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Statutory Updates to the Advanced Technology Vehicles Manufacturing Program Publication: Federal Register Department: Energy Byline: Treena V. Garrett Date: 29 April 2024 Subject: American Government  , Electric Vehicles
Topic: |
[Federal Register Volume 89, Number 83 (Monday, April 29, 2024)]
[Rules and Regulations]
[Pages 33196-33203]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-09105]
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DEPARTMENT OF ENERGY
10 CFR Part 611
RIN 1901-AB60
Statutory Updates to the Advanced Technology Vehicles
Manufacturing Program
AGENCY: Loan Programs Office, Department of Energy.
ACTION: Direct final rule.
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SUMMARY: The Department of Energy (``DOE'') issues this direct final
rule to amend the regulations implementing the direct loan provisions
for the Advanced Technology Vehicles Manufacturing Incentive Program
established by section 136 of the Energy Independence and Security Act
of 2007, as amended (``ATVM statute''). The ATVM statute provides for
grants and loans to eligible automobile manufacturers and component
suppliers for projects that
[[Page 33197]]
reequip, expand, or establish manufacturing facilities in the United
States to produce qualifying advanced technology vehicles or qualifying
components. Specifically, this rule: amends the existing applicable
regulations in order to implement additional categories of advanced
technology vehicles added to the ATVM statute by the Infrastructure
Investment and Jobs Act and funded by the Inflation Reduction Act of
2022, including certain medium-duty and heavy-duty vehicles, trains,
locomotives, maritime vessels, aircraft, and hyperloop technology. This
rule also amends the existing applicable regulations to reflect the
ultra efficient vehicle category of advanced technology vehicles added
to the ATVM statute through an earlier appropriations act. DOE is
implementing these amendments through a final rule so that the
implementing regulations are consistent with the statutory requirements
of the ATVM statute.
DATES: This final rule is effective July 15, 2024, unless adverse
comment is received by May 29, 2024. If adverse comments are received
that DOE determines may provide a reasonable basis for withdrawal of
the direct final rule, a timely withdrawal of this rule will be
published in the Federal Register.
ADDRESSES: Interested persons may submit comments, identified by RIN
1901-AB60, by any of the following methods:
Federal eRulemaking Portal: www.regulations.gov. Follow the
instructions for submitting comments.
Electronic Mail (Email): lpofederalregistercomments@hq.doe.gov.
Include the RIN 1901-AB60 in the subject line of the message.
Postal Mail: Loan Programs Office, Attn: LPO Legal Department, U.S.
Department of Energy, 1000 Independence Avenue SW, Washington, DC
20585-0121. Please submit one signed original paper copy. Due to
potential delays in DOE's receipt and processing of mail sent through
the U.S. Postal Service, we encourage respondents to submit comments
electronically to ensure timely receipt.
Hand Delivery/Courier: U.S. Department of Energy, Room 4B-122, 1000
Independence Avenue SW, Washington, DC 20585.
No telefacsimiles (faxes) will be accepted. For detailed
instructions on submitting comments and additional information on the
rulemaking process, see section IV of this document, Public
Participation.
Docket: The docket, which includes Federal Register notices,
comments, and other supporting documents and materials, is available
for review at www.regulations.gov. All documents in the docket are
listed in the www.regulations.gov index. However, some documents listed
in the index, such as those containing information that is exempt from
public disclosure, may not be publicly available. The docket web page
can be found at the www.regulations.gov web page associated with RIN
1901-AB60. The docket web page contains simple instructions on how to
access all documents, including public comments, in the docket. See
section IV of this document, Public Participation, for information on
how to submit comments through www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Mr. Steven Westhoff, Attorney-Adviser,
Loan Programs Office, email: steven.westhoff@hq.doe.gov, or phone:
(240) 220-4994.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Introduction and Background
II. Discussion
III. Section-by-Section Analysis
IV. Public Participation
V. Regulatory and Notices Analysis
VI. Approval of the Office of the Secretary
I. Introduction and Background
A. ATVM Statute and Regulations
Section 136 of the Energy Independence and Security Act of 2007, as
amended (42 U.S.C. 17013) (``ATVM statute'') authorizes the Secretary
of Energy (``Secretary'') to issue grants and direct loans to
applicants for the costs of reequipping, expanding, or establishing
manufacturing facilities in the United States to produce qualified
advanced technology vehicles or qualifying components. The ATVM statute
also authorizes the Secretary to issue grants and direct loans for the
costs of engineering integration performed in the United States of
qualifying advanced technology vehicles and qualifying components. The
Advanced Technology Vehicles Manufacturing Loan Program (``ATVM
Program'') represents the Secretary's implementation of the direct loan
authority under the ATVM statute. The ATVM Program is administered by
the U.S. Department of Energy's (``DOE'') Loan Programs Office
(``LPO''). The purpose of the ATVM Program is to originate, underwrite,
and service loans to eligible automotive manufacturers and component
manufacturers to finance the cost of: (i) reequipping, expanding, or
establishing manufacturing facilities in the United States to produce
Advanced Technology Vehicles (``ATVs'') and qualifying components; and
(ii) engineering integration performed in the United States of ATVs and
qualifying components.
