federal register May 19,1995 Friday Final Rule Fuels andAlternativeFueledVehicles; Labeling RequirementsforAlternative 16 CFRPart309 Commission Federal Trade Part II 26925 26926 Federal Register / Vol. 60, No. 97 / Friday, May 19, 1995 / Rules and Regulations

FEDERAL TRADE COMMISSION development of alternative fuels 3 and help them choose among alternative alternative fueled vehicles (‘‘AFVs’’).4 fuels and AFVs.9 DOE’s information 16 CFR Part 309 Two provisions in title IV of EPA 92 package must provide ‘‘relevant and require that information on alternative objective’’ information addressing RIN 3084±AA57 fuels and AFVs be made available to ‘‘motor vehicle characteristics and fuel Labeling Requirements for Alternative consumers. In one provision, section characteristics as compared to gasoline’’ Fuels and Alternative Fueled Vehicles 406(a) of EPA 92 directs the (including environmental performance, Commission to issue a rule establishing energy efficiency, domestic content, AGENCY: Federal Trade Commission. uniform labeling requirements, to the cost, maintenance requirements, ACTION: Final rule. greatest extent practicable, for reliability, and safety), information alternative fuels and alternative fueled about the conversion of conventional SUMMARY: Section 406(a) of the Energy vehicles.5 The Act does not specify what motor vehicles to AFVs, and ‘‘such Policy Act of 1992 (‘‘EPA 92’’) directs information should be displayed on other information as the Secretary [of the Federal Trade Commission these labels. Instead, it provides DOE] determines is reasonable and (‘‘Commission’’) to establish uniform generally that the rule must require necessary to help promote the use of labeling requirements, to the greatest disclosure of ‘‘appropriate,’’ ‘‘useful,’’ alternative fuels in motor vehicles.’’ 10 extent practicable, for alternative fuels and ‘‘timely’’ cost and benefit This is the Commission’s second and alternative fueled vehicles. On information on ‘‘simple’’ labels.6 The rulemaking concerning labeling November 18, 1994, the Commission purpose of the labeling requirements is requirements for alternative fuels. In a published a supplemental notice of to enable consumers to make reasonable separate proceeding also required by proposed rulemaking in the Federal choices and comparisons. In EPA 92,11 the Commission extended the Register announcing the substance of formulating the rule, the Commission requirements of its former Octane proposed labeling requirements and must consider the problems associated Rule 12 (renamed the ‘‘Fuel Rating sought written comment on its proposal. with developing and publishing the Rule’’) beyond gasoline to include liquid In this notice the Commission required information, taking into alternative fuels.13 As a result, retailers announces its final labeling account lead time, costs, frequency of of such fuels are now required, among requirements, and explains why it has changes in costs and benefits that may other things, to post labels identifying modified certain requirements from occur, and other relevant factors. Where the commonly used name of the fuel those proposed. appropriate, the labels required by and the amount, expressed as a EFFECTIVE DATE: Subpart A and Subpart section 406(a) are to be consolidated minimum percentage by volume, of the B of 16 CFR Part 309 are effective on with other labels providing information fuel’s principal component.14 to consumers. EPA 92 requires the August 21, 1995. Subpart C of 16 CFR II. Public Participation Part 309 is effective on November 20, Commission to update its labeling 1995. The incorporation by reference of requirements ‘‘periodically to reflect the EPA 92 required the Commission, in certain publications listed in subpart B most recent available information.’’ 7 formulating its labeling requirements, to of 16 CFR Part 309 is approved by the A second and complementary ‘‘obtain the views of affected industries, provision directs the Secretary of Energy consumer organizations, Federal and Director of the Federal Register as of 15 August 21, 1995. The incorporation by (‘‘DOE’’) to develop an information State agencies, and others.’’ It also reference of certain publications listed package for consumers.8 Specifically, required the Commission to issue a in subpart C of 16 CFR Part 309 is section 405 of EPA 92 requires DOE to Notice of Proposed Rulemaking (‘‘NPR’’) approved by the Director of the Federal produce and make available an in consultation with DOE, the Register as of November 20, 1995. information package for consumers to Administrator of the Environmental Protection Agency (‘‘EPA’’), and the FOR FURTHER INFORMATION CONTACT: 3 Secretary of Transportation (‘‘DOT’’) Jeffrey E. Feinstein, Attorney, 202/326– ‘‘Alternative fuels’’ are defined as: [M]ethanol, denatured ethanol, and other 2372, or Neil J. Blickman, Attorney, alcohols; mixtures containing 85 percent or more 9 42 U.S.C. 13231. The information package 202/326–3038, Division of Enforcement, (or such other percentage, but not less than 70 required by this section was intended ‘‘to enable Federal Trade Commission, percent, as determined by the Secretary [of Energy], [consumers] to understand and to help them choose Washington, DC 20580. by rule, to provide for requirements relating to cold among alternative fuels and AFVs.’’ H. Rep. No. start, safety, or vehicle functions) by volume of 102–474(I), 102d Cong., 2d Sess. 185, reprinted in SUPPLEMENTARY INFORMATION: methanol, denatured ethanol, and other alcohols 1992 U.S.C.C.A.N. at 1954, 2008. with gasoline or other fuels; natural gas; liquefied 10 42 U.S.C. 13231. EPA 92 also directs the DOE Statement of Basis and Purpose petroleum gas; hydrogen; coal-derived liquid fuels; Secretary to create an additional public education fuels (other than alcohol) derived from biological program targeted specifically to the Federal I. Introduction materials; electricity (including electricity from government. Under that mandate, the DOE EPA 92 1 establishes a comprehensive solar energy); and any other fuel the Secretary Secretary, ‘‘in cooperation with the Administrator determines, by rule, is substantially not petroleum of General Services,’’ must ‘‘promote programs and national energy strategy designed to and would yield substantial energy security benefits educate officials and employees of Federal agencies increase U.S. energy security and and substantial environmental benefits[.] on the merits of [AFVs].’’ 42 U.S.C. 13214(a). That improve the economy in cost effective 42 U.S.C. 13211(2) (Supp. IV 1993). section further requires that the DOE Secretary and environmentally beneficial ways.2 It 4 An ‘‘alternative fueled vehicle’’ is ‘‘a dedicated ‘‘shall provide and disseminate information to seeks to reduce the dependence of the vehicle or a dual fueled vehicle[.]’’ 42 U.S.C. Federal agencies on,’’ inter alia, ‘‘the range and 13211(3). Each term is further defined in 42 U.S.C. performance capabilities of [AFVs].’’ Id. United States on oil imports; promote 13211 (6) and (8). 11 15 U.S.C. 2821–2823. energy efficiency; reduce the use of 5 Section 406(a) is codified at 42 U.S.C. 13232(a) 12 Octane Posting and Certification, 16 CFR Part petroleum-based fuels in motor (Supp. IV 1993). 306. vehicles; and provide new energy 6 42 U.S.C. 13232(a). 13 16 CFR 306.0(i)(2) (1994). In that proceeding, options. Other programs in titles III, IV, 7 Id. the Commission had no authority to extend the 8 rule’s requirements beyond liquid alternative fuels. V, and VI of EPA 92 promote the 42 U.S.C. 13231. DOE is also required to provide technical assistance to the Commission in 15 U.S.C. 2821 (Supp. IV 1993). developing labeling requirements, and coordinate 14 16 CFR 306.0(j)(2) (1994). The Fuel Rating Rule 1 Pub. L. 102–486, 106 Stat. 2776 (1992). such technical assistance with its development of became effective October 25, 1993. 58 FR 41356, 2 H. Rep. No. 102–474(I), 102d Cong., 2d Sess. a consumer information package. 42 U.S.C. 41356, Aug. 3, 1993. 132, reprinted in 1992 U.S.C.C.A.N. at 1954, 1955. 13232(b). 15 42 U.S.C. 13232(a). Federal Register / Vol. 60, No. 97 / Friday, May 19, 1995 / Rules and Regulations 26927 within eighteen months after October disclosures).21 The Commission also attend, and, as a result, individuals 24, 1992 (the statute’s enactment date).16 sought comment on how the labeling representing eighteen interested parties To comply with those requirements, the requirements should be updated, and participated at the Workshop.26 The Commission received information from the extent to which the labels should be Workshop was held on July 20, 1994, at the public relating to this proceeding consolidated with other labels providing the Commission’s headquarters and was from five sources: written comments information to consumers. In response, conducted as announced in the NPR.27 filed in response to an Advanced Notice the Commission received 28 written D. Post-Workshop Comments of Proposed Rulemaking (‘‘ANPR’’) comments addressing these issues. The published on December 10, 1993,17 comments were summarized in the In its NPR, the Commission written comments filed in response to Commission’s NPR.22 announced that Workshop participants 18 would be permitted one week to file an NPR published on May 9, 1994, B. The Commission’s NPR testimony during a Public Workshop- supplemental written comments Conference (‘‘Workshop’’) held on July The Commission considered written addressing concerns raised during the 20, 1994, supplemental written comments responding to the ANPR in Workshop.28 Eight participants elected comments filed after the Workshop, and developing its initial labeling proposal, to file such comments.29 The written comments filed in response to a which was published in the Federal Commission also announced that after Supplemental Notice of Proposed Register as the Commission’s NPR. The reviewing written comments received in Rulemaking (‘‘SNPR’’) published on NPR announced the substance of response to the NPR, the Workshop November 18, 1994.19 All such proposed labeling requirements and a transcript, and the post-Workshop information (i.e., the written comments proposed rule implementing section comments, it would publish an SNPR. and Workshop transcript) was placed on 406(a)’s mandate. In that NPR, the The SNPR would propose the text of a the public record of this proceeding. Commission invited interested persons labeling rule and allow the public an The discussion below includes to submit written comments on any opportunity to comment on the revised information from all five sources, as issue of fact, law or policy that might labeling proposal. have bearing upon the proposed well as documents placed on the public E. Supplemental Notice of Proposed 20 labeling requirements. In response, the record by the Commission’s staff. The Rulemaking Commission considered all these Commission received 37 written materials in developing this final comments addressing the Commission’s The Commission considered written labeling rule. proposal. The comments responding to comments on the public record, the the NPR were summarized in the Workshop transcript,30 and staff A. The Commission’s ANPR Commission’s SNPR. submissions in developing a revised In its ANPR, the Commission sought C. Public Workshop-Conference labeling proposal, which was published in the Federal Register as the written comment on basic issues raised The Commission announced in the by section 406(a)’s mandate. Commission’s SNPR. The SNPR NPR that its staff would conduct a announced modifications to the Accordingly, it requested comment on Workshop to afford staff and interested issues relating to which fuels and Commission’s initial labeling proposal parties an opportunity to discuss issues and the specific language of a proposed vehicles should be covered by the raised in the rulemaking proceeding.23 labeling requirements (i.e., the proposed labeling rule. The Commission invited The Workshop was not intended to interested persons to submit written rule’s scope), and what information achieve a consensus of opinion among should be required to be displayed on participants or between participants and 26 labels (i.e., the proposed rule’s Lois E. Bennett, GM; Timothy D. Davis, Commission staff with respect to any Columbia Gas (representing AGA/NGVC); Robert issue. Instead, its purpose was to Graham and Peter Morman, CAS; Marcel L. 16 Id. Commission staff consulted with staff from examine publicly areas of significant Halberstadt, AAMA; Nancy L. Homeister, Ford; DOE, EPA, and DOT’s National Highway Traffic Evan W. Johnson, MC-MD (representing NACAA); Safety Administration while developing its initial controversy or divergent opinions that Martin S. Karl, Boston Edison; Allen R. Larson, and supplemental labeling proposals. were raised in the written comments. Esq., Larson and Curry (representing Boston 17 58 FR 64914. Twenty-one interested parties timely Edison); Paul McArdle, DOE; Denise McCourt, API; 18 59 FR 24014. submitted written requests to participate Patrick O’Connor, Kent & O’Connor (representing 19 59 FR 59666. 24 NAFA); Larry D. Osgood, Phillips 66 Propane in the Workshop. Twenty of those Company (representing NPGA); Robert E. Reynolds, 20 Commission’s Rulemaking Record No. parties filed written comments as R311002. Comments submitted in response to the Downstream Alternatives, Inc. (representing RFA); 25 SNPR are coded either ‘‘I’’ (indicating that they required, and all twenty were invited Glyn Short, AMI; Lisa A. Stegink, Esq., Neal Gerber were filed by nongovernmental parties) or ‘‘J’’ to participate. Two parties (Chrysler and & Eisenberg (representing EMA); Jaime C. Steve, (indicating that they were filed by governmental Greenpeace) subsequently elected not to UCS; Lance Watt, Flxible; Ellen S. Young, Esq., Van agencies). Written comments submitted in response Ness Feldman (representing ETC); Kenneth L. to prior Federal Register notices are coded either Zerafa, EPA. Philip J. Harter, Esq., served as the 21 ‘‘D’’ or ‘‘E’’ (in response to the ANPR) or ‘‘G’’ or ‘‘H’’ 58 FR 64914, 64915. Workshop’s moderator. (in response to the NPR). Written requests to 22 59 FR 24015–24017. 27 The NPR announced that the Workshop would participate in the Workshop are coded ‘‘A.’’ The 23 59 FR 24014, 24020. take place over two days, but the participants Workshop transcript is filed in category ‘‘L.’’ 24 AAMA, A–2 (on behalf of AAMA, Chrysler, concluded discussing the agenda staff had prepared Information placed on the public record by Ford, and GM); AGA/NGVC, A–8; AMI, A–10; API, in one day. As a result, the Workshop’s second day Commission staff is coded ‘‘B.’’ A–12; Boston Edison, A–16; CAS, A–14; DOE, A– was cancelled. (Tr.), 238. In this notice, comments are cited by identifying 1; Eckert Seamans Cherin & Mellott, A–17 (on 28 59 FR 24014, 24023. the commenter (by abbreviation), the comment behalf of unidentified clients in the automotive 29 AAMA, AGA/NGVC, Boston Edison, CAS, number, and the relevant page number(s), e.g., industry); EMA, A–3 (request submitted by Neal EMA, Flxible, NPGA, and RFA. ‘‘RFA, I–3, 1–3.’’ Supplemental comments filed Gerber & Eisenberg); ETC, A–11 (request submitted 30 Two commenters endorsed the Commission’s after the Workshop are designated as (Supp.), e.g., by Van Ness Feldman); EPA, A–9; Flxible, A–6; reliance on the Workshop transcript in its ‘‘RFA (Supp.), G–5, 1.’’ Discussion in the Workshop Greenpeace, A–18; NACAA, A–7; NAFA, A–13 preparation of the SNPR. See API, I–15, cover letter is cited by identifying the party, a reference to the (request submitted by Kent & O’Connor, Inc.); at 3 (‘‘We believe the issues expressed in the July transcript, and the relevant page number(s), e.g., NPGA, A–5 (on behalf of NPGA and Phillips 66); [Workshop] were fairly addressed by the FTC in its ‘‘EPA (Tr.), 184.’’ Staff submissions are cited by RFA, A–4 (request submitted by Downstream [SNPR].’’); RFA, I–3, 2 (‘‘We believe that the identifying the document number, relevant page Alternatives, Inc.); UCS, A–15. changes reflected in the revised final rule were number(s), and document date, e.g., ‘‘B–13, 3, Jan. 25 The law firm Eckert Seamans Cherin & Mellott justified based on written comments and the 25, 1994.’’ did not file a written comment. information covered at the public workshop.’’). 26928 Federal Register / Vol. 60, No. 97 / Friday, May 19, 1995 / Rules and Regulations

comments until December 19, 1994, believed that the Commission could and (4) that a ‘‘simple card’’ describing addressing any issue they believed model such a requirement on an factors consumers should consider might bear upon the proposed rule. As existing EPA regulation directing before acquiring an AFV be placed described below, the Commission automobile dealers to make available within new and used vehicles.44 received 24 written comments in free copies of EPA’s Gas Mileage Guide B. Labeling Requirements for Alternative response to its SNPR from vehicle (a booklet comparing the fuel economy manufacturers,31 fuel producers,32 of similarly-sized new automobiles).38 Fuels governmental entities,33 a consumer Such a requirement does not appear to 1. Scope of the Labeling Requirements organization,34 organizations be reasonably within section 406(a)’s In the SNPR, the Commission representing affected interests,35 and scope, which is limited to uniform proposed that the scope of its labeling other interested individuals.36 labeling requirements. In any event, the requirements extend to three non-liquid Commission notes that EPA’s regulation III. Labeling Requirements Proposed in alternative fuels: compressed natural gas was promulgated pursuant to a specific the SNPR (‘‘CNG’’), hydrogen gas (‘‘hydrogen’’) Congressional directive that EPA require and electricity.45 One comment A. Comment Suggestions Beyond dealers to provide such information to addressed this aspect of the Commission’s Authority Under EPA 92 consumers.39 In the absence of a similar Commission’s proposal.46 For safety As noted previously, section 406(a) Congressional directive, the Commission believes that such a reasons, that comment recommended directs the Commission to establish that the Commission limit the scope of labeling requirements for alternative requirement may be beyond its 40 the rule to alternative fuels that have fuels and AFVs disclosing cost and authority under EPA 92. For similar reasons, the Commission been tested and approved for use by benefit information. Because this 47 has also concluded that requiring any of EPA. The Commission notes that EPA rulemaking proceeding is mandated by 92 specifically defines the term statute, the Commission’s authority is the following may exceed its authority under EPA 92: (1) labeling for ‘‘alternative fuel’’ to include the three limited to what is authorized by EPA 92. 48 41 fuels at issue; and because they are During this proceeding, however, conventional fueled vehicles; (2) that information on AFV labels be provided readily available, DOE identifies them several commenters suggested and encourages their use in its regulatory options that are beyond the to consumers (in a non-label format) at the time an AFV is offered for sale; 42 (3) literature.49 Furthermore, other than Commission’s statutory authority emission certification procedures, EPA because they involve matters other than that ‘‘all pertinent information’’ (e.g., fuel hazards, tank capacity, refueling or has no procedures for certifying fuels as labeling requirements, alternative fuels being safe for use. or AFVs, and cost and benefit recharging time, and cruising range) be disclosed in vehicle owners’ manuals; 43 The Commission’s SNPR proposal information. was limited to non-liquid fuels because For example, several commenters the Commission’s Fuel Rating Rule suggested that the Commission require AFV dealers and conversion companies to provide copies of the DOE package to consumers, and that contains labeling requirements for AFV dealers to have copies of the DOE consumers acknowledge receipt by signing a liquid alternative fuels. Further, the brochure available for consumer designated sales document. CAS, G–17, 7; (Tr.), Commission proposed requirements for inspection and use.37 These commenters 174; (Supp.), G–17, 4. See also CAS, I–12, 1 (FTC should ‘‘encourage availability’’ of DOE brochure at the non-liquid fuels that are similar to AFV dealerships). CAS also proposed that the AFV 31 Ford Motor Company (‘‘Ford’’), I–4; Electro the Fuel Rating Rule’s requirements for label advise consumers that a free copy of the DOE Automotive (‘‘Electro Auto’’), I–7; Toyota Motor liquid alternative fuels. Although that brochure is available from the dealer. CAS (Supp.), Corporation (‘‘Toyota’’), I–11; Chrysler Corporation G–17, 4. ETC also suggested, however, that dealers rule serves a somewhat different (‘‘Chrysler’’), I–13. would find it in their interest to have the DOE purpose,50 the Commission believes that 32 Mobil Oil Corporation (‘‘Mobil’’), I–2; Unocal brochures available to consumers. ETC (Tr.), 168. Corporation (‘‘Unocal’’), I–5; Commercial harmonizing labeling requirements, 38 40 CFR 600.401–77 to 600.407–77 (1993). Electronics NGV Systems Division (‘‘Comm Elec’’), 39 I–8; Boston Edison and Edison Electric Institute See 15 U.S.C. 2006(b)(2) (‘‘The EPA that will be considered when this proceeding is (submitted by Larson and Curry) (‘‘Boston Edison/ Administrator * * * shall prescribe rules requiring completed. dealers to make available to prospective purchasers EEI’’), I–14. 44 AAMA, I–16, 6. [fuel economy information] compiled by the EPA 33 U.S. Department of Energy (‘‘DOE’’), J–1; City 45 Administrator under paragraph (1).’’). These are the only non-liquid fuels defined as of Chicago, Illinois (‘‘Chicago’’), J–2; California Air ‘‘alternative fuels’’ in EPA 92. 42 U.S.C. 13211(2) 40 The Commission notes, however, that a DOE Resources Board (‘‘CARB’’), J–3; U.S. Department of (Supp. IV 1993). official at the Workshop stated that DOE would Energy, Energy Information Administration, Energy 46 consider distributing copies of the information Five other comments generally supported all End Use and Integrated Statistics Division (‘‘EIA/ aspects of the Commission’s alternative fuels EEU-ISD’’), J–4; U.S. Department of Transportation, package to AFV dealerships. DOE (Tr.), 227–28. In labeling proposal without addressing this specific National Highway Traffic Safety Administration its comment, RFA wrote to ‘‘encourage some formal issue. Boston Edison/EEI, I–14, 4; Chicago, J–2, 2– (‘‘DOT/NHTSA’’), J–5. review process’’ of that brochure by industry. RFA, 3; DOE, J–1, 2; EIA/EEU–ISD, J–4, 1; RFA, I–3, 2. 34 Center for Auto Safety (‘‘CAS’’), I–12. I–3, 2. 41 In addition, comments on an earlier Commission 35 AGA/NGVC, G–6, 11 (requiring disclosures Renewable Fuels Association (submitted by proposal similarly supported limiting the scope of Downstream Alternatives, Inc.) (‘‘RFA’’), I–3; only for AFVs could unnecessarily raise consumer concerns about these products). this proceeding to non-liquid alternative fuels. API, Engine Manufacturers Association (submitted by G–25, 1–3; CEC, H–8, 1–6; Mobil, G–2, 1–3; NAFA, 42 NAFA, I–10, 2; G–20, 2 (‘‘For example, when Neal Gerber & Eisenberg) (‘‘EMA’’), I–6; Electric G–20, 1; NPGA, G–18, 2–3; Phillips 66, G–15, 1; a representative of a conversion company meets Transportation Coalition (submitted by Van Ness RFA (Supp.), G–5, 1; SIGMA, G–23, 1; Sun, G–1, 1. with a consumer to offer to convert a vehicle, the Feldman) (‘‘ETC’’), I–9; National Association of 47 Fleet Administrators, Inc. (‘‘NAFA’’), I–10; representative would provide the consumer with Chicago, J–2, 2–3. American Petroleum Institute (‘‘API’’), I–15; the appropriate information in a format similar to 48 42 U.S.C. 13211(2) (Supp. IV 1993). American Automobile Manufacturers Association the vehicle label.’’). NAFA based this suggestion on 49 U.S. Dep’t of Energy, Taking An Alternative (‘‘AAMA’’), I–16; American Gas Association and its concern that consumers would not always be Route, B–33. Natural Gas Vehicle Coalition (‘‘AGA/NGVC’’), I– able to inspect labels prior to acquisition. Id. 50 The purpose of the EPA 92 amendments to 18; Natural Gas Vehicle Producers Association 43 NACAA, H–6, 2. The Commission also believes Title II of the Petroleum Marketing Practices Act, (‘‘NGVPA’’), I–19. that one suggestion (that it develop an information 15 U.S.C. 2821–2825, was to give purchasers 36 E. A. Mechtly, Ph.D., Engineering Educator, bulletin discussing pertinent considerations), while information they need to choose the correct type or University of Illinois (‘‘Mechtly’’), I–1; Louis F. not beyond its authority, may not be necessary grade of fuel for their vehicles. 58 FR 41356. Sokol, CAMS, Metrification Consultant (‘‘Sokol’’), because of DOE’s mandate to complete the same Section 406(a)’s purpose is to provide consumers I–17. task. CEC, H–8, 1–2, 6; NAFA, G–20, 3. In any with appropriate cost and benefit information to 37 ETC, G–24, 6; NAFA, G–20, 3–5; NPGA (Tr.), event, the Commission normally issues consumer enable them to make informed choices among 188–89. CAS suggested that the Commission require education materials after new rules are issued, and alternative fuels and AFVs. 59 FR 59666. Federal Register / Vol. 60, No. 97 / Friday, May 19, 1995 / Rules and Regulations 26929

