and engines produced by small business manufacturers meeting the
criteria in 13 CFR 121.201 are exempted from the requirements of this
part. Qualifying small business manufacturers must notify EPA and NHTSA
Administrators before importing or introducing into U.S. commerce
exempted vehicles or engines. This notification must include a
description of the manufacturer's qualification as a small business
under 13 CFR 121.201. Manufacturers must submit this notification to
EPA, and EPA will provide the notification to NHTSA. The agencies may
review a manufacturer's qualification as a small business manufacturer
under 13 CFR 121.201.
    (2) Emergency vehicles. For model years 2021 and later, emergency
vehicles produced by heavy-duty pickup truck and van manufacturers are
exempted except those produced by manufacturers voluntarily complying
with standards in Sec.  535.5(a). Manufacturers must notify the
agencies in writing if using the provisions in Sec.  535.5(a) to
produce exempted emergency vehicles in a given model year, either in
the report specified in 40 CFR 86.1865 or in a separate submission.
    (3) Early introduction. The provision applies to manufacturers
seeking to comply early with the NHTSA's fuel consumption program prior
to model year 2014. The manufacturer must send the request to EPA
before submitting its first application for a certificate of
conformity.
    (4) NHTSA voluntary compliance model years. Manufacturers must
submit a statement declaring whether the manufacturer chooses to comply
voluntarily with NHTSA's fuel consumption standards for model years
2014 through 2015. The manufacturers must acknowledge that once
selected, the decision cannot be reversed and the manufacturer will
continue to comply with the fuel consumption standards for subsequent
model years. The manufacturer must send the statement to EPA before
submitting its first application for a certificate of conformity.
    (5) Alternative engine standards. Manufacturers choosing to comply
with the alternative engine standards must notify EPA and NHTSA of
their choice and include in that notification a demonstration that it
has exhausted all available credits and credit opportunities. The
manufacturer must send the statement to EPA before submitting its EOY
report.
    (6) Alternate phase-in. Manufacturers choosing to comply with the
alternative engine phase-in must notify EPA and NHTSA of their choice.
The manufacturer must send the statement to EPA before submitting its
first application for a certificate of conformity.
    (7) Off-road exclusion (tractors and vocational vehicles only). (i)
Tractors and vocational vehicles primarily designed to perform work in
off-road environments such as forests, oil fields, and construction
sites may be exempted without request from the requirements of this
regulation as specified in 49 CFR

523.2 and Sec.  535.5(b). Within 90 days after the end of each model
year, manufacturers must send EPA and NHTSA through the EPA database a
report with the following information:
    (A) A description of each excluded vehicle configuration, including
an explanation of why it qualifies for this exclusion.
    (B) The number of vehicles excluded for each vehicle configuration.
    (ii) A manufacturer having an off-road vehicle failing to meet the
criteria under the agencies' off-road exclusions will be allowed to
request an exclusion of such a vehicle from EPA and NHTSA. The approval
will be granted through the certification process for the vehicle
family and will be done in collaboration between EPA and NHTSA in
accordance with the provisions in 40 CFR 1037.150, 1037.210, and
1037.631.
    (8) Vocational tractors. Tractors intended to be used as vocational
tractors may comply with vocational vehicle standards in Sec.  535.5(b)
of this regulation. Manufacturers classifying tractors as vocational
tractors must provide a description of how they meet the qualifications
in their applications for certificates of conformity as specified in 40
CFR 1037.205.
    (9) Approval of alternate methods to determine drag coefficients
(tractors only). Manufacturers seeking to use alternative methods to
determine aerodynamic drag coefficients must provide a request and gain
approval by EPA in accordance with 40 CFR 1037.525. The manufacturer
must send the request to EPA before submitting its first application
for a certificate of conformity.