Consistent with section 17013(e) of title 42 of the United States
Code (``U.S.C.''), DOE promulgated regulations for the ATVM Program in
2009, which are set forth at 10 Code of Federal Regulations (``CFR'')
part 611.\1\ Part 611 provides eligibility criteria for automobile
manufacturers, project eligibility requirements, and application
requirements and general terms for the ATVM Program. Part 611 has since
been amended twice to: (1) standardize the submission and handling
within DOE's assistance programs, of trade secrets and commercial or
financial information that is privileged or confidential \2\ and (2)
clarify the eligibility of critical minerals projects.\3\
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\1\ 73 FR 66721 (November 12, 2008).
\2\ 76 FR 26579 (May 9, 2011).
\3\ 86 FR 3747 (January 15, 2021).
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B. Energy and Water Development and Related Agencies Appropriations Act
of 2010
Section 312 of the Energy and Water Development and Related
Agencies Appropriations Act of 2010 \4\ amended the ATVM statute to
include the ultra efficient vehicle category within the statutory
definition of ATVs. In this final rule, DOE is adding this category of
vehicles to part 611 to reflect the ATVM statute.
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\4\ Public Law 111-85 (2009).
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C. Infrastructure Investment and Jobs Act
Section 40401(b) of the Infrastructure Investment and Jobs Act
(``IIJA'') \5\ amended the definitions provision of the ATVM statute to
add the following categories of vehicles within the statutory
definition of ATVs: a medium-duty vehicle or a heavy-duty vehicle that
exceeds 125 percent of the greenhouse gas emissions and fuel efficiency
standards established by the final rule of the Environmental Protection
Agency entitled ``Greenhouse Gas Emissions and Fuel Efficiency
Standards for Medium- and Heavy-Duty Engines and Vehicles-Phase 2'' (81
FR 73478 (October 25, 2016)); a train or locomotive; a maritime vessel;
an aircraft; and hyperloop technology.\6\
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\5\ Public Law 117-58 (2021).
\6\ Section 40401(l) of the IIJA prohibited the Secretary from
using amounts appropriated prior to the date of the enactment of the
IIJA to provide direct loans under section 136(d) for the costs of
activities that were not eligible for those loans prior to that
date. Public Law 117-58 (2021). However, this prohibition was later
eliminated by the Consolidated Appropriations Act of 2023. Public
Law 117-328 (2022).
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[[Page 33198]]
In this final rule, DOE is adding these categories of vehicles to
part 611 in order for them to be eligible for a direct loan under the
ATVM Program.
D. Inflation Reduction Act
The Inflation Reduction Act of 2022 (``IRA'') \7\ contains energy
and climate provisions that appropriate $3 billion for the ATVM
Program, including to support the categories of ATVs added to the
program by the IIJA. However, section 50142 of the IRA, which provides
the Secretary with the authority to use funds appropriated by the IRA
for the costs of providing direct loans to the categories of ATVs added
to the definition of ATV by the IIJA, also provides that, with respect
to trains or locomotives; maritime vessels; aircraft; and hyperloop
technology, such funds may be used for that purpose only if the
relevant advanced technology vehicles emit, under any possible
operational mode or condition, low or zero exhaust emissions of
greenhouse gases. The IRA appropriations for the ATVM Program are
available through September 30, 2028.
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\7\ Public Law 117-169 (2022).
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E. Intended Future Rulemaking Process
This direct final rule is focused on revising part 611 to implement
additional categories of advanced technology vehicles that are already
statutorily eligible. In addition to this current rulemaking, DOE
expects to undertake a separate rulemaking to implement further
improvements to part 611 based on experience implementing the ATVM
Program and to potentially further define the requirements for nonroad
advanced technology vehicle projects. In that separate rulemaking, DOE
intends to issue a request for information requesting public feedback
regarding ATVM Program design as related to the new categories of
advanced technology vehicles and regarding potential demand for loans
for manufacturing facilities for such ATVs, as well as invite
additional public input regarding part 611 and the ATVM Program.
Following further consideration of such issues and comments, which may
include related comments received in response to this direct final
rule, DOE may then issue a notice of proposed rulemaking proposing more
expansive changes to part 611. In addition to the two rulemakings, DOE
expects to conduct a broader set of updates to the ATVM Program
guidance and application materials to reflect the changes in these
rulemakings. DOE does not expect ATVM Program applicants in the new ATV
categories relying on this direct final rule to be materially impacted
by the future rulemaking.
II. Discussion
This final rule allows the Secretary to implement the amendments to
the ATVM statute enacted by the IIJA and funded by the IRA by codifying
these requirements in the Code of Federal Regulations. Without
revisions to part 611, applicants for projects that were made eligible
for the ATVM Program under the IIJA and the IRA would not be eligible
for direct loans under the regulations applicable to the ATVM Program.
Further, the requirements applicable to the use of the funds provided
for the cost of direct loans under the IRA for the applicable vehicle
categories are not currently set forth in part 611.