when practicable, is appropriate. Thus, proposals are analogous to provisions in that is not suitable for use as a the Commission’s SNPR proposal had the Fuel Rating Rule pertaining to liquid transportation fuel is not inadvertently the effect of imposing labeling alternative fuels.58 In the SNPR, the sold for that purpose. Although CNG requirements on non-liquid alternative Commission tentatively concluded that sold as a transportation fuel must fuels that are similar to those that its proposal to require disclosure of the always meet minimum vehicle needs, currently exist for liquid alternative minimum methane content of CNG information about minimum methane fuels. would assist consumers in purchasing content could help assure consumers After considering the record, the CNG that satisfies requirements that the CNG they are purchasing will Commission has determined that the specified by engine manufacturers to meet their engines’ needs.62 scope of the rule shall be limited to the meet performance and emissions The Commission also recognized that non-liquid alternative fuels CNG, certification levels.59 The Commission electricity used for recharging electric hydrogen and electricity.51 This will also concluded that its proposal would vehicle (‘‘EV’’) batteries might need to result in equal, uniform, fuel-neutral be consistent with the Fuel Rating be subject to different labeling labeling requirements for all alternative Rule’s requirements for liquid disclosures.63 Accordingly, for fuels that are currently used or alternative fuels,60 and would assist electricity, the SNPR proposed requiring contemplated for use as automotive consumers in identifying the proper fuel that labels on public electric vehicle fuels. Further, in accordance with for their vehicles. The Commission fuel dispensing systems include the section 406(a)’s directive to review the further noted that because CNG exists commonly used name of the fuel, rule ‘‘periodically to reflect the most with too low a methane content to be kilowatt capacity, voltage, current recent available information,’’ 52 the used as a transportation fuel,61 requiring (either AC or DC), amperage and type of Commission will supplement the list of disclosure of the minimum methane charger (either conductive or covered fuels if and when DOE content would help ensure that CNG inductive).64 In the SNPR, the designates new non-liquid fuels as Commission tentatively concluded that alternative fuels.53 contains as many elementary entities as there are such disclosures were the minimum atoms in 0.012 kilogram of carbon 12. When the operating parameters that would be 2. Label Disclosures for Non-liquid mole is used, the elementary entities must be Alternative Fuels specified and may be atoms, molecules, ions, necessary to protect consumers electrons, other particles, or specified groups of operating the equipment, the vehicles a. SNPR proposals. In the SNPR, the such particles.’’ ‘‘The International System of Units whose batteries would be charged, as Commission proposed that retailers (SI),’’ NIST Special Publication 330 (1991 edition), well as the charging equipment.65 selling CNG, hydrogen and electricity to August 1991, U.S. Department of Commerce, National Institute of Standards and Technology Sixteen comments addressed the consumers post standard labels issues raised in the SNPR. Five identifying the commonly used names (hereinafter ‘‘NIST Publication 330’’), B–43, 4–5. 58 16 CFR 306.10(b)(1) and 306.10(f) (1994). comments generally supported the of those fuels on public fuel dispensers 59 59 FR 59666, 59671. See AAMA (Tr.), 37, 62 Commission’s proposals in their entirety (including electric dispensers used to (label should identify the fuel), 81 (at this time a because if adopted, the proposals would recharge batteries in electric vehicles).54 minimum methane content disclosure is appropriate); Flxible (Tr.), 74, (Supp.), G–12, 2 provide appropriate and useful The labels would be placed information to consumers attempting to conspicuously in full view of consumers (dispensers for CNG should be labeled with the minimum methane content due to the requirements make alternative fuel purchasing (i.e., ultimate purchasers) and as near as dictated by some engine manufacturers to meet decisions.66 The remaining eleven reasonably practical to the fuel’s unit performance and emissions certification levels); comments are discussed in the price disclosure. No comments were RFA, G–5, 3; Sun, G–1, 1. 60 following section and in section III(B)(3) submitted regarding this facet of the 59 FR 59666, 59671. See API, G–25, 1–3 (until a private, voluntary, consensus standards infra. SNPR proposal. The Commission, organization develops specifications for alternative b. Comments on SNPR concerning therefore, has determined to adopt these fuels, additional disclosure requirements are CNG. Two comments questioned requirements in the final rule for the inappropriate; expand Fuel Rating Rule to cover whether the Commission’s SNPR 55 non-liquid alternative fuels to encourage fuel- reasons stated in the SNPR. proposal to require disclosure of the With respect to CNG and hydrogen, neutral regulatory scheme; and labeling of principal component may provide useful information to minimum methane content of CNG the Commission also proposed requiring consumers); EIA/EEU–ISD, H–2, 1 (expressed would be helpful to consumers in the disclosure of the fuel’s principal general support for the proposed rule); Mobil, G– 2, 1–3 (the proposed label is consistent with the absence of standards requiring a component and permitting disclosure of minimum methane content for CNG other components,56 expressed as Fuel Rating Rule, and no other disclosures should be required); NAFA, G–20, 1 (endorses a uniform vehicle fuel.67 The Commission believes minimum molecular percentages labeling requirement for alternative fuels); NPGA, 57 G–18, 2–3 (extremely important that all alternative (‘‘minimum mole percent’’). These 62 59 FR 59666, 59671. fuels be subject to essentially identical 63 Unlike the other alternative fuels, the electricity 51 See 59 FR 59666, 59669–59670 for a general requirements, and the Commission’s proposal is sufficient under the statutory requirements), (Tr.) used to recharge the batteries that power electric description of the qualities of the alternative fuels vehicles is not dispensed from a conventional fuel covered by the final rule. 48–49 (issue is how to get the consumer to the correct pump, and in that respect, the orange labels pump. It is dispensed from an electrical dispenser 52 42 U.S.C. 13232(a) (Supp. IV 1993). for liquid alternative fuels do an effective job); or recharging station and produces different 53 The Secretary of the Department of Energy has Phillips 66, G–15, 1; RFA, G–5, 2–3 (the benefit of physical effects depending on the type of dispenser the responsibility to designate, by rule, new fuels providing additional information beyond that or charging equipment through which it is as alternative fuels. 42 U.S.C. 13211(2) (Supp. IV proposed is not well established), (Tr.), 28, 31, 38, dispensed. Therefore, the Commission recognized 1993). (Supp.), G–5, 1 (the current labeling requirements that electricity used as a vehicle fuel might have to 54 See proposed rule §§ 309.1(q) and 309.15, 59 for alternative fuels under the Fuel Rating Rule are be rated in accordance with the characteristics of FR 59666, 59704, 59706. adequate and the same labeling requirements the specific electrical dispenser or recharging 55 59 FR 59666, 59671–59672. should be extended to gaseous fuels); SIGMA, G– station. 56 CNG vehicle fuel is composed primarily of 23, 1 (supports the proposed requirements and 64 See proposed rule §§ 309.1(q)(2) and 309.15, 59 methane with small percentages of ethane, propane, urges the Commission to adopt the proposed rule FR 59666, 59704, 59706. butane, nitrogen, helium, carbon dioxide and without change); Sun, G–1, 1–2 (agrees with the 65 The specific bases for the Commission’s SNPR hydrogen sulfide. Hydrogen vehicle fuel is Commission’s proposal to extend the Fuel Rating proposal are discussed in more detail at 59 FR composed primarily of hydrogen, with very small Rule labeling requirements to non-liquid alternative 59666, 59671–59672. percentages of water, oxygen, and nitrogen. fuels thereby placing equal regulatory requirements 66 Boston Edison/EEI, I–14, 4; Chicago, J–2, 2–3; 57 Under the international system of units, ‘‘the on all alternative fuels). DOE, J–1, 2; EIA/EEU–ISD, J–4, 1; RFA, I–3, 2. mole is the amount of substance of a system which 61 See Flxible (Tr.), 74–77. 67 API, I–15, 2; Mobil, I–2, 3. 26930 Federal Register / Vol. 60, No. 97 / Friday, May 19, 1995 / Rules and Regulations that consensus standards specifying a 40 amps and 120 vac/15 amps) the inductive).74 Such disclosures will minimum methane content for CNG as Commission should require that both assist consumers in locating electric fuel a vehicle fuel would be helpful, but methods be disclosed.70 dispensers that are compatible with recognizes that they do not presently An explicit kilowatt capacity their vehicles, and in determining how exist. The Commission’s proposed disclosure is an important dispenser much time it will take for their vehicles’ labeling approach for CNG and parameter that is useful in assisting batteries to recharge. hydrogen provides a basic measure of consumers to determine immediately d. Summary. In summary, the fuel quality and, used in conjunction how quickly their vehicles’ batteries requirements for CNG, hydrogen and with the owner’s manual containing the will recharge. Although the Commission electricity will provide consumers with vehicle manufacturer’s fuel acknowledges that kilowatt capacity can the most important pieces of recommendations, it provides be calculated from the voltage/amperage information needed when refueling: fuel consumers with the information disclosure, the kilowatt capacity type and composition (or, for electricity, necessary to select the fuel on which disclosure obviates the need for other relevant parameters). Although in their vehicle has been designed to engaging in mathematical calculations the absence of such requirements sellers 68 perform. at the dispenser. The Commission has could be expected to identify the fuels Accordingly, the Commission has decided to address the issue of the sold, they may not do so in a determined that the fuel rating for CNG availability of multiple charging standardized format that assists and hydrogen must include the methods from the same dispenser by consumers in identifying the proper fuel commonly used name of the fuel and requiring in the final rule that they both quickly. Furthermore, it is uncertain the amount, expressed as a minimum be disclosed, as recommended by the absent these requirements whether molecular percentage, of the principal comment, but on separate labels on the sellers would provide information component of the fuel. The label also dispenser.71 regarding the precise composition of the may include a disclosure of other Another comment recommended that fuels, or relevant parameters of the EV components as minimum molecular fuel dispenser. percentages, if desired.69 This rating the Commission’s amperage disclosure approach will provide consumers with on the label be expressed as an ‘‘A’’ 3. Label Disclosures Considered but not information necessary to make informed instead of by the word ‘‘amps,’’ as Adopted in Final Rule proposed.72 The Commission has fuel purchasing decisions. It also will In addition, the Commission concluded, however, that use of the provide fuel producers and marketers concludes that other information on the word ‘‘amps’’ on the label, because it is with the flexibility to develop and blend fuel dispenser concerning alternative more descriptive than an ‘‘A,’’ may fuels appropriate for location and fuels is unlikely to be useful in most make consumers more familiar with the climate, consistent with United States instances. For consumers with electricity refueling infrastructure and, Environmental Protection Agency and dedicated AFVs (i.e., vehicles capable of therefore, be more useful in assisting original equipment manufacturer operating on only one fuel), the consumers to locate the correct requirements. The Commission’s action, selection process between competing electricity dispenser. Finally, one therefore, will assist in the development fuels is concluded once an AFV is comment suggested that the efficiency and use of non-liquid alternative fuels acquired. Consumers driving dual or of electric vehicle chargers is a and alternative fueled vehicles. flexible fueled vehicles (i.e., vehicles parameter that perhaps should c. Comments on SNPR concerning capable of being powered both by a eventually appear on charger labels electricity. The Commission proposed in conventional and an alternative fuel) once standardized test procedures are the SNPR that the electric recharging will be limited to purchasing fuels developed to determine efficiency.73 station label disclose the voltage at meeting their engines’ requirements. which electrical power is supplied by The Commission notes that electric Thus, providing consumers with other the electric charging equipment, the vehicle chargers are not 100 percent information designed to permit maximum current in amperes that can efficient. Some energy is lost to heat in comparisons among various types of be delivered, whether the charging the process of converting the energy that alternative fuels is best done prior to the equipment supplies alternating or direct is supplied to the charger to a form that time the vehicle is acquired. current, whether the unit is a is usable by the vehicle battery. The Further, excluding less important conductive charger (a plug on a cord) or Commission will monitor the information avoids information an inductive charger (a paddle in a port development of standardized test overload. In contrast to vehicle system), and the kilowatt capacity of the procedures to determine electric vehicle purchases, fuel purchases typically charging equipment to tell consumers charger efficiency, and consider occur in a quick transaction. In a report how quickly their vehicles can recharge. including this factor when more to Congress assessing the need for a Three comments specifically related to information becomes available. these proposals. One comment uniform national label on fuel pumps, Accordingly, after considering the the Commission noted that time questioned the need for a kilowatt comments on its SNPR proposal, the capacity disclosure since consumers constraints may affect how consumers Commission has determined that labels 75 could derive it from the proposed read, understand, and use information. on public electric vehicle fuel Indeed, ‘‘studies show that less accurate voltage/amperage disclosure for dispensing systems shall include the electricity dispensers. The comment information processing occurs under commonly used name of the fuel (e.g., time constraints; test subjects focus on also recommended that when two electricity), kilowatt capacity, voltage, charging methods are available from the fewer pieces of information and unduly current (either AC or DC), amperage and 76 same electricity dispenser (e.g., 240 vac/ emphasize negative information.’’ type of charger (either conductive or Simplicity therefore is an even greater 68 Although at present CNG vehicles apparently 70 are designed to run on the broad range of methane Toyota, I–11, 2. 74 See final rule §§ 309.1(q)(2) and 309.15 infra. content in available vehicle CNG, in the future 71 See proposed rule § 309.15, 59 FR 59666, 75 Federal Trade Commission, Study of a Uniform manufacturers may design vehicles favoring 59706, and final rule § 309.15 infra. National Label for Devices That Dispense specific, higher methane contents. 72 Sokol, I–17, 1. Automotive Fuels to Consumers (1993), at 29. 69 See final rule §§ 309.1(q)(1) and 309.15 infra. 73 CARB, J–3, 1. 76 Id., at 29 n.152. Federal Register / Vol. 60, No. 97 / Friday, May 19, 1995 / Rules and Regulations 26931 consideration in the labeling of fuels relevant to vehicle performance of gasoline-gallon-equivalents.83 than in the labeling of AFVs. alternative fueled vehicles.80 In Accordingly, for the reasons stated in In formulating its labeling addition, the octane ratings of a given the SNPR, the Commission is not requirements, the Commission sought to type of alternative fuel would not vary requiring such disclosures on fuel reconcile several competing concerns. significantly.81 Further, there might be dispenser labels.84 As noted previously, EPA 92 directs the practical problems in implementing a c. Performance effects (cruising Commission to develop uniform labels reliable octane certification and posting range). In the SNPR, the Commission disclosing appropriate cost and benefit program for alternative liquid considered and rejected a proposal that information. However, in determining automotive fuels, because of the lack of the Commission require fuel dispenser what information is appropriate, the a standardized test method, such as an labels to advise consumers that the Commission must consider the ASTM-approved test method for cruising range of a vehicle when problems associated with developing determining octane ratings of such running on an alternative fuel will be and publishing such information on fuels.82 less than when the vehicle is running on simple labels. Given this context, and gasoline, due to the alternative fuel’s after considering the comments, the There also are significant disadvantages to requiring octane lower energy content. In response to the Commission considered and rejected in SNPR, the one comment addressing this posting and certification for alternative the SNPR several alternative disclosures issue supported the Commission’s fuels. In particular, the Commission is for dispenser labels suggested by position, opposing a requirement that reluctant to require a disclosure that various comments. The SNPR generated dispenser labels include performance might mislead consumers about the additional comments, however, as effects of the non-liquid alternative benefits of alternative fuels, the octane discussed below. An analysis of these fuel.85 Accordingly, for the reasons ratings of which exceed those of comments has not persuaded the stated in the SNPR, the Commission is Commission to require any of the gasoline. Further, it might foster not requiring disclosure of performance previously rejected disclosures. consumer misperceptions that higher effects as an element of fuel dispenser a. Octane rating. In the SNPR, the octane necessarily signifies higher labels.86 Commission rejected a proposal that it quality and better performance. Such a However, the Commission recognizes require the posting of octane ratings for disclosure also might cause consumers that information relating to cruising non-liquid alternative fuels. Three to believe that gasoline and alternative range would be useful to consumers comments were submitted in response fuels are interchangeable, or that when choosing a vehicle or deciding to that tentative determination in the different alternative fuels are whether to convert an existing vehicle SNPR. To prevent commercial, heavy- interchangeable with one another. duty vehicle and fleet operators from to an alternative fuel. Therefore, the misfueling and experiencing related b. Comparative information based Commission has determined that problems, EMA recommended that the upon BTUs or gasoline-gallon- information relating to cruising range Commission require the posting of equivalents. In the SNPR, the would be appropriate on labels it is octane ratings for all non-liquid Commission considered but rejected requiring for covered AFVs, as alternative fuels.77 Due to the variability proposals that the Commission require discussed in section III(C) infra. in the fuel quality of natural gas, the use of alternative fuel labels that d. Compliance with material Commercial Electronics recommended either: (1) advise consumers of the price specifications. In the SNPR, the that the Commission require disclosure of an alternative fuel and the quantity of Commission rejected a proposal that it of CNG’s octane rating.78 API, however, the alternative fuel dispensed in terms require that dispenser labels indicate stated that the non-liquid alternative of gasoline-gallon-equivalent (‘‘GGE’’) whether the fuel meets the alternative fuel dispenser labels should not include units based on the energy contents of fuel specifications defined by the octane ratings.79 the alternative fuels, or (2) identify the California Air Resources Board in After considering the comments heating value or energy content of a fuel submitted, the Commission has expressed in British thermal units 83 API, I–15, 1; Mobil, I–2, 2 (In summary, determined not to require the posting of (‘‘BTUs’’). In response to the SNPR, the comparative type cost data are not conducive to fuel octane ratings for CNG and hydrogen. two comments addressing this issue labeling. Labels that provide consumer information supported the Commission’s position, already exist today in the form of pricing To the extent that commercial fleet information that enables consumers to make operators have their own fueling recommending that the Commission not choices and comparisons as required by section 406 facilities, they can specify a required adopt a labeling approach that would of EPA 92. The National Conference on Weights and octane rating and insist in contracts require disclosure of comparative Measures is currently in the process of setting the measurement standard for alternative fuels. A with their suppliers that they determine information based upon BTUs or uniform unit of measure, such as the gasoline such rating by an agreed method for the equivalent gallon, will provide consumers fuel purchased. Commercial operators 80 59 FR 59666, 59673. See AGA/NGVC, I–18, additional economic information helpful in making might also obtain such information if, Attachment at 8 (The antiknock performance of informed purchasing decisions). natural gas is best for pure methane or methane/ 84 59 FR 59666, 59673–59674 (e.g., GGE for example, it were posted voluntarily inert gas mixtures, and declines somewhat with disclosures are not conducive to keeping the fuel on fuel dispensers. Generally, however, increasing concentrations of non-methane label simple, as required by EPA 92; this as explained in the SNPR, the hydrocarbons. This effect is not usually significant information is more an equipment metering issue Commission concludes that octane for the typical range of pipeline gas composition, that is more properly addressed by weights and but may become important [in the future] in high- measures organizations; the energy content of a ratings for alternative fuels are high compression engines burning unprocessed gas or fuel, as measured by its BTU rating, does not always enough to avoid engine knock problems propane-air mixtures). accurately reflect actual fuel economy). in vehicles presently designed to use 81 AGA/NGVC, G–6, 5–6 (octane levels for natural 85 API, I–15, 1. alternative fuels, and such ratings do gas are not likely to vary at different retailers); and 86 59 FR 59666, 59674 (e.g., cruising range is not not provide significant information Phillips 66/NPGA (Tr.), 49–50. necessarily less when operating on an alternative 82 AGA/NGVC, I–18, Attachment at 8 (no standard fuel; a general statement on a fuel dispenser label octane testing methods exist for natural gas); relating to cruising range would not provide 77 EMA, I–6, 2–4. Phillips 66/NPGA (Tr.), 49–50 (there are no sufficient comparative information to consumers to 78 Comm Elec, I–8, 2–7. standards for determining the octane ratings of CNG enable them to make reasonable purchasing choices 79 API, I–15, 1. or hydrogen). and comparisons between fuels of the same type). 26932 Federal Register / Vol. 60, No. 97 / Friday, May 19, 1995 / Rules and Regulations

