Glider Engines, and Glider Kits


American Government Trucking

Repeal of Emission Requirements for Glider Vehicles, Glider Engines, and Glider Kits

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]


=======================================================================
-----------------------------------------------------------------------

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.

-----------------------------------------------------------------------

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:

------------------------------------------------------------------------
                                                        Examples of
           Category               NAICS code \a\    potentially affected
                                                          entities
------------------------------------------------------------------------
Industry......................  336110, 336111,    Motor Vehicle
                                 336112, 333618,    Manufacturers,
                                 336120, 441310.    Engine
                                                    Manufacturers,
                                                    Engine Parts
                                                    Manufacturers, Truck
                                                    Manufacturers,
                                                    Automotive Parts and
                                                    Accessories Dealers.
------------------------------------------------------------------------
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).
---------------------------------------------------------------------------

    \1\ 81 FR 73478 (October 25, 2016).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

    \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.''
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \8\ EPA-HQ-OAR-2014-0827-1964.
    \9\ EPA-HQ-OAR-2014-0827-1005.
    \10\ Id.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \14\ EPA-HQ-OAR-2014-0827-1964.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \15\ The provisions of the Disclosure Act are set forth at 15 
U.S.C. 1231-1233.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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).
---------------------------------------------------------------------------

    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

Connect with The Crittenden Automotive Library

The Crittenden Automotive Library on Facebook The Crittenden Automotive Library on Instagram The Crittenden Automotive Library at The Internet Archive The Crittenden Automotive Library on Pinterest The Crittenden Automotive Library on Twitter The Crittenden Automotive Library on Tumblr


The Crittenden Automotive Library

Home Page    About Us    Contribute