As such, this final rule amends the definition of ``advanced
technology vehicle'' under part 611 to include the categories of ATVs
added by the IIJA. It also amends the provisions describing the
eligibility requirements for these new categories of ATVs as provided
by the IRA and distinguishes between the requirements applicable to on-
road advanced technology vehicles and nonroad advanced technology
vehicles. These technical and administrative changes to part 611
represent conforming changes to the text of the ATVM statute, as
amended by the IIJA and the IRA requirements applicable to the use of
funds appropriated by the IRA for the ATVM Program. The final rule
adopts the IRA requirement that projects for nonroad ATVs support only
ATVs that ``emit, under any possible operational mode or condition, low
or zero exhaust emissions of greenhouse gases'' for all nonroad ATV
projects in order to prescribe a single eligibility standard.\8\
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\8\ DOE notes that certain appropriations for the ATVM Program
are not subject to the IRA requirement. However, DOE believes the
IRA requirement demonstrates Congressional intent regarding how the
ATVM Program should consider nonroad advanced technology vehicles as
``advanced'' and therefore eligible for loans under the program.
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For consistency and completeness, this direct final rule also makes
conforming changes to reflect the earlier amendments to the ATVM
statute that established the ultra efficient vehicles category of ATVs.
III. Section-by-Section Analysis
Provided below is a section-by-section analysis of the changes made
by this direct final rule.
Sec. 611.1 Purpose
DOE is revising Sec. 611.1 to include legal references relating to
the IIJA and the IRA, as well as the Energy and Water Development and
Related Agencies Appropriations Act of 2010.
Sec. 611.2 Definitions
DOE is revising the definition of ``advanced technology vehicle''
to include both on-road advanced technology vehicles and nonroad
advanced technology vehicles; adding a definition of ``on-road advanced
technology vehicle'' that includes ultra efficient vehicles, light duty
vehicles, medium duty vehicles, and heavy duty vehicles, in each case
as defined in the ATVM statute; adding a definition of ``nonroad
advanced technology vehicle'' that includes low or zero emission trains
or locomotives, maritime vessels, aircraft, and hyperloop technologies;
and adding a definition of ``ultra efficient vehicle'' from the ATVM
statute.
Sec. 611.3 On-Road Advanced Technology Vehicle
DOE is revising Sec. 611.3 to refer to ``on-road advanced
technology vehicles'' as this section describes program requirements
that are specific to on-road vehicle manufacturers and not to
manufacturers of nonroad advanced technology vehicles.
Sec. 611.4 Nonroad Advanced Technology Vehicle
DOE is adding a new Sec. 611.4, ``Nonroad advanced technology
vehicle'' to distinguish and describe the program requirements
applicable to a manufacturer of a nonroad advanced technology vehicle
or a manufacturer of a nonroad advanced technology vehicle qualifying
component as provided by section 50142(a) of the IRA.
Sec. 611.100 Eligible Applicant
DOE is revising Sec. 611.100 to distinguish between the
requirements applicable to on-road advanced technology vehicle
manufacturers and those applicable to nonroad advanced technology
vehicle manufacturers. Due to the addition of new categories of on-road
advanced technology vehicles, DOE is also clarifying, consistent with
the current statute and pre-existing Sec. 611.100, that the specified
improved fuel economy requirements of paragraph (b) continue to apply
only to manufacturers of light duty vehicles.
[[Page 33199]]
IV. Public Participation
DOE will accept comments, data, and information regarding this
final rule on or before the date provided in the DATES section at the
beginning of this final rule. Interested parties may submit comments,
data, and other information using any of the methods described in the
ADDRESSES section at the beginning of this document.
Submitting comments via www.regulations.gov. The
www.regulations.gov web page will require you to provide your name and
contact information. Your contact information will not be publicly
viewable except for your first and last names, organization name (if
any), and submitter representative name (if any). If your comment is
not processed properly because of technical difficulties, DOE will use
this information to contact you. If DOE cannot read your comment due to
technical difficulties and cannot contact you for clarification, DOE
may not be able to consider your comment.
However, your contact information will be publicly viewable if you
include it in the comment itself or in any documents attached to your
comment. Any information that you do not want to be publicly viewable
should not be included in your comment, nor in any document attached to
your comment. Otherwise, persons viewing comments will see only first
and last names, organization names, correspondence containing comments,
and any documents submitted with the comments.
Do not submit to www.regulations.gov information the disclosure of
which is restricted by statute, such as trade secrets and commercial or
financial information (hereinafter referred to as Confidential Business
Information (``CBI'')). Comments submitted through www.regulations.gov
cannot be claimed as CBI. Comments received through the website will
waive any CBI claims for the information submitted. For information on
submitting CBI, see the Confidential Business Information section.
DOE processes submissions made through www.regulations.gov before
posting. Normally, comments will be posted within a few days of being
submitted. However, if large volumes of comments are being processed
simultaneously, your comment may not be viewable for up to several
weeks. Please keep the comment tracking number that www.regulations.gov
provides after you have successfully uploaded your comment.
Submitting comments via email, hand delivery/courier, or postal
mail. Comments and documents submitted via email, hand delivery/
courier, or postal mail also will be posted to www.regulations.gov. If
you do not want your personal contact information to be publicly
viewable, do not include it in your comment or any accompanying
documents. Instead, provide your contact information in a cover letter.
Include your first and last names, email address, telephone number, and
optional mailing address. The cover letter will not be publicly
viewable as long as it does not include any comments.