1993.87 In rejecting the proposal, the expertise to set such specifications and the Commission require that CNG Commission stated, in part, that standards for nationwide use. This type dispenser labels indicate the nozzle type California’s specifications were not of standards development would and corresponding fill pressure of the developed by a consensus process, were include participation by affected parties CNG dispenser, to avoid consumer developed for California’s particular such as alternative fuel producers and inconvenience at the CNG fueling site.95 needs and, therefore, may not be providers, engine manufacturers, The Commission agrees that fueling practical for the rest of the country.88 In regulators, consumers, and pressure is useful information. The the SNPR, the Commission also rejected organizations or government agencies industry, however, already has taken a proposal that CNG dispenser labels with pertinent technical expertise. It independent steps to address this issue. indicate whether the fuel meets the also would provide a mechanism for Specifically, the industry has developed Society of Automotive Engineers’ evaluating proposed test methods and standards for pressure coding dispenser/ (‘‘SAE’’) ‘‘recommended practice’’ for procedures necessary to determine vehicle CNG connectors so that CNG called J1616. In rejecting that compliance with the standards. The consumers will not be able to overfuel proposal, the Commission stated that Commission will monitor the a low pressure vehicle from a high recommended practice SAE J1616 was development of alternative fuel pressure dispenser.96 Further, the use of issued as a guide to address the standards and consider including them standard CNG vehicle fueling composition of natural gas used as an as an element of the dispenser labels connectors complying with the ANSI/ automotive fuel, not as a standard for when more information becomes AGA NGV1 specification is required at CNG. The guide states it anticipates that available. public dispensing points by National a CNG standard will evolve, but e. Environmental benefits (emissions). Fire Protection Association safety emphasizes that experience and more In the SNPR, the Commission standard 52 (‘‘NFPA 52’’), which is a technical knowledge are needed.89 considered and rejected a proposal that fire code adopted by most, if not all, Three comments responded to those the Commission require fuel dispenser states.97 Accordingly, the Commission determinations in the SNPR. These labels to generally advise consumers of has determined that requiring the comments stated that inasmuch as the environmental benefits of alternative disclosure of fueling pressure and consistent fuel quality is required to fuels.91 In response to the SNPR, the one nozzle type on CNG dispenser labels is ensure proper vehicle operation, comment addressing this issue unnecessary at this time. including emissions control, the supported the Commission’s position.92 g. Safety warnings. In the SNPR, the Commission should require that Accordingly, for the reasons stated in Commission considered but rejected dispenser labels indicate compliance or the SNPR, the Commission is not proposing safety warnings as an element non-compliance with fuel quality requiring that fuel dispenser labels of the alternative fuel labels.98 The one specifications and refueling equipment indicate the environmental benefits of comment on the Commission’s SNPR standards, with specific references to alternative fuels.93 proposal addressing this issue each, when they are developed for CNG However, the Commission recognizes recommended that the Commission and hydrogen.90 A disclosure based on that information relating to emissions require that non-liquid alternative fuel accepted and approved fuel and the environmental benefits of dispenser labels include information specifications and standards could alternative fuels would be useful to about the fuel’s potential hazards and provide meaningful comparative consumers when choosing an limitations on use.99 information to consumers relating to the alternatively fueled vehicle or deciding The Commission notes that safety quality of the fuel they are purchasing. whether to convert an existing vehicle standards for operation of motor vehicle However, the aforementioned comments to an alternative fuel. Therefore, the fuel-dispensing stations are covered by appear to confirm that adequate, Commission has determined that the Uniform Fire Code.100 Further, to generally accepted standards and information relating to emissions would specifications suitable for nationwide be appropriate on the labels it is 95 AAMA, I–16, 8; NGVPA, I–19, 1. 96 See ANSI/AGA NGV1–1994 American National use do not presently exist for most requiring for covered AFVs, as Standard For Compressed Natural Gas Vehicle alternative fuels, and specifically do not discussed in section III(C) infra. (NGV) Fueling Connection Devices, attached to exist for CNG or hydrogen. Therefore, f. Pressure. In the SNPR, the AGA/NGVC’s comment, G–6. the Commission has determined not to Commission considered and rejected a 97 ANSI/NFPA 52 Compressed Natural Gas (CNG) require that fuel dispenser labels proposal that the Commission require Vehicular Fuel Systems, 1992, B–39. See also Stookey, An Analysis of the 1994 Uniform Fire guarantee the delivery of fuels meeting CNG dispenser labels to display the Code Requirements for CNG Fuel Stations, Nat. Gas certain specifications. fueling pressure, either 2,400, 3,000 or Fuels, June 1994, B–48, 27–30. The Commission, however, continues 3,600 P.S.I. (pounds per square inch), 98 59 FR 59666, 59675. to favor the development of and the nozzle type to indicate whether 99 EMA, I–6, 3. specifications and standards that define dispenser fueling pressure is compatible 100 For example, in July 1993, the voting membership of the Uniform Fire Code (‘‘UFC’’) and alternative fuels by a consensus with CNG vehicle tank storage Uniform Fire Code Standards adopted new 94 standards-setting organization, such as pressure. The two comments on the regulations for the design, construction and ASTM, or by a government agency with Commission’s SNPR proposal operation of CNG motor vehicle fuel-dispensing appropriate engineering and technical addressing this issue recommended that stations. The UFC voting membership is a democratic code development organization that includes fire and building officials, design 87 91 See Specifications for Compressed Natural Gas, AMI, G–3, 2; Phillips 66/NPGA (Tr.), 51. professionals, equipment manufacturers and trade Title 13, California Code of Regulations, section 92 API, I–15, 1. organizations. The UFC’s minimum requirements 2292.5 (1993), B–41; Specifications for Hydrogen, 93 59 FR 59666, 59675 (e.g., a statement on a fuel are primarily based on the requirements of NFPA Title 13, California Code of Regulations, section dispenser label advising consumers of the 52, ‘‘Standard for CNG Vehicular Fueling Systems,’’ 2292.7 (1993), B–42. environmental benefits of alternative fuels would 1992 edition. The Uniform Fire Code Standards are 88 59 FR 59666, 59674. not provide sufficient information to assist a model code that establishes requirements for 89 Society of Automotive Engineers, consumers in making choices and comparisons building and site fire protection, the safe storage ‘‘Recommended Practice for Compressed Natural between fuels of the same type). and use of hazardous materials, and the fire safety Gas Vehicle Fuel,’’ SAE J1616, B–40, 16. 94 59 FR 59666, 59675. See Flxible (Supp.), G–12, and fire protection designs of the Uniform Building 90 AAMA, I–16, 7–8; EMA, I–6, 2–4; NGVPA, I– 2; Thomas BB, G–10, 1; Phillips 66/NPGA (Tr.), 51; Code. Article 52 of the 1994 UFC addresses the 19, 1. AGA/NGVC (Tr.), 103–104. design, construction, commissioning and operation Federal Register / Vol. 60, No. 97 / Friday, May 19, 1995 / Rules and Regulations 26933 some extent, the fuel labeling pipelines and utilities monitor and Rating Rule are 3 inches wide by 21⁄2 requirements, particularly those for control closely the Wobbe number of inches long, with process black type on electric vehicle (‘‘EV’’) public dispenser natural gas. For gas distributed in most an orange background.106 Although systems, implicitly consider safety of the United States, AGA/NGVC stated section 406(a) does not specify size and issues for refueling by directing that the Wobbe number typically is format standards for alternative fuel consumers to the proper fuel dispenser. maintained between 1320 and 1360, labels, it directs the Commission ‘‘to Beyond this (and fire code requirements well within the range recommended for establish uniform labeling requirements, that are already in place), consumers natural gas vehicle fuel by SAE J1616 to the greatest extent practicable.’’ It may find safety information about (1300–1420).103 also specifies that ‘‘[r]equired labeling various fuels more pertinent when After considering AGA/NGVC’s under the rule shall be simple and, purchasing an AFV than when comment, the Commission is not where appropriate, consolidated with refueling. Thus, the Commission is not persuaded that the purported benefits to other labels providing information to persuaded that including a safety consumers of including the Wobbe the consumer.’’ 107 warning statement on a fuel dispenser number on CNG labels are sufficiently Two comments addressed this label would help consumers make significant to justify requiring its proposal. Both supported the reasonable fuel choices and disclosure. Depending on the fuel Commission’s proposal because it comparisons. The Commission has metering technology, variations in the promoted consistency in the labeling of 108 determined that rather than require that Wobbe number may slightly affect all alternative fuels. Accordingly, the safety disclosures appear on fuel engine performance and emissions. The Commission has determined to require dispenser labels, it will require a effect of variations in the Wobbe that labels for non-liquid alternative reference to DOE’s consumer number for gaseous-fueled vehicles is fuels follow the same standardized size information brochure and DOT/ similar to the effect of variations in the and format requirements as those for NHTSA’s Vehicle Safety Hotline on fuel energy content of gasoline in liquid alternative fuels under the Fuel 109 labels for covered AFVs, as discussed in conventional vehicles. Further, modern Rating Rule. Further, to keep the section III(C) infra. The DOT/NHTSA spark-ignition engines are able to labels uniform and simple, the Hotline acts as a clearinghouse and can compensate for reasonable variations in Commission is not requiring any label refer consumers to other sources where, the Wobbe number, just as they consolidation. for example, information can be compensate for variations in gasoline b. Substantiation, certification, and obtained about how to safely refuel CNG energy content due to refining recordkeeping requirements. In the SNPR, to ensure the accuracy of the vehicles. Further, the Commission differences or use of alcohol blends.104 required dispenser labels, the anticipates that a marketer’s refueling Wobbe numbers for natural gas vehicle Commission proposed substantiation, instructions, whether appearing in an fuels also appear to be high enough to certification, and recordkeeping AFV owner’s manual or on the fuel avoid engine problems in vehicles requirements for importers, producers, dispenser, will discuss or incorporate presently designed to use CNG. While refiners and distributors of gaseous relevant safety measures. However, if in the Wobbe number may be important to alternative fuels, and manufacturers and the future information demonstrates a engine manufacturers and fuel need for the Commission to require distributors of electric vehicle fuel producers as an important element of a safety-related disclosures on the dispensing systems. The Commission fuel specification, it would not appear dispenser labels, the Commission can also proposed substantiation and to provide consumers with significant revisit this issue. recordkeeping requirements for retail additional information relevant to h. Refueling instructions. In the sellers of the three non-liquid vehicle performance. Accordingly, the SNPR, the Commission considered but alternative vehicle fuels.110 Commission has determined not to The rejected proposing refueling instructions Commission based its SNPR proposal on as an element of the fuel dispenser require disclosure of the Wobbe number on CNG dispenser labels. its conclusion that the requirements are labels. No comments were submitted justified because they are rationally regarding this tentative determination. 4. Additional Requirements of Final related to the establishment of ‘‘uniform Therefore, for the reasons stated in the Rule labeling requirements’’ that provide SNPR, the Commission has determined important information to consumers.111 not to require such disclosures.101 a. Label size and format. In the SNPR, the Commission proposed that labels for As described below, several comments i. Wobbe number. In the SNPR, the addressed two aspects of the Commission considered but rejected non-liquid alternative fuels follow the same standardized size and format Commission’s proposal. The comments proposing the Wobbe number as an related to who should bear the burden element of the CNG dispenser label. The requirements as those for liquid alternative fuels under the Fuel Rating for substantiating the fuel rating for one comment addressing this issue CNG, and whether a particular ASTM recommended that the Commission Rule.105 Labels required by the Fuel require that CNG fuel dispenser labels G–18, 4; RFA, G–5, 4; SIGMA, G–23, 1; Sun, G–1, 103 Id. AGA/NGVC had previously opposed a include the fuel’s Wobbe number, a 2; Thomas BB, G–10, 2). Wobbe number disclosure, stating it would be so 106 measure of its air-fuel metering difficult to explain that consumers would not find 16 CFR 306.12 (1994). properties.102 Although AGA/NGVC it useful (AGA/NGVC (Tr.), 43). 107 In the NPR, the Commission proposed and recommended that the Commission 104 AGA/NGVC, I–18, Attachment at 5. rejected the idea of consolidating the non-liquid alternative fuel labels with other mandatory labels 105 See proposed rule § 309.17, 59 FR 59666, require disclosure of the Wobbe (59 FR 24014, 24018). The one comment addressing 59706–59707. Several comments received during number, it also pointed out that all gas this issue agreed that consolidation would appear this proceeding had recommended that labels for to provide no benefit and would only lead to public non-liquid alternative fuels follow the same size confusion (TVA, H–5, 1). of all motor vehicle fuel-dispensing stations. See and format requirements as those for liquid 108 Stookey, An Analysis of the 1994 Uniform Fire alternative fuels under the Fuel Rating Rule. The API, I–15, 4; Mobil, I–2, 5. Code Requirements for CNG Fuel Stations, Nat. Gas reasons given for keeping the requirements the 109 See 59 FR 59666, 59676. See also final rule Fuels, June 1994, B–48, 27. same were: to promote consistency, fairness and § 309.17 infra. 101 59 FR 59666, 59675 (e.g., this information can equity, and to keep information simple so that 110 See proposed rule §§ 309.10–309.16, 59 FR be expected to be provided voluntarily). consumers can easily understand the labels (AGA/ 59666, 59704–59706. 102 AGA/NGVC, I–18, 8–11. NGVC, G–6, 8; API, G–25, 4; Mobil, G–2, 4; NPGA, 111 See 59 FR 59666, 59676–59679. 26934 Federal Register / Vol. 60, No. 97 / Friday, May 19, 1995 / Rules and Regulations test method for determining the recordkeeping requirements be imposed concludes that substantiation, minimum molecular percent of CNG only on CNG retailers since they market certification, and recordkeeping should be required. Because there were the fuel to consumers. AGA/NGVC requirements for importers, producers, no comments on the other facets of the contended that if a retailer cannot verify refiners and distributors of gaseous substantiation, certification and the fuel rating, it can insist in contracts alternative vehicle fuels, and recordkeeping provisions proposed in with its suppliers that they determine manufacturers and distributors of the SNPR, the Commission has the fuel rating. Thus, companies electric vehicle fuel dispensing systems, determined to issue them as proposed. interested in profiting from selling and substantiation and recordkeeping These requirements are explained natural gas to retailers will view the requirements for retail sellers of non- below. testing as the cost of doing business and liquid alternative vehicle fuels In the SNPR the Commission will decide whether to perform the test. (including electricity) are necessary to proposed, in part, that importers, AGA/NGVC also stated, though, that in ensure that the information posted on producers and refiners of natural gas some cases local utilities will be heavily labels on retail fuel dispensers is comply with the proposed rule’s CNG involved in the marketing and selling of accurate. The Commission is not fuel rating determination, certification natural gas transportation fuel. In those persuaded that retail sellers of CNG are and recordkeeping requirements, which instances, AGA/NGVC recommends that in a position to be held exclusively includes determining and certifying the the Commission require such responsible for determining the minimum percentage of methane in distributors to determine and certify the accuracy of the fuel rating to be natural gas.112 The Commission based fuel rating of the natural gas they disclosed on the CNG dispenser labels. its proposal on its conclusion that it supply.116 Unocal commented that the The Commission believes that the rule’s would be impractical, and probably Commission should permit natural gas requirements are consistent with current more expensive to the consumer, to retailers to rely on their suppliers industry practice of conforming natural require retail sellers to test each delivery (distributors/utilities) for fuel rating gas to minimum specifications for of a gaseous fuel. In making disclosures certifications to substantiate the transport. But, the Commission believes to consumers, retail sellers of alternative information displayed on the CNG that the comments from Unocal, API fuels, therefore, could rely on the dispenser labels.117 and AGA/NGVC could be addressed by accuracy of the information provided to In response, the Commission notes further clarifying that the Commission’s them from gaseous fuel importers, that information about the methane rule does not apply to producers of producers, refiners and distributors. content of natural gas would be useful natural gas for residential, commercial Three comments recommended that to distributors who blend natural gas and industrial purposes. Thus, the rule’s the Commission not impose such and transfer it as natural gas vehicle fuel rating determination, certification requirements on importers and fuel, because they could use such and recordkeeping requirements apply producers of natural gas because the information in determining and to producers of natural gas only when requirements would be overly thereafter certifying its fuel rating.118 transferred for use as a vehicle fuel. In burdensome, and do not reflect current The Commission notes further that, in this regard, the Commission expects that industry practice in the distribution of most cases, it is necessary to upgrade natural gas producers may wish to take natural gas.113 According to the natural gas to pipeline specifications in reasonably prudent precautions to comments, producers of natural gas a gas processing plant before injecting it ensure that their customers understand currently adhere to a heating value into the transportation and distribution the limited use for which the gas is specification as required by their network. In order to assure consistent being transferred, if they determine that customers (i.e., local natural gas combustion behavior, major natural gas the rule does not apply to them. distribution companies and/or natural pipelines generally impose (1) Substantiation. The Commission’s gas utilities). Most producers currently specifications on the composition of the rule requires labeling disclosures of the do not test for or certify the methane gas they will accept for transport. These type of non-liquid alternative vehicle content of the natural gas they sell. specifications typically limit the fuel (including electricity), and of the Furthermore, the comments state that percentage of propane, butane, and minimum molecular percent (a more this information would be of little value higher hydrocarbons, and stipulate accurate description than volume of the at the retail level because natural gas acceptable ranges for the heating value, content of a gas) of the principal distributors (i.e., utilities) purchase and the Wobbe number.119 For example, component of each gaseous alternative natural gas from a multitude of water and hydrogen sulfide must be vehicle fuel and of specific, limited producers, blend it together, test it, and removed to prevent corrosion damage to information about the output of the distribute it for home and industry use, the pipeline network, and excess electric vehicle fuel dispenser system. as well as for retail sale.114 amounts of higher hydrocarbons must In accordance with the Commission’s Two of the comments recommended be removed to prevent them from advertising substantiation doctrine, that the Commission require natural gas condensing under the high pressures in which requires sellers to have a distributors/utilities to comply with the the gas transmission network. Thus, reasonable basis to support material, 120 fuel rating determination, certification although natural gas producers may not objective claims, the Commission is and recordkeeping requirements that the have to adhere to a specific minimum requiring that importers, producers, and Commission proposed for natural gas methane pipeline specification, the refiners of non-liquid alternative vehicle importers and producers.115 On the methane content of the gas likely would fuel (other than electricity) have a other hand, AGA/NGVC recommended fall within a fairly narrow range. reasonable basis, consisting of that the fuel rating determination and After considering the comments on its competent and reliable evidence, that SNPR proposal, the Commission substantiates the minimum molecular 112 See proposed rule §§ 309.10, 309.11, 309.12, percent of the principal component that 59 FR 59666, 59704–59705. 116 AGA/NGVC, I–18, 4–6. retailers must disclose on fuel dispenser 113 AGA/NGVC, I–18, 3–6; API, I–15, 1–5; Unocal, 117 Unocal, I–5, 2. I–5, 2. 118 See proposed rule § 309.13, 59 FR 59666, 120 See Thompson Medical Co., 104 F.T.C. 648, 114 Id. 59705. 839 (1984) (Appendix), aff’d, 791 F.2d 189 (D.C. 115 API, I–15, 4; Unocal, I–5, 2. 119 AGA/NGVC, I–18, Attachment at 3–4. Cir. 1986), cert. denied, 479 U.S. 1086 (1987). Federal Register / Vol. 60, No. 97 / Friday, May 19, 1995 / Rules and Regulations 26935 labels. The rule further states that For the minimum molecular percent Although the Commission has importers and producers may use content of any other component that decided not to require that non-liquid private facilities for fuel rating importers, producers, or refiners wish to alternative vehicle fuels conform to any determinations. This would be certify, the rule does not specify the test specific material specification, the important to producers who do not have procedure that must be used, but only Commission’s requirement that testing equipment of their own.121 These that they have a reasonable basis, marketers disclose the principal requirements are consistent with the consisting of competent and reliable component of each fuel should substantiation requirements of the Fuel evidence, to substantiate the claim. The encourage the industry to develop Rating Rule,122 which were mandated by Commission’s approach to requiring uniform material specifications or the Petroleum Marketing Practices substantiation without specifying a standards for these fuels in consensus Act.123 particular test method for components organizations to ensure the uniform For the minimum molecular percent other than the principal component, quality of the fuels in the marketplace. content of hydrogen (the principal allows sellers to rely on existing The development of material component) in hydrogen gas, the industry test procedures if they are specifications or standards for non- Commission proposed requiring that the reasonable and yield accurate results. liquid (gaseous) alternative vehicle fuels reasonable basis be tests conducted For example, the California should help facilitate acceptance of according to ASTM D 1946–90. For the specifications list specific ASTM these fuels. minimum molecular percent content of procedures to be used to determine the Similarly, manufacturers of electric methane (the principal component) in molecular percent of various vehicle fuel dispenser systems are CNG, the Commission proposed components of CNG and hydrogen, in required to have a reasonable basis, requiring that the reasonable basis be addition to the methane content of CNG consisting of competent and reliable tests conducted according to ASTM D and the hydrogen content of hydrogen evidence, to substantiate the 1945–91. Three comments addressed gas. Because the Commission has not information retail sellers must post on the CNG testing issue. One comment specified additional components that labels on the electric vehicle fuel supported requiring the use of ASTM D might be disclosed, it has no basis on dispensers. For public electric vehicle 1945–91.124 AGA/NGVC opposed the record to specify test procedures fuel dispensing systems, the information requiring the use of a specific test that must be used to measure them. The the Commission requires to be disclosed method. Instead, that comment Commission, therefore, will accept, but can be determined using standard suggested that the Commission afford not require, use of the ASTM test measuring devices or procedures. sellers of CNG the flexibility to procedures cited in the California Therefore, accurate measurements made demonstrate that they possessed a specifications as the required reasonable using standard electric industry reasonable basis consisting of competent basis for voluntary disclosure of procedures that are recognized as and reliable evidence for their additional components of CNG and competent and reliable are sufficient to determination of the minimum methane hydrogen that are included in those serve as the required reasonable basis. 125 Distributors and retail sellers may be content of CNG. Commercial specifications.128 able to rely on the fuel rating Electronics commented that other test The rule also does not require that certifications they receive, as discussed methods are being developed to importers, producers, or refiners meet 126 infra, so their substantiation burden will measure CNG fuel quality. particular material specifications or be minimal. Distributors and retailers After considering the record, the standards for the common name they need not make the actual Commission concludes that it is use to describe the non-liquid determinations unless they alter the fuel important that sellers base objective alternative vehicle fuel (other than before selling it.129 disclosures on uniform measurements electricity) they distribute, but that they when recognized and accepted test (2) Certification. The Commission is have a reasonable basis, consisting of requiring that importers, producers, methods are available. The competent and reliable evidence, to aforementioned ASTM documents refiners, and distributors of non-liquid substantiate the fuel rating they alternative fuels (other than electricity), include test procedures, developed determine and certify to others. through the ASTM consensus process, and that manufacturers and distributors to determine the chemical composition of electric vehicle fuel dispensing Rule’s reasonable basis standard for liquid systems certify to others to whom they of hydrogen and CNG, respectively, alternative fuels because existing ASTM test including the molecular percent of methods were undergoing verification review to distribute the information that retailers 130 hydrogen in hydrogen gas and methane determine whether they would be appropriate for must post on fuel dispensers. in CNG. Because ASTM has issued test use in establishing standards for the liquid Importers, producers, and refiners of alternative fuels. Further, the Commission was non-liquid alternative fuels (other than procedures to measure the minimum informed that other test methods were being molecular percent of the principal developed that might serve equally well as part of electricity) are required to certify to components of hydrogen and CNG, the a liquid alternative fuel standard. On the other distributors their determination of the Commission is requiring use of the hand, the Commission understands that the ASTM minimum molecular percent of the test methods it is requiring as a reasonable basis for fuel’s major component, and of any ASTM test procedures to substantiate determining the minimum molecular percentages of those disclosures.127 the principal components of CNG and hydrogen additional component they wish to have been ASTM test methods for many years and disclose. Manufacturers of electric 121 See final rule § 309.10 infra. have been recognized as competent and reliable vehicle fuel dispensing systems are procedures. Further, the Commission understands 122 16 CFR 306.5(b) (1994). required to certify to distributors and/or that no other test methods that could be used to 123 15 U.S.C. 2822. make these determinations have been proposed to retailers the information retailers are 124 API, I–15, 4. the California Air Resources Board or are under required to disclose on labels on fuel 125 AGA/NGVC, I–18, 7 (affording such flexibility development by any standards-setting dispensers. Distributors of non-liquid would avoid unnecessary future actions by the organizations. If additional test methods are alternative fuels (other than electricity) Commission to amend its rule each time a new test developed in the future, the Commission will procedure is developed). consider whether to include them among the and of electric vehicle fuel dispensing 126 Comm Elec, I–8, 7. required test methods. 127 The Fuel Rating Rule did not require that 128 See further references to California’s 129 See final rule §§ 309.13(c), 309.15(c) infra. specific ASTM test methods be used to satisfy the specifications in section III(B)(3)(d) supra. 130 See final rule §§ 309.11, 309.13 infra. 26936 Federal Register / Vol. 60, No. 97 / Friday, May 19, 1995 / Rules and Regulations systems are required to certify to consumer. Manufacturers may do so in likewise is requiring that manufacturers retailers consistent with the certification either of two ways: of electric vehicle fuel dispensing they received.131 (a) By including a delivery ticket or systems maintain records of the tests or Importers, producers, and refiners of other paper with each transfer of an EV measurements performed by or for non-liquid alternative vehicle fuel fuel dispensing system. It may be an them, or of other data or records, that (other than electricity) may make the invoice, bill of lading, bill of sale, they rely upon as their required certification in either of two ways: delivery ticket, or any other written reasonable basis for their (a) By including with each transfer a proof of transfer. It is required to certifications.138 The Commission also delivery ticket or other paper (such as contain at least the manufacturer’s requires that distributors and retailers of an invoice, bill of lading, bill of sale, name, the name of the person to whom non-liquid alternative fuels (other than terminal ticket, delivery ticket or any the EV fuel dispensing system is electricity) maintain records consisting other written proof of transfer). The transferred, the date of the transfer, the of the certifications they receive from delivery ticket or other paper must model number or other identifier of the importers, producers, refiners, or contain at least the importer’s, EV fuel dispensing system, and the distributors of non-liquid alternative producer’s, or refiner’s name, the name information required to be disclosed on fuels (other than electricity), and that of the person to whom the non-liquid the retail fuel dispenser label. distributors of electric vehicle fuel alternative fuel is transferred, the date of (b) By placing clearly and dispensing systems and retailers of the transfer, the common name of the conspicuously on the EV fuel electricity maintain records consisting fuel and the minimum molecular dispensing system a permanent legible of the certifications they receive from percent of the fuel’s major component, marking or permanently attached label manufacturers or distributors of the 139 and of any additional component the that discloses the manufacturer’s name, systems. The rule requires that these importer, producer or refiner wishes to the model number or other identifier of records be kept for one year. These disclose. the EV fuel dispensing system, and the requirements are consistent with those (b) By giving the person to whom the information required to be disclosed on for sellers of liquid alternative fuels 140 fuel is transferred a letter or written the retail fuel dispenser label. Such under the Fuel Rating Rule. c. Effective date. Section 406(a) of statement, including the date, the marking or label is required to be EPA 92 requires the Commission to importer’s, producer’s or refiner’s name, located where it can be seen after issue its final labeling rules within one the name of the person to whom the fuel installation of the EV fuel dispensing year of the NPR’s publication, but does is transferred, the common name of the system. The marking or label is deemed not specify when the rules shall become fuel, and the minimum molecular ‘‘legible,’’ in terms of placement, if it is effective. In the SNPR, the Commission percent of the fuel’s major component, located in close proximity to the proposed making the non-liquid and of any additional component the manufacturer’s identification marking. alternative fuels labeling requirements importer, producer or refiner wishes to This marking or label is required to be effective 90 days after publication of a disclose. The letter or written statement in addition to, and not as a substitute for, the label required to be posted on final rule in the Federal Register.141 In is effective until the importer, producer, developing its SNPR proposal, the or refiner transfers non-liquid the public EV fuel dispenser at the point of retail sale.134 Commission considered how best to alternative vehicle fuel with a lower balance consumers’ needs for percentage of the major component, or Distributors of electric vehicle fuel dispensing systems are required to make comparative information with industry’s of any other component claimed. At that need for a reasonable period of time to time, the importer, producer, or refiner the certification in each transfer to anyone who is not a consumer. come into compliance.142 The one will have to certify the new information comment on this issue supported the 132 Distributors may do so in either of two about the fuel with a new notice. proposed effective date.143 The Distributors of non-liquid alternative ways: (a) By using a delivery ticket or other Commission, therefore, has determined vehicle fuel (other than electricity) are paper with each transfer, as outlined for to make the non-liquid alternative fuels required to make the certification in manufacturers of electric vehicle fuel labeling requirements effective 90 days each transfer to anyone who is not a dispensing systems in item (a) above. after publication of a final rule in the consumer. Distributors may make the 144 (b) By using the permanent marking Federal Register. required certification in either of two or label permanently attached to the d. Periodic updating of labels. In the ways: system by the manufacturer, as outlined SNPR, the Commission proposed no (a) By using a delivery ticket or other for manufacturers of electric vehicle fuel paper with each transfer, as outlined for 138 Id. dispensing systems in item (b) above.135 139 See final rule §§ 309.14, 309.16 infra. importers, producers and refiners in These requirements are consistent item (a), above. 140 16 CFR 306.7, 306.9, 306.11 (1994). with the certification requirements for 141 The effective date of the final amendments (b) By using a letter of certification, as sellers of liquid alternative fuels under adding liquid alternative fuels to the Fuel Rating outlined for importers, producers, and the Fuel Rating Rule.136 Rule was less than 90 days after publication of the refiners in item (b), above.133 (3) Recordkeeping. The Commission final rules in the Federal Register. The final rules Manufacturers of electric vehicle fuel were published on August 3, 1993. They became is requiring that importers, producers, effective on October 25, 1993, as required by EPA dispensing systems are required to make and refiners of non-liquid alternative 92. 58 FR 41356. the certification in each transfer of such fuels (other than electricity) maintain 142 The Commission based the SNPR proposal on systems to anyone who is not a records of the tests performed by or for an analysis of several comments stating that the proposed 90-day time period gave sufficient time them, or other data, that they rely upon for covered parties to comply with the proposed 131 See final rule § 309.13 infra. If distributors as their required reasonable basis for requirements. One comment contended, however, blend fuels, § 309.13(c) of the rule requires them to their certifications.137 The Commission that at least six months was necessary. 59 FR 59666, substantiate the minimum percentage of the 59679. principal component according to the requirements 143 Mobil, I–2, 6. 134 See final rule § 309.11 infra. of § 309.10, and certify that information to their 144 See 59 FR 59666, 59679. In contrast, the 135 non-consumer customers. See final rule § 309.13 infra. effective date for the AFV labeling requirements is 132 See final rule § 309.11 infra. 136 16 CFR 306.6, 306.8 (1994). 180 days after publication in the Federal Register. 133 See final rule § 309.13 infra. 137 See final rule § 309.12 infra. See discussion in section III(C)(5) infra. Federal Register / Vol. 60, No. 97 / Friday, May 19, 1995 / Rules and Regulations 26937 specific timetable for future reviews of Commission’s labeling proposal, but did ‘‘light duty motor vehicles,’’ a term the final labeling rules, although it not address this specific issue.147 The given special significance by that recognized that section 406(a) of EPA 92 remaining five addressed one or more statute.153 EPA 92’s definition of that requires the Commission to update its issues pertaining to the scope of the term references two vehicle labeling requirements ‘‘periodically.’’ AFV labeling requirements, as discussed classifications used by the Clean Air Act The Commission determined not to below. (light duty trucks or light duty vehicles) specify a timetable after analyzing a. Covered AFVs. In the SNPR, the ‘‘of less than or equal to 8,500 pounds comments encouraging it to review the Commission considered whether its [GVWR].’’ 154 The Clean Air Act 155 in rule as consensus specifications are labeling requirements should apply to turn refers to existing EPA definitions of developed for alternative fuels, as new all AFVs, as that term is defined in EPA both vehicle classifications.156 Thus, the alternative fuels enter the marketplace 92, or whether they should apply to proposed definition of ‘‘covered and as technology develops.145 The only certain vehicles. As defined by that vehicle’’ basically encompassed the Commission received no comments statute, an AFV is either ‘‘a dedicated same category of vehicle referenced in addressing this aspect of its SNPR vehicle or a dual fueled vehicle.’’ 148 As EPA 92’s fleet acquisition requirements. proposal. further defined, a ‘‘dedicated vehicle’’ Three comments specifically Based on other comments in this means an automobile (or other self- addressed this issue. AAMA 157 and proceeding, and recognizing that it propelled vehicle), designed for EMA supported excluding AFVs over cannot predict when new relevant transporting persons or property on a 8,500 lbs. GVWR from the scope of the developments may occur, the street or highway, that operates solely AFV labeling requirements.158 However, Commission has determined not to on alternative fuel.149 Similarly, a ‘‘dual these comments also suggested that one establish a specific timetable for future fueled vehicle’’ is an automobile (or element of the SNPR’s definition of reviews of the final rule. As required by other self-propelled vehicle), designed ‘‘covered vehicle’’ be modified to section 406(a) of EPA 92, the for transporting persons or property on exclude vehicles configured ‘‘with Commission intends to conduct reviews a street or highway, that is capable of special features enabling off-street or to update the rule periodically, as operating on alternative fuel and on needed, to take into consideration gasoline or diesel fuel.150 As such, the 153 Three of EPA 92’s five ‘‘major’’ alternative-fuel provisions impose minimum vehicle-acquisition relevant developments, such as when statutory scope of an ‘‘AFV’’ is quite requirements on designated entities (i.e., the DOE designates new non-liquid wide and includes tour buses, transit Federal government; alternative fuel providers; and alternative fuels. The rule, however, buses, heavy-duty commercial trucks, other non-Federal fleets). H. Rep. No. 102–474(I), will be reviewed at least once every ten and large motor homes. 102d Cong., 2d Sess. 137, reprinted in 1992 After considering the practicality and U.S.C.C.A.N. 1954, 1960. For alternative fuel years pursuant to the Commission’s providers and other non-Federal fleets, the vehicles ongoing regulatory review project. appropriateness of including all AFVs covered by those mandates are ‘‘light duty motor within the scope of its labeling vehicles.’’ See 42 U.S.C. 13251 (Supp. IV 1993) C. Labeling Requirements for AFVs requirements, the Commission proposed (mandatory acquisition requirement for alternative fuel providers); 42 U.S.C. 13257 (Supp. IV 1993) Twenty-one of the 24 comments in the SNPR to exclude AFVs with gross (contingent acquisition requirement for other non- 151 received in response to the SNPR vehicle weight ratings (‘‘GVWR’’ ) Federal fleet operators). addressed some aspect of the over 8,500 lbs. The SNPR included a The Federal fleet is required to acquire ‘‘light Commission’s proposed labeling definition of ‘‘covered vehicles’’ (i.e., in duty [AFVs],’’ a term not defined in EPA 92, instead requirements for AFVs. These substance, AFVs under 8,500 lbs. of ‘‘light duty motor vehicles.’’ See 42 U.S.C. 13212 (Supp. IV 1993) (mandatory acquisition 152 comments addressed either the scope of GVWR), in the proposed rule. The requirement for Federal government). Neither the the proposed labeling requirements (i.e., Commission derived that definition statute nor its legislative history suggests that those which vehicles would be covered by the from EPA 92’s definition of the term terms have different meanings and the discrepancy may have been inadvertent. In any event, it appears labeling requirements) or the proposed that the intent was to tailor the Federal fleet’s rule’s disclosures (i.e., what information 147 AGA/NGVC, I–18, 2, 3; Boston Edison/EEI, I– acquisition requirement to certain AFVs. would be required to be displayed on 14, 4; Comm Elec, I–8, 8; EIA/EEU–ISD, J–4, 1; 154 42 U.S.C. 13211(11) (Supp. IV 1993) (‘‘The labels and how that information would NAFA, I–10, 1, 2; RFA, I–3, 1–2. term ‘light duty motor vehicle’ means a light duty 148 42 U.S.C. 13211(3) (Supp. IV 1993). be displayed).146 Those comments, and truck or light duty vehicle, as such terms are 149 See 42 U.S.C. 13211(6) (Supp. IV 1993) (a defined under section 216(7) of the Clean Air Act the Commission’s modifications to the ‘‘dedicated vehicle’’ is either a ‘‘dedicated (42 U.S.C. 7550(7)), of less than or equal to 8,500 proposed rule in response to those automobile,’’ as defined in 15 U.S.C. 2013(h)(1)(C) pounds [GVWR].’’). comments, are discussed below. (Supp. IV 1993), or a ‘‘motor vehicle,’’ as defined 155 42 U.S.C. 7550(7) (the terms ‘‘light duty truck’’ in 42 U.S.C. 7550(2), other than an automobile, that and ‘‘light duty vehicle’’ ‘‘have the meaning 1. Scope of the AFV Labeling operates solely on alternative fuel). provided in regulations promulgated by the [EPA] Requirement 150 See 42 U.S.C. 13211(8) (Supp. IV 1993) (a Administrator and in effect as of the enactment of ‘‘dual fueled vehicle’’ is either a ‘‘dual fueled the Clean Air Act Amendments of 1990’’). In its SNPR, the Commission automobile,’’ as defined in 15 U.S.C. 2013(h)(1)(D) 156 A light duty truck is defined as ‘‘[a]ny motor proposed that the scope of its AFV (Supp. IV 1993), or a ‘‘motor vehicle,’’ as defined vehicle rated at 8,500 pounds GVWR or less which labeling requirements be based upon, or in 42 U.S.C. 7550(2), other than an automobile, that as (sic) a vehicle curb weight of 6,000 pounds or is capable of operating on alternative fuel and on less and which has a basic vehicle frontal area of derived from, existing pertinent federal gasoline or diesel fuel). 45 square feet or less, which is (1) Designed regulations. Eleven comments addressed 151 EPA defines GVWR as a vehicle’s actual primarily for purposes of transportation of property this aspect of the AFV labeling weight (including all standard and optional or is a derivation of such a vehicle, or (2) Designed requirements. Six other comments equipment and fuel) plus 300 pounds. See 40 CFR primarily for transportation of persons and has a 86.082–2 (1993) (defining ‘‘GVWR,’’ ‘‘loaded capacity of more than 12 persons, or (3) Available indicated general support for the vehicle weight,’’ and ‘‘vehicle curb weight’’). with special features enabling off-street or off- 152 See proposed rule § 309.1(f) (defining ‘‘covered highway operation and use.’’ 40 CFR 86.082–2 145 See discussion of comments of API, CEC, and vehicle’’), 59 FR 59666, 59703. The term ‘‘covered (1993). A light duty vehicle is defined as ‘‘a TVA in the SNPR, 59 FR 59666, 59679. vehicle’’ was derived from the Energy Policy and passenger car or passenger car derivative capable of 146 Two of the three other comments were limited Conservation Act’s (‘‘EPCA’’) use of the term seating 12 passengers or less.’’ Id. to encouraging metric disclosures on AFV labels. ‘‘covered product.’’ See 42 U.S.C. 6291(a)(2), 157 Three comments fully supported AAMA’s See Mechtly, I–1, Sokol, I–17, discussed infra 6292(a) (statute’s scope defined in terms of comment. Chrysler, I–13, 1; Ford, I–4, 2; NGVPA, section VI. The third comment was limited to the enumerated consumer products); 16 CFR 305.2, I–19, 1. SNPR’s proposal as it related to alternative fuels. 305.3 (1994) (same for Commission’s Appliance 158 AAMA, I–16, cover letter at 1; EMA, I–6, 1– Unocal, I–5. Labeling Rule implementing EPCA). 2. 26938 Federal Register / Vol. 60, No. 97 / Friday, May 19, 1995 / Rules and Regulations off-highway operation and use.’’ 159 It considering such vehicles, disclosures who manufactures the conversion kit.166 appears that this suggestion may have in a labeling format may not be After considering the advantages and been based upon their belief that appropriate, useful, or timely. The disadvantages of assigning liability to consumers considering such vehicles Commission also notes that EPA’s fuel either entity, EPA concluded that would not likely make choices and economy requirements (disclosing fuel assigning liability strictly to either comparisons based upon simple labels. economy information in window entity was not appropriate. Instead, it The City of Chicago, however, generally stickers) do not apply to vehicles over determined it should assign liability supported including all AFVs within 8,500 lbs. GVWR.163 As a result, the based on which party was in the best the scope of the AFV labeling Commission has determined that, at the position to be familiar with pertinent requirements without specifically present time, AFVs over 8,500 lbs. vehicle-performance characteristics. addressing the Commission’s GVWR will not be included within the Interpreting its own regulations, EPA proposal.160 scope of its AFV labeling requirements. determined that the entity best suited to After considering the record, the For similar reasons, the Commission comply with these requirements was the Commission has determined to issue its has also determined that it should entity (kit installer, manufacturer, or SNPR proposal as to this subject with modify its definition of ‘‘covered other) who had applied for and received one modification. As noted previously, vehicle’’ by excluding from its scope a certificate of conformity that the the Commission must issue uniform ‘‘off-street’’ or ‘‘off-highway’’ vehicles. vehicle meets appropriate EPA emission labeling requirements for AFVs only ‘‘to 167 Such vehicles would more likely be standards. Based on public comment the greatest extent practicable.’’ 161 acquired for specialized commercial received during that proceeding, EPA Labeling requirements for all such uses, instead of general commercial or anticipated that in most cases the kit vehicles might help educate consumers individual use. The Commission also manufacturer would be the certifying about the general availability of AFVs of notes that EPA’s fuel economy party because this entity would be in all sizes. However, the Commission has requirements (disclosing fuel economy the best position to perform the required concluded that consumers considering 168 information in window stickers) do not certification testing. Accordingly, vehicles over 8,500 lbs. GVWR would apply to such vehicles.164 As such, the EPA further expected that its regulations not likely make choices and Commission believes that consumers would encourage certifiers to develop comparisons based on the cost-benefit considering such vehicles would not oversight programs and enter into information contained in a simple likely make choices and comparisons indemnification agreements with label.162 The Commission also based on the cost-benefit information installers to insure that installations considered including all AFVs 169 contained in a simple label. were performed properly. (regardless of weight) and developing In considering the issue of AFV Accordingly, such vehicles are excluded different label formats tailored to the conversions, the Commission noted that from the AFV labeling requirements. apparently different needs of light and section 406 does not address the issue heavy-duty AFV consumers. This did b. AFV Manufacturers and Conversion of AFV conversions. The Commission’s not appear to be practical because Companies. Another facet of the intent in considering this topic was to heavier vehicles are typically custom proposal regarding covered AFVs address what the Commission ordered. While these evaluations may involved conversions (i.e., existing understood was a significant segment of change in the future, for now at least it conventional-fuel vehicles reconfigured the AFV industry. DOE has noted that: seems likely that for consumers to permit operation on alternative fuel) ‘‘Because of the limited availability and and what entity would be responsible selection of [OEM] vehicles, conversions 159 See proposed rule § 309.1(f)(2)(iii), 59 FR for compliance. In developing the are providing a transition to the time 59666, 59703; AAMA, I–16, cover letter at 1; EMA, proposed rule, the Commission took when automakers produce more [AFVs] I–6, 2. particular note of recently-issued EPA for public sale.’’ 170 160 Chicago, J–2, 2. AAMA and Mobil also made regulations addressing this subject. the general observation that definitions in the AFV The demand for AFVs is being driven, labeling requirements should be consistent with Those regulations implemented a at least in part, by the acquisition other regulatory plans. AAMA, I–16, 7 (‘‘The provision of the 1990 Clean Air Act requirements for centrally fueled fleets definitions used in the regulation must be Amendments (‘‘CAAA’’) deeming that contained in the 1990 CAAA.171 Those consistent with those used by other regulatory ‘‘person[s] who convert conventional agencies.’’); Mobil, I–2, 8 (‘‘As long as the definition requirements ‘‘may be met through the in this rule is coordinated with DOE, then this vehicles to clean-fuel vehicles’’ are conversion of existing or new gasoline rulemaking will be consistent with forthcoming ‘‘manufacturers,’’ and thus responsible or diesel-powered vehicles to clean-fuel EPAct rules from DOE.’’). AAMA further for complying with some or all of EPA’s vehicles.’’ 172 Parties affected by those commented that ‘‘common definitions would also certification, production, line testing, be useful.’’ AAMA, I–16, 7. It did not specify, mandates, as well as others interested in however, how the FTC should determine where in-use testing, warranty, and recall achieving the clean-air benefits of ‘‘common definitions,’’ as opposed to definitions requirements.165 In the preamble driving AFVs, may have an incentive to used by other agencies, would be more appropriate. announcing those regulations, EPA 161 42 U.S.C. 13232(a) (Supp. IV 1993). noted that two entities could be 166 Fleet Standards Rule, 59 FR 50042, 50061. 162 EMA, G–21, 2, 3–4, 7, (Tr.), 123. EMA cited considered the ‘‘person who converts’’: 167 Fleet Standards Rule, 59 FR 50042, 50062. examples where the considerations relevant to 168 Fleet Standards Rule, 59 FR 50042, 50061– ordering a heavy-duty AFV were summarized in an the person who installs the conversion 50062. OEM’s 25-page sales brochure and a 400-page truck kit (i.e., the hardware converting the 169 data book. EMA (Supp.), G–21, 2–3. See also vehicle to alternative fuel), or the person Fleet Standards Rule, 59 FR 50042, 50061– AAMA, G–7, 3–4, (Tr.), 124 (purchasing decision 50062, 50064. Given the nature of their liability, ‘‘will already have been made long before EPA noted that ‘‘[k]it manufacturers would be [purchaser] walks into the showroom and sees the 163 EPA (Tr.), 122; 40 CFR 600.002–85(4)(iii) wholly within their rights to require such label’’); Flxible (Supp.), G–12, 1–3 (window stickers (1993). indemnification agreements before allowing should be for vehicles purchased for personal use 164 See 40 CFR 600.002–85(4) (defining installers to install their kit.’’ Fleet Standards Rule, and from dealer lots, i.e., under 8,500 lbs. GVWR), ‘‘automobile’’). 59 FR 50042, 50062. (Tr.), 134 (rule should be limited to passenger-type 165 42 U.S.C. 7587(c); Emission Standards for 170 B–3, inside front cover. vehicles). Chrysler and Ford supported AAMA’s Clean-Fuel Vehicles and Engines, Requirements for 171 The CAAA’s acquisition requirements are in position that these vehicles should be excluded Clean-Fuel Vehicle Conversions, and California addition to similar requirements, described infra from the scope of the Commission’s AFV labeling Pilot Test Program (‘‘Fleet Standards Rule’’), 59 FR section III(C)(1)(c), imposed by EPA 92. requirements. Chrysler, G–13, 1; Ford, G–14, 1. 50042, 50061–50062, Sept. 30, 1994. 172 42 U.S.C. 7587(a). Federal Register / Vol. 60, No. 97 / Friday, May 19, 1995 / Rules and Regulations 26939 convert existing vehicles to alternative include such conversions within the information’’),184 while some is more fuel. The Commission therefore believed scope of its AFV labeling requirements. specific and objective. For example, the that it should address this issue in this As to the second category, the brochure notes that converting an proceeding to the greatest extent Commission proposed that companies existing conventional-fueled vehicle to practicable, and thereby help consumers performing conversions after the vehicle CNG ‘‘costs about $2,700 to $5,000 per compare different alternative fuels and is delivered to a consumer (so called vehicle.’’ 185 Given the apparent conversion systems. ‘‘aftermarket conversions’’) should be impracticalities surrounding a Accordingly, in the SNPR, the excluded from the AFV labeling requirement for aftermarket alternative- Commission proposed that the entity requirements because those consumers fuel conversions, and the availability of responsible for complying with the would have already been educated pertinent information in DOE’s labeling requirements for new covered about the costs and benefits of brochure, the Commission proposed vehicles 173 would be the vehicle’s alternative fuels.179 The Commission excluding from its AFV labeling ‘‘manufacturer.’’ The proposed rule based that proposal on its determination requirements situations where defined ‘‘manufacturer’’ as ‘‘the person that consumers considering conversion conventional fueled vehicles are who obtains a certificate of conformity of existing vehicles would not benefit converted to alternative fuel after being that the vehicle complies with the from a ‘‘labeling’’ requirement, and that acquired by consumers.186 standards and requirements of [EPA’s the circumstances surrounding such Four comments addressed this issue. emission and clean-fuel vehicle conversions may make such a AAMA and Mobil generally observed regulations].’’ 174 Under the proposed requirement impractical or that definitions in the AFV labeling rule, manufacturers of new covered unnecessary.180 For example, the requirements should be consistent with vehicles would be required to affix (or Commission understood that some other regulatory plans.187 Regarding the cause to be affixed) new vehicle labels consumers convert their vehicles substance of the Commission’s proposal, on each such vehicle prior to its being themselves without utilizing the Electro Auto generally supported 175 offered for acquisition by consumers. services of a conversion installation exempting aftermarket conversions If, however, an ‘‘aftermarket conversion company. Further, companies while the City of Chicago opposed such 176 system’’ (i.e., a conversion kit) is performing conversions, at a consumer’s an exemption because it believed that installed on a vehicle by a person other request, would have nothing to label future buyers of AFVs should have than the manufacturer prior to being until the consumer had already decided access to the same information as buyers acquired by a consumer, the to do a conversion, and labeling the of original equipment.188 Comments manufacturer would be responsible for vehicle post-conversion would not be previously filed agreed that all vehicles providing that person with the objective helpful,181 as consumers presumably designed and assembled by OEMS to information regarding that vehicle already have evaluated alternative fuels operate on alternative fuel should be 177 required by the proposed rule. in deciding to have their vehicle included within the scope of the The Commission’s intent in converted. Finally, requiring conversion Commission’s AFV labeling formulating these definitions was to 189 companies to disclose objective requirements. distinguish between two different information as to comparative factors After considering the record, the categories of conversions based on will likely be problematic because such Commission has determined to adopt whether a vehicle was converted to information can vary with the vehicle’s the SNPR proposal regarding which alternative fuel before or after it is condition.182 conversions are covered without delivered to the first consumer. In any event, the Commission noted modification. Because harmonizing Conversions performed before a vehicle regulatory approaches, when is delivered to a first consumer bear that DOE has addressed conversions of existing vehicles in its consumer practicable, is appropriate and similarities to OEM AFVs because in 183 desirable, the Commission has based its both circumstances the vehicles are information brochure. Some of the information contained in that brochure approach to determining which entities configured to alternative fuel before are responsible for complying with its delivery to the first consumer. In the is general (e.g., electric vehicle conversions ‘‘are available in larger AFV labeling requirements on EPA’s SNPR, the Commission tentatively regulations addressing the same issue. determined that consumers considering metropolitan areas. Contact OEM dealer for qualified converter and warranty The Commission has determined to these converted AFVs would thus have designate the certifier as being equal need for comparative information considered ‘new’ vehicles, regardless of whether responsible for compliance with these as consumers considering other ‘‘new’’ requirements because that entity will be 178 they are sold by an original equipment vehicles. It therefore proposed to manufacturer or a converter or upfitter, should be in the best position to know the subject to the labeling requirement.’’). Commenters vehicle’s performance attributes. The 173 AFV labeling requirements for used covered responding to the Commission’s ANPR were in vehicles are discussed infra section III(C)(1)(d). similar agreement. See 59 FR 24014, 24016 nn. 53, Commission also expects that certifiers 174 Proposed rule § 309.1(r), 59 FR 59666, 59704. 54 and accompanying text. will take steps to insure compliance 175 Proposed rule § 309.20(a)(1), 59 FR 59666, 179 AGA/NGVC (Supp.), G–6, 3–4, (Tr.), 231–232; with this revised labeling proposal by 59707. ETC, G–24, 4. installers, such as developing oversight 176 See proposed rule § 309.1(b) (defining 180 DOE, E–10, 3–4 (‘‘It would be more difficult, programs and entering into ‘‘aftermarket conversion system’’), 59 FR 59666, and perhaps unnecessary, for in-use vehicles 59707. This definition was derived from a recently- (already owned and operated) that are converted to 184 issued EPA definition of the same term. See 59 FR use alternative fuels during their vehicle life to B–3, 16. 48472, 48490, to be codified at 40 CFR 85.502(c). meet the AFV labeling requirements.’’). 185 B–3, 23. 177 See proposed rule § 309.20(a)(2), 59 FR 59666, 181 Further, as noted, requiring disclosure other 186 See proposed rule § 309.20(a)(2) (limiting 59707. Specific data proposed to be disclosed on than in a labeling format may be beyond the scope labeling requirements for new covered vehicles to labels for new covered AFVs is discussed infra of the Commission’s authority under EPA 92. See conversion systems installed ‘‘prior to such section III(C)(2)(a). supra section III(A). vehicle’s being acquired by a consumer’’), 59 FR 178 See AGA/NGVC (Supp.), G–6 (‘‘We agree with 182 EPA (Tr.), 220. 59666, 59707. the FTC and others that vehicles that are converted 183 EPA 92 requires that DOE’s information 187 AAMA, I–16, 7; Mobil, I–2, 8. prior to being delivered to the first time buyer package ‘‘include information with respect to the 188 Chicago, J–2, 1, 2, 3; Electro Auto, I–7, 1. should be labeled in the same fashion as other ’new’ conversion of conventional motor vehicles to 189 See, e.g., Boston Edison (Supp.), G–26, 13; vehicles.’’); ETC, G–24, 4 (‘‘All vehicles that are [AFVs].’’ 42 U.S.C. 13231 (Supp. IV 1993). ETC, G–24, 4. 26940 Federal Register / Vol. 60, No. 97 / Friday, May 19, 1995 / Rules and Regulations indemnification agreements with and should be covered by the rule. consumer,199 while a used covered installers to insure that accurate labels Consumers entering into short-term vehicle was defined (in substance) as a are posted as required. arrangements (e.g., weekend rentals to covered vehicle which previously has c. Acquisitions by consumers. In the the general public for non-commercial been acquired by a consumer.200 The SNPR, the Commission proposed that its purposes) may or may not have similar proposed rule also defined the terms labeling requirements apply to covered or equal need for pertinent information, ‘‘new vehicle dealer’’ 201 and ‘‘used vehicles offered for ‘‘acquisition’’ to but it seems unlikely that consumers vehicle dealer.’’ 202 consumers.190 The intent of this entering into short-term leasing Because requiring the disclosure of proposal was to include purchases and arrangements would make decisions comparative information on used AFVs long-term leasing arrangements within based upon information disclosed in a was deemed problematic,203 the the scope of the AFV labeling label. In any event, they may not view proposed rule established two labeling requirements. The Commission also the vehicle until after it has been leased. formats (i.e., new vehicle labels 204 and proposed to define the term ‘‘consumer’’ As a result, the labels would not help used vehicle labels 205) disclosing to include individuals, corporations, consumers make choices and different types of information for new partnerships, associations, States, comparisons. Accordingly, the and used covered AFVs.206 For example, municipalities, political subdivisions of Commission has determined that because some cost-benefit information is States, and agencies, departments, or including short-term leasing included on temporary window stickers instrumentalities of the United States.191 arrangements in the final rule is not (e.g., EPA’s fuel economy rating) or in Responding to this aspect of the necessary. vehicle owner’s manuals, a used AFV dealer may not always possess such Commission’s proposal, AAMA and The final rule defines an acquisition information. In any event, some Mobil generally observed that as including either of the following: (1) comparative information (e.g., EPA’s definitions in the AFV labeling acquiring the beneficial title to a fuel economy rating) could vary requirements should be consistent with covered vehicle; or (2) acquiring a 192 significantly with the vehicle’s other regulatory plans. covered vehicle for transportation condition.207 Requiring disclosure of After considering the record, the purposes pursuant to a contract or information based on the vehicle’s Commission has determined to issue its similar arrangement for a period of 120 condition when new could therefore SNPR proposal as to this subject days or more.195 This definition was without modification. As to the create a risk of misleading consumers.208 derived from a recent EPA regulation To address one problem inherent in definition of ‘‘consumer,’’ the proposed implementing aspects of the 1990 Clean definition of this term was derived from 196 such a disclosure (i.e., the unavailability Air Act Amendments, which used the of pertinent information), the section 302(e) of the 1990 Clean Air Act 120 day period as the dividing line 193 Commission has considered requiring Amendments and EPA’s regulation between short and long-term leases. In implementing that section, 40 CFR that disclosures be displayed on the preamble announcing that permanent vehicle labeling.209 However, § 88.302–94 (1993). The Commission regulation, EPA determined that the 120 believes that this definition properly this option would not surmount the day period is slightly longer than a more basic problem that objective includes within its scope all affected calendar season and that leases of less interests. information may no longer accurately than that period were therefore short- reflect the vehicle’s present condition As to leasing arrangements, because term and temporary.197 The Commission Congressional mandates will require finds that the 120 day period reflects a consumers to ‘‘acquire’’ AFVs,194 the 199 See proposed rule § 309.1(t) (defining ‘‘new reasonable demarcation between short- covered vehicle’’), 59 FR 59666, 59704. Commission has determined that its and long-term rentals, and therefore has 200 See proposed rule § 309.1(dd) (defining ‘‘used AFV labeling requirements should adopted EPA’s determination. covered vehicle’’), 59 FR 59666, 59704. This include such arrangements to the definition was derived from the Commission’s d. Used AFVs. In the SNPR, the greatest extent practicable to further definition of the term ‘‘used vehicle’’ in its Used Commission tentatively determined that Car Rule, 16 CFR 455.1(d)(2) (1994). EPA 92’s legislative purpose. In both new and used AFVs should be 201 See proposed rule § 309.1(u), 59 FR 59666, determining what is practicable, the included within the scope of its labeling 59704. This definition was derived from EPA’s Commission believes that consumers definition of the term ‘‘dealer,’’ the entity requirements, but that they should be entering into leasing arrangements may responsible for maintaining fuel economy labels on subject to different requirements. The new automobiles. See 40 CFR 600.002–93(a)(18) have different information needs proposed rule defined the terms ‘‘new (1993) (defining ‘‘dealer’’). Under EPA’s regulations, depending upon the length of the covered vehicle’’ and ‘‘used covered consumers selling used automobiles are not arrangement. For example, consumers required to post or maintain fuel economy labels. vehicle’’ and established labeling entering into long-term leasing In this final rule, the Commission similarly intends requirements as to each classification.198 that individual consumers not be required to arrangements often do so for Under the proposed rule, a new covered comply with the AFV labeling requirements. commercial purposes, and make leasing 202 vehicle was defined as a covered vehicle See proposed rule § 309.1(ee), 59 FR 59666, choices based on evaluating factors 59704. This definition was derived from the pertinent to a commercial acquisition. which has not yet been acquired by a Commission’s definition of ‘‘dealer’’ in its Used Car These persons likely would need the Rule, 16 CFR 455.1(d)(3) (1994). 195 203 ETC, G–24, 4; RFA (Tr.), 217. same vehicle information as purchasers See proposed rule § 309.1(a) (defining ‘‘acquisition’’), 59 FR 59666, 59703. 204 See proposed rule § 309.1(v) (defining ‘‘new 196 Clean Fuel Fleet Program; Definitions and vehicle labels’’), 59 FR 59666, 59704. 190 See proposed rule §§ 309.20(a)(1) (new General Provisions, 58 FR 64679, 64689–64690, 205 See proposed rule § 309.1(ff) (defining ‘‘used covered vehicles), 309.21(a) (used covered Dec. 9, 1993 (defining the phrase ‘‘owned or vehicle labels’’), 59 FR 59666, 59704. vehicles), 59 FR 59666, 59707. operated, leased or otherwise controlled by such 206 See proposed rule §§ 309.20(e) (new covered 191 See proposed rule § 309.1(d) (defining person’’ as used in section 241(5) of the 1990 Clean vehicles) and 309.21(e) (used covered vehicles), 59 ‘‘consumer’’), 59 FR 59666, 59703. Air Act Amendments, 42 U.S.C. 7581(5)). FR 59666, 59707. 192 AAMA, I–16, 7; Mobil, I–2, 8. 197 58 FR 64679, 64689, 64690 (excluding leases 207 EPA (Tr.), 220. 193 42 U.S.C. 7602(e) (defining ‘‘person’’). under 120 days from Clean Fuel Fleet Program). 208 Id. 194 For example, EPA 92 requires that, ‘‘The 198 See proposed rule §§ 309.20 (‘‘Labeling 209 Chicago, J–2, 2 (permanent labeling on all Federal Government shall acquire at least 5,000 requirements for new covered vehicles’’), 309.21 AFVs would help state and local governments light duty [AFVs] in fiscal year 1993.’’ 42 U.S.C. (‘‘Labeling requirements for used covered enforce regulations pertaining to preferential 13212(a)(1)(A) (Supp. IV 1993). vehicles’’), 59 FR 59666, 59707. parking and other transportation control measures). Federal Register / Vol. 60, No. 97 / Friday, May 19, 1995 / Rules and Regulations 26941