    (10) Innovative and off-cycle technology credits. Manufacturers
pursuing innovative and off-cycle technology credits must submit
information to the agencies and may be subject to a public evaluation
process in which the public would have opportunity for comment if the
manufacturer is not using a test procedure in accordance with 40 CFR
1037.610(c). Whether the approach involves on-road testing, modeling,
or some other analytical approach, the manufacturer would be required
to present a final methodology to EPA and NHTSA. EPA and NHTSA would
approve the methodology and credits only if certain criteria were met.
Baseline emissions and fuel consumption and control emissions and fuel
consumption would need to be clearly demonstrated over a wide range of
real-world driving conditions and over a sufficient number of vehicles
to address issues of uncertainty with the data. Data would need to be
on a vehicle model-specific basis unless a manufacturer demonstrated
model-specific data was not necessary. The agencies may publish a
notice of availability in the Federal Register notifying the public of
a manufacturer's proposed alternative off-cycle credit calculation
methodology and provide opportunity for comment. Any notice will
include details regarding the methodology, but not include any
Confidential Business Information.
    (11) Credit trades. If a manufacturer trades fuel consumption
credits, it must send EPA and NHTSA a fuel consumption credit plan as
specified in Sec.  535.7(a) and provide the following additional
information:
    (i) As the seller, the manufacturer must include the following
information:
    (A) The corporate names of the buyer and any brokers.
    (B) A copy of any contracts related to the trade.
    (C) The averaging set corresponding to the engine and powertrain
families and sub-families that generated fuel consumption credits for
the trade, including the number of fuel consumption credits from each
averaging set.
    (ii) As the buyer, the manufacturer or entity must include the
following information in its report:
    (A) The corporate names of the seller and any brokers.
    (B) A copy of any contracts related to the trade.
    (C) How the manufacturer or entity intends to use the fuel
consumption credits, including the number of fuel consumption credits
it intends to apply for each averaging set.
    (D) A copy of the contract with signatures from both the buyer and
the seller.
    (12) Production reports. Within 90 days after the end of the model
year and no later than March 31st, manufacturers participating and not-
participating in the ABT program must send to EPA and NHTSA a report
including the total U.S.-directed production volume of vehicles it
produced in each vehicle and engine family during the model year (based
on information available at the time of the report) as required by 40
CFR 1036.250 and 1037.250. Each manufacturer shall report by vehicle or
engine identification number and by configuration and identify the
subfamily identifier. Report uncertified vehicles sold to secondary
vehicle manufacturers. Small business manufacturers may omit reporting.
Identify any differences between volumes included for EPA but excluded
for NHTSA.
    (13) Transition to engine-based model years. The following
provisions apply for production and ABT reports during the transition
to engine-based model year determinations for tractors and vocational
vehicles in 2020 and 2021:
    (i) If a manufacturer installs model year 2020 or earlier engines
in the manufacturer's vehicles in calendar year 2020, include all those
Phase 1 vehicles in its production and ABT reports related to model
year 2020 compliance, although the agencies may require the
manufacturer to identify these separately from vehicles produced in
calendar year 2019.
    (ii) If a manufacturer installs model year 2020 engines in its
vehicles in calendar year 2021, submit production and ABT reports for
those Phase 1 vehicles separate from the reports it submits for Phase 2
vehicles with model year 2021 engines.
    (h) Public information. Based upon information submitted by
manufacturers and EPA, NHTSA will publish fuel consumption standards
and performance results.
    (i) Information received from EPA. NHTSA will receive information
from EPA as specified in 40 CFR 1036.755 and 1037.755. If NHTSA or EPA
finds that information is provided fraudulent or grossly negligent or
otherwise provided in bad faith, the manufacturer may be liable to
civil penalties in accordance with each agency's authority.
    (j) Recordkeeping. NHTSA has the same recordkeeping requirements as
the EPA, specified in 40 CFR 86.1865-12(k), 1036.250, 1036.735,
1036.825, 1037.250, 1037.735, and 1037.825. The agencies each reserve
the right to request information contained in reports separately.