Include contact information each time you submit comments, data,
documents, and other information to DOE. If you submit via postal mail
or hand delivery/courier, please provide all items on a CD, if
feasible, in which case it is not necessary to submit printed copies.
No telefacsimiles (faxes) will be accepted.
Comments, data, and other information submitted to DOE
electronically should be provided in PDF (preferred), Microsoft Word or
Excel, WordPerfect, or text (ASCII) file format. Provide documents that
are written in English, and that are free of any defects or viruses.
Documents should not contain special characters or any form of
encryption. If possible, documents should carry the electronic
signature of the author.
Confidential Business Information. Pursuant to 10 CFR 1004.11, any
person submitting information that they believe to be confidential and
exempt by law from public disclosure should submit via email, postal
mail, or hand delivery/courier two well-marked copies: One copy of the
document marked ``confidential'' including all the information believed
to be confidential, and one copy of the document marked ``non-
confidential'' that deletes the information believed to be
confidential. Submit these documents via email or on a CD, if feasible.
DOE will make its own determination about the confidential status of
the information and will treat it according to its determination. It is
DOE's policy that all comments, including any personal information
provided in the comments, may be included in the public docket, without
change and as received, except for information deemed to be exempt from
public disclosure.
V. Regulatory and Notices Analysis
A. Executive Orders 12866, 13563, and 14094
Executive Order (``E.O.'') 12866, ``Regulatory Planning and
Review,'' 58 FR 51735 (October 4, 1993), as supplemented and reaffirmed
by E.O. 13563, ``Improving Regulation and Regulatory Review,'' 76 FR
3821 (Jan. 21, 2011), and amended by E.O. 14094, ``Modernizing
Regulatory Review,'' 88 FR 21879 (April 11, 2023), requires agencies,
to the extent permitted by law, to (1) propose or adopt a regulation
only upon a reasoned determination that its benefits justify its costs
(recognizing that some benefits and costs are difficult to quantify);
(2) tailor regulations to impose the least burden on society,
consistent with obtaining regulatory objectives, taking into account,
among other things, and to the extent practicable, the costs of
cumulative regulations; (3) select, in choosing among alternative
regulatory approaches, those approaches that maximize net benefits
(including potential economic, environmental, public health and safety,
and other advantages; distributive impacts; and equity); (4) to the
extent feasible, specify performance objectives, rather than specifying
the behavior or manner of compliance that regulated entities must
adopt; and (5) identify and assess available alternatives to direct
regulation, including providing economic incentives to encourage the
desired behavior, such as user fees or marketable permits, or providing
information upon which choices can be made by the public. DOE
emphasizes as well that E.O. 13563 requires agencies to use the best
available techniques to quantify anticipated present and future
benefits and costs as accurately as possible. In its guidance, the
Office of Information and Regulatory Affairs (``OIRA'') has emphasized
that such techniques may include identifying changing future compliance
costs that might result from technological innovation or anticipated
behavioral changes. For the reasons stated in the preamble, this
regulatory action is consistent with these principles.
Section 6(a) of E.O. 12866 requires agencies to submit
``significant regulatory actions'' to OIRA for review. This final rule
has been determined to be a ``significant regulatory action'' under
E.O. 12866. Accordingly, this action was subject to review by OIRA.
Section 6(a) of E.O. 12866 requires an agency issuing a
``significant regulatory action'' to provide an assessment of the
potential costs and benefits of the regulatory action. To that end, DOE
has further assessed the qualitative and quantitative costs and
benefits of this direct final rule.
As discussed in previous sections of this direct final rule, DOE is
aligning its regulations with the statutory
[[Page 33200]]
requirements for the voluntary federal loan program provided in the
ATVM statute. However, DOE has considered the costs and benefits in
this analysis for transparency. DOE does not expect the costs and
benefits associated with applying to the ATVM Program in connection
with the new categories of ATVs to deviate materially from the costs
associated with the current categories of ATVs. The estimated costs of
completing an application for a newly eligible project under the direct
final rule are detailed in the current Paperwork Reduction Act burden
analysis: $27,075 per applicant. While the range of advanced ATVs and
qualifying components projects may broaden under the amendments under
this direct final rule, DOE anticipates receiving the previously
estimated 40 annual applications to the ATVM Program across all vehicle
categories, resulting in the same estimated $1,083,000 combined annual
cost to applicants as articulated in DOE's current burden analysis. As
DOE has previously noted, much of the financial and technical
information and other activities required as part of an ATVM Program
loan application is required of an applicant that is raising equity,
seeking a loan in the private sector, or exploring other financing
sources for a project of similar complexity, size, and risk.
DOE estimated its annual costs in administering the ATVM Program
for fiscal year 2024 to be $25,000,000.\9\ DOE anticipates that the new
ATV classes will produce 2-4 more loan applications per year in the 12
months following the effectiveness of this direct final rule. Given the
above-mentioned cost estimates of $27,075 per applicant, that would
amount to between $54,150 and $108,300 per year in costs borne by
industry for these ATV applications. At the same time, DOE expects a
natural decrease in the number of applications from the prior ATV
categories, as parties planning projects under those categories have
already applied to the ATVM Program, leaving the overall volume of ATVM
Program applications steady over the next few years. Given the number
of loan applications generated by nonroad vehicle technologies, DOE
does not anticipate requiring additional resources, personnel, or staff
time compared to its baseline to process applications in new ATV
categories. DOE has issued eight loans for a total of more than $10
billion obligated to borrowers, with a further conditional commitment
of eight more loans and $16 billion more dollars. In total, this would
suggest on average a loan amount of roughly $1.73 billion per loan,
although many loans are expected to be less than $1 billion. To the
extent any of the loan applications for nonroad technology classes
introduced by this rulemaking are successful, without additional
information on the size of the loan requests at this stage DOE would
anticipate a similar level of transfer. DOE does not anticipate any
greater administrative costs to the Federal Government resulting from
this direct final rule.