(and thus would not form a valid basis 2. Disclosures on AFV Labeling consumers making choices and upon which to make reasonable choices As discussed below, 21 of the 24 comparisons. The first part would 210 and comparisons). commenters addressed the substance of disclose objective information Three comments addressed this issue. the Commission’s proposed AFV pertaining to each particular AFV, while AAMA supported including used labeling requirements (i.e., the the second and third parts would vehicles within the scope of the AFV information to be disclosed on AFV disclose information pertaining to AFVs labeling requirements.211 Electro Auto labels).217 Pursuant to EPA 92’s in general. This final rule is the result stated that they should be excluded.212 mandate, the Commission developed of the Commission’s analysis of all Mobil stated that definitions in the AFV this aspect of the final rule based on two pertinent considerations, the labeling requirements should be sets of considerations. First, the rulemaking record and recent consistent with other regulatory Commission determined the type of developments. As described in more plans.213 information consumers would find most detail below, the Commission continues After considering the record, the appropriate, useful, and timely in to find that a combination of objective Commission determined to issue its making AFV choices and comparisons. and descriptive information will best SNPR proposal as to this subject For example, the Commission stated in meet consumers’ needs for comparative without modification. The Commission the SNPR that consumers would require cost-benefit information. The notes that EPA 92’s definition of AFV disclosure of more comparative Commission also concludes that this makes no distinction between new and information when considering an AFV format will best address the problems used vehicles.214 In addition, the record purchase than when refueling.218 As a associated with developing and indicated that consumers would likely result, the Commission proposed that publishing such information. have the same need for information, and AFV labels disclose more a. Specific data disclosures. In the would consider the same factors, comprehensive cost-benefit information SNPR the Commission proposed that whether they were contemplating a new to consumers than labels for alternative labels for new covered AFVs disclose or used AFV acquisition.215 At the fuels. The Commission also stated that two types of objective information Workshop, two participants also stated particular to each AFV: cruising range because few consumers have extensive 221 that used AFVs should be included in experience with AFVs, its labeling and EPA certification level. Seven this proceeding at the present time proposal should be designed to be comments addressed the because used AFVs are (or will soon be) useful to a general consumer appropriateness of including objective offered for sale to consumers.216 Thus, audience.219 Finally, the Commission information to consumers as to those the Commission has concluded that concluded that, because DOE was factors. Boston Edison/EEI and DOE including such vehicles within the supported disclosures as to both required to prepare and distribute an 222 scope of its AFV labeling requirements information package for consumers, factors. API stated that a disclosure for cruising range would be a useful is appropriate. As described more fully there was less need to attempt to present 223 below, labeling for used covered AFVs complex information in the constrained measure for consumer comparisons. does not require, however, disclosure of format of an AFV label. Mobil appeared to support requiring objective performance data. After determining what would likely disclosure of cruising range, but stated be appropriate, useful, and timely to that EPA certification levels were 224 210 While consumers may expect that used consumers, the Commission analyzed generally not relevant to EPA 92. vehicles will have different performance attributes the problems associated with Chrysler supported requiring disclosure than new cars, if the Commission required developing and publishing such cost- of EPA certification levels, but appeared disclosure of specific data on standard labels (based benefit information. For example, the to oppose disclosure of vehicle cruising on the vehicle’s condition when new), it might 225 create the impression with some consumers that Commission considered the extent to range. Ford stated that ‘‘most of the these disclosures may still be valid. which balanced, accurate information information meeting [EPA 92’s mandate] 211 AAMA, I–16, 7. That comment, however, for pertinent comparative factors could is already included on existing motor 226 proposed a different format for used vehicle labels. be conveyed on the ‘‘simple’’ label vehicle labels.’’ AAMA stated that it 212 Electro Auto, I–7, 1. Electro Auto’s objection ‘‘support[ed] the intent of the FTC may have been based on a misapprehension that envisioned by Congress. It also labels for used AFVs would require disclosure of considered whether appropriate proposal’’ and that ‘‘the specific performance attributes specific to that vehicle. The technical standards existed to compare information proposed is appropriate SNPR did not propose such disclosures. some factors, and whether providing the with respect to costs and benefits, so as 213 Mobil, I–2, 8 (‘‘As long as the definition in this same information required on labels by to reasonably enable the consumer to rule is coordinated with DOE, then this rulemaking make choices and comparisons.’ ’’ 227 will be consistent with forthcoming EPAct rules other government agencies (in different from DOE.’’). formats) could confuse consumers. 221 214 See 42 U.S.C. 13211(3) (Supp. IV 1993) After evaluating those issues, the Labels for used covered AFVs would not (defining ‘‘AFV’’). disclose objective information particular to each Commission proposed in the SNPR an vehicle. See 59 FR 59666, 59688 n.312, 59690 215 AMI (Tr.), 136, 218; Boston Edison, G–26, 10; AFV label disclosing a combination of n.358. ETC, G–24, 4; NAFA, G–20, 5, (Tr.), 222; PCC, G– 220 222 22, 2; RFA, G–5, 5, (Tr.), 217. information in a three-part format, Boston Edison/EEI, I–14, 4, 5–6 (both are useful to consumers); DOE, J–1, 2. 216 See AMI (Tr.), 218 (‘‘[T]his is a real problem concluding this would be most useful to 223 now. There are nearly 10,000 [flexible] fuel vehicles API, I–15, 2. API’s comment did not address in California alone, and * * * several hundred are 217 Unocal, I–5, addressed the proposal for the Commission’s proposal to require disclosure of being offered for sale now to private consumers.’’). labeling of alternative fuels. Two other comments EPA certification level. See also NAFA (Tr.), 222: (Mechtly, I–1, and Sokol, I–17) addressed metric 224 Mobil, I–2, cover letter at 3, 9–11. I think one of the things you have to be concerned issues. See section VI infra. 225 Chrysler, I–13, 1. about looking down the road with alternative fuels 218 59 FR 59666, 59684. All nine commenters 226 Ford, I–4, 1. is that if there is not a resale market for these addressing that issue supported the Commission’s 227 AAMA, I–16, 1. AAMA did not, however, vehicles, the program will wither and die * * * So assessment. AAMA (Tr.), 37–38; AMI, G–3, 1; support the ‘‘manner by which this information is we don’t have a procedure to provide information Boston Edison (Tr.), 84; CEC, H–8, 1; ETC (Tr.), 42; [displayed].’’ Id. For used covered vehicles, AAMA to that second purchaser. And they have questions NAFA (Tr.), 53; NPGA (Tr.), 50, 51; RFA, G–5, 4; stated that labels should ‘‘contain only the about alternative fuels. And they don’t know how Sun, G–1, 2. information necessary to indicate that the vehicle to go about getting a brochure like this * * * If you 219 Chicago, J–2, 1 (AFV labeling requirement operates on alternative fuels and to list the fuels don’t create the resale market, then the first market should target all consumers). that can be used in the vehicle.’’ AAMA, I–16, 1. doesn’t really develop. 220 59 FR 24014, 24019–24020. Continued 26942 Federal Register / Vol. 60, No. 97 / Friday, May 19, 1995 / Rules and Regulations

The Commission’s SNPR proposal as to Cruising range values would be For other vehicles not yet required to both disclosures, and the comments expressed in whole numbers and be labeled with EPA’s fuel economy addressing those issues, are described in calculated in one of three ways. For stickers, the Commission knew of no more detail below. vehicles required to comply with EPA’s comparable consensus procedure that (1) Cruising range. In the SNPR, the fuel economy labeling provisions,234 could yield cruising range values in the Commission proposed that cruising cruising range values would be proposed ‘‘minimum-maximum’’ range should be disclosed on labels for calculated by reference to the vehicle’s format. As a result, the Commission did new covered AFVs.228 Under the estimated fuel economy rating.235 For not propose that manufacturers use a Commission’s revised proposal, cruising example, the lower range value would specific standard to determine cruising range would be displayed on AFV labels be determined by multiplying the range. In similar situations (i.e., where in two formats. The first labeling format vehicle’s estimated city fuel economy by the Commission has required the would be for dedicated covered AFVs its fuel tank or battery capacity, then disclosure of specific information, but (i.e., covered AFVs designed to operate rounding to the next lower integer no consensus standards exist to measure solely on alternative fuel).229 Labels for 236 value. Conversely, the upper range such information), the Commission has these vehicles would disclose the value would be determined by required that manufacturers have a manufacturer’s ‘‘estimated cruising multiplying the vehicle’s estimated ‘‘reasonable basis’’ for such range’’ for that vehicle (i.e., the highway fuel economy by its fuel tank disclosures.242 Accordingly, for those manufacturer’s reasonable estimate of capacity, then rounding to the next vehicles, the Commission proposed that the number of miles a covered vehicle higher integer value.237 will travel between refueling or As noted previously, EPA is required manufacturers be required to possess a recharging), expressed as a lower to include AFVs powered by all reasonable basis, consisting of estimate and an upper estimate.230 alternative fuels within its fuel-economy competent and reliable evidence, of the The second labeling format would be labeling program, but has not yet minimum and maximum number of for dual-fueled covered AFVs (i.e., announced a timetable for doing so.238 miles the vehicle will travel between vehicles capable of being powered both During the transition to that next phase, refuelings or rechargings.243 by an alternative fuel and a the Commission therefore proposed a The SNPR also stated that during this conventional fuel).231 Labels for these different approach for vehicles not yet transition (i.e., while EPA is developing vehicles would disclose two sets of required to comply with EPA’s fuel- fuel-economy labeling requirements), values: the manufacturer’s reasonable economy labeling provisions. For EVs, the Commission would consider estimate of (a) the minimum and the Commission noted that the Society whether any new consensus test maximum number of miles the vehicle of Automotive Engineers (‘‘SAE’’), a methods for determining cruising range will travel between refuelings or consensus standard-setting organization, constitute a reasonable basis.244 The rechargings when operated exclusively has issued a ‘‘Recommended Practice’’ Commission expected that industry on alternative fuel, and (b) the establishing uniform procedures to compliance with this AFV labeling rule, minimum and maximum number of calculate cruising range for EVs (‘‘SAE in conjunction with the need to avoid miles the vehicle will travel between J1634’’).239 The Commission believed uncertainty about whether particular refuelings or rechargings when operated that reliance on uniform standards test methods or calculations constitute a 240 exclusively on conventional fuel.232 would facilitate comparability. reasonable basis, will encourage Because the disclosure would relate Accordingly, the proposed rule requires development of standardized test solely to the manufacturer’s estimated that cruising range values for EV’s be methods and specifications. This, in (and not actual) cruising range, both calculated in accordance with that turn, could facilitate widespread 241 label formats would include a statement standard. acceptance of AFVs. advising consumers that their actual cruising range will vary with options, 234 See 40 CFR part 600 (1993) (‘‘Fuel economy of Fourteen comments addressed driving conditions, driving habits and motor vehicles’’). requiring disclosure of cruising range as 235 the AFV’s condition.233 Numerous commenters suggested that cruising proposed in the SNPR. Five of the range values could be so calculated. See, e.g., fourteen comments supported the AAMA (Supp.), G–7, 3 (‘‘Combining MPG with tank As noted previously, three comments fully capacity can give the customer a reasonable Commission’s proposal because of its supported AAMA’s comment. Chrysler, I–13, 1; estimation of driving range.’’); AMI (Tr.), 141; CAS usefulness to consumers in making Ford, I–4, 2; NGVPA, I–19, 1. (Supp.), G–17, 1–2; EPA (Tr.), 144; RFA (Tr.), 148. 228 236 The Commission did not propose requiring See proposed rule § 309.22(a)(1)(i), 59 FR 242 See, e.g., Fuel Rating Rule, 16 CFR 306.5(b) disclosure of this information on labels for used 59666, 59708. (1994) (‘‘To determine automotive fuel ratings for covered AFVs because that information could vary 237 See proposed rule § 309.22(a)(1)(ii), 59 FR alternative liquid automotive fuels, you must significantly with a vehicle’s condition. Requiring 59666, 59708. possess a reasonable basis, consisting of competent disclosure of cruising range information on used 238 59 FR 39638, 39639 (announcing fuel-economy and reliable evidence, for the percentage by volume vehicles could therefore mislead consumers. test labeling requirements for methanol and CNG of the principal component of the [fuel] that you 229 See proposed rule § 309.1(g) (defining vehicles). One comment suggested that the must disclose.’’); Care Labeling Rule, 16 CFR ‘‘dedicated’’), 59 FR 59666, 59703. Commission encourage EPA to develop further fuel 423.6(c)(1)–(6) (1994) (‘‘reasonable basis’’ based on 230 See proposed rules §§ 309.1(o) (defining economy regulations. ETC, I–9, 1. The Commission ‘‘reliable evidence’’); R-value Rule, 16 CFR ‘‘estimated cruising range’’), 309.20(e)(2)(i) does not believe that is necessary because EPA is 460.19(a) (1994) (‘‘If you say or imply in your ads, (requiring disclosure of estimated cruising range for under a legal obligation to issue such regulations. labels, or other promotional materials that dedicated vehicles), 59 FR 59666, 59704, 59707. 239 SAE’s ‘‘Electric Vehicle Energy Consumption insulation can cut fuel bills or fuel use, you must 231 See proposed rule § 309.1(i) (defining ‘‘dual and Range Test Procedure,’’ J1634, was issued in have a reasonable basis for the claim.’’). fueled’’), 59 FR 59666, 59704. May 1993. B–33. This procedure is based in part on 243 See proposed rules §§ 309.22(a)(3) (for 232 See proposed rule § 309.20(e)(2)(ii) (requiring EPA’s pertinent test procedures. B–33, 1, 9–10. dedicated vehicles), 309.22(b)(3) (for dual-fueled disclosure of estimated cruising range for dual- Boston Edison stated that fuel economy ‘‘can be vehicles), 59 FR 59666, 50708. fueled vehicles), 59 FR 59666, 59707. [calculated] in a manner that is procedurally 244 The Commission encourages DOE, as part of 233 EPA’s fuel economy labels contain a similar identical to gasoline vehicles’’ by relying on SAE its ‘‘technical assistance,’’ to direct the development statement. See 40 CFR 600.307–86(a)(3)(ii)(A) J1634. Boston Edison (Supp.), G–26, 5. of such transition specifications. See 42 U.S.C. (1993) (‘‘Actual mileage will vary with options, 240 59 FR 59666, 59688. 13232(b) (Supp. IV 1993) (DOE ‘‘shall provide driving conditions, driving habits, and [vehicle’s/ 241 See proposed rules §§ 309.22(a)(2) (for technical assistance’’ to the Commission and truck’s] condition.’’). See SNPR Figures 4 and 5, 59 dedicated vehicles), 309.22(b)(2) (for dual-fueled coordinate that assistance with its development of FR 59666, 59710–59711. vehicles), 59 FR 59666, 59708. a consumer information brochure). Federal Register / Vol. 60, No. 97 / Friday, May 19, 1995 / Rules and Regulations 26943 choices and comparisons.245 For CARB stated that it ‘‘has a number of example, the SAE J1634 procedure for example, survey data cited by Boston concerns’’ with SAE J1634, including calculating EV fuel-economy values Edison/EEI ‘‘indicated that the distance that it may allow for inflated range currently measures only a combined that an electric car can travel is the estimates and that its treatment of EVs metro-highway fuel economy and is highest ranking concern of equipped with air conditioning was not thus ‘‘inadequate for these consumers.’’ 246 Similarly, CAS sufficiently precise.251 calculations.’’ 260 That Recommended supported requiring disclosure of this Comments from domestic automakers Procedure also does not apply to hybrid ‘‘extremely useful’’ information and supported the Commission’s EVs (i.e., vehicles capable of operating NAFA stated that fleet managers ‘‘have determination that cruising range would on electricity and conventional fuels at identified cruising range as one of the be ‘‘useful’’ 252 and ‘‘important’’ 253 the same time).261 Battery capacity for most important factors when making a information for consumers. However, EVs also ‘‘may vary with usage, age, decision to purchase AFVs.’’ 247 those commenters strongly opposed temperature * * * and other Three of the fourteen comments made requiring a disclosure as to that factor factors.’’ 262 Accordingly, ‘‘[f]urther suggestions directed at specific issues because cruising range ‘‘cannot, at this experience with these vehicles is without specifically supporting or time, be provided in a manner which necessary to provide an adequate opposing the Commission’s SNPR would be useful to the consumer.’’ 254 prediction of the range that a consumer proposal.248 For example, API noted that The automakers based their opposition may achieve in-use.’’ 263 More generally, cruising range was ‘‘a useful measure for on their belief that sufficient ‘‘standards AAMA concluded that consumer comparison’’ but suggested and adjustment factors’’ had not yet [A]ny requirement that manufacturers that the information be expressed in been developed to account for calculate and label vehicles with range terms of fuel tank capacity ‘‘and miles differences in AFV technology.255 estimates must resolve the above issues, per gallon or gallon equivalent.’’ 249 The For example, according to AAMA, or least be deferred until these issues final two of those three comments were without standard fuel specifications,256 can be resolved * * * These estimates directed at the Commission’s proposal EPA test procedures, and a definition of not only fail to provide valuable regarding how cruising range would be fuel tank capacity for all AFVs, a range information to customers, but may also calculated for EVs. Toyota supported of estimates would result based on result in failure to meet customer the Commission’s proposal to base varying assumptions which would in expectations leading to customer calculation of cruising range values for turn generate inconsistent and dissatisfaction with [AFVs].264 EVs on SAE J1634, but stated that unhelpful estimates of vehicle range.257 After considering the record relating procedure did not yield an upper and The expected use of AFVs by fleet to the threshold issue (i.e., whether lower limit of the vehicle’s range.250 operators, with different in-use driving cruising range should be disclosed on cycles and vehicle maintenance AFV labels), the Commission has 245 Five other comments generally supported the practices than those used in EPA’s fuel concluded that such information is Commission’s AFV labeling requirements without economy determinations, ‘‘can [also] appropriate and will help consumers addressing this issue. AGA/NGVC, I–18, 2, 3; 258 Chicago, J–2, 1; Comm Elec, I–8, 8; EIA/EEU–ISD, significantly affect range.’’ And make reasonable choices and J–4, 1; RFA, I–3, 1–2. ‘‘inconsistencies and confusion’’ exist comparisons.265 It is also one of the 246 Boston Edison/EEI, I–14, 4. between range estimates for flexible fuel most important facts consumers need 247 CAS, I–12, 1; NAFA, I–10, 2. DOE and Mobil vehicles (i.e., AFVs capable of operating regarding whether and which AFV to also supported a disclosure of this information. acquire; as AAMA noted: ‘‘This DOE, J–1, 2; Mobil, I–2, 9–10, cover letter at 1. on an alternative and conventional fuel NAFA further suggested that the Commission in a single fuel tank) and bi-fuel information (i.e., range) is vital for the specify that no information ‘‘be presented at the vehicles (i.e., AFVs equipped with consumer when deciding between time an AFV is offered for sale that conflicts with separate fuel tanks for alternative and various alternative fuels * * * .’’ 266 information provided on the AFV label, such as 259 Because cruising ranges for AFVs can cruising range.’’ NAFA, I–10, 2. The Commission conventional fuels). expects that requiring disclosure of cruising range AAMA suggested that additional differ significantly from cruising ranges information could encourage affected problems exist regarding calculating for conventional fuel vehicles, with manufacturers and dealers generally to provide fuel economy values for EVs. For which consumers are most familiar, additional information to meet consumers’ consumers also have a practical need for expectations and needs. See AGA/NGVC, G–6, 12 (‘‘[F]uel retailers, vehicle manufacturers and trade 251 CARB, J–3, 2. cruising range disclosures on AFV associations can target and educate specialty 252 AAMA, I–16, 2. labels. As a Workshop participant markets and their consumers.’’); Boston Edison, D– 253 Electro Auto, I–7, 2. stated, 11, 13 (‘‘[O]ver time, market forces will create 254 Ford, I–4, 2. See also AAMA, I–16, 2 (‘‘[W]e [I]f I was leaving on a 50 or 60-mile incentives for sellers to identify and respond to have been unable to adequately develop a value trip and my cruising range could be as consumer demands for information, much as which would be consistent across fuels and gasoline sellers supplement the information that manufacturers or useful to customers at this time.’’); low as 30, I’d like to know that. So I they are required to provide under the Electro Auto, I–7, 2 (range is ‘‘a difficult number to Commission’s Octane Rule.’’). The Commission pin down with any consistency’’); ETC, I–9, 2 260 AAMA, I–16, Att. II at 1. AAMA notes, concludes that it is not necessary to address this (Commission should defer requiring disclosure however, that the SAE procedure is ‘‘currently issue here, because section 5 of the FTC Act (15 ‘‘until industry-wide accepted methodologies for being modified to measure city and highway energy U.S.C. 45) authorizes the Commission to seek range measurement are available’’). consumption,’’ and that the new procedure will be corrective action if, after investigation, it has reason 255 AAMA, I–16, 6 (‘‘The disclosure of vehicle approved ‘‘some time in 1995.’’ Id. to believe that advertising or marketing falls within 261 the scope of conduct declared unlawful by the range should not be provided until the standards AAMA, I–16, Att. II at 2. statute. and adjustment factors, as described above, can be 262 Id. developed.’’). 263 248 A fourth comment, from DOT/NHTSA, noted Id. 256 that NHTSA recently proposed gallon equivalent The lack of commercial fuel specifications 264 AAMA, I–16, 3. measurements for five gaseous fuels: CNG, LNG, ‘‘results in highly variable fuel energy content 265 See, e.g., CAS (Tr.), 156 (range gives LPG, Hydrogen, and Hythane. DOT/NHTSA, J–5, 1. which could greatly affect in-use driving range.’’ consumers ‘‘the ability to compare in the showroom 249 API, I–15, 5. AAMA, Att. II at 1. a very visible number that you can go from car to 257 250 Toyota, I–11, 2. As a result, Toyota AAMA, I–16, 2, 3, Att. II at 1, 2. Chrysler, car to car and compare.’’); (Supp.), G–17, 1. recommended that the Commission require that however, supported disclosure of fuel tank capacity 266 AAMA, G–7, 2. See also AMI (Tr.), 141 (range ‘‘The range shall be actual driving range determined and noted that that information was ‘‘currently is one of the most important factors); NAFA (Tr.), in accordance with test methods set forth in the provided.’’ Chrysler, I–13, 1, 2. 147 (same); Boston Edison (Supp.), G–26, 9; (Tr.), latest SAE J1634 ‘‘Electric Vehicle Energy 258 AAMA, I–16, 3. 142 (range is most important concern of people Consumption and [R]ange Procedure.’’ Id. at 3. 259 Id. considering an EV purchase). 26944 Federal Register / Vol. 60, No. 97 / Friday, May 19, 1995 / Rules and Regulations