    (1) Manufacturers must organize and maintain records for NHTSA as
described in this section. NHTSA in conjunction or separately from EPA
may review a manufacturers records at any time.
    (2) Keep the records required by this section for at least eight
years after the due date for the end-of-year report. Manufacturers may
not use fuel consumption credits for any engines if it does not keep
all the records required under this section. Manufacturers must
therefore keep these records to continue to bank valid credits. Store
these records in any electronic format and on any media, as long as the
manufacturer can promptly send the agencies organized records in
English if the agencies ask for them. Manufacturers must keep these
records readily available. NHTSA may review them at any time.

    (3) Keep a copy of the reports required in Sec.  535.8 and 40 CFR
1036.725,1036.730, 1037.725 and 1037.730.
    (4) Keep records of the vehicles and engine identification number
(usually the serial number) for each vehicle and engine produced that
generates or uses fuel consumption credits under the ABT program.
Manufacturers may identify these numbers as a range. If manufacturers
change the FEL after the start of production, identify the date started
using each FEL/FCL and the range of vehicles or engine identification
numbers associated with each FEL/FCL. Manufacturers must also identify
the purchaser and destination for each vehicle and engine produced to
the extent this information is available.
    (5) The agencies may require manufacturers to keep additional
records or to send relevant information not required by this section in
accordance with each agency's authority.
    (6) If collected separately and NHTSA finds that information is
provided fraudulent or grossly negligent or otherwise provided in bad
faith, the manufacturer may be liable to civil penalties in accordance
with each agency's authority.

Sec.  535.9  Enforcement approach.

    (a) Compliance. (1) Each year NHTSA will assess compliance with
fuel consumption standards as specified in Sec.  535.10.
    (i) NHTSA may conduct audits or confirmatory testing prior to first
sale throughout a given model year or after the model year in order to
validate data received from manufacturers and will discuss any
potential issues with EPA and the manufacturer. NHTSA will perform
confirmatory testing as specified in the EPA requirements defined in 40
CFR 1037.150, 1037.201 and 1037.235. Audits may periodically be
performed to confirm manufacturers' credit balances, or other credit
transactions or other information submitted to EPA and NHTSA.
    (ii) NHTSA may also conduct field inspections either at
manufacturing plants or at new vehicle dealerships to validate data
received from manufacturers. Field inspections will be carried out in
order to validate the condition of vehicles, engines or technology
prior to first commercial sale to verify each component's certified
configuration as initially built. NHTSA reserves the right to conduct
inspections at other locations but will target only those components
for which a violation would apply to OEMs and not the fleets or vehicle
owners. Compliance inspections could be carried out through a number of
approaches including during safety inspections or during compliance
safety testing.
    (iii) NHTSA will conduct audits and inspections in the same manner
and, when possible, in conjunction with EPA. NHTSA will also attempt to
coordinate inspections with EPA and share results.
    (iv) Documents collected under NHTSA safety authority may be used
to support fuel efficiency audits and inspections.
    (v) NHTSA may require a manufacturer to perform selective
enforcement audits with respect to any GEM inputs in its application
for certification or in the end of the year ABT final reports.
Selective enforcement audits will be conducted similar to EPA's as
defined in 40 CFR 1037.301, 40 CFR 1037.305 and 1037.320.
    (2) At the end of each model year NHTSA will confirm a
manufacturer's fleet or family performance values against the
applicable standards and, if a manufacturer uses a credit flexibility,
the amount of credits in each averaging set. The averaging set balance
is based upon the engines or vehicles performance above or below the
applicable regulatory subcategory standards in each respective
averaging set and any credits that are traded into or out of an
averaging set during the model year.
    (i) If the balance is positive, the manufacturer is designated as
having a credit surplus.
    (ii) If the balance is negative, the manufacturer is designated as
having a credit deficit.
    (iii) NHTSA will provide notification to each manufacturer
confirming its credit balance(s) after the end of each model year
directly or through EPA.