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\9\ See DOE's Fiscal Year 2024 Budget Justification, Loan
Programs Office Summary, available at https://www.energy.gov/sites/default/files/2023-03/doe-fy-2024-budget-vol-3-lpo-v2.pdf.
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While the ATVM Program has no application fee, each applicant would
incur the following costs: costs by DOE's independent advisors in
connection with the applicant's project; and a fee at the time of
closing of a loan, equal to 10 basis points (0.1%) of the principal
amount of the loan. The interest rate associated with an ATVM Program
loan is equal to the U.S. Treasury-equivalent yield curve with zero
credit spread.
Like other federal credit programs, the ATVM Program accounts for
the cost of each individual loan in accordance with the Federal Credit
Reform Act of 1990, as amended (2 U.S.C. 661 et seq.) (``FCRA''), which
requires agencies to estimate the cost to the government of extending
or guaranteeing credit. This cost, referred to as credit subsidy cost,
equals the net present value of estimated cash flows from the
government minus estimated cash flows to the government over the life
of the loan and excluding administrative costs. In accordance with
FCRA, the non-administrative cost to the Federal Government of issuing
each individual loan under the ATVM Program must be estimated, using a
model provided by the Office of Management and Budget (``OMB'').
The benefits of this direct final rule derive from facilitating the
applications for statutorily eligible projects under the ATVM Program.
Under the existing part 611 and over the course of the ATVM Program,
DOE has financed facilities for the manufacturing of advanced
automobiles, as well as more recently for the manufacturing of electric
vehicle batteries and battery-grade critical minerals. Throughout its
history, the ATVM Program has issued eight total loans, and more than
$10 billion has been obligated to borrowers. Since the passage of the
IIJA, the ATVM Program has added two loans to its portfolio: Ultium
Cells and Syrah Technologies.
Loans for relatively newer low or zero emissions vehicle
technologies might differ from loans for the existing vehicle
definitions. At present, DOE does not have an estimate on the average
size of a loan for the additional categories of nonroad vehicles added
to the ATVM Program by this rule, nor does DOE have an estimate for the
failure rate of loans for nonroad technologies. These are important
considerations when projecting the impact the nonroad vehicle classes
will have on available ATVM Program funds. For example, if project
failure rates are relatively higher for the nonroad vehicle classes,
then DOE might make different decisions on the size of disbursed funds
based on the likelihood of retrieving loaned amounts. Similarly, if
loans tend to be relatively larger in this space, then the pool of
funding might be exhausted faster as loan applications are approved
than in DOE's previous experience. As DOE develops more experience with
loan applications for nonroad technologies, DOE will consider providing
additional guidance or rulemaking.
To date, projects that have been financed in part by ATVM Program
loans have produced vehicles that are estimated to have saved over 19
billion gallons of gasoline, equivalent to a cumulative 26 million
metric tons of carbon dioxide emissions, and created more than 43,000
direct jobs across eight states. DOE has issued conditional commitments
for eight additional projects, potentially totaling over $16 billion in
ATVM Program loans, that would further contribute to the reduction of
vehicle emissions and to the creation of new domestic manufacturing
opportunities. Through the ATVM Program, domestic and foreign
automakers and manufacturers have deployed advanced technologies, saved
or created thousands of jobs, reduced costs for consumers through
increased fuel efficiency, and enhanced U.S. energy independence and
security. DOE anticipates that this direct final rule will, consistent
with current law, potentially advance the same types of benefits seen
in existing and pending ATVM Program loans across a broader range of
advanced technology vehicles and qualifying components.
A final consideration for the addition of new vehicle classes is
the spillover impacts the new vehicle classes might have on existing
classes. The IRA provided $3 billion in additional funding for the ATVM
Program, including for the purpose of nonroad vehicle technologies.
This funding is also available for technologies currently eligible for
ATVM Program loans. To the extent that loan demand increases for
existing technologies, it is possible that funding might become limited
for
[[Page 33201]]
nonroad vehicles. In the reverse case, where nonroad loan demand is
especially high, the loan amounts for currently eligible technologies
might decrease. DOE does not believe that demand for loans will exceed
the point such that either of the above are practical concerns, but
does note that in the event of this possibility, further communication
might be necessary.
B. Administrative Procedure Act
The Administrative Procedure Act (5 U.S.C. 551 et seq.) (``APA'')
exempts from the APA's notice and comment procedures under 5 U.S.C.
553(b) and (c) rulemakings that involve matters relating to public
property, loans, grants, benefits, or contracts. (5 U.S.C. 553(a)(2)).