think I would like to know the low end manuals for the 1994 Dodge Spirit 273 methanol.281 Accordingly the of it even if there is a broad, you know, and 1993 Chevrolet Lumina.274 Peugeot Commission has determined to issue its number that’s not very well defined. I has made similar claims in its SNPR proposal regarding methods for think it’s still beneficial to know what promotional material.275 Companies calculating cruising range values (but the minimum, certainly the minimums converting cars to run on electricity 276 with four modifications described are, because you have to be able to make and electricity utilities 277 are also below) because those methods generate it to the next fueling point.267 making cruising range claims for EVs. comparable cruising-range estimates. Displaying cruising-range values in a Similar claims are also being made for For example, calculating such meaningful way to consumers also is AFVs powered in whole or in part by estimates for vehicles required to feasible. Statements accompanying the CNG,278 hydrogen,279 LPG,280 and comply with EPA’s fuel-economy cruising range values identify the regulations should not be a problem, disclosure as being a ‘‘manufacturer’s 273 AAMA (Supp.), G–7, 1994 Dodge Spirit because the data yielding the estimates Owner’s Manual at 105 (‘‘Cruising Range: M–85 (the vehicle’s fuel economy estimate estimate,’’ and advise consumers that produces less energy when burned than gasoline. actual cruising range ‘‘will vary with Therefore, cruising ranges and miles per gallon and fuel tank capacity) are readily options, driving conditions, driving (MPG) will be considerably less when using M–85. determinable.282 For those vehicles, the habits and the vehicle’s condition.’’ Cruising ranges will increase as the content of estimates would simply be derived by gasoline in the fuel tank increases.’’). multiplying two known values.283 Consumers are further cautioned that 274 AAMA (Supp.), G–17, 1993 Chevrolet Lumina the labels are for comparison purposes Owner’s Manual—Ethanol Supplement, at 4 Similarly, the Commission has and ‘‘may not reflect actual driving (‘‘When using an E–85 mixture of fuel, your Lumina concluded that relying on SAE’s J1634 range.’’ A disclosure displayed in this has a range of 250–300 miles (400–480 km).’’); 1992 Recommended Practice is appropriate Chevrolet Lumina Owner’s Manual—Methanol for calculating cruising range values for format is not likely to pose problems to Supplement, at 5 (‘‘When using an M–85 mixture consumers accustomed to estimates.268 of fuel, your Lumina has a range of 200–250 miles EVs. The J1634 test establishes ‘‘uniform procedures for testing electric battery- The Commission has also determined (320–400 km).’’). 275 PSA Peugeot Citroen, Electric Vehicles, B–13, powered vehicles * * * [using] that calculating cruising range values is at 3–5, 1992 (Peugeot 106 has range of 90–160 km; standard tests which will allow for feasible, as shown by the prominence Citela has range of 210 km @ 40 kph and 110 km determination of * * * [cruising] with which this factor appears in city, and car continuously displays remaining range.’’ 284 The Commission also notes marketing and advertising claims range; Peugeot 405 Station Wagon has battery range of 72 km at 40 kph and highway range of 750 km that DOE has proposed requiring the use promoting AFV use.269 For example, at 100 kph). of SAE J1634 to determine equivalent Chrysler, GM and Ford have all made 276 Dreisbach ElectroMotive, Inc., API Demi petroleum-based fuel economies of cruising range claims regarding their Motorola Saturn, B–14, front, undated (range from EVs.285 Thus, for those vehicles, the EVs in congressional testimony,270 140 to 518 miles depending on battery 271 configuration); Electro Automotive, Electro final rule requires that cruising range be promotional material and product Automotive Makes Electric Cars Easy With The 272 calculated using SAE J1634. specification sheets. Chrysler and GM Voltsrabbit(tm) Kit, B–15, front, undated (range: 60– As noted, however, the Commission also address cruising range in owner’s 80 miles); Solar Car Corporation, Specifications for Chevy S–10 and GMC S–15 Pickup Truck has modified the proposed rule in four (converted to run on electricity), B–16, front, Aug. ways in response to the comments. 267 RFA (Tr.), 149. See also RFA (Tr.), 153, 1, 1992 (‘‘Normal Daily Range—50 to 80 miles, First, the proposed rule is modified by (Supp.), G–5, 2 (‘‘[G]iven the sparsity and distance depending on terrain, speed and driving between alternative fuel refueling stations, vehicle conditions.’’). including a definition of fuel tank owners need to be aware of approximate range.’’). 277 Arizona Public Service Company, Electric capacity for vehicles powered by 268 AMI (Tr.), 155 (consumers understand that Vehicle Program, B–17, at first upper panel, gaseous and liquid fuels.286 This ‘‘basic information’’ on the label is not going to be undated (‘‘Today’s batteries give Evs a range of 30 modification will promote consistency precise). to 100 miles on a single charge.’’); Electric Power of cruising range estimates where the 269 The Commission described these claims and Research Institute, Electric Vehicle Infrastructure: their prevalence in detail in the SNPR. 59 FR 59666, How Far Will My Electric Vehicle Take Me?, B–18, calculations are based on fuel economy 59687–59688. Automakers responding to the SNPR front, 1992 (‘‘[T]oday’s EV models . . . offer a and tank capacity data. The final rule did not address this issue. driving range of 60 to 100 miles. . . .’’); Virginia thus includes a definition for ‘‘vehicle 270 For example, at a May 11, 1993, congressional Power, The Electric Vehicle: Clean, Quiet and hearing, representatives from Chrysler, Ford, and Efficient (CO 923–VA/EE 93084), B–19, front, ‘‘identical vehicles, optimized for their specific GM all made cruising range claims for their EVs. undated (Solectria Force has range of 70–90 miles); fuel.’’). See Status of Domestic Electric Vehicle Potomac Electric Power Company, Questions and 281 Development, 103d Cong., 1st Sess. (1993) Answers About the Solectria Force, B–20, front, Ford, Taurus passenger car FFV (using (statement of Doran K. Samples, Program Dec. 1992 (Solectria Force has driving range of ‘‘60 gasoline or M85), B–26, front, March 4, 1993 Management Executive of the Electric Minivan miles if the batteries are fully charged . . . The (‘‘Highway driving range is approximately 350 Project, Chrysler, at 52, 56; Roberta J. Nichols, effective range of the Force using current off-the- miles when using M85.’’); Ford, Ford Announces Electric Vehicle External Strategy Manager, Ford, at shelf battery technology is approximately 35 to 40 Production of 1993 Taurus FFV, B–27, at 1, Dec. 16, 60, 64, 66; and Kenneth R. Baker, Vice President, miles on a charge.’’). 1992 (‘‘By increasing the size of the fuel tank to 20.7 GM, at 76). 278 Blue Bird Body Company, Product gallons, the driving range of the Taurus FFV when fueled with M85 is similar to a non-FFV Taurus.’’); 271 See GM, Progress Report, B–5, front, Spring/ Specifications for NGV School Buses (models TC/ Ford, Econoline van and Club Wagon FFV (using Summer 1993 (GM’s Impact 4 EV has ‘‘a driving 2000 FE and TC/2000 RE), B–21, at 3, 1992 gasoline and M85), B–28, front, March 4, 1993 range of 70 miles in the city and 90 miles in normal (‘‘Vehicle range—300 miles with 6 tanks, 150 miles (‘‘The highway driving range is approximately 400 highway driving.’’); GM, GM’s ‘‘Impact’’ Show Car with 3 tanks’’); Ford, Crown Victoria dedicated miles when using M85.’’). and New Pre-Production Electric Vehicle Lead the CNG, B–22, front, March 3, 1993 (‘‘The driving 282 104th Tournament of Roses, B–6, at 2, Dec. 29, 1992 range for these demonstration units is Chrysler, I–13, 1, 2 (fuel tank capacity and fuel (‘‘The Impact and the pre-production car . . . have approximately 200 miles.’’). economy values are ‘‘currently provided’’). a useful range of 100 miles . . .’’); GM, General 279 Mazda, Mazda Takes Action To Address 283 See, e.g., Ford, G–14, 1–2, (Tr.), 145 Motors Electric Vehicles Fit Most Drivers’ Lifestyles, Global Environmental Concerns, B–23, at 3, July 27, (consumers could use fuel tank capacity and EPA’s B–7, at 1, Oct. 20, 1992 (‘‘GM’s ‘Impact’ prototype 1993 (‘‘With a full tank of hydrogen, the Mazda HR- fuel economy estimates to determine approximate has a highway range of 100 miles.’’). X has a range of up to 125 miles.’’). cruising range). 272 Chrysler 1994 Dodge Caravan/Plymouth 280 Clean Fuels Task Force of Western Liquid Gas 284 B–33, 1 (emphasis added). See also B–33, 10 Voyager, B–8, back, May 7, 1993; Chrysler 1994 Association, LPG: An Alternate Clean Air Motor (‘‘The purpose of this test is to determine the Dodge Caravan/Plymouth Voyager, B–9, back, Aug. Fuel With Significant Environmental and Economic overall range of an electric vehicle when operated 31, 1992; Ford Ecostar, B–10, back panel, undated; Advantages, B–24, 7, May 1992 (‘‘LPG offers the on a dynamometer over repeated driving cycles.’’). GM Impact 3, B–11, back, undated; GM Impact, B– best range per gallon of the four non-gasoline clean 285 59 FR 5336, Feb. 4, 1994. 12, back, undated (‘‘It has a practical range of 80 fuels.’’); NPGA, LP-Gas Is Moving America’s Fleets, 286 Standard procedures regarding battery miles per charge.’’). B–25, 6, 1991 (chart comparing driving ranges for capacity for EVs are contained in SAE J1634. Federal Register / Vol. 60, No. 97 / Friday, May 19, 1995 / Rules and Regulations 26945 fuel tank capacity’’ derived from a DOT requirements. No comments addressed the Clean Air Act.’ ’’ 297 The written definition of the same term.287 Second, this issue. The Commission has disclosure accompanying the graphic the final rule requires that cruising concluded that the recordkeeping also ‘‘should provide consumers with range values for EVs be disclosed in the provision is simple, easy to comply sufficient information to understand the format generated by the SAE with, and allows it to verify compliance. limits of the information conveyed by Recommended Practice (i.e., in a single Accordingly, the Commission has not the graphic.’’ 298 ‘‘combined’’ city-highway range). As a modified that requirement in the final Two comments supported the concept result, cruising ranges for these vehicles rule. of disclosing a vehicle’s emissions will be displayed as a single figure (e.g., (2) Environmental impact. In the certification standard but suggested that ‘‘450 miles’’) instead of in a minimum- SNPR, the Commission proposed that the information be displayed in a maximum format (e.g., ‘‘400–500 labels for new covered AFVs disclose different format. AGA/NGVC suggested miles’’).288 information regarding a vehicle’s that the statement accompanying the Third, because the SAE J1634 test environmental performance, expressed disclosure state that, ‘‘The overall procedures do not apply to hybrid EVs, in terms of the EPA emissions standard environmental impact of driving [any] that Recommended Practice will not to which the vehicle had been vehicle includes many factors not generate cruising range values for those certified.292 For vehicles which had not [currently] measured by [existing vehicles. Accordingly, the Commission been so certified, manufacturers would vehicle emission] standards.’’ 299 (The has modified the definition of ‘‘electric place a mark in the box indicating that modifications are shown in brackets.) vehicle’’ to clarify that only vehicles fact.293 For those vehicles which had That comment further suggested that the powered exclusively by electricity are been certified as meeting an emissions graphic for this factor identify the required to calculate cruising range standard, manufacturers would place a standard to which the conventionally- values by reference to SAE J1634.289 For mark in the appropriate box indicating fueled version of that vehicle was hybrid EVs, then, cruising range values that fact, and then indicate on a graphic certified.300 Chrysler specifically would be calculated by reference to the the standard to which the vehicle had supported labeling AFVs with each ‘‘reasonable basis’’ test. been certified. The graphic would vehicle’s emissions certification Finally, the SNPR’s treatment of bi- depict seven EPA emissions standards. standard, but generally opposed the fuel vehicles is modified to reflect the Prior to being offered for acquisition to Commission’s proposed labeling fact that those vehicles have two tanks consumers, manufacturers of such format.301 holding separate fuels, operating on one vehicles would identify the emissions Four other comments opposed fuel or the other.290 With two separate certification standard on that graphic by requiring this disclosure on AFV labels. tanks, the effective cruising range for placing a caret above the applicable Mobil stated that emissions standards such vehicles could be the sum of the standard. The label would also contain have no relevance in EPA 92, that fleet cruising range for either fuel. a statement advising consumers that, operators (who are concerned about Accordingly, the statement ‘‘The overall environmental impact of emissions certifications) do not rely on accompanying that disclosure will driving this vehicle includes many window stickers in making purchasing advise consumers that, ‘‘The total factors not measured by these decisions, and that the ‘‘vast majority’’ possible cruising range of this vehicle is standards.’’ of the general public ‘‘are not aware of the sum of the alternative fuel range and Ten comments addressed this aspect the differing classifications’’ and are not the conventional fuel range.’’ of the Commission’s SNPR proposal.294 required to acquire AFVs. ‘‘Therefore, The proposed rule also included a Four comments supported including labeling of the vehicle emissions provision requiring that manufacturers this information on new AFV labels certification will not provide any maintain records for three years because the information was ‘‘an meaningful information to the majority demonstrating compliance with the important factor’’ 295 for consumers and 302 291 of consumers.’’ proposed rule. While EPA 92 does the proposed graphic conveys this Three comments from automakers not expressly address this issue, the ‘‘critical information to consumers in a similarly opposed requiring this Commission believed that a reasonable 296 highly effective manner.’’ One disclosure.303 AAMA suggested that this recordkeeping requirement is necessary advantage of this disclosure was that disclosure be deferred until EPA had to ensure the accuracy of disclosures consumers would not ‘‘be dependent on established certification standards for made pursuant to these labeling marketing claims and other assertions all alternative fuels and AFVs.304 Electro that a vehicle [was] ‘cleaner’ or that the 287 See Final Rule § 309.1(gg). 297 288 vehicle ‘meets all the requirements of NAFA, I–10, 3. The Commission understands that a revision 298 to SAE J1634 under consideration by SAE would Boston Edison/EEI, I–14, 6. A similar yield cruising range values in a minimum- 292 59 FR 59666, 59690. See text accompanying disclosure on EPA’s fuel economy labels ‘‘appears maximum format. The Commission will monitor notes 320–322. to be effective in conveying to consumers that the SAE’s review of this revision and consider changes 293 EPA has not yet issued emission standards and rating provides a basis of comparison, not a to this Final Rule as appropriate. certification test procedures for certain fuels (e.g., guarantee of performance.’’ Id. 299 289 See Final Rule § 309.1(k). electricity and hydrogen). AGA/NGVC, I–18, 3, 4. The Commission had proposed that that statement read as follows: ‘‘The 290 Flexible fuel vehicles (i.e., vehicles with one 294 Four other comments indicated general overall environmental impact of driving this vehicle tank capable of operating on either fuel, or any support for the Commission’s labeling proposal but includes many factors not measured by these mixture of the two, at the same time) are not did not address this specific issue. Chicago, J–2, 1; standards.’’ affected by this modification. As noted previously, Comm Elec, I–8, 8; EIA/EEU–ISD, J–4, 1; RFA, I– 300 the Commission proposed that labels for dual 3, 1–2. AGA/NGVC, I–18, 3, 4. fueled vehicles dislose two sets of cruising range 295 NAFA, I–10, 3. 301 Chrysler, I–13, 1, 2. estimates: one representing the vehicle’s cruising 296 Boston Edison/EEI, I–14, 5. See also NAFA, I– 302 Mobil, I–2, cover letter at 3, 10. range when operating exclusively on alternative 10, 3 (proposed format is ‘‘simple,’’ ‘‘easy for 303 Two comments from automakers, however, fuel and one representing cruising range when the manufacturers to provide,’’ ‘‘appropriate,’’ and will raised no objection to this disclosure. ETC, I–9 vehicle operates exclusively on conventional fuel. help consumers), CAS, I–12, 1 (graphic will provide (membership includes domestic automakers); As a result, the SNPR’s proposal accurately conveys consumers with at least a minimum of Toyota, I–11. the effective cruising range for these single tank environmental information, but should also identify 304 AAMA, I–16, 3, 6. In the alternative, AAMA AFVs. rating for comparable gasoline-fueled vehicle). DOE suggested that the Commission not require 291 See proposed rule § 309.23, 59 FR 59666, also specifically supported a disclosure as to this disclosure of this information under its labeling 59708. factor. DOE, J–1, 2. Continued 26946 Federal Register / Vol. 60, No. 97 / Friday, May 19, 1995 / Rules and Regulations