    (3) Manufacturer are required to confirm the negative balance and
submit a fuel consumption credit plan as specified in Sec.  535.7(a)
along with supporting documentation indicating how it will allocate
existing credits or earn (providing information on future vehicles,
engines or technologies), and/or acquire credits, or else be liable for
a civil penalty as determined in paragraph (b) of this section. The
manufacturer must submit the information within 60 days of receiving
agency notification.
    (4) Credit shortfall within an averaging set may be carried forward
only three years, and if not offset by earned or traded credits, the
manufacturer may be liable for a civil penalty as described in
paragraph (b) of this section.
    (5) Credit allocation plans received from a manufacturer will be
reviewed and approved by NHTSA. NHTSA will approve a credit allocation
plan unless it determines that the proposed credits are unavailable or
that it is unlikely that the plan will result in the manufacturer
earning or acquiring sufficient credits to offset the subject credit
shortfall. In the case where a manufacturer submits a plan to acquire
future model year credits earned by another manufacturer, NHTSA will
require a signed agreement by both manufacturers to initiate a review
of the plan. If a plan is approved, NHTSA will revise the respective
manufacturer's credit account accordingly by identifying which existing
or traded credits are being used to address the credit shortfall, or by
identifying the manufacturer's plan to earn future credits for
addressing the respective credit shortfall. If a plan is rejected,
NHTSA will notify the respective manufacturer and request a revised
plan. The manufacturer must submit a revised plan within 14 days of
receiving agency notification. The agency will provide a manufacturer
one opportunity to submit a revised credit allocation plan before it
initiates civil penalty proceedings.
    (6) For purposes of this regulation, NHTSA will treat the use of
future credits for compliance, as through a credit allocation plan, as
a deferral of civil penalties for non-compliance with an applicable
fuel consumption standard.
    (7) If NHTSA receives and approves a manufacturer's credit
allocation plan to earn future credits within the following three model
years in order to comply with regulatory obligations, NHTSA will defer
levying civil penalties for non-compliance until the date(s) when the
manufacturer's approved plan indicates that credits will be earned or
acquired to achieve compliance, and upon receiving confirmed
CO2 emissions and fuel consumption data from EPA. If the
manufacturer fails to acquire or earn sufficient credits by the plan
dates, NHTSA will initiate civil penalty proceedings.
    (8) In the event that NHTSA fails to receive or is unable to
approve a plan for a non-compliant manufacturer due to insufficiency or
untimeliness, NHTSA may initiate civil penalty proceedings.
    (9) In the event that a manufacturer fails to report accurate fuel
consumption data for vehicles or engines covered under this rule,
noncompliance will be assumed until corrected by submission of the
required data, and NHTSA may initiate civil penalty proceedings.

    (10) If EPA suspends or revoke a certificate of conformity as
specified in 40 CFR 1036.255 or 1037.255, and a manufacturer is unable
to take a corrective action allowed by EPA, noncompliance will be
assumed, and NHTSA may initiate civil penalty proceedings or revoke
fuel consumption credits.
    (b) Civil penalties. (1) Generally. NHTSA may assess a civil
penalty for any violation of this part under 49 U.S.C. 32902(k). This
section states the procedures for assessing civil penalties for
violations of Sec.  535.3(h). The provisions of 5 U.S.C. 554, 556, and
557 do not apply to any proceedings conducted pursuant to this section.
    (2) Initial determination of noncompliance. An action for civil
penalties is commenced by the execution of a Notice of Violation. A
determination by NHTSA's Office of Enforcement of noncompliance with
applicable fuel consumption standards utilizing the certified and
reported CO2 emissions and fuel consumption data provided by
the Environmental Protection Agency as described in this part, and
after considering all the flexibilities available under Sec.  535.7,
underlies a Notice of Violation. If NHTSA Enforcement determines that a
manufacturer's averaging set of vehicles or engines fails to comply
with the applicable fuel consumption standard(s) by generating a credit
shortfall, the incomplete vehicle, complete vehicle or engine
manufacturer, as relevant, shall be subject to a civil penalty.