As this rule relates to the issuance of loans, DOE has determined that
notice of proposed rulemaking (and comment thereon) is not required.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires that
an agency prepare an initial regulatory flexibility analysis for any
rule that by law must be proposed for public comment, unless the agency
certifies that the rule, if promulgated, will not have a significant
economic impact on a substantial number of small entities. As required
by Executive Order 13272, ``Proper Consideration of Small Entities in
Agency Rulemaking,'' 67 FR 53461 (August 16, 2002), DOE published
procedures and policies on February 19, 2003, to ensure that the
potential impacts of its rules on small entities are properly
considered during the rulemaking process (68 FR 7990).
This final rule updates part 611. DOE is not obligated to prepare a
regulatory flexibility analysis for this rulemaking because there is
not a requirement to publish a general notice of proposed rulemaking
for rules related to loans under the APA. (See 5 U.S.C. 553(a)(2)).
Furthermore, this direct final rule implements, without substantive
change, amendments to the ATVM statute and applicable provisions from
the IRA.
D. Paperwork Reduction Act of 1995
The final rule would impose no new information or record keeping
requirements. Accordingly, OMB clearance is not required under the
Paperwork Reduction Act. (See 42 U.S.C. 3501 et seq.). The information
collection necessary to administer DOE loans under the ATVM Program
under 10 CFR part 611 is subject to approval under the Paperwork
Reduction Act. The information collection provisions of this part were
previously approved by the OMB under OMB Control Number 1910-5137.
Notwithstanding any other provision of the law, no person is
required to respond to, nor shall any person be subject to a penalty
for failure to comply with, a collection of information subject to the
requirements of the PRA, unless that collection of information displays
a currently valid OMB Control Number.
E. National Environmental Policy Act of 1969
In this rule, DOE amends part 611 to add additional categories of
advanced technology vehicles authorized to be considered eligible for
loans under the ATVM Program. DOE has determined that this final rule
qualifies for categorical exclusion under 10 CFR part 1021, subpart D
Appendix A5 as a rulemaking that amends an existing rule or regulation
(i.e., part 611) without changing the environmental effect of that
rule. Therefore, DOE has determined that this final rule is not a major
Federal action significantly affecting the quality of the human
environment within the meaning of NEPA and does not require an
environmental assessment or an environmental impact statement. Through
the issuance of this rule, DOE is making no decision relative to the
approval of a loan for a particular project. DOE would prepare
appropriate NEPA review for any proposed project.
F. Executive Order 12988
With respect to the review of existing regulations and the
promulgation of new regulations, section 3(a) of Executive Order 12988,
``Civil Justice Reform,'' 61 FR 4729 (February 7, 1996), imposes on
executive agencies the general duty to adhere to the following
requirements: (1) eliminate drafting errors and ambiguity; (2) write
regulations to minimize litigation; and (3) provide a clear legal
standard for affected conduct rather than a general standard and
promote simplification and burden reduction.
With regard to the review required by section 3(a), section 3(b) of
Executive Order 12988 specifically requires, in pertinent part, that
executive agencies make every reasonable effort to ensure that the
regulation: (1) clearly specifies the preemptive effect, if any; (2)
clearly specifies any effect on existing Federal law or regulation; (3)
provides a clear legal standard for affected conduct while promoting
simplification and burden reduction; (4) specifies the retroactive
effect, if any; (5) adequately defines key terms; and (6) addresses
other important issues affecting clarity and general draftsmanship
under any guidelines issued by the Attorney General.
Section 3(c) of Executive Order 12988 requires Executive agencies
to review regulations in light of applicable standards in section 3(a)
and section 3(b) to determine whether they are met or it is
unreasonable to meet one or more of them.
DOE has completed the required review and determined that, to the
extent permitted by law, this rule meets the relevant standards of
Executive Order 12988.
G. Executive Order 13132
Executive Order 13132, ``Federalism,'' \10\ imposes certain
requirements on agencies formulating and implementing policies or
regulations that preempt State law or that have federalism
implications. Agencies are required to examine the constitutional and
statutory authority supporting any action that would limit the
policymaking discretion of the States and to carefully assess the
necessity for such actions. The Executive order also requires agencies
to have an accountable process to ensure meaningful and timely input by
State and local officials in the development of regulatory policies
that have federalism implications. On March 14, 2000, DOE published a
statement of policy describing the intergovernmental consultation
process it will follow in the development of such regulations.\11\
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\10\ 64 FR 43255 (August 4, 1999).
\11\ 65 FR 13735 (March 14, 2000).
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DOE has examined this final rule and has determined that it will
not preempt State law and will not have a substantial direct effect 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. Accordingly, no further action is
required by Executive Order 13132.
H. Executive Order 13175
Under Executive Order 13175, ``Consultation and Coordination with
Indian Tribal Governments,'' \12\ DOE may not issue a discretionary
rule that has ``Tribal'' implications and imposes substantial direct
compliance costs on Indian Tribal governments. DOE has determined that
this final rule will not have such effects and has concluded that
Executive Order 13175 does not apply to this final rule.
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\12\ 65 FR 67249 (November 9, 2000).