Auto stated that AFVs should not be alternative fuels. Instead, the brochure specified model years. After required to meet more stringent labeling states: ‘‘Generally speaking, all manufacturers submit appropriate test standards than conventional fueled alternative fuels produce lower amounts reports and data, the EPA Administrator vehicles and that ‘‘complete of air toxics and ozone-forming issues a ‘‘certificate of conformity’’ to environmental impact data’’ is emissions than does gasoline.’’ 311 The those vehicle manufacturers ‘‘impractical for a simple consumer Commission notes that environmental demonstrating compliance with the label’’ and ‘‘misleading.’’ 305 Ford stated performance (as measured by emissions applicable emissions standards.317 that the proposed disclosures ‘‘cannot, standards) is cited by AFV Pursuant to its authority under the at this time, be provided in a manner manufacturers and other interested 1990 Clean Air Act Amendments,318 which would be useful to the parties in specification sheets and other EPA began issuing stricter emissions consumer.’’ 306 promotional material in a manner not standards for each model year as a way The SNPR also proposed that easily amenable to comparisons.312 of reducing levels of the criteria air manufacturers be required to maintain Disclosure of information regarding pollutants. One set establishes five new records for three years demonstrating environmental impact in a simple label standards as part of a ‘‘clean-fuel compliance with the proposed rule.307 format is also feasible. For several years, vehicles’’ program.319 To qualify as a The Commission tentatively had EPA has promulgated emissions clean-fuel vehicle, a vehicle must meet concluded that such a provision was a classification standards as part of its one of five sets of increasingly stringent reasonable means to ensure compliance Federal Motor Vehicle Control Program, standards. These standards are with this provision. No comments which establishes pollution limits for denominated, in increasing order of addressed this issue. ‘‘criteria air pollutants’’ (i.e., stringency, TLEV (‘‘Transitional Low After considering the record, the hydrocarbons (‘‘HC’’),313 carbon Emission Vehicle’’), LEV (‘‘Low Commission has now concluded that monoxide (‘‘CO’’),314 nitrogen oxides Emission Vehicle’’), ULEV (‘‘Ultra Low requiring disclosure of EPA certification (‘‘NOx’’),315 and particulate matter Emission Vehicle’’), ILEV (‘‘Inherently standards is appropriate and would be (‘‘PM’’)).316 The standards apply to new Low Emission Vehicle’’), and ZEV useful to consumers. Incorporating motor vehicles manufactured in (‘‘Zero Emission Vehicle’’).320 Standards environmental considerations into for ‘‘clean-fuel vehicles’’ are mandated national energy policy was a key goal of 311 B–3, 15. That statement is repeated in the for use, at present, in two EPA EPA 92, and ‘‘improv[ing] our section devoted to each of the featured fuels. programs: the California Pilot Test environment’’ was a ‘‘principal 312 See, e.g., Chrysler, Plymouth Acclaim and Dodge Spirit FFV (no model year listed), B–29, program and Clean Fuel Fleet 308 321 purpose’’ of that statute. EPA 92 also back, undated (‘‘[R]educes smog-forming emissions Program. EPA staff has informed the gives special attention to the fact that by at least 30 percent, and in many cases by as Commission, however, that it expects the environmental performance of much as 50 percent, compared to gasoline run that vehicles meeting these standards alternative fuels differs, and that those counterparts. In addition, toxic emissions can be reduced by as much as 50 percent.’’); Chrysler, will not be restricted to these programs differences need to be explained to Chrysler Corporation’s [CNG] Vans & Wagons (no (e.g., some state programs require 309 consumers. model year listed), B–30, inside front cover, acquisition of clean fuel vehicles). The record also indicates that undated (‘‘Dodge [CNG] Vehicles will meet or beat In the SNPR, the Commission noted comparative information regarding all applicable emission standards up to and that consumers could make alternative fuels will be helpful for including California’s requirements for Ultra Low Emission Vehicles (ULEV). CNG fueled Dodge vans comparisons among vehicles by consumers considering AFV and wagons produce significantly less emissions of reference to EPA’s classification system. acquisitions. Numerous comments nonmethane hydrocarbons, carbon monoxide and Specifically, because AFVs will be identified information about oxides of nitrogen than similar gasoline powered certified to a specific classification, environmental performance as being vehicles.’’); Ford, Taurus passenger car FFV, B–26, front, March 4, 1993 (‘‘Emission Levels: Compared certification levels provide a simple way important to consumers considering to gasoline vehicles, an ozone benefit of 30% is of comparing different AFVs.322 The AFV acquisitions.310 DOE’s information projected for an FFV when operating on M85.’’). information also could be useful and brochure does not compare the See also Clean Fuels Task Force of Western important to some consumers likely to environmental performance of different Liquid Gas Association, LPG: An Alternate Clean Air Motor Fuel With Significant Environmental and consider AFV acquisitions (e.g., fleet Economic Advantages, B–24, 2, May 1992 (‘‘Use of operators and environmentally- requirements, and instead defer to EPA. AAMA, I– LPG as a motor fuel virtually ELIMINATES concerned consumers).323 Requiring 16, 6. PARTICULATES, the gasoline and diesel carbon disclosure of objective data allows 305 Electro Auto, I–7, 2. This comment apparently residue that makes up 25 percent of the ‘brown misapprehended the Commission’s proposal as cloud.’ * * * An [EPA] test of a LPG-fueled Ford requiring disclosure of ‘‘complete environmental V8 full size sedan showed hydrocarbon emissions 317 See, e.g., 40 CFR 86.091–30 (1993) impact data.’’ 29 percent cleaner than the accepted standard. (certification procedures for 1991 model year). 306 Ford, I–4, 2. This comment did not further Nitrogen oxides were down 57 percent, and carbon 318 Pub. L. 101–549, 104 Stat. 2399 (1990). address or explain why this information should not monoxide emissions 93% better than the then 319 See 40 CFR Part 88 (1993) (‘‘Clean-Fuel be required to be disclosed. Federal standard.’’). Vehicles’’). 307 See proposed rule § 309.23, 59 FR 59666, 313 In sunlight, HC combines with nitrogen oxides 320 According to EPA, a vehicle certified as 59708. to form ozone (a major component of smog). meeting the requirements of both the ULEV and 308 H. Rep. No. 102–474(I), 102d Cong., 2d Sess. According to EPA, ‘‘[o]zone irritates the eyes, ILEV standards have lower combined exhaust and 133, reprinted in 1992 U.S.C.C.A.N. 1954, 1956. The damages the lungs, and aggravates respiratory evaporative emissions than an ILEV certified drafters also sought, inter alia, ‘‘to promote cleaner problems. It is our most widespread and intractable vehicle. alternative automotive fuels.’’ Id. urban air pollution problem. A number of exhaust 321 The California Pilot Test Program requires that 309 For example, the drafters of EPA 92 noted that hydrocarbons are also toxic, with the potential to vehicle manufacturers in California produce and all alternative fuels ‘‘have different strengths, cause cancer.’’ B–31, 2. sell specified minimum numbers of clean fuel weaknesses, prices, emissions, and regional niches 314 CO ‘‘reduces the flow of oxygen in the vehicles. The Clean Fuel Fleet Program requires ** * .’’ H. Rep. No. 102–474(I), 102d Cong., 2d bloodstream and is particularly dangerous to that a percentage of new vehicles acquired by Sess. 136, reprinted in 1992 U.S.C.C.A.N. 1953, persons with heart disease.’’ Id. certain fleet owners located in covered areas meet 315 1959 (emphasis added). Environmental NOx are ‘‘precursors to the formation of smog.’’ ‘‘clean-fuel fleet vehicle emission standards.’’ Fleet performance also is listed first in the list of factors Id. Standards Rule, 59 FR 50042, Sept. 30, 1994. to be addressed by DOE’s information package. 42 316 PM is a general term for soot, dust, smoke, and 322 Boston Edison (Supp.), G–17, 8; CAS (Supp.), U.S.C. 13231 (Supp. IV 1993). other tiny bits of solid material released into the air. G–17, 2; NAFA (Tr.), 186–87. 310 See 59 FR 24014, 24016–24017 n.62, 79, 91, It can cause eye, nose, and throat irritation and 323 CAS (Supp.), G–17, 2; DOE (Tr.), 172; NAFA 98 and accompanying text (responding to ANPR). other health problems. B–32, 22. (Tr.), 170–71. Federal Register / Vol. 60, No. 97 / Friday, May 19, 1995 / Rules and Regulations 26947 consumers to evaluate competitive information and the simple label format. III(C)(2)(c)(1), infra, the Commission advertising and marketing claims Accordingly, in developing this final concludes that for purposes of this regarding an AFV’s environmental rule, the Commission assessed the labeling rule, it is appropriate to advise performance.324 Finally, the practicality of requiring disclosure of consumers to consider costs when recordkeeping provision is simple, easy information pertaining to all the factors evaluating AFVs, without providing to comply with, and allows the cited in the comments. As to the specific data on this factor. Commission to verify compliance with following factors, the Commission has (2) Domestic content of the fuel. the Rule. determined that the level of detail Because information on the domestic For the reasons described above, the necessary to convey balanced, accurate, content of fuel might be of interest to Commission has determined to issue its objective information to consumers (i.e., some consumers interested in the SNPR proposal as to this subject, but by reference to some rating or empirical societal benefit of promoting domestic with two modifications. First, the final value) cannot be contained on the industries, the Commission has rule specifies that if a vehicle has not ‘‘simple’’ label envisioned by Congress. considered the propriety of requiring been certified as meeting an EPA Information overload considerations,327 disclosure of such information on AFV emissions standard, manufacturers must the lack of standards upon which to labels. Several commenters suggested indicate that fact by placing a mark base required disclosures, and the easy that the AFV label indicate the extent to where appropriate on the label availability of such information through which the alternative fuel powering a formats.325 Second, the Commission other sources, led the Commission to particular AFV was produced agrees with AGA/NGVC’s comment reject including additional factors on domestically.331 Such a disclosure proposing a modification of the the label. would help promote energy statement accompanying the graphic to (1) Operating costs. For example, independence and energy security, key more precisely reflect the limitations of earlier in the proceeding CAS proposed goals underlying EPA 92.332 Others the disclosure. Accordingly, the final that the Commission require that opposed such a disclosure because it rule requires that the disclosure state operating costs be disclosed on AFV would not be practicable.333 that, ‘‘The overall environmental impact labels so that consumers will be aware After considering the record, the of driving any vehicle includes many ‘‘if operating costs of an AFV will be Commission has determined that it is factors not currently measured by significantly different than a comparable not practicable to require disclosure of existing vehicle emissions standards.’’ conventional vehicle.’’ 328 Under its objective information as to this factor on The Commission also has concluded proposal, the AFV labels would state, the AFV label. The Commission is that one other suggestion (i.e., requiring ‘‘Operating costs of this vehicle are aware of no consensus standards for disclosure of the emissions standard to expected to be at least 25% higher (or estimating the domestic content of which the conventionally-fueled version lower) than gasoline powered vehicles transportation fuels 334 and government of a vehicle was certified) may not be in its size class.’’ 329 Because expressing reports addressing this topic do not practicable. All vehicles (conventional this information objectively (e.g., cover all alternative fuels.335 In any and AFVs) are designed and configured ‘‘operating this AFV costs 18 cents/ event, the Commission concludes that a 326 to be powered by specific fuels. As a mile’’) or comparatively (e.g., ‘‘operating disclosure as to this factor, even if result, the performance characteristics this AFV costs 10% more than a practicable, is not feasible because of of vehicles configured to be powered by comparable conventional-fueled the constraints of the label format.336 one fuel may differ from vehicles vehicle’’) could help consumers make The Commission notes, however, that bearing the same model name but reasonable choices and comparisons, in DOE’s information brochure includes a configured to be powered by a different preparing its SNPR proposal the general discussion of domestic content fuel. Comparisons between such Commission considered whether for each of the featured fuels. For vehicles may therefore be misleading. balanced, accurate information about example, the brochure states that b. Specific data disclosures that factor could be contained on a ethanol’s domestic content is considered but not proposed. As noted simple label. ‘‘[c]urrently as high as 100% for pure previously, EPA 92 directs the After considering the record, ethanol, depending on world market Commission to issue labeling however, the Commission determined requirements only ‘‘to the greatest that requiring disclosure of specific data 331 Boston Edison, I–14, 7; (Supp.), G–26, 9–11, extent practicable,’’ taking into account as to this factor is not practicable at this 12; (Tr.), 202; RFA, G–5, 5; UCS (Tr.), 201–2, 208. the problems associated with time.330 The Commission received no 332 H. Rep. No. 102–474(1), 102d Cong., 2d Sess. developing and publishing such additional comments supporting a 132. disclosure as to this factor, and finds no 333 AMI (Tr.), 206; API (Tr.), 201; NPGA (Tr.), 203. 334 324 CAS (Supp.), G–17, 2; NAFA, G–20, 4–5. A basis to modify its prior determination. NPGA (Tr.), 203. disclosure as to this factor also will not subject 335 Boston Edison stated DOE’s Energy AFVs to an unfair labeling standard (as compared Accordingly, as described in section Information Administration (‘‘EIA’’) publishes the to conventional fueled vehicles) because, as AAMA data necessary to determine the domestic content of notes, ‘‘[e]missions certification information is 327 AAMA (Tr.), 164–65 (‘‘[W]e feel there is an motor vehicle fuel. Boston Edison (Supp.), G–26, available for all vehicles.’’ AAMA (Supp.), G–7, 1. enormous amount of information that a consumer 11. EIA’s reports, however, do not cover all the See also AAMA (Supp.), G–7, 2 (same). has to know about . . . [AFVs] including electric alternative fuels. See Boston Edison (Supp.), Exhibit 325 The proposed label formats and SNPR text vehicles, and if any attempt is made to put every 4 (no data for ethanol, methanol, hydrogen, or LPG). made this point clear, but the proposed rule factor on the label it’s going to end up information 336 RFA generally supported a disclosure as to this language may have allowed for an erroneous overload and do nothing but confuse the factor but noted at the Workshop that: interpretation. See, e.g., AAMA, I–16, 3 (opposing consumer.’’); Ford (Tr.), 175–76 (sticker is not I question whether or not we want that to be [on] this disclosure in part based on belief that the appropriate place to provide detailed information; a label on the vehicle because I think we’ve added Commission’s proposal would require disclosures consumers need information before they get to the enough stuff now that it’s really a scroll * * * But based on ‘‘reasonable assessments’’ in the absence dealership). perhaps maybe the reference to the brochure and of EPA standards). 328 CAS, G–17, 3, (Tr.), 166, (Supp.), 3. EPA’s fuel then maybe the DOE since they would have access 326 See, e.g., Mobil, D–16, 3 (‘‘The fuel and vehicle economy label discloses the vehicle’s annual fuel to the EIA information readily available, maybe it are a system. Benefits that may be portrayed as costs, but that figure does not include other should go into the information brochure. . . I think being associated with a particular vehicle are really operating costs. EPA (Tr.), 166. it would be too difficult to keep it up in the context a function of the combination of the fuel and the 329 Id. of a label. vehicle.’’). 330 59 FR 59666, 59691–59692. RFA (Tr.), 207–08. 26948 Federal Register / Vol. 60, No. 97 / Friday, May 19, 1995 / Rules and Regulations price.’’ 337 Accordingly, as described in necessary for AFV labels, as described consumers’ expectations and needs.348 section III(C)(2)(c)(1), infra, the in section III(C)(2)(c)(1), infra, The Commission also believed that a list Commission concludes that consumers consumers should be advised to of comparative factors could help should be advised to consider this factor consider this factor when evaluating consumers evaluate information when evaluating AFVs, but that labels AFVs. As to the remaining factors, the disclosed on other labels, in advertising, should not include specific data on this Commission believes that disclosures and from other sources. Accordingly, factor. are impractical because all useful the SNPR proposed that labels for new (3) Fuel economy/energy efficiency. information simply cannot fit in a covered vehicles contain a section In developing this final rule the simple label. The Commission also is under a standard heading, stating, Commission has considered whether not aware of a standard methodology or ‘‘Before selecting an Alternative Fuel requiring disclosure of fuel economy or established practice for calculating any Vehicle (AFV) make sure you energy efficiency information would be of those factors, and no commenter consider:.’’ The labels would then list useful to consumers.338 However, EPA, addressed that subject. the following five factors consumers which is responsible for compiling fuel The Commission notes, however, that should consider before purchasing an economy information for the federal fuel availability and refueling methods, AFV: fuel type (i.e., the fuel or fuels that fuel-economy labeling program, has two topics proposed by comments for power the vehicle); operating costs; plans to establish labeling requirements the labels (including refueling time for performance/convenience (i.e., cold for AFVs powered by all alternative electricity and CNG) are addressed in start capability, refueling/recharging 339 fuels. Therefore, the Commission the DOE brochure.344 Accordingly, as time, acceleration rates, and refueling concludes that requiring fuel economy described in section III(C)(2)(c)(1), infra, methods); fuel availability; and energy information on its labels would be the Commission concludes that security/domestic content of fuel.349 duplicative, and possibly confusing. It consumers should be advised, as a Each factor would be supplemented has thus determined that such general matter, to consider those factors with a brief explanation of how it is information should not be disclosed on when evaluating AFVs. In addition, relevant to an AFV purchase. For its AFV labels. because the Commission has example, for fuel type, the label would (4) Appropriate fuel, fuel availability, determined that consumers need basic contain a statement that consumers fuel grade, and refueling time. The comparative information while should be aware of which fuel(s) powers Commission received comments refueling, the principal component of that particular AFV. For operating costs, suggesting that disclosure of other alternative fuels is required to be the label would state that fuel and information (e.g., appropriate fuel for disclosed by the Commission’s Fuel maintenance costs for AFVs differ from the vehicle,340 fuel availability,341 fuel Rating Rule 345 and this final rule. gasoline or diesel-fueled vehicles and grade,342 and refueling time 343) should can vary considerably. A similar format c. Descriptive Disclosures on AFV be required on AFV labels. The was proposed for the three other Labeling. In the SNPR, the Commission Commission notes that the fuel to be comparative purchasing factors (i.e., proposed that the specific data used in the vehicle will be easily performance/convenience,350 fuel ascertainable (either from EPA’s fuel disclosures on labels for new covered availability,351 energy security/domestic economy labels or information vehicles (i.e., cruising range and EPA content of fuel.352 voluntarily supplied by AFV certification level) be supplemented The Commission proposed a nearly manufacturers). However, some with general, descriptive information identical format for used covered consumers may not be familiar with the pertinent to all consumers considering vehicles. For those labels, the SNPR 346 availability of AFVs powered by an AFV purchase. These descriptive proposed that the labels contain the different alternative fuels. Accordingly, disclosures would comprise the second same standard heading followed by a 347 the Commission finds that while and third parts of the AFV label. The list of factors. Four of the factors on that requiring disclosure of fuel type is not second part of the AFV label would list would be displayed identically to contain a list of factors consumers the list for new covered vehicles.353 The 337 B–3, 18. should consider before acquiring an description of one factor (performance/ 338 In its initial comment Boston Edison stated AFV. The third part would advise convenience) would be modified that energy efficiency could be expressed as consumers of toll-free telephone slightly, by adding a reference to ‘‘efficiency per BTU’’ or ‘‘efficiency per mile,’’ but numbers they could call to obtain did not otherwise define a basis for these cruising range differences between disclosures. Boston Edison, G–26, 3–4. See also further pertinent information from the Boston Edison (Supp.), G–26, 5–7. Although not federal government. The Commission’s 348 59 FR 59666, 59693. stated, it appears that this suggestion was limited proposals as to these two parts, and the 349 59 FR 59666, 59694. to labeling for electric vehicles. At the Workshop, comments addressing those proposals, 350 For performance/convenience, the labels CAS supported a disclosure for this factor, CAS are described below. would state that vehicles powered by different fuels (Tr.), 194, but later indicated that it was satisfied differ in their cold-start capabilities (i.e., ability to that EPA fuel economy labels will give consumers (1) List of comparative factors. The start a cold engine), refueling and/or recharging sufficient information on the comparative energy Commission believed that requiring a time (i.e., how long it takes to refill the vehicle’s efficiency of competing vehicles during driving. list of factors consumers could use to tank to full capacity), acceleration rates, and CAS (Supp.), G–17, 3. refueling methods. 339 consider and compare AFVs would EPA, H–4, 1, 3. 351 For fuel availability, the labels would advise 340 API, G–25, 5. encourage AFV manufacturers, consumers to determine whether refueling and/or 341 CAS, G–17, 3. AGA/NGVC stated that the conversion companies, and dealers to recharging facilities that meet their driving needs AGA’s manual of available CNG fueling stations provide additional information to meet have been developed for this vehicle and will be should be ‘‘referenced,’’ but did not indicate readily available in their area. whether that should be on the AFV label or in the 352 For energy security/domestic content of fuel, 344 DOE brochure. AGA/NGVC (Tr.), 195. The See B–3, 16 (electricity), 18 (ethanol), 20 the labels would state that alternative fuels can Commission notes that the DOE brochure lists AGA (methanol), 22 (CNG), 24 (propane). reduce U.S. reliance on imported oil, especially if and NGVC as sources for additional information 345 See 16 CFR 306.10(a) (1994) (requiring all of the fuel’s components are produced in this about CNG-powered AFVs. See B–3, 23. retailers to post automotive fuel ratings). country. Consumers are then advised to consider 342 MC-MD, H–7, 2. See also NACAA (Tr.), 196 (to 346 59 FR 59666, 59693–59695. whether the fuel powering this vehicle is typically the extent there are different grades, ‘‘we don’t 347 Labels for used covered vehicles, which would produced domestically or is imported. know all the fuels out there’’). not require disclosure of specific data disclosures, 353 Fuel type, operating costs, fuel availability, 343 DOE, H–10, 6; (Tr.), 172–73. would simply disclose the descriptive information. and energy security/domestic content of fuel. Federal Register / Vol. 60, No. 97 / Friday, May 19, 1995 / Rules and Regulations 26949 different fuels.354 This reference was this factor be replaced with a specific list of factors consumers should added to account for the fact that labels data disclosure on the subject, based on consider before acquiring an AFV.365 for used covered vehicles would not data supplied by EIA.361 Mobil The Commission has concluded, disclose the vehicle’s cruising range. suggested that the factor’s description be however, that one factor on the list— Finally, a new factor—environmental revised so that consumers were advised energy security/domestic content— impact—was added to the list to that information as to this subject was should be modified to reflect concerns account for the fact that labels for used available from EIA.362 DOE, however, raised in the comments. As noted covered vehicles would not disclose any supported the Commission’s proposal previously, the final rule does not objective information as to that factor. regarding this topic.363 In addition, CAS require an objective disclosure as to The description for this factor would suggested that the explanation regarding domestic content because it cannot 366 advise consumers that all vehicles two of the factors on the list—fuel feasibly be displayed on a label. The (conventional and AFVs) affect the availability and operating costs—should Commission further agrees that the environment directly (e.g., tailpipe state specifically that further effective meaning of the ‘‘domestic’’ emissions) and indirectly (e.g., how the information as to those factors is content of fuels will likely change as a fuel is produced and brought to market). available from DOE.364 result of international free-trade Consumers would then be advised to agreements such as the North American compare the environmental costs of After considering the record, the Free Trade Agreement. As a result, driving an AFV with a gasoline-powered Commission has determined to issue its identifying the country of origin of a vehicle. SNPR proposal as to this subject with given fuel will not always be useful Four comments offered general one modification. As to the threshold information to consumers. comments regarding this aspect of the issue of whether AFV labels should In its place, the final rule defines this Commission’s proposal.355 Three include a list of comparative factors, the factor in terms of consumers’ interest in comments opposed including a standard Commission notes that the standard list ensuring long-term fuel availability at a list of factors on AFV labels. AAMA of factors for comparisons proposed in reasonable price from secure source stated that requiring disclosure of the the NPR (and again in the SNPR) does countries. Accordingly, that factor is list exceeded the Commission’s not, by itself, disclose comparative cost- denominated ‘‘energy security/ statutory mandate (because the benefit information. Thus, in developing renewability’’ in the final rule, and the information ‘‘is neither cost nor benefit this final rule the Commission has explanatory statement advises information’’), is redundant with considered whether including such a consumers, ‘‘Consider where and how information required to be disclosed by list on AFV labels would constitute the fuel powering this vehicle is DOE, and may discourage consumers ‘‘appropriate information with respect typically produced.’’ Labeling for used interested in AFVs because of its to costs and benefits’’ (as that phrase is covered vehicles will follow an ‘‘cautionary tone.’’356 Two other used in section 406(a)), and would be identical format. comments characterized the list as useful to consumers in undertaking a The final rule retains the remaining ‘‘unnecessary, [and] uninformative’’ 357 cost-benefit analysis regarding whether factors because all will likely be and of ‘‘minimal value.’’358 Mobil, to acquire an AFV or what type of AFV. important for consumers to consider however, supported including the As noted, numerous commenters before purchasing an AFV.367 ‘‘fairly comprehensive’’ list of factors indicated that this approach would Information about the AFV’s fuel type because it provided a framework for provide consumers with useful will be available directly from the evaluating issues relevant to AFVs in information. In addition, the dealer; and the other factors are general.359 Commission cannot, as a practical addressed in DOE’s information Other comments were directed to matter, require disclosure of brochure.368 The Commission has specific factors on the comparative list. comparative information as to every considered but decided against For example, four comments addressed relevant factor given the constraints of modifying the explanations for fuel the factor concerning energy security/ a simple label format. Accordingly, the availability and operating costs (to state domestic content of fuel. API stated that Commission has concluded that the explicitly that further information is the proposed language ‘‘may be stronger AFV labels should contain a standard 365 The Commission reached a similar conclusion than the FTC can continue to defend’’ when it issued warranty labeling requirements for because future alternative-energy which ‘‘domestic products are defined much more used motor vehicles. Those requirements are demands may not be met by domestic broadly.’’ Id. at 3. designed to help consumers evaluate and compare sources.360 One comment suggested that 361 Boston Edison/EEI, I–14, 7. This comment warranty coverage and counteract dealer acknowledged, however, that EIA does not publish misrepresentations. In that proceeding, the appropriate data for all alternative fuels. In those Commission determined that requiring disclosure of 354 On this label, consumers would be advised circumstances, Boston Edison/EEI suggested that a standard list of major defects that can occur in that vehicles powered by different fuels differ in the labels simply note that ‘‘information is not yet used motor vehicles could convey useful terms of their cruising range (i.e., how many miles available for those fuels.’’ Id. information to consumers. See Used Motor Vehicle the vehicle will go on a full supply of fuel). 362 Mobil,I–2 (cover letter at 2–3, 7–8) (‘‘Check Trade Regulation Rule, Statement of Basis and 355 Six other comments generally supported the with [EIA] or request a copy of their Annual Energy Purpose, 49 FR 45692, 45706, Nov. 19, 1984 (list entirety of the Commission’s SNPR proposal. AGA/ Outlook to determine what percentage of the fuel of major defects that can occur in used motor NGVC, I–18, 2, 3; Chicago, J–2, 1; Comm Elec, I– powering this vehicle is from domestic or foreign vehicles provides consumers with a framework for 8, 8; EIA/EEU–ISD, J–4, 1; NAFA, I–10, 1, 2; RFA, sources.’’). evaluating and comparing warranty coverage and I–3, 1–2. 363 DOE, J–1, 2. counteracts dealer misrepresentations). 356 AAMA, I–16, 2, 6. As noted previously, three 366 364 CAS, I–12, 2 (E.g., ‘‘For information on See supra section III(C)(2)(b)(2). comments fully supported AAMA’s comment. operating costs, contact DOE at the number listed 367 See 59 FR 24014, 24016 nn.68, 70, 75, 79 and Chrysler, I–13, 1; Ford, I–4, 2; NGVPA, I–19, 1. below.). Electro Auto also addressed the operating 24017 nn.83, 87, 89, 97, 101, 102, 106 and 357 Chrysler, I–13, 1, 2. costs factor; this comment may have accompanying text (ANPR commenters identifying 358 Boston Edison/EEI, I–14, 6–7. misapprehended the SNPR as proposing that actual those factors as being important to consumers). 359 Mobil, I–2, 11, cover letter at 1. operating costs be disclosed on AFV labels. Electro 368 EPA fuel-economy labels also disclose 360 API, I–15, cover letter at 2. API also stated that Auto, I–7, 2 (supports requiring disclosure of information regarding fuel type and operating costs. references to domestic products should agree with comprehensive operating costs for AFVs only if But those labels are not yet required for AFVs the treatment given that topic under EPA 92 and the conventional vehicles are required to disclose powered by all alternative fuels. 59 FR 39638, North American Free Trade Agreement, under comparable information). 39639. 26950 Federal Register / Vol. 60, No. 97 / Friday, May 19, 1995 / Rules and Regulations available from DOE) because it believes standard statement referring consumers consolidating the information proposed that the label’s format already to pertinent sources of government to be disclosed with other labels adequately conveys that information. information is consistent with section providing information to consumers was (2) Referral to other sources of 406(a)’s legislative purpose. As noted, not appropriate. information. In the SNPR, the comments indicated that a referral to Three comments addressed the Commission tentatively determined that objective information sources would be a precise reference to DOE’s consumer Commission’s SNPR proposal as to useful to consumers. In addition, while 375 information brochure and NHTSA’s EPA 92 directed DOE to ‘‘produce and consolidation. Mobil stated that this vehicle safety hotline was appropriate make available’’ an information issue could best be answered by vehicle 376 on labeling for new and used covered package, the statute does not require manufacturers. Comments from AFVs. Accordingly, the Commission AFV manufacturers or dealers to AAMA and Chrysler opposed the proposed that label formats for new and provide consumers with copies of the Commission’s proposal. Chrysler stated used covered vehicles include standard information package or to notify them of that manufacturers should have statements informing consumers that its availability.373 To address that flexibility to determine how best to label they can obtain (1) copies of a free apparent omission, AFV labels would vehicles to provide the required consumer-information brochure and contain a statement informing information, either by issuing a separate general information about AFVs by consumers that further information label or combining it with another label calling the toll-free telephone number about AFVs is available from DOE. The as appropriate for the vehicle being for DOE’s National Alternative Fuels labels also would inform consumers that labeled.377 AAMA supported the Hotline, and (2) vehicle safety information about another pertinent Commission’s proposal not to information by calling the toll-free factor—vehicle safety—is available from consolidate the new disclosures on telephone number for DOT/NHTSA’s the federal agency responsible for EPA’s fuel economy label, but stated 369 Auto Safety Hotline. regulating the safe performance of motor that manufacturers ‘‘must be given the Five comments addressed this 374 vehicles. flexibility to incorporate the additional issue.370 Chrysler opposed requiring Given the nature of the disclosure, the disclosure of referral information based information required by the FTC on Commission believes that consumers 378 on its belief that the labels should considering either new or used AFVs existing labels.’’ disclose information pertinent to would find it equally relevant. After considering the record, the specific AFVs.371 The remaining four Accordingly, the Commission has Commission has determined that comments supported reference to one or determined that label formats for new consolidating new AFV disclosures with both of the toll-free hotlines.372 and used covered vehicles will include other labels providing information to The referral statement proposed in the references to DOE’s National Alternative the consumer is not appropriate. SNPR does not, by itself, disclose Fuels Hotline and DOT/NHTSA’s Auto Consolidation as required by EPA 92 objective cost-benefit information. In Safety Hotline, as proposed in the could be undertaken in one of two ways: developing this final rule, the SNPR. incorporating existing disclosures into Commission has thus considered new AFV labels, or new AFV whether including the proposed 3. Consolidation disclosures into existing labels. As to statement on AFV labels would help As noted previously, EPA 92 requires the first category, the Commission notes consumers make reasonable choices and the Commission to consolidate its AFV comparisons. The Commission also labels with other labels providing that no comment responding to the considered whether including such a information to consumers ‘‘where SNPR supported such incorporation. statement was feasible, given the appropriate.’’ In developing the SNPR, The Commission also believes that constraints of a simple label format. the Commission thus considered providing the information already After considering the record, the whether the information the displayed on other labels on its AFV Commission concludes that including a Commission will require for AFVs could labels (in a different format) could be incorporated into existing labels (e.g., confuse consumers and is therefore 369 See Figure 6 (new covered vehicles) and 8 EPA’s fuel economy label or the unnecessary. (used covered vehicles), 59 FR 59666, 59712, 59714. Commission’s used car Buyers Guide), As to the second category, 370 Two other comments made general reference or whether existing label information to this issue. AAMA did not address the issue in consolidating information required by its written comment but included the referral could be incorporated into its AFV the Commission into existing labels information in its proposed AFV label. AAMA, I– labels. For both options, the would not be appropriate because those 16, Att. III. In an earlier comment filed in this Commission noted that consolidation labels do not have sufficient extra space proceeding, AAMA indicated support for labels could help consumers by collecting which disclosed ‘‘instructions on where to obtain to accommodate new AFV disclosures. pertinent information in a central additional information (e.g., DOE’s [information For example, EPA stated that new AFV brochure]).’’ AAMA, G–7, 1. RFA’s comment was to location. Industries affected by the information could not reasonably be ‘‘encourage some formal review process of the DOE labeling requirements could also benefit brochure’’ by industry. RFA, I–3, 2. by possibly reducing their compliance incorporated into its fuel economy label 371 Chrysler, I–13, 1. Chrysler also stated because that label already is generally that the information proposed for the back costs. However, disturbing labeling side of the AFV labels was ‘‘unnecessary, formats with which consumers are uninformative, and due to its location, unreadable familiar could create confusion. under many circumstances.’’ Id. at 2. Attempting to fit additional disclosures 372 375 Seven other comments indicated general Boston Edison/EEI, I–14, 7 (‘‘provides into existing labels also raises the consumers with valuable information directly support with the Commission’s AFV labeling pertinent to purchasing decisions’’); DOE, J–1, 2 possibility that the label will overload proposal without addressing this particular issue. (supports reference to DOE’s Hotline and consumers with excessive amounts of AGA/NGVC, I–18, 2, 3; Boston Edison, I–14, 4; information brochure); DOT/NHTSA, J–5, 2 information. Accordingly, the Chicago, J–2, 1; Comm Elec, I–8, 8; EIA/EEU–ISD, (supports reference to NHTSA’s vehicle safety Commission tentatively concluded that J–4, 1; NAFA, I–10, 1, 2; RFA, I–3, 1–2. hotline); Mobil, I–2, 11 (supports generally and 376 Mobil, I–2, 12. wants DOE brochure to be ‘‘peer and technically reviewed’’ before publication of updates and 373 42 U.S.C. 13231 (Supp. IV 1993). 377 Chrysler, I–13, 1, 2. revisions). 374 DOT/NHTSA, H–1, 1. 378 AAMA, I–16, 2, 5. Federal Register / Vol. 60, No. 97 / Friday, May 19, 1995 / Rules and Regulations 26951