    (3) Numbers of violations and maximum civil penalties. Any
violation shall constitute a separate violation with respect to each
vehicle or engine within the applicable regulatory averaging set. The
maximum civil penalty is not more than $37,500.00 per vehicle or
engine. The maximum civil penalty under this section for a related
series of violations shall be determined by multiplying $37,500.00
times the vehicle or engine production volume for the model year in
question within the regulatory averaging set. NHTSA may adjust this
civil penalty amount to account for inflation.
    (4) Factors for determining penalty amount. In determining the
amount of any civil penalty proposed to be assessed or assessed under
this section, NHTSA shall take into account the gravity of the
violation, the size of the violator's business, the violator's history
of compliance with applicable fuel consumption standards, the actual
fuel consumption performance related to the applicable standards, the
estimated cost to comply with the regulation and applicable standards,
the quantity of vehicles or engines not complying, and the effect of
the penalty on the violator's ability to continue in business. The
``estimated cost to comply with the regulation and applicable
standards,'' will be used to ensure that penalties for non-compliance
will not be less than the cost of compliance.
    (5) NHTSA enforcement report of determination of non-compliance.
(i) If NHTSA Enforcement determines that a violation has occurred,
NHTSA Enforcement may prepare a report and send the report to the NHTSA
Chief Counsel.
    (ii) The NHTSA Chief Counsel will review the report prepared by
NHTSA Enforcement to determine if there is sufficient information to
establish a likely violation.
    (iii) If the Chief Counsel determines that a violation has likely
occurred, the Chief Counsel may issue a Notice of Violation to the
party.
    (iv) If the Chief Counsel issues a Notice of Violation, he or she
will prepare a case file with recommended actions. A record of any
prior violations by the same party shall be forwarded with the case
file.
    (6) Notice of violation. (i) The Notice of Violation will contain
the following information:
    (A) The name and address of the party;
    (B) The alleged violation(s) and the applicable fuel consumption
standard(s) violated;
    (C) The amount of the proposed penalty and basis for that amount;
    (D) The place to which, and the manner in which, payment is to be
made;
    (E) A statement that the party may decline the Notice of Violation
and that if the Notice of Violation is declined within 30 days of the
date shown on the Notice of Violation, the party has the right to a
hearing, if requested within 30 days of the date shown on the Notice of
Violation, prior to a final assessment of a penalty by a Hearing
Officer; and
    (F) A statement that failure to either pay the proposed penalty or
to decline the Notice of Violation and request a hearing within 30 days
of the date shown on the Notice of Violation will result in a finding
of violation by default and that NHTSA will proceed with the civil
penalty in the amount proposed on the Notice of Violation without
processing the violation under the hearing procedures set forth in this
subpart.
    (ii) The Notice of Violation may be delivered to the party by--
    (A) Mailing to the party (certified mail is not required);
    (B) Use of an overnight or express courier service; or
    (C) Facsimile transmission or electronic mail (with or without
attachments) to the party or an employee of the party.
    (iii) At any time after the Notice of Violation is issued, NHTSA
and the party may agree to reach a compromise on the payment amount.
    (iv) Once a penalty amount is paid in full, a finding of ``resolved
with payment'' will be entered into the case file.
    (v) If the party agrees to pay the proposed penalty, but has not
made payment within 30 days of the date shown on the Notice of
Violation, NHTSA will enter a finding of violation by default in the
matter and NHTSA will proceed with the civil penalty in the amount
proposed on the Notice of Violation without processing the violation
under the hearing procedures set forth in this subpart.
    (vi) If within 30 days of the date shown on the Notice of Violation
a party fails to pay the proposed penalty on the Notice of Violation,
and fails to request a hearing, then NHTSA will enter a finding of
violation by default in the case file, and will assess the civil
penalty in the amount set forth on the Notice of Violation without
processing the violation under the hearing procedures set forth in this
subpart.