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[[Page 33202]]
I. Unfunded Mandates Reform Act of 1995
Title II of the Unfunded Mandates Reform Act of 1995 (``UMRA'')
\13\ requires each Federal agency to assess the effects of Federal
regulatory actions on State, local, and tribal governments and the
private sector. For a proposed regulatory action likely to result in a
rule that may cause the expenditure by State, local, and tribal
governments, in the aggregate, or by the private sector of $100 million
or more in any one year (adjusted annually for inflation), section 202
of UMRA requires a Federal agency to publish a written statement that
estimates the resulting costs, benefits, and other effects on the
national economy (2 U.S.C. 1532(a) and (b)). UMRA also requires a
Federal agency to develop an effective process to permit timely input
by elected officers of State, local, and tribal governments on a
proposed ``significant intergovernmental mandate'' and requires an
agency plan for giving notice and opportunity for timely input to
potentially affected small governments before establishing any
requirements that might significantly or uniquely affect small
governments. On March 18, 1997, DOE published a statement of policy on
its process for intergovernmental consultation under UMRA.\14\ DOE
examined this final rule according to UMRA and its statement of policy
and has determined that the final rule contains neither an
intergovernmental mandate nor a mandate that may result in the
expenditure of $100 million or more in any year by State, local, and
tribal governments, in the aggregate, or by the private sector. The
final rule establishes only requirements that are a condition of
Federal assistance or a duty arising from participation in a voluntary
program. Accordingly, no further assessment or analysis is required
under UMRA.
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\13\ Public Law 104-4 (1995).
\14\ 62 FR 12820 (March 18, 1997); also available at
www.energy.gov/gc/office-general-counsel.
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J. Treasury and General Government Appropriations Act of 1999
Section 654 of the Treasury and General Government Appropriations
Act, 1999 \15\ requires Federal agencies to issue a Family Policymaking
Assessment for any proposed rule that may affect family well-being.
This final rule will not have any impact on the autonomy or integrity
of the family as an institution. Accordingly, DOE has concluded that it
is not necessary to prepare a Family Policymaking Assessment.
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\15\ Public Law 105-277 (1998); 5 U.S.C. 601 note.
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K. Treasury and General Government Appropriations Act, 2001
Section 515 of the Treasury and General Government Appropriations
Act, 2001 \16\ provides for Federal agencies to review most
disseminations of information to the public under guidelines
established by each agency pursuant to general guidelines issued by
OMB. OMB's guidelines were published at 67 FR 8452 (February 22, 2002),
and DOE's guidelines were published at 67 FR 62446 (October 7, 2002).
Pursuant to OMB Memorandum M-19-15, ``Improving Implementation of the
Information Quality Act'' (April 24, 2019), DOE published updated
guidelines which are available at: https://www.energy.gov/sites/prod/files/2019/12/f70/DOE%20Final%20Updated%20IQA%20Guidelines%20Dec%202019.pdf.
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\16\ Public Law 106-554 (2000); 44 U.S.C. 3516 note.
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DOE has reviewed this final rule under the OMB and DOE guidelines
and has concluded that it is consistent with applicable policies in
those guidelines.
L. Executive Order 13211
Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use,'' \17\
requires Federal agencies to prepare and submit to the OMB, a Statement
of Energy Effects for any proposed significant energy action. A
``significant energy action'' is defined as any action by an agency
that promulgated or is expected to lead to promulgation of a final
rule, and that: (1) is a significant regulatory action under Executive
Order 12866, or any successor order; and (2) is likely to have a
significant adverse effect on the supply, distribution, or use of
energy, or (3) is designated by the Administrator of OIRA as a
significant energy action. For any proposed significant energy action,
the agency must give a detailed statement of any adverse effects on
energy supply, distribution, or use should the proposal be implemented,
and of reasonable alternatives to the action and their expected
benefits on energy supply, distribution, and use. This regulatory
action will not have a significant adverse effect on the supply,
distribution, or use of energy and is therefore not a significant
energy action. Accordingly, DOE has not prepared a Statement of Energy
Effects.
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\17\ 66 FR 28355 (May 22, 2001).
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M. Congressional Review Act
As required by 5 U.S.C. 801, DOE will report to Congress on the
promulgation of this rule. The report will state that OIRA has
determined that the rule meets the criteria set forth in 5 U.S.C.
804(2).
VI. Approval of the Office of the Secretary
The Secretary of Energy has approved publication of this direct
final rule.
List of Subjects in 10 CFR Part 611
Administrative practice and procedure, Energy, Loan programs,
Reporting and recordkeeping requirements.
Signing Authority
This document of the Department of Energy was signed on April 23,
2024, by Jigar Shah, Executive Director, Loan Programs Office, pursuant
to delegated authority from the Secretary of Energy. That document with
the original signature and date is maintained by DOE. For
administrative purposes only, and in compliance with requirements of
the Office of the Federal Register, the undersigned DOE Federal
Register Liaison Officer has been authorized to sign and submit the
document in electronic format for publication, as an official document
of the Department of Energy. This administrative process in no way
alters the legal effect of this document upon publication in the
Federal Register.
Signed in Washington, DC, on April 24, 2024.
Treena V. Garrett,
Federal Register Liaison Officer, U.S. Department of Energy.