‘‘crowded.’’ 379 As discussed below,380 AFV label size and format.384 Comments As noted, required labeling under the the Commission also believes that from Boston Edison/EEI and CAS Commission’s AFV labeling allowing manufacturers the option of supported the proposed label’s display requirements must be ‘‘simple.’’ determining where the required of information concerning cruising Accordingly, in developing this final disclosures would be displayed is range and EPA certification standard.385 rule the Commission has assessed how similarly not appropriate. Comments from the City of Chicago did best to meet consumers’ information not address the specifics of the needs, and the practical constraints of 4. Label Size and Format Commission’s proposal, but instead vehicle labeling. To that end, the In the SNPR, the Commission suggested that cost-benefit labels be Commission has considered whether proposed that AFV labels be reduced permanently affixed to AFVs.386 allowing manufacturers the option of from the size proposed in the NPR and The remaining three comments from determining where the required measure 7 inches wide by 51⁄2 inches some domestic automakers, however, disclosures would be displayed would high.381 The Commission further objected to the size and format of the promote simple labeling useful to proposed that information required to proposed AFV labels. For example, consumers. be disclosed by its AFV labeling AAMA opposed a standard label format The Commission notes that requirements be displayed on a visible and stated that manufacturers should consumers generally have little window surface in three label formats. have the option of placing new required familiarity with competing alternative- The first label format would be for new information on existing labels.387 fuel options or AFV technology, or how covered AFVs designed to operate solely AAMA also stated that the proposed those options and technology compare on alternative fuel. Figures 4 and 6 in format was ‘‘unintentionally with conventional fuels or vehicles. The the SNPR illustrated samples of this misleading’’ because it ‘‘yielded the Commission also notes that consumers format; figure 4 (containing objective impression * * * that the need pertinent information to help them information particular to that vehicle) characteristics described are the most make comparisons between the would appear on the front of the label, important to consider when purchasing competing fuel options and and figure 6 (containing general an AFV.’’ 388 In addition, AAMA stated technologies. The Commission therefore information) would appear on the back. that the proposed label formats lacked believes that consumers would best be The second label format would be for sufficient extra space,389 were too served if the information to be disclosed new covered vehicles capable of large,390 and should be limited to one is displayed on labels in a standard, operating on alternative fuel and on side.391 uniform format. The Commission also conventional fuel. Figures 5 and 6 of the believes that the proposed label formats SNPR illustrated samples of this format; 384 Six additional comments indicated general disclose information in a fair and figure 5 (containing objective support for the Commission’s labeling proposal but balanced manner.392 did not address this specific issue. AGA/NGVC, I– After considering the record, information particular to that vehicle) 18, 2, 3; Comm Elec, I–8, 8; EIA/EEU–ISD, J–4, 1; would appear on the front, and figure 6 Mobil, I–2, cover letter at 2; 6; NAFA, I–10, 1, 2; however, the Commission has again would appear on the back. The RFA, I–3, 1–2. Mobil also stated that this issue determined that it should modify two third label format would be for used could best be answered by vehicle manufacturers, aspects of its SNPR proposal to address and Toyota misapprehended the Commission’s practical concerns raised by the covered AFVs. Figures 7 and 8 of the SNPR proposal as requiring the posting of SNPR illustrated samples of this format; alternative fuels labeling on vehicles. Mobil, I–2, domestic automakers. First, the final figure 7 would appear on the front, and 12; Toyota, I–11, 1. rule removes the SNPR requirement that figure 8 would appear on the back. 385 Boston Edison/EEI, I–14, 6 (‘‘The graphic AFV labels be posted on visible The proposed rule also addressed chosen by the Commission to display emission ‘‘window’’ surfaces. As a result, standard certifications conveys this critical general format issues common to all information to consumers in a highly effective conspicuous posting of the label on any three labeling formats. For example, manner.’’); CAS, I–12, 1 (‘‘The proposed label visible surface constitutes compliance headlines and text for all labels were format [for cruising range] will adequately convey with the final rule. Second, the final standard as illustrated in the sample this important information to consumers.’’). rule removes the requirement that AFV 386 382 Chicago, J–2, 2, 3 (permanent labeling will labels appear in a two-sided format. labels. In addition, no marks or promote AFVs and alternative fuels, provide public information other than that specified in education and increase public awareness, and assist Under this revision, the labels can either the proposed labeling requirements in implementing traffic control programs for AFVs be displayed immediately adjacent to would appear on any of the labels.383 such as preferential parking). each other (on two sheets), or in the Six comments addressed the 387 AAMA, I–16, cover letter at 1. See also two-sided format proposed in the SNPR, Chrysler, I–13, 1, 2 (manufacturers should have Commission’s SNPR proposal regarding flexibility to determine whether to issue a separate at the discretion of the manufacturer. label or combine it with another). 5. Effective Date 379 EPA (Tr.), 211 (‘‘Everybody saw how crowded 388 AAMA, I–16, 2. See also Ford, I–4, 2 this (i.e., the EPA label) already was. I guess it (proposed format overemphasizes importance of the In the SNPR the Commission depends on what type of information ultimately required information as decision criteria). proposed that its AFV labeling ends up whether we would have difficulties with 389 AAMA, I–16, 4 (‘‘Due to the layout and large requirements be effective ninety days consolidating the EPA’s label. But we’re looking at font, the label does not have extra space. If information overload right now.’’). DOE, in a additional information were required in the future, after publication of a final rule in the comment responding to the Commission’s ANPR, the label would have to be reformatted to Federal Register, and sought comment stated further that, ‘‘Survey work has indicated that accommodate added text. This would be costly and on that proposed effective date.393 the fuel economy label already contains too much require lead time.’’). AAMA and Chrysler addressed this information * * *’’). DOE, E–10, 4. 390 AAMA, I–16, 4 (‘‘[M]anufacturers are faced 380 issue, and both contended that See infra section III(C)(4). with several existing and forthcoming labeling 381 See proposed rule §§ 309.20(b) (for new requirements. On many vehicles, they are simply covered vehicles), 309.21(b) (for used covered running out of room to place new labels, especially phone numbers on the back if they do not copy vehicles), 59 FR 59666, 59707. one of the size proposed by FTC.’’). See also Ford, them down). See also Ford, I–4, 2 (opposes two- 382 See proposed rule §§ 309.20(e) (for new I–4, 2 (the proposed size promotes information sided label). covered vehicles), 309.21(e) (for used covered overload, because ‘‘it establishes yet another label 392 In fact, comments from the groups vehicles), 59 FR 59666, 59707. on an already crowded vehicle which the consumer representing the natural gas and ethanol industries 383 See proposed rule §§ 309.20(b) (for new must read to gather pertinent information.’’). supported the proposed label formats. AGA/NGVC, covered vehicles), 309.21(b) (for used covered 391 AAMA, I–16, 4, 5, 6 (two-sided label will be I–18, 2, 3; RFA, I–3, 1–2. vehicles), 59 FR 59666, 59707. difficult to read, and consumers will quickly forget 393 59 FR 59666, 59697. 26952 Federal Register / Vol. 60, No. 97 / Friday, May 19, 1995 / Rules and Regulations manufacturers would require additional The Commission also notes that for outmoded rule provisions.’’ 405 Mobil lead time to comply with the new used covered AFVs, the final rule generally supported the Commission’s labeling requirements.394 AAMA requires disclosure of standard proposal ‘‘as long as the prerogative is explained that the Commission’s information in a uniform format.400 not abused through excessive use.’’ 406 labeling requirements would require Implementation of that requirement AAMA suggested that the Commission’s manufacturers to design, order, produce, would thus simply require obtaining label formats were ‘‘relatively deliver, and integrate new labels into copies of the required label format and inflexible’’ and, as a result, ‘‘the the vehicle production process. For new arranging for posting on affected Administrator 407 should have the covered vehicles, the system would also vehicles. Because the market for used discretional authority to be able to need to accommodate internal coding vehicles powered by alternative fuels is approve alternative labeling formats, and tracking data, to account for the fact not extensive at this time, allowing upon the request of automotive that the labels would disclose sellers additional time to comply with manufacturers, without required information specific to each vehicle. the labeling requirements will not result additional rulemaking.’’ 408 AAMA also stated that the two-sided in undue hardship to consumers. After considering the record, the format for those labels created even After considering the comments, the Commission has determined that it greater complications with printing and Commission concludes that the should update its AFV labeling application.395 As a result, ninety days proposed effective date (i.e., ninety days requirements as proposed in the SNPR. did not allow adequate time for after publication in the Federal Given the irregular pace of technological compliance. AAMA suggested that the Register) will not provide AFV development and regulatory activity, the AFV labeling requirements be effective manufacturers and dealers with Commission finds that a flexible at least 180 days after publication ‘‘if sufficient time to prepare to comply approach will best meet consumers’ manufacturers are given the option to with the new labeling requirements. needs. For example, although the use existing labels. Otherwise, we Instead, the final rule requires Commission understands that EPA will recommend that the FTC allow at least compliance within 180 days after promulgate rules that require fuel 9 months lead time.’’ 396 Chrysler stated publication in the Federal Register, a economy labeling for vehicles powered that it would need 180 days to period that is reasonable and consistent by LPG, hydrogen, electricity and other 409 implement the introduction of a new with EPA 92’s legislative program. The alternative fuels, the Commission label.397 final rule, however, does not preclude cannot predict when those standards AFV manufacturers and dealers and will be adopted. At a minimum, a EPA 92 does not address when the used AFV sellers from posting the review of the Rule will be conducted Commission’s AFV labeling required labels before the rule’s effective once every ten years, pursuant to the requirements must be effective. In date. Further, consumers will be able to Commission’s ongoing program to developing this final rule the obtain information about AFVs from review all its rules and guides at least Commission has thus considered how DOE before (as well as after) these labels once every ten years. Accordingly, the best to balance consumers’ needs for are required. final rule will be updated as appropriate comparative information with industry’s based on the Commission’s ongoing 6. Updating AFV Labeling Requirements need for a reasonable period of time to review of all pertinent developments. come into compliance. For consumers As noted previously, EPA 92 directs considering those vehicles, the the Commission to update its labeling IV. Regulatory Flexibility Act Commission notes that some consumers requirements ‘‘periodically’’ (a duration The Regulatory Flexibility Act may need comparative information not otherwise defined in the statute) ‘‘to (‘‘RFA’’) requires agencies to prepare a shortly after this notice’s publication reflect the most recent available regulatory flexibility analysis when date, because EPA 92’s fleet acquisition information.’’ 401 This requirement publishing a proposed rule unless the mandates begin with fiscal year 1996 for contrasts with EPA 92’s direction to proposed rule, if promulgated, would the federal fleet 398 and model year 1996 DOE to update its consumer information not have a ‘‘significant economic impact for alternative fuel providers.399 package ‘‘annually.’’ 402 In the SNPR, on a substantial number of small However, it is not clear that these the Commission proposed to keep entities.’’ 410 In the SNPR, to ensure the consumers (i.e., the ones most likely to apprised of pertinent technological accuracy of the required dispenser be affected by a longer effective date) advances, monitor the extent to which labels, the Commission proposed would make purchasing decisions based other governmental agencies impose substantiation, certification, and on a vehicle label: the federal labeling requirements, and then update government, because of its purchasing its AFV labeling requirements as 405 Boston Edison/EEI, I–14, 8. They also power, and the fuel providers, because appropriate.403 suggested that the Commission monitor the of their own experience and expertise. Three comments addressed this standards upon which its disclosures are based, to ‘‘avoid inadvertent reliance upon inappropriate or 404 issue. Boston Edison/EEI ‘‘strongly outmoded performance criteria.’’ Id. at 3. 394 A third commenter stated that this issue could support[ed]’’ the Commission’s proposal 406 Mobil, I–2, 13. Mobil noted that frequent label best be answered by vehicle manufacturers. Mobil, because regular updates on a fixed changes during a single model year ‘‘may cause I–2, 12–13. Eight other comments indicated general schedule ‘‘might result in an arbitrary confusion . . . and detract from the rule’s intended support for the Commission’s AFV labeling purpose of informing the consumer. Truly pertinent proposal without addressing this issue. AGA/ maintenance of problematic or and important information should be the only NGVC, I–18, 2,3; Boston Edison, I–14, 1; Chicago, reason for a label change more frequently than one J–2, 1; Comm Elec, I–8, 8; EIA/EEU–ISD, J–4, 1; 400 See Final Rule § 309.203(e) (content of labels time per model year.’’ Id. Mobil, I–2, cover letter at 2; 6; NAFA, I–10, 1, 2; for used covered vehicles). 407 This appears to be a reference to EPA’s RFA, I–3, 1–2. 401 42 U.S.C. 13232(a) (Supp. IV 1993). management structure. The Commission is an 395 AAMA, I–16, 3–4, 6. 402 42 U.S.C. 13231 (Supp. IV 1993). independent administrative agency composed of 396 AAMA, I–16, 6. 403 59 FR 59666, 59697. five members appointed by the President and 397 Chrysler, I–13, 2. 404 Six other comments generally supported the confirmed by the Senate for terms of seven years. 398 42 U.S.C. 13212 (Supp. IV 1993). Commission’s AFV labeling proposal without 16 CFR 0.1 (1994). It has no ‘‘Administrator.’’ 399 42 U.S.C. 13251 (Supp. IV 1993). Acquisition addressing this issue. AGA/NGVC, I–18, 2, 3; 408 AAMA, I–16, 4. requirements for private fleet operators begin in Chicago, J–2, 1; Comm Elec, I–8, 8; EIA/EEU-ISD, 409 59 FR 39638, 39639. model year 1999. 42 U.S.C. 13257 (Supp. IV 1993). J–4, 1; NAFA, I–10, 1, 2; RFA, I–3, 1–2. 410 5 U.S.C. 603(a), 605(b). Federal Register / Vol. 60, No. 97 / Friday, May 19, 1995 / Rules and Regulations 26953 recordkeeping requirements for entities, and, therefore, that a regulatory For example, they may use private importers, producers, refiners and analysis was not necessary.413 To ensure facilities for fuel rating determinations, distributors of gaseous alternative fuels, the accuracy of this certification, thus obviating the need to have testing and manufacturers and distributors of however, the Commission requested equipment of their own. The rule also electric vehicle fuel dispensing systems. comments on whether the proposed rule does not require producers to certify the The Commission also proposed would have a significant impact on a fuel rating of CNG with each transfer of substantiation, recordkeeping and substantial number of small entities, the fuel. The rule permits producers to disclosure requirements for retail sellers including specific information on the give the person to whom the fuel is of the three non-liquid alternative number of entities in each category that transferred a letter or written statement, vehicle fuels. In addition, the would be covered by the proposed rule, including the fuel rating. The letter or Commission proposed requiring that the number of these companies that are written statement is effective until the AFV manufacturers determine and ‘‘small entities,’’ and the average annual producer transfers non-liquid disclose on labels certain product- burden for each entity. alternative vehicle fuel (other than specific information, and maintain No comments specifically addressed electricity) with a lower percentage of records to substantiate the two product- this aspect of the Commission’s SNPR the major component, or of any other specific disclosures that must be proposal. The Commission, however, component claimed. Therefore, the included on labels. received three comments that Commission believes that the fuel rating The Commission preliminarily tangentially addressed this issue. These determination and certification concluded that the proposed rule, if comments stated that the requirements requirements it has adopted will enacted, would have a minimal effect on that producers and importers of natural minimize burdens on even small all business entities within the affected gas comply with the proposed rule’s businesses. industries, regardless of their size. CNG fuel rating determination, On the basis of all the information Available information suggested that certification and recordkeeping now before it, the Commission has approximately 1,000 companies import, requirements, which includes determined that the rule will not have produce, refine, distribute, or retail CNG determining and certifying the a significant impact on a substantial to consumers. Further, only minimum percentage of methane in number of small entities. Consequently, approximately 50 companies natural gas, would be overly the Commission concludes that a manufacture or distribute electric burdensome. These comments stated regulatory flexibility analysis is not vehicle fuel dispensing systems, and no that most producers currently do not required. In light of the above, the more than 250 retail companies sell sell natural gas vehicle fuel, and, Commission certifies, under section 605 electricity to consumers through such therefore, do not test for or certify the of the RFA,416 that the rule it has systems for the purpose of recharging methane content of the natural gas they adopted will not have a significant electric vehicle batteries. Information sell.414 impact on a substantial number of small the Commission possessed also The statements by Unocal, API and entities. indicated that relatively few companies AGA/NGVC do not persuade the IV. Regulatory Review currently manufacture, convert, or sell Commission that the requirements it has AFVs. Except for those companies that adopted will impose a significant The Commission has implemented a sell non-liquid alternative fuel economic impact on a substantial program to review all of its current and (including electricity) to consumers, the number of small entities. First, none of proposed rules and guides. One purpose Commission stated that most of the the comments cited specific cost or of the review is to minimize the aforementioned industry members, burden estimates or submitted economic impact of new regulatory including those that manufacture or sell supporting data concerning the specific actions. As part of that overall AFVs, are not ‘‘small entities’’ as that burden on any parties. Second, the regulatory review, the Commission term is defined in section 601 of the burden of determining and certifying solicited comments in the SNPR on RFA 411 and in the regulations of the fuel ratings falls on producers of natural questions concerning benefits and Small Business Administration.412 gas only if the fuel is transferred for use significant burdens and costs of the The Commission also stated that as a vehicle fuel. Further, no proposed rule and alternatives to the although there may be some ‘‘small commenters submitted information to proposals that would increase benefits entities’’ among retail sellers of non- contradict the Commission’s belief, to purchasers and minimize the costs liquid alternative fuels (including which was stated in the SNPR, that most and other burdens to firms subject to the electricity), the labeling rules proposed of these industry members are not rule’s requirements. Only one comment would likely have only a minimal ‘‘small entities,’’ as that term is defined raised an issue not previously covered impact on these small entities. Any such either in section 601 of the RFA or in other parts of this notice. impact would likely consist of minimal applicable regulations of the Small Specifically, RFA urged the Commission additional recordkeeping and of Business Administration.415 In addition, to preclude localities from creating more retailers placing labels on fuel the rule adopted by the Commission stringent labeling requirements for dispensers (to the extent this is not done does not require natural gas producers alternative fuels so that alternative fuel by distributors for their retailer to conduct tests themselves to labeling will be consistent nationwide customers). The impact on small determine the fuel rating of natural gas. and consumer confusion could be entities, therefore, appeared to be de avoided.417 minimis and not significant. 413 This analysis and conclusion was consistent The Commission is not persuaded with Commission’s analysis and conclusion in its In light of these factors, in the SNPR Statement of Basis and Purpose (‘‘SBP’’) for the that any reduction in consumer the Commission certified under the RFA liquid alternative fuels amendments to the Fuel confusion that could result from the that the rule proposed would not, if Rating Rule. In that SBP, the Commission certified narrow standard suggested by RFA promulgated, have a significant impact that the Fuel Rating Rule’s similar requirements would outweigh the benefits of the would not have a significant impact. 58 FR 41356, on a substantial number of small 41369–41370. preemption standard proposed in the 414 AGA/NGVC, I–18, 3–6; API, I–15, 1–5; Unocal, 411 5 U.S.C. 601(6). I–5, 2. 416 5 U.S.C. 605(b). 412 13 CFR Part 121 (1994). 415 59 FR 59666, 59698. 417 RFA, I–3, 2. 26954 Federal Register / Vol. 60, No. 97 / Friday, May 19, 1995 / Rules and Regulations

SNPR. This proposed standard would The Commission also stated that it 130 hours (six minutes per year times allow state and local jurisdictions the expected certifications for non-liquid 1,300 industry members). latitude to establish and enforce alternative fuels (other than electricity) In the SNPR, the Commission also regulations that best suit the needs of will be noted on documents (shipping proposed requiring that AFV their particular regions, provided the receipts, etc.) already in use, or will be manufacturers maintain records to regulations do not frustrate the purposes accomplished with a one-time letter of substantiate the tailpipe emission of the rule. The Commission, therefore, certification, consistent with current standard to which the vehicle has been is adopting the proposed preemption procedures for gasoline and liquid certified pursuant to applicable EPA standard, which is substantially the alternative fuel suppliers covered by the regulations,423 and their estimates of same standard it has used in other Fuel Rating Rule. Producers, importers, each vehicle’s cruising range. Pursuant Commission rules. Under this standard, refiners, and distributors of non-liquid to the proposed rule, manufacturers the rule supersedes only state and local alternative fuels (other than electricity), would calculate cruising range values in laws and regulations that would be and retailers of non-liquid alternative one of three ways. For vehicles required inconsistent with the requirements of fuels (including electricity) need merely to comply with EPA’s fuel-economy the rule in a manner that would file and retain these certifications as the labeling provisions, cruising range 418 frustrate its purposes. required recordkeeping. would be calculated using the vehicle’s V. Paperwork Reduction Act Further, the Commission stated it estimated fuel-economy rating in conjunction with the fuel tank capacity The Paperwork Reduction Act expected that manufacturers of electric of the vehicle.424 For electric vehicles, (‘‘PRA’’),419 and regulations of the Office vehicle fuel dispensing systems will cruising range would be calculated in of Management and Budget (‘‘OMB’’) 420 permanently mark the required accordance with the Society of implementing the PRA, require agencies disclosures on the equipment or Automotive Engineers’ ‘‘Recommended to obtain clearance for regulations that systems, or will note that information Practice,’’ J1634. For other vehicles not involve the ‘‘collection of information,’’ on documents (shipping receipts, etc.) yet required to be labeled with EPA’s which includes both reporting and already in use. Manufacturers need fuel economy stickers, the Commission recordkeeping requirements. In the merely file and retain records proposed that manufacturers possess a SNPR, consistent with the Fuel Rating demonstrating substantiation for the reasonable basis, consisting of Rule’s requirements for sellers of liquid proposed labeling disclosures. competent and reliable evidence, for the alternative fuels, the Commission Distributors and retailers need merely cruising range values disclosed. The proposed requiring that producers, file the documents provided to them by Commission estimated that the importers, refiners, and distributors of the manufacturers or distributors. If the information collection burden CNG and hydrogen, retailers of CNG, systems are permanently marked by the associated with the proposed hydrogen and electricity, and manufacturers, distributors and retailers recordkeeping requirements for AFV manufacturers and distributors of may rely on the permanent markings as manufacturers would be thirty minutes electric vehicle fuel dispensing systems the required recordkeeping. maintain records to substantiate the per year per manufacturer. This was an In the SNPR, the Commission stated product-specific disclosures that would average burden estimate developed after it believed that the burden per covered be required on fuel dispenser labels. In considering that the overall burden industry member that the Commission addition, the Commission proposed associated with complying with the estimated for the Fuel Rating Rule also requiring that AFV manufacturers rule’s recordkeeping requirements maintain records to substantiate two was appropriate in this proceeding. In would be much greater, for example, for product-specific disclosures that would the liquid alternative fuel amendments AFV manufacturers who must disclose be required on AFV labels. to the Fuel Rating Rule, the Commission cruising range figures on vehicles not The proposed recordkeeping estimated that the information yet required to be labeled with EPA fuel requirements are ‘‘collections of collection burden associated with that economy stickers. information’’ as defined by the OMB rule’s recordkeeping requirements was Although under the proposed rule regulations implementing the PRA. The six minutes per year per industry manufacturers would be required to proposed requirements, therefore, were member.421 This estimate was small determine cruising ranges and emission submitted to OMB for review under the because the records at issue were likely standards for different models of PRA. In the SNPR, the Commission to be retained by the industry during the vehicles, the burden estimate (i.e., thirty stated it believed that the proposed normal course of business, and the minutes) also was small because the recordkeeping requirements, if enacted, ‘‘burden,’’ for OMB purposes, is defined Commission believed the records at would impose a minimal annual to exclude effort that would be issue were likely to be developed and ‘‘collection of information’’ burden on expended in any event.422 Based on retained by the industry during the each covered party within the affected these figures, the Commission estimated normal course of business. The industries. that the total yearly information Commission estimated that collection burden of the proposed rule approximately 58 industry members 418 See final rule § 309.104 infra. This preemption on these industry members would be would be covered by the proposed rule’s standard is different from the standard in the Fuel cruising range and emission standard Rating Rule. Under § 306.4 of the Fuel Rating Rule, ‘‘no State or any political subdivision thereof may 421 58 FR 41356, 41370–41371. recordkeeping requirements. This adopt or continue in effect, except as provided in 422 Section 1320.7(b)(1) of the regulations estimate of the number of affected subsection (b), any provision of law or regulation implementing the PRA, 5 CFR 1320.7(b)(1) (1994), industry members was based on similar with respect to such act or omission, unless such states: provision of such law or regulation is the same as The time and financial resources necessary to estimates EPA made in connection with the applicable provision of this title.’’ 16 CFR 306.4 comply with a collection of information that would its emission standards recordkeeping (1994). The preemption provision in the Fuel Rating be incurred by persons in the normal course of their requirements contained in a final rule Rule is specified by § 204 of the Petroleum activities (e.g., in compiling and maintaining establishing two clean-fuel vehicle Marketing Practices Act, 15 U.S.C. 2824. There is business records) will be excluded from the no similar provision that applies to this rule. ‘‘burden’’ if the agency demonstrates that the 419 44 U.S.C. 3501–3520. reporting or recordkeeping activities needed to 423 40 CFR Parts 86 and 88 (1994). 420 5 CFR 1320.7(c). comply are usual and customary. 424 40 CFR Part 600 (1994). Federal Register / Vol. 60, No. 97 / Friday, May 19, 1995 / Rules and Regulations 26955 programs.425 Based on these figures, the or modify the recordkeeping offset the practicality problems and Commission estimated that the current requirements in the proposed rule. potential for confusion that the total yearly burden of the proposed rule Because the aforementioned additional metric terms would create. on the 58 industry members would be requirements would involve the The Commission, therefore, is not 29 hours (thirty minutes per year times ‘‘collection of information’’ as defined requiring disclosure of cruising range in 58 industry members). by the regulations of OMB, the metric (i.e., kilometers) as well as inch- Consequently, the Commission Commission was required to submit the pound measurements (i.e., miles). proposed requirements to OMB for estimated that the total burden List of Subjects in 16 CFR Part 309 associated with complying with the clearance, 5 CFR 1320.13, and did so as Rule’s recordkeeping requirements for part of this proceeding. OMB approved Alternative fuel, Alternative fueled AFVs and non-liquid alternative fuels the request, and assigned control vehicle, Energy conservation, (including electricity) would be a total number 3084–0094 to the information Incorporation by reference, Labeling, of approximately 159 hours per year for collection requirements.426 This Reporting and recordkeeping, Trade all affected industry members. To approval will expire on November 30, practices. ensure the accuracy of these burden 1997, unless it has been extended before VII. Text of Rule estimates, however, the Commission that date. Accordingly, the Commission amends solicited comment on the paperwork VI. Metric Usage 16 CFR Chapter I by adding a new part burden that the proposed requirements 309 to Subchapter C to read as follows: may impose to ensure that no additional The metric measurement system is the burden had been overlooked. preferred system of weights and measures for United States trade and PART 309ÐLABELING No comments addressed the 427 REQUIREMENTS FOR ALTERNATIVE paperwork burden projections the commerce. Federal law requires federal agencies to use the metric FUELS AND ALTERNATIVE FUELED Commission made in the SNPR. measurement system in all VEHICLES Nevertheless, the Commission procurements, grants and other considered reducing slightly the overall Subpart AÐGeneral business-related activities (including regulatory burden of complying with the Sec. rulemakings), except to the extent that rule by eliminating AFV manufacturers’ 309.1 Definitions. such use is impractical or likely to cause recordkeeping requirements associated 309.2 What this part does. significant inefficiencies or loss of with substantiating tailpipe emission 309.3 Stayed or invalid portions. markets to U.S. firms.428 In the SNPR, 309.4 Preemption. standards based on verifiable EPA the Commission identified the proposal certifications, and cruising range values Subpart BÐRequirements for Alternative that AFV labels disclose cruising range based, in part, on verifiable EPA Fuels in miles 429 as having a potential for the estimated fuel-economy ratings. The use of metric terms. The Commission Duties of Importers, Producers, and Refiners information collection requirements the of Non-Liquid Alternative Vehicle Fuels thus sought comment on whether to Commission is adopting for such AFV (other than electricity) and of Manufacturers require metric or dual (i.e., metric and manufacturers, however, includes of Electric Vehicle Fuel Dispensing Systems non-metric) units for this disclosure. maintenance of records only, not 309.10 Alternative vehicle fuel rating. Two comments addressed this aspect reporting requirements. Further, AFV 309.11 Certification. of the Commission’s SNPR proposal, manufacturers must have the 309.12 Recordkeeping. and both urged the Commission to aforementioned information (the EPA require metric and non-metric units for Duties of Distributors of Non-Liquid certifications for emissions and the EPA the cruising range disclosure.430 The Alternative Vehicle Fuels (other than estimated fuel economy ratings) to electricity) and of Electric Vehicle Fuel Commission is not persuaded, however, substantiate the disclosures they must Dispensing Systems that requiring metric equivalents on make under the Commission’s labeling 309.13 Certification. AFV labels would be appropriate at this rules. The Commission expects that 309.14 Recordkeeping. time. The Commission’s AFV labels manufacturers normally will maintain were designed to be consistent with Duties of Retailers records showing this information in the EPA’s fuel economy labels, which do 309.15 Posting of non-liquid alternative normal course of prudent business not utilize metric disclosures. Further, vehicle fuel rating. practice. Minimal additional burden, 309.16 Recordkeeping. according to section 406(a) of EPA 92, therefore, is created by a requirement in the Commission’s required labels must Label Specifications the Commission’s rule that these be simple. Given the amount of 309.17 Labels. substantiating records be maintained, information the Commission’s AFV and eliminating these recordkeeping Subpart CÐRequirements for Alternative labels will contain, the Commission requirements would not significantly Fueled Vehicles does not believe that it would be reduce the overall regulatory burden on 309.20 Labeling requirements for new practical to require metric equivalents at AFV manufacturers. On balance, covered vehicles. this time. The marginal increase in the therefore, the Commission sees no 309.21 Labeling requirements for used public’s understanding of the metric covered vehicles. reason to revise its projections of burden system that might result from disclosure 309.22 Determining estimated cruising per year per covered industry member, of metric equivalents does not appear to range. 309.23 Recordkeeping. 425 The information collection requirements in 426 Notice of OMB Action to the FTC (Dec. 30, EPA’s rule were submitted to OMB by EPA and Appendix A—Figures for Part 309 1994). discussed in ICR No. 1694. Fleet Standards Rule, 59 427 Authority: 42 U.S.C. 13232(a). FR 50042, 50072, Sept. 30, 1994. Under EPA’s 15 U.S.C. 205b. See also Exec. Order No. 12,770, 56 FR 35801, July 21, 1991 (implementing Clean Fuel Fleet Program, a percentage of new Subpart AÐGeneral vehicles acquired by certain fleet owners located in section 205b). 428 Id. covered areas will be required to meet clean-fuel § 309.1 Definitions. fleet vehicle emission standards. The California 429 See proposed rule §§ 309.20, 309.22, 59 FR Pilot Test Program requires manufacturers to sell 59666, 59707–59708. As used in subparts B and C of this light-duty clean-fuel vehicles in California. 430 Mechtly, I–1, 1; Sokol, I–17, 1. part: 26956 Federal Register / Vol. 60, No. 97 / Friday, May 19, 1995 / Rules and Regulations

(a) Acquisition includes either of the (ii) Designed primarily for (q) Fuel rating means: following: transportation of persons and has a (1) For non-liquid alternative vehicle (1) Acquiring the beneficial title to a capacity of more than 12 persons. fuels (other than electricity), including, covered vehicle; or (g) Dedicated means designed to but not limited to, compressed natural (2) Acquiring a covered vehicle for operate solely on alternative fuel. gas and hydrogen gas, the commonly transportation purposes pursuant to a (h) Distributor means any person, used name of the fuel with a disclosure contract or similar arrangement for a except a common carrier, who receives of the amount, expressed as a minimum period of 120 days or more. non-liquid alternative vehicle fuel molecular percentage, of the principal (b) Aftermarket conversion system (other than electricity) and distributes component of the fuel. A disclosure of means any combination of hardware such fuel to another person other than other components, expressed as a which allows a vehicle or engine to the consumer. It also means any person, minimum molecular percentage, may be operate on a fuel other than the fuel except a common carrier, who receives included, if desired. which the vehicle or engine was an electric vehicle fuel dispensing (2) For electric vehicle fuel dispensing originally certified to use. system and distributes such system to a systems, a common identifier (such as, (c) Alternative fuel means retailer. but not limited to, ‘‘electricity,’’ (1) Methanol, denatured ethanol, and (i) Dual fueled means capable of ‘‘electric charging system,’’ ‘‘electric other alcohols; operating on alternative fuel and charging station’’) with a disclosure of (2) Mixtures containing 85 percent or capable of operating on conventional the system’s kilowatt (‘‘kW’’) capacity, more by volume of methanol, denatured fuel. voltage, whether the voltage is ethanol, and/or other alcohols (or such (j) Electric charging system equipment alternating current (‘‘ac’’) or direct other percentage, but not less than 70 means equipment that includes an current (‘‘dc’’), amperage, and whether percent, as determined by the Secretary, electric battery charger and is used for the system is conductive or inductive. by rule, to provide for requirements dispensing electricity to consumers for (r) Manufacturer means the person relating to cold start, safety, or vehicle the purpose of recharging batteries in an who obtains a certificate of conformity functions), with gasoline or other fuels; electric vehicle. that the vehicle complies with the (3) Natural gas; (k) Electric vehicle (‘‘EV’’) means a standards and requirements of 40 CFR (4) Liquefied petroleum gas; vehicle designed to operate exclusively parts 86 and 88. (5) Hydrogen; on electricity stored in a rechargeable (s) Manufacturer of an electric vehicle (6) Coal-derived liquid fuels; battery, multiple batteries, or battery fuel dispensing system means any (7) Fuels (other than alcohol) derived pack. person who manufactures or assembles from biological materials; (l) Electric vehicle fuel dispensing an electric vehicle fuel dispensing (8) Electricity (including electricity system means electric charging system system that is distributed specifically from solar energy); and equipment or an electrical energy for use by retailers in dispensing (9) Any other fuel the Secretary dispensing system. electricity to consumers for the purpose determines, by rule, is substantially not (m) Electrical energy dispensing of recharging batteries in an electric petroleum and would yield substantial system means equipment that does not vehicle. energy security benefits and substantial include an electric charger and is used (t) New covered vehicle means a environmental benefits. for dispensing electricity to consumers covered vehicle which has not been (d)(1) Consumer in subpart C means for the purpose of recharging batteries in acquired by a consumer. an individual, corporation, partnership, an electric vehicle that contains an on- (u) New vehicle dealer means a person association, State, municipality, board electric battery charger. who is engaged in the sale or leasing of political subdivision of a State, and any (n) Emission certification standard new covered vehicles. agency, department, or instrumentality means the emission standard to which (v) New vehicle label means a window of the United States. a covered vehicle has been certified sticker containing the information (2) Consumer or ultimate purchaser in pursuant to 40 CFR parts 86 and 88. required by § 309.20(e). subpart B means, with respect to any (o) Estimated cruising range for non- (w) Non-liquid alternative fueled non-liquid alternative vehicle fuel EVs means a manufacturer’s reasonable vehicle means a vehicle capable of (including electricity), the first person estimate of the number of miles a new operating on a non-liquid alternative who purchases such fuel for purposes covered vehicle will travel between vehicle fuel. other than resale. refueling, expressed as a lower estimate (x) Non-liquid alternative vehicle fuel (e) Conventional fuel means gasoline (i.e., minimum estimated cruising range) means alternative fuel used for the or diesel fuel. and an upper estimate (i.e., maximum purpose of powering a non-liquid (f) Covered vehicle means either of the estimated cruising range), as determined alternative fueled vehicle, including, following: by § 309.22. Estimated cruising range for but not limited to, compressed natural (1) A dedicated or dual fueled EVs means a manufacturer’s reasonable gas (‘‘CNG’’), hydrogen gas passenger car (or passenger car estimate of the number of miles a new (‘‘hydrogen’’), electricity, and any other derivative) capable of seating 12 covered EV will travel between non-liquid vehicle fuel the Secretary passengers or less; or recharging, expressed as a single determines, by rule, is substantially not (2) A dedicated or dual fueled motor estimate, as determined by § 309.22. petroleum and would yield substantial vehicle (other than a passenger car or (p) Fuel dispenser means: energy benefits and substantial passenger car derivative) with a gross (1) For non-liquid alternative vehicle environmental benefits. vehicle weight rating less than 8,500 fuels (other than electricity), the (y) Person means an individual, pounds which has a vehicle curb weight dispenser through which a retailer sells partnership, corporation, or any other of less than 6,000 pounds and which the fuel to consumers. business organization. has a basic vehicle frontal area of less (2) For electric vehicle fuel dispensing (z) Producer means any person who than 45 square feet, which is: systems, the dispenser through which a purchases component elements and (i) Designed primarily for purposes of retailer dispenses electricity to combines them to produce and market transportation of property or is a consumers for the purpose of recharging non-liquid alternative vehicle fuel derivation of such a vehicle; or batteries in an electric vehicle. (other than electricity). Federal Register / Vol. 60, No. 97 / Friday, May 19, 1995 / Rules and Regulations 26957