    (vii) NHTSA's order assessing the civil penalty following a party's
default is a final agency action.
    (7) Hearing Officer. (i) If a party timely requests a hearing after
receiving a Notice of Violation, a Hearing Officer shall hear the case.
    (ii) The Hearing Officer will be appointed by the NHTSA
Administrator, and is solely responsible for the case referred to him
or her. The Hearing Officer shall have no other responsibility, direct
or supervisory, for the investigation of cases referred for the
assessment of civil penalties. The Hearing Officer shall have no duties
related to the light-duty fuel economy or medium- and heavy-duty fuel
efficiency programs.
    (iii) The Hearing Officer decides each case on the basis of the
information before him or her.
    (8) Initiation of action before the Hearing Officer. (i) After the
Hearing Officer receives the case file from the Chief Counsel, the
Hearing Officer notifies the party in writing of--
    (A) The date, time, and location of the hearing and whether the
hearing will be conducted telephonically or at the DOT Headquarters
building in Washington, DC;

    (B) The right to be represented at all stages of the proceeding by
counsel as set forth in paragraph (b)(9) of this section; and
    (C) The right to a free copy of all written evidence in the case
file.
    (ii) On the request of a party, or at the Hearing Officer's
direction, multiple proceedings may be consolidated if at any time it
appears that such consolidation is necessary or desirable.
    (9) Counsel. A party has the right to be represented at all stages
of the proceeding by counsel. A party electing to be represented by
counsel must notify the Hearing Officer of this election in writing,
after which point the Hearing Officer will direct all further
communications to that counsel. A party represented by counsel bears
all of its own attorneys' fees and costs.
    (10) Hearing location and costs. (i) Unless the party requests a
hearing at which the party appears before the Hearing Officer in
Washington, DC, the hearing may be held telephonically. In Washington,
DC, the hearing is held at the headquarters of the U.S. Department of
Transportation.
    (ii) The Hearing Officer may transfer a case to another Hearing
Officer at a party's request or at the Hearing Officer's direction.
    (iii) A party is responsible for all fees and costs (including
attorneys' fees and costs, and costs that may be associated with travel
or accommodations) associated with attending a hearing.
    (11) Hearing procedures. (i) There is no right to discovery in any
proceedings conducted pursuant to this subpart.
    (ii) The material in the case file pertinent to the issues to be
determined by the Hearing Officer is presented by the Chief Counsel or
his or her designee.
    (iii) The Chief Counsel may supplement the case file with
information prior to the hearing. A copy of such information will be
provided to the party no later than three business days before the
hearing.
    (iv) At the close of the Chief Counsel's presentation of evidence,
the party has the right to examine respond to and rebut material in the
case file and other information presented by the Chief Counsel. In the
case of witness testimony, both parties have the right of cross-
examination.
    (v) In receiving evidence, the Hearing Officer is not bound by
strict rules of evidence. In evaluating the evidence presented, the
Hearing Officer must give due consideration to the reliability and
relevance of each item of evidence.
    (vi) At the close of the party's presentation of evidence, the
Hearing Officer may allow the introduction of rebuttal evidence that
may be presented by the Chief Counsel.
    (vii) The Hearing Officer may allow the party to respond to any
rebuttal evidence submitted.
    (viii) After the evidence in the case has been presented, the Chief
Counsel and the party may present arguments on the issues in the case.
The party may also request an opportunity to submit a written statement
for consideration by the Hearing Officer and for further review. If
granted, the Hearing Officer shall allow a reasonable time for
submission of the statement and shall specify the date by which it must
be received. If the statement is not received within the time
prescribed, or within the limits of any extension of time granted by
the Hearing Officer, it need not be considered by the Hearing Officer.
    (ix) A verbatim transcript of the hearing will not normally be
prepared. A party may, solely at its own expense, cause a verbatim
transcript to be made. If a verbatim transcript is made, the party
shall submit two copies to the Hearing Officer not later than 15 days
after the hearing. The Hearing Officer shall include such transcript in
the record.
    (12) Determination of violations and assessment of civil penalties.
(i) Not later than 30 days following the close of the hearing, the
Hearing Officer shall issue a written decision on the Notice of
Violation, based on the hearing record. This may be extended by the
Hearing officer if the submissions by the Chief Counsel or the party
are voluminous. The decision shall address each alleged violation, and
may do so collectively. For each alleged violation, the decision shall
find a violation or no violation and provide a basis for the finding.
The decision shall set forth the basis for the Hearing Officer's
assessment of a civil penalty, or decision not to assess a civil
penalty. In determining the amount of the civil penalty, the gravity of
the violation, the size of the violator's business, the violator's
history of compliance with applicable fuel consumption standards, the
actual fuel consumption performance related to the applicable standard,
the estimated cost to comply with the regulation and applicable
standard, the quantity of vehicles or engines not complying, and the
effect of the penalty on the violator's ability to continue in
business. The assessment of a civil penalty by the Hearing Officer
shall be set forth in an accompanying final order. The Hearing
Officer's written final order is a final agency action.
    (ii) If the Hearing Officer assesses civil penalties in excess of
$1,000,000, the Hearing Officer's decision shall contain a statement
advising the party of the right to an administrative appeal to the
Administrator within a specified period of time. The party is advised
that failure to submit an appeal within the prescribed time will bar
its consideration and that failure to appeal on the basis of a
particular issue will constitute a waiver of that issue in its appeal
before the Administrator.
    (iii) The filing of a timely and complete appeal to the
Administrator of a Hearing Officer's order assessing a civil penalty
shall suspend the operation of the Hearing Officer's penalty, which
shall no longer be a final agency action.
    (iv) There shall be no administrative appeals of civil penalties
assessed by a Hearing Officer of less than $1,000,000.
    (13) Appeals of civil penalties in excess of $1,000,000. (i) A
party may appeal the Hearing Officer's order assessing civil penalties
over $1,000,000 to the Administrator within 21 days of the date of the
issuance of the Hearing Officer's order.
    (ii) The Administrator will review the decision of the Hearing
Officer de novo, and may affirm the decision of the hearing officer and
assess a civil penalty, or
    (iii) The Administrator may--
    (A) Modify a civil penalty;
    (B) Rescind the Notice of Violation; or
    (C) Remand the case back to the Hearing Officer for new or
additional proceedings.
    (iv) In the absence of a remand, the decision of the Administrator
in an appeal is a final agency action.
    (14) Collection of assessed or compromised civil penalties. (i)
Payment of a civil penalty, whether assessed or compromised, shall be
made by check, postal money order, or electronic transfer of funds, as
provided in instructions by the agency. A payment of civil penalties
shall not be considered a request for a hearing.
    (ii) The party must remit payment of any assessed civil penalty to
NHTSA within 30 days after receipt of the Hearing Officer's order
assessing civil penalties, or, in the case of an appeal to the
Administrator, within 30 days after receipt of the Administrator's
decision on the appeal.
    (iii) The party must remit payment of any compromised civil penalty
to NHTSA on the date and under such terms and conditions as agreed to
by the party and NHTSA. Failure to pay may result in NHTSA entering a
finding of violation by default and assessing a civil penalty in the
amount proposed in the Notice of Violation without processing

the violation under the hearing procedures set forth in this part.
    (c) Changes in corporate ownership and control. Manufacturers must
inform NHTSA of corporate relationship changes to ensure that credit
accounts are identified correctly and credits are assigned and
allocated properly.
    (1) In general, if two manufacturers merge in any way, they must
inform NHTSA how they plan to merge their credit accounts. NHTSA will
subsequently assess corporate fuel consumption and compliance status of
the merged fleet instead of the original separate fleets.
    (2) If a manufacturer divides or divests itself of a portion of its
automobile manufacturing business, it must inform NHTSA how it plans to
divide the manufacturer's credit holdings into two or more accounts.
NHTSA will subsequently distribute holdings as directed by the
manufacturer, subject to provision for reasonably anticipated
compliance obligations.
    (3) If a manufacturer is a successor to another manufacturer's
business, it must inform NHTSA how it plans to allocate credits and
resolve liabilities per 49 CFR part 534.

Sec.  535.10  How do manufacturers comply with fuel consumption
standards?

    (a) Pre-certification process. (1) Regulated manufacturers
determine eligibility to use exemptions or exclusions in accordance
with Sec.  535.3.
    (2) Manufacturers may seek preliminary approvals as specified in 40
CFR 1036.210 and 40 CFR 1037.210 from EPA and NHTSA, if needed.
Manufacturers may request to schedule pre- certification meetings with
EPA and NHTSA prior to submitting approval requests for certificates of
conformity to address any joint compliance issues and gain informal
feedback from the agencies.
    (3) The requirements and prohibitions required by EPA in special
circumstances in accordance with 40 CFR 1037.601 and 40 CFR part 1068
apply, except for the warranty provisions in 40 CFR 1037.601(a)(5), to
manufacturers for the purpose of complying with fuel consumption
standards. Manufacturers should use good judgment when determining how
EPA requirements apply in complying with the NHTSA program.
Manufacturers may contact NHTSA and EPA for clarification about how
these requirements apply to them.
    (4) In circumstances in which EPA provides multiple compliance
approaches manufacturers must choose the same compliance path to comply
with NHTSA's fuel consumption standards that they choose to comply with
EPA's greenhouse gas emission standards.
    (5) Manufacturers may not introduce new vehicles into commerce
without a certificate of conformity from EPA. Manufacturers must attest
to several compliance standards in order to obtain a certificate of
conformity. This includes stating comparable fuel consumption results
for all required CO2 emissions rates. Manufacturers not
completing these steps do not comply with the NHTSA fuel consumption
standards.
    (6) Manufacturers apply the fuel consumption standards specified in
Sec.  535.5 to vehicles, engines and components that represent
production units and components for vehicle and engine families, sub-
families and configurations consistent with the EPA specifications in
40 CFR 86.1819, 1036.230, and 1037.230. Vehicles required to meet the
fuel consumption standards of this part must also comply with the same
requirements as specified in 40 CFR 1037.115.
    (7) Only certain vehicles and engines are allowed to comply
differently between the NHTSA and EPA programs as detailed in this
section. These vehicles and engines must be identified by manufacturers
in the ABT and production reports required in Sec.  535.8.
    (b) Model year compliance. Manufacturers are required to conduct
testing to demonstrate compliance with CO2 exhaust emissions
standards in accordance with EPA's provisions in 40 CFR part 600,
subpart B, 40 CFR 1036, subpart F, 40 CFR part 1037, subpart R, and 40
CFR part 1066. Manufacturers determine equivalent fuel consumption
performance values for CO2 results as specified in Sec.
535.6 and demonstrate compliance by comparing equivalent results to the
applicable fuel consumption standards in Sec.  535.5.
    (c) End-of-the-year process. Manufacturers comply with fuel
consumption standards after the end of each model year, if--
    (1) For heavy-duty pickup trucks and vans, the manufacturer's fleet
average performance, as determined in Sec.  535.6, is less than the
fleet average standard; or
    (2) For truck tractors, vocational vehicles and engines the
manufacturer's fuel consumption performance for each vehicle or engine
family (or sub-family), as determined in Sec.  535.6, is lower than the
applicable regulatory subcategory standards in Sec.  535.5.
    (4) NHTSA will use the EPA final verified values as specified in 40
CFR 86.1819, 40 CFR 1036.755, and 1