For the reasons stated in the preamble, DOE amends part 611 of
chapter II of title 10 of the Code of Federal Regulations as set forth
below:
PART 611--ADVANCED TECHNOLOGY VEHICLES MANUFACTURER ASSISTANCE
PROGRAM
0
1. The authority citation for part 611 is revised to read as follows:
Authority: Pub. L. 110-140 (42 U.S.C. 17013), Pub. L. 110-329,
Pub. L. 111-85, Pub. L. 117-58.
0
2. Revise Sec. 611.1 to read as follows:
Sec. 611.1 Purpose.
This part is issued by the Department of Energy (DOE) pursuant to
section 136 of the Energy Independence and Security Act of 2007, Public
Law 110-140, as amended by section 129 of Consolidated Security,
Disaster Assistance, and Continuing
[[Page 33203]]
Appropriations Act of 2009, Public Law 110-329, section 312 of Energy
and Water Development and Related Agencies Appropriations Act of 2010,
Public Law 111-85, section 40401(b) of the Infrastructure Investment
and Jobs Act, Public Law 117-58, and section 50142 of the Inflation
Reduction Act of 2022, Public Law 117-169. Specifically, section 136(e)
directs DOE to promulgate an interim final rule establishing
regulations that specify eligibility criteria and that contain other
provisions that the Secretary deems necessary to administer this
section and any loans made by the Secretary pursuant to this section.
0
3. Amend Sec. 611.2 by:
0
a. Revising the definitions for ``Advanced technology vehicle'' and;
0
b. Adding, in alphabetical order, definitions for ``Nonroad advanced
technology vehicle'', ``On-road advanced technology vehicle'', and
``Ultra efficient vehicle''.
The additions and revision read as follows:
Sec. 611.2 Definitions.
* * * * *
Advanced technology vehicle means an on-road advanced technology
vehicle or a nonroad advanced technology vehicle.
* * * * *
Nonroad advanced technology vehicle means:
(1) A train or locomotive;
(2) A maritime vessel;
(3) An aircraft; and
(4) Hyperloop technology
That, in each case, emit, under any possible operational mode or
condition, low or zero exhaust emissions of greenhouse gases.
On-road advanced technology vehicle means
(1) An ultra efficient vehicle or a light duty vehicle that meets--
(i) The Bin 5 Tier II emission standard established in regulations
issued by the Administrator of the Environmental Protection Agency
under section 202(i) of the Clean Air Act (the Act) (42 U.S.C.
7521(i)), as of the date of application, or a lower-numbered Bin
emission standard;
(ii) Any new emission standard in effect for fine particulate
matter prescribed by the Administrator under the Act (42 U.S.C. 7401 et
seq.), as of the date of application; and
(iii) At least 125 percent of the harmonic production weighted
average combined fuel economy, for vehicles with substantially similar
attributes in model year 2005.
(2) A medium duty vehicle or heavy duty vehicle that exceeds 125
percent of the greenhouse gas emissions and fuel efficiency standards
established by the final rule of the Environmental Protection Agency
entitled ``Greenhouse Gas Emissions and Fuel Efficiency Standards for
Medium- and Heavy-Duty Engines and Vehicles--Phase 2'' (81 FR 73478
(October 25, 2016)).
* * * * *
Ultra efficient vehicle means a fully closed compartment vehicle
designed to carry at least 2 adult passengers that achieves--
(1) At least 75 miles per gallon while operating on gasoline or
diesel fuel;
(2) At least 75 miles per gallon equivalent while operating as a
hybrid electric-gasoline or electric-diesel vehicle; or
(3) At least 75 miles per gallon equivalent while operating as a
fully electric vehicle.
0
4. Amend Sec. 611.3 by revising the section heading, the introductory
text, and paragraph (a) to read as follows:
Sec. 611.3 On-road advanced technology vehicle.
In order to demonstrate that a light duty vehicle is an ``on-road
advanced technology vehicle'', an automobile manufacturer must provide
the following:
(a) Emissions certification. An automobile manufacturer must
certify in writing that the vehicle meets, or will meet, the emissions
requirements specified in the definition of ``on-road advanced
technology vehicle''; and
* * * * *
0
5. Add Sec. 611.4 to subpart A to read as follows:
Sec. 611.4 Nonroad advanced technology vehicle.
A manufacturer of a nonroad advanced technology vehicle or a
manufacturer of a nonroad advanced technology vehicle qualifying
component must provide DOE with such information to demonstrate to the
satisfaction of DOE that the applicable nonroad advanced technology
vehicle emits, under any possible operational mode or condition, low or
zero exhaust emissions of greenhouse gases.
0
6. Amend Sec. 611.100 by revising paragraph (a)(1) to read as follows.
Sec. 611.100 Eligible applicant.
(a) * * *
(1) Must be--
(i) An on-road advanced technology vehicle manufacturer that, if it
is a light duty vehicle manufacturer, can demonstrate an improved fuel
economy as specified in paragraph (b) of this section, or otherwise
satisfies the applicable standards set forth in the definition of on-
road advanced technology vehicle,
(ii) A manufacturer of a qualifying component, or
(iii) A nonroad advanced technology vehicle manufacturer; and
* * * * *
[FR Doc. 2024-09105 Filed 4-26-24; 8:45 am]
BILLING CODE 6450-01-P