(aa) Refiner means any person Subpart BÐRequirements for (‘‘kW’’) capacity, voltage, whether the engaged in the production or Alternative Fuels voltage is alternating current (‘‘ac’’) or importation of non-liquid alternative direct current (‘‘dc’’), amperage, and Duties of Importers, Producers, and vehicle fuel (other than electricity). whether the system is conductive or Refiners of Non-Liquid Alternative inductive. (bb) Retailer means any person who Vehicle Fuels (other than electricity) offers for sale, sells, or distributes non- and of Manufacturers of Electric § 309.11 Certification. liquid alternative vehicle fuel (including Vehicle Fuel Dispensing Systems (a) For non-liquid alternative vehicle electricity) to consumers. § 309.10 Alternative vehicle fuel rating. fuel (other than electricity), in each transfer you make to anyone who is not (cc) Secretary means the Secretary of (a) If you are an importer, producer, the United States Department of Energy. a consumer, you must certify the fuel or refiner of non-liquid alternative rating of the non-liquid alternative (dd) Used covered vehicle means a vehicle fuel (other than electricity), you vehicle fuel (other than electricity) covered vehicle which has been must determine the fuel rating of all consistent with your determination. You non-liquid alternative vehicle fuel acquired by a consumer, but does not can do this in either of two ways: include any vehicle sold only for scrap (other than electricity) before you (1) Include a delivery ticket or other or parts (title documents surrendered to transfer it. You can do that yourself or paper with each transfer of non-liquid the State and a salvage certificate through a testing lab. To determine fuel alternative vehicle fuel (other than issued). ratings, you must possess a reasonable electricity). It may be an invoice, bill of basis, consisting of competent and (ee) Used vehicle dealer means a lading, bill of sale, terminal ticket, reliable evidence, for the minimum delivery ticket, or any other written person engaged in the sale or leasing of percentage of the principal component used covered vehicles who has sold or proof of transfer. It must contain at least of the non-liquid alternative vehicle fuel these four items: leased five or more used covered (other than electricity) that you must vehicles in the previous twelve months, (i) Your name; disclose, and for the minimum (ii) The name of the person to whom but does not include a bank or financial percentages of other components that institution, a business selling or leasing the non-liquid alternative vehicle fuel you choose to disclose. For the purposes (other than electricity) is transferred; used covered vehicles to an employee of of this section, fuel ratings for the (iii) The date of the transfer; and that business, or a lessor selling or minimum percentage of the principal (iv) The fuel rating. leasing a leased vehicle by or to that component of compressed natural gas (2) Give the person a letter or written vehicle’s lessee or to an employee of the are to be determined in accordance with statement. This letter must include the lessee. test methods set forth in American date, your name, the other person’s (ff) Used vehicle label means a Society for Testing and Materials name, and the fuel rating of any non- window sticker containing the (‘‘ASTM’’) D 1945–91, ‘‘Standard Test liquid alternative vehicle fuel (other information required by § 309.21(e). Method for Analysis of Natural Gas by than electricity) you will transfer to that Gas Chromatography.’’ For the purposes person from the date of the letter (gg) Vehicle fuel tank capacity means of this section, fuel ratings for the onwards. This letter of certification will the tank’s usable capacity (i.e., the minimum percentage of the principal be good until you transfer non-liquid volume of fuel that can be pumped into component of hydrogen gas are to be alternative vehicle fuel (other than the tank through the filler pipe with the determined in accordance with test electricity) with a lower percentage of vehicle on a level surface and with the methods set forth in ASTM D 1946–90, the principal component, or of any other unusable capacity already in the tank). ‘‘Standard Practice for Analysis of component disclosed in the The term does not include unusable Reformed Gas by Gas Chromatography.’’ certification. When this happens, you capacity (i.e., the volume of fuel left at This incorporation by reference was must certify the fuel rating of the new the bottom of the tank when the approved by the Director of the Federal non-liquid alternative vehicle fuel vehicle’s fuel pump can no longer draw Register in accordance with 5 U.S.C. (other than electricity) either with a fuel from the tank), the vapor volume of 552(a) and 1 CFR Part 51. Copies of D delivery ticket or by sending a new the tank (i.e., the space above the fuel 1945–91 and D 1946–90 may be letter of certification. tank filler neck), or the volume of the obtained from the American Society for (b) For electric vehicle fuel dispensing fuel tank filler neck. Testing and Materials, 1916 Race Street, systems, in each transfer you make to Philadelphia, PA 19103, or may be anyone who is not a consumer, you § 309.2 What this part does. inspected at the Federal Trade must certify the fuel rating of the This part establishes labeling Commission, Public Reference Room, electric vehicle fuel dispensing system requirements for non-liquid alternative room 130, 600 Pennsylvania Avenue, consistent with your determination. You vehicle fuels, and for certain vehicles NW, Washington, DC, or at the Office of can do this in either of two ways: powered in whole or in part by the Federal Register, 800 North Capitol (1) Include a delivery ticket or other alternative fuels. Street NW., suite 700, Washington, DC. paper with each transfer of an electric (b) If you are a manufacturer of vehicle fuel dispensing system. It may § 309.3 Stayed or invalid portions. electric vehicle fuel dispensing systems, be an invoice, bill of lading, bill of sale, you must determine the fuel rating of delivery ticket, or any other written If any portion of this part is stayed or the electric charge delivered by the proof of transfer. It must contain at least held invalid, the rest of it will stay in electric vehicle fuel dispensing system these five items: force. before you transfer such systems. To (i) Your name; § 309.4 Preemption. determine the fuel rating of the electric (ii) The name of the person to whom vehicle fuel dispensing system, you the electric vehicle fuel dispensing Inconsistent state and local must possess a reasonable basis, system is transferred; regulations are preempted to the extent consisting of competent and reliable (iii) The date of the transfer; they would frustrate the purposes of this evidence, for the following output (iv) The model number, serial part. information you must disclose: kilowatt number, or other identifier of the 26958 Federal Register / Vol. 60, No. 97 / Friday, May 19, 1995 / Rules and Regulations electric vehicle fuel dispensing system; attached to the system by the rating of each non-liquid alternative and manufacturer, as outlined in vehicle fuel. If you are a retailer who (v) The fuel rating. § 309.11(b)(2). offers for sale or sells electricity to (2) Make the required certification by (c) If you do not blend non-liquid consumers through an electric vehicle placing clearly and conspicuously on alternative vehicle fuels (other than fuel dispensing system, you must post the electric vehicle fuel dispensing electricity), you must certify consistent the fuel rating of the electric vehicle fuel system a permanent legible marking or with the fuel rating certified to you. If dispensing system you use. You must permanently attached label that you blend non-liquid alternative vehicle do this by putting at least one label on discloses the manufacturer’s name, the fuel (other than electricity), you must the face of each fuel dispenser through model number, serial number, or other possess a reasonable basis, consisting of which you sell non-liquid alternative identifier of the system, and the fuel competent and reliable evidence, as vehicle fuel. If you are selling two or rating. Such marking or label must be required by § 309.10(a), for the fuel more kinds of non-liquid alternative located where it can be seen after rating that you certify for the blend. vehicle fuels with different fuel ratings installation of the system. The marking (d) When you transfer non-liquid from a single fuel dispenser, you must or label will be deemed ‘‘legible,’’ in alternative vehicle fuel (other than put separate labels for each kind of non- terms of placement, if it is located in electricity), or an electric vehicle fuel liquid alternative vehicle fuel on the close proximity to the manufacturer’s dispensing system, to a common carrier, face of the fuel dispenser. identification marking. This marking or you must certify the fuel rating of the (b)(1) The label, or labels, must be label must be in addition to, and not a non-liquid alternative vehicle fuel placed conspicuously on the fuel substitute for, the label required to be (other than electricity) or electric dispenser so as to be in full view of posted on the electric vehicle fuel vehicle fuel dispensing system to the consumers and as near as reasonably dispensing system by the retailer. common carrier, either by letter or on practical to the price per unit of the (c) When you transfer non-liquid the delivery ticket or other paper, or by non-liquid alternative vehicle fuel. alternative vehicle fuel (other than a permanent marking or label attached (2) You may petition for an exemption electricity), or an electric vehicle fuel to the electric vehicle fuel dispensing from the placement requirements by dispensing system, to a common carrier, system by the manufacturer. When you writing the Secretary of the Federal you must certify the fuel rating of the receive non-liquid alternative vehicle Trade Commission, Washington, DC non-liquid alternative vehicle fuel fuel (other than electricity), or an 20580. You must state the reasons that (other than electricity) or electric electric vehicle fuel dispensing system, you want the exemption. vehicle fuel dispensing system to the from a common carrier, you also must (c) If you do not blend non-liquid common carrier, either by letter or on receive from the common carrier a alternative vehicle fuels (other than the delivery ticket or other paper, or by certification of the fuel rating of the electricity), you must post consistent a permanent marking or label attached non-liquid alternative vehicle fuel to the electric vehicle fuel dispensing (other than electricity) or electric with the fuel rating certified to you. If system by the manufacturer. vehicle fuel dispensing system, either you blend non-liquid alternative vehicle by letter or on the delivery ticket or fuel (other than electricity), you must § 309.12 Recordkeeping. other paper, or by a permanent marking possess a reasonable basis, consisting of You must keep for one year records of or label attached to the electric vehicle competent and reliable evidence, as how you determined fuel ratings. The fuel dispensing system by the required by § 309.10(a), for the fuel records must be available for inspection manufacturer. rating that you post for the blend. by Federal Trade Commission staff (d)(1) You must maintain and replace members, or by people authorized by § 309.14 Recordkeeping. labels as needed to make sure FTC. You must keep for one year any consumers can easily see and read them. Duties of Distributors of Non-Liquid delivery tickets, letters of certification, (2) If the labels you have are Alternative Vehicle Fuels (other than or other paper on which you based your destroyed or are unusable or unreadable electricity) and of Electric Vehicle Fuel fuel rating certifications for non-liquid for some unexpected reason, you may Dispensing Systems alternative vehicle fuels (other than satisfy this part by posting a temporary electricity) and for electric vehicle fuel label as much like the required label as § 309.13 Certification. dispensing systems. You also must keep possible. You must still get and post the (a) If you are a distributor of non- for one year records of any fuel rating required label without delay. liquid alternative vehicle fuel (other determinations you made according to (e) The following examples of fuel than electricity), you must certify the § 309.10. If you rely for your rating disclosures for CNG and fuel rating of the fuel in each transfer certification on a permanent marking or hydrogen are meant to serve as you make to anyone who is not a permanent label attached to the electric illustrations of compliance with this consumer. You may certify either by vehicle fuel dispensing system by the part, but do not limit the rule’s coverage using a delivery ticket or other paper manufacturer, you must not remove or to only the mentioned non-liquid with each transfer of fuel, as outlined in deface the permanent marking or label. alternative vehicle fuels (other than § 309.11(a)(1), or by using a letter of The records must be available for electricity): certification, as outlined in inspection by Federal Trade (1) ‘‘CNG’’ § 309.11(a)(2). Commission staff members, or by ‘‘Minimum’’ (b) If you are a distributor of electric persons authorized by FTC. ‘‘XXX%’’ vehicle fuel dispensing systems, you Duties of Retailers ‘‘Methane’’ must certify the fuel rating of the system (2) ‘‘Hydrogen’’ in each transfer you make to anyone § 309.15 Posting of non-liquid alternative ‘‘Minimum’’ who is not a consumer. You may certify vehicle fuel rating. ‘‘XXX%’’ by using a delivery ticket or other paper (a) If you are a retailer who offers for ‘‘Hydrogen’’ with each transfer, as outlined in sale or sells non-liquid alternative (f) The following example of fuel § 309.11(b)(1), or by using the vehicle fuel (other than electricity) to rating disclosures for electric vehicle permanent marking or permanent label consumers, you must post the fuel fuel dispensing systems is meant to Federal Register / Vol. 60, No. 97 / Friday, May 19, 1995 / Rules and Regulations 26959 serve as an illustration of compliance band is centered horizontally, with 1⁄8′′ with disclosure of principal component with this part: (.32 cm) between lines. The bottom line only. All type should be set in upper 3 ′′ ‘‘Electricity’’ of type is ⁄16 (.48 cm) from the bottom case (all caps) ‘‘Helvetica Black’’ ‘‘XX kW’’ of the label. All type should fall no throughout. Helvetica Black is available ‘‘XXX vac/XX amps’’ closer than 3⁄16′′ (.48 cm) from the side in a variety of computer desk-top and ‘‘Inductive’’ edges of the label. If you wish to change photo-typesetting systems. Its name may (g) When you receive non-liquid the format of this single component vary, but the type must conform in style alternative vehicle fuel (other than label, you must petition the Federal and thickness to the sample provided electricity), or an electric vehicle fuel Trade Commission. You can do this by here. The spacing between letters and dispensing system, from a common writing to the Secretary of the Federal words should be set as ‘‘normal.’’ The 1 ′′ carrier, you also must receive from the Trade Commission, Washington, DC type for the fuel name is 50 point ( ⁄2 common carrier a certification of the 20580. You must state the size and (1.27 cm) cap height) knocked out of a contents of the label that you wish to 1′′ (2.54 cm) deep band. The type for the fuel rating of the non-liquid alternative use, and the reasons that you want to words ‘‘MINIMUM’’ and the principal vehicle fuel (other than electricity) or use it. component is 24 pt. (1⁄4′′ (.64 cm) cap electric vehicle fuel dispensing system, (2) Non-liquid alternative vehicle fuel height). The type for percentage is 36 pt. either by letter or on the delivery ticket (other than electricity) labels with (3⁄8′′ (.96 cm) cap height). or other paper, or by a permanent disclosure of two components. The label (2) Labels for non-liquid alternative marking or label attached to the electric is 3′′ (7.62 cm) wide x 21⁄2′′ (6.35 cm) vehicle fuels (other than electricity) vehicle fuel dispensing system by the long. ‘‘Helvetica black’’ type is used with disclosure of two components. All manufacturer. throughout. All type is centered. The type should be set in upper case (all § 309.16 Recordkeeping. band at the top of the label contains the caps) ‘‘Helvetica Black’’ throughout. name of the fuel. This band should Helvetica Black is available in a variety You must keep for one year any ′′ delivery tickets, letters of certification, measure 1 (2.54 cm) deep. Spacing of of computer desk-top and photo- 1 ′′ or other paper on which you based your the fuel name is ⁄4 (.64 cm) from the typesetting systems. Its name may vary, 3 ′′ posting of fuel ratings for non-liquid top of the label and ⁄16 (.48 cm) from but the type must conform in style and alternative vehicle fuels. You also must the bottom of the black band, centered thickness to the sample provided here. keep for one year records of any fuel horizontally within the black band. The The spacing between letters and words rating determinations you made first line of type beneath the black band should be set as ‘‘normal.’’ The type for is 3⁄16′′ (.48 cm) from the bottom of the the fuel name is 50 point (1⁄2′′ 1.27 cm) according to § 309.10. If you rely for ′′ your posting on a permanent marking or black band. All type below the black cap height) knocked out of a 1 (2.54 band is centered horizontally, with 1⁄8′′ cm) deep band. All other type is 24 pt. permanent label attached to the electric (.32 cm) between lines. The bottom line (1⁄4′′ (.64 cm) cap height). vehicle fuel dispensing system by the of type is 1⁄4′′ (.64 cm) from the bottom (3) Labels for electric vehicle fuel manufacturer, you must not remove or of the label. All type should fall no dispensing systems. All type should be deface the permanent marking or label. closer than 3⁄16′′ (.48 cm) from the side set in upper case (all caps) ‘‘Helvetica The required records, other than the edges of the label. If you wish to change Black’’ throughout. Helvetica Black is permanent marking or label on the the format of this two component label, available in a variety of computer desk- electric vehicle fuel dispensing system, you must petition the Federal Trade top and photo-typesetting systems. Its may be kept at the retail outlet or at a Commission. You can do this by writing name may vary, but the type must reasonably close location. The records, to the Secretary of the Federal Trade conform in style and thickness to the including the permanent marking or Commission, Washington, DC 20580. sample provided here. The spacing label on each electric vehicle fuel You must state the size and contents of between letters and words should be set dispensing system, must be available for the label that you wish to use, and the as ‘‘normal.’’ The type for the common inspection by Federal Trade reasons that you want to use it. identifier is 50 point (1⁄2′′ 1.27 cm) cap Commission staff members or by (3) Electric vehicle fuel dispensing height) knocked out of a 1′′ (2.54 cm) persons authorized by FTC. system labels. The label is 3′′ (7.62 cm) deep band. All other type is 24 pt. (1⁄4′′ 1 ′′ Label Specifications wide x 2 ⁄2 (6.35 cm) long. ‘‘Helvetica (.64 cm) cap height). black’’ type is used throughout. All type (c) Colors: The background color on § 309.17 Labels. is centered. The band at the top of the the labels for all non-liquid alternative All labels must meet the following label contains the common identifier of vehicle fuels (including electricity), and specifications: the fuel. This band should measure 1′′ the color of the knock-out type within (a) Layout: (2.54 cm) deep. Spacing of the common the black band, is Orange: PMS 1495. (1) Non-liquid alternative vehicle fuel identifier is 1⁄4′′ (.64 cm) from the top of All other type is process black. All (other than electricity) labels with the label and 3⁄16′′ (.48 cm) from the borders are process black. All colors disclosure of principal component only. bottom of the black band, centered must be non-fade. The label is 3′′ (7.62 cm) wide x 21⁄2′′ horizontally within the black band. The (d) Contents. Examples of the contents (6.35 cm) long. ‘‘Helvetica black’’ type is first line of type beneath the black band are shown in Figures 1 through 3. The used throughout. All type is centered. is 3⁄16′′ (.48 cm) from the bottom of the proper fuel rating for each non-liquid The band at the top of the label contains black band. All type below the black alternative vehicle fuel (including the name of the fuel. This band should band is centered horizontally, with 1⁄8′′ electricity) must be shown. No marks or measure 1′′ (2.54 cm) deep. Spacing of (.32 cm) between lines. The bottom line information other than that called for by 1 ′′ the fuel name is ⁄4 (.64 cm) from the of type is 1⁄4′′ (.64 cm) from the bottom this part may appear on the labels. top of the label and 3⁄16′′ (.48 cm) from of the label. All type should fall no (e) Special label protection. All labels the bottom of the black band, centered closer than 3⁄16′′ (.48 cm) from the side must be capable of withstanding horizontally within the black band. The edges of the label. extremes of weather conditions for a first line of type beneath the black band (b) Type size and setting: period of at least one year. They must is 1⁄8′′ (.32 cm) from the bottom of the (1) Labels for non-liquid alternative be resistant to vehicle fuel, oil, grease, black band. All type below the black vehicle fuels (other than electricity) solvents, detergents, and water. 26960 Federal Register / Vol. 60, No. 97 / Friday, May 19, 1995 / Rules and Regulations

(f) Illustrations of labels. Labels must (Figures 4, 5, 5.1, and 6 of Appendix A). indicated on the prototype labels meet the specifications in this section No hyphenation should be used in (Figures 7 and 8 of Appendix A). No and look like Figures 1 through 3 of setting headline or text copy. hyphenation should be used in setting Appendix A, except the black print Positioning and spacing should follow headline or text copy. Positioning and should be on the appropriately colored the prototypes closely. spacing should follow the prototypes background. (d) Colors and Paper Stock. All labels closely. shall be printed in process black ink on (d) Colors and Paper Stock. All labels Subpart CÐRequirements for Hammermill Offset Opaque Vellum/ shall be printed in process black ink on Alternative Fueled Vehicles S.70 Sky Blue (or equivalent) paper. Hammermill Offset Opaque Vellum/ § 309.20 Labeling requirements for new Follow label prototypes for percentages S.70 Sky Blue (or equivalent) paper. covered vehicles. of screen tints in Exhaust Emissions (e) Contents. Headlines and text, as chart. illustrated in Figures 7 and 8 of (a) Affixing and maintaining labels (e) Content Appendix A, are standard for all labels. (1) Before offering a new covered (1) Headlines and text, as illustrated vehicle for acquisition to consumers, in Figures 4, 5, 5.1, and 6 of Appendix § 309.22 Determining estimated cruising manufacturers shall affix or cause to be range. A, are standard for all labels. affixed, and new vehicle dealers shall (2) Estimated cruising range. (i) For (a) Dedicated vehicles. maintain or cause to be maintained, a dedicated vehicles, determined in (1) Estimated cruising range values for new vehicle label on a visible surface of accordance with § 309.22(a). dedicated vehicles required to comply each such vehicle. (ii) For dual fueled vehicles, with the provisions of 40 CFR Part 600 (2) If an aftermarket conversion determined in accordance with are to be calculated in accordance with system is installed on a vehicle by a § 309.22(b). the following: person other than the manufacturer (3) Emission certification standard. (i) The lower range value shall be prior to such vehicle’s being acquired by (i) For vehicles not certified as determined by multiplying the vehicle’s a consumer, the manufacturer shall meeting an EPA emissions standard, estimated city fuel-economy by its fuel provide that person with the vehicle’s indicated by placing a mark in the tank capacity, then rounding to the next estimated cruising range (as determined appropriate box indicating that fact. lower integer value. by § 309.22(a) for dedicated vehicles (ii) For vehicles certified as meeting (ii) The upper range value shall be and § 309.22(b) for dual fueled vehicles) an EPA emissions standard, indicated determined by multiplying the vehicle’s and emission certification standard and by placing a mark in the appropriate box estimated highway fuel-economy by its ensure that new vehicle labels are indicating that fact and by placing a fuel tank capacity, then rounding to the affixed to such vehicles as required by caret above the standard to which that next higher integer value. paragraph (a) of this section. vehicle has been certified. (2) Estimated cruising range for an EV (b) Layout. Figures 4 through 6 of is the actual vehicle range determined Appendix A are prototype labels that § 309.21 Labeling requirements for used in accordance with test methods set demonstrate the proper layout. All covered vehicles. forth in Society of Automotive positioning, spacing, type size, and line (a) Affixing and maintaining labels. Engineers (‘‘SAE’’) Surface Vehicle widths shall be similar to and consistent Before offering a used covered vehicle Recommended Practice SAE J1634– with the prototype labels. Labels for acquisition to consumers, used 1993–05–20, ‘‘Electric Vehicle Energy required by this section are two-sided vehicle dealers shall affix and maintain, Consumption and Range Test and rectangular in shape measuring 7 or cause to be affixed and maintained, Procedure.’’ This incorporation by inches (17.5 cm) wide and 5–1/2 inches a used vehicle label on a visible surface reference was approved by the Director (13.75 cm) long. Figure 4 of Appendix of each such vehicle. of the Federal Register in accordance A represents the prototype for the front (b) Layout. Figures 7 and 8 of with 5 U.S.C. 552(a) and 1 CFR Part 51. side of the labels for dedicated vehicles. Appendix A are prototype labels that Copies of SAE J1634–1993–05–20 may Figures 5 and 5.1 of Appendix A demonstrate the proper layout. All be obtained from the Society of represent the prototype of the front side positioning, spacing, type size, and line Automotive Engineers, 400 of the labels for dual-fueled vehicles; widths should be similar to and Commonwealth Drive, Warrendale, PA, Figure 5 of Appendix A represents the consistent with the prototype labels. 15096–0001, or may be inspected at the prototype for vehicles with one fuel Labels required by this section are two- Federal Trade Commission, Public tank and Figure 5.1 of Appendix A sided and rectangular in shape Reference Room, room 130, 600 represents the prototype for vehicles measuring 7 inches (17.5 cm) in width Pennsylvania Avenue, NW, Washington, with two fuel tanks. Figure 6 of and 5–1/2 inches (13.75 cm) in height. DC, or at the Office of the Federal Appendix A represents the prototype of Figure 7 represents the prototype of the Register, 800 North Capitol Street, NW, the back side of the labels for both front side of the labels for used covered suite 700, Washington, DC. dedicated and dual-fueled vehicles. vehicles. Figure 8 represents the back (3) To determine the estimated Manufacturers may, at their discretion, side of the labels for used covered cruising range values for dedicated display the appropriate front label vehicles. Manufacturers may, at their vehicles not required to comply with format and back label format discretion, display the appropriate front the provisions of 40 CFR Part 600 (other immediately adjacent to each other on label format and back label format than electric vehicles), you must possess the same visible surface. No marks or immediately adjacent to each other on a reasonable basis, consisting of information other than that specified in the same visible surface. No marks or competent and reliable evidence that this subpart shall appear on this label. information other than that specified in substantiates the minimum and (c) Type size and setting. The this subpart shall appear on this label. maximum number of miles the vehicle Helvetica Condensed and Helvetica (c) Type size and setting. The will travel between refuelings or family typefaces or equivalent shall be Helvetica Condensed and Helvetica rechargings that is claimed. used exclusively on the label. Specific family typefaces or equivalent shall be (b) Dual-fueled vehicles. type sizes and faces to be used are used exclusively on the label. Specific (1) Estimated cruising range values for indicated on the prototype labels type sizes and faces to be used are dual-fueled vehicles required to comply Federal Register / Vol. 60, No. 97 / Friday, May 19, 1995 / Rules and Regulations 26961 with the provisions of 40 CFR Part 600 city fuel-economy by its conventional- operated exclusively on alternative fuel, are to be calculated in accordance with fuel tank capacity, then rounding to the and the following: next lower integer value. (ii) The minimum and maximum (i) The lower range value for the (iv) The upper range value for the number of miles the vehicle will travel vehicle while operating exclusively on vehicle while operating exclusively on between refuelings or rechargings when alternative fuel shall be determined by conventional fuel shall be determined operated exclusively on conventional multiplying the vehicle’s estimated city by multiplying the vehicle’s estimated fuel. fuel-economy by its alternative-fuel tank highway fuel-economy by its capacity, then rounding to the next conventional-fuel tank capacity, then § 309.23 Recordkeeping. lower integer value. rounding to the next higher integer Manufacturers required to comply (ii) The upper range value for the value. vehicle while operating exclusively on (2) [Reserved] this subpart shall establish, maintain, alternative fuel shall be determined by (3) To determine the estimated and retain copies of all data, reports, multiplying the vehicle’s estimated cruising range values for dual-fueled records, and procedures used to meet highway fuel-economy by its vehicles not required to comply with the requirements of this subpart for alternative-fuel tank capacity, then the provisions of 40 CFR part 600 (other three years after the end of the model rounding to the next higher integer than electric vehicles), you must possess year to which they relate. They must be value. a reasonable basis, consisting of available for inspection by Federal (iii) The lower range value for the competent and reliable evidence, of: Trade Commission staff members, or by vehicle while operating exclusively on (i) The minimum and maximum people authorized by the Federal Trade conventional fuel shall be determined number of miles the vehicle will travel Commission. by multiplying the vehicle’s estimated between refuelings or rechargings when BILLING CODE 6750±01±P

Appendix A—Figures for Part 309 26962 Federal Register / Vol. 60, No. 97 / Friday, May 19, 1995 / Rules and Regulations Federal Register / Vol. 60, No. 97 / Friday, May 19, 1995 / Rules and Regulations 26963 26964 Federal Register / Vol. 60, No. 97 / Friday, May 19, 1995 / Rules and Regulations Federal Register / Vol. 60, No. 97 / Friday, May 19, 1995 / Rules and Regulations 26965 26966 Federal Register / Vol. 60, No. 97 / Friday, May 19, 1995 / Rules and Regulations Federal Register / Vol. 60, No. 97 / Friday, May 19, 1995 / Rules and Regulations 26967

BILLING CODE 6750±01±C (‘‘EPA 92’’) that imposes certification, requirements may all be beneficial, in the By direction of the Commission, Chairman substantiation, and recordkeeping absence of any statutory language or Pitofsky not participating, and Commissioner requirements in connection with the labeling legislative history indicating that Congress Azcuenaga concurring in part and dissenting of non-liquid alternative fuels and alternative intended to give the Commission latitude to in part. fueled vehicles. EPA 92, however, only impose such requirements, I believe that the Donald S. Clark, directs the Commission to prescribe ‘‘labeling Commission has no authority to do so. I Secretary. requirements,’’ 42 U.S.C. § 13232(a); it does therefore dissent from the final rule to the Statement of Commissioner Mary L. not indicate that Congress also intended to extent that it imposes certification, Azcuenaga Concurring in Part and give the Commission the authority to impose substantiation, and recordkeeping Dissenting in Part certification, substantiation, and requirements in connection with the labeling recordkeeping requirements. The legislative of non-liquid alternative fuels and alternative Label Requirements for Alternative Fuels, history of EPA 92 also fails to show that fueled vehicles. Matter No. R311002 Congress intended to give the Commission Today, the Commission issues a final rule such authority. Although certification, [FR Doc. 95–12160 Filed 5–18–95; 8:45 am] pursuant to the Energy Policy Act of 1992 substantiation, and recordkeeping BILLING CODE 6750±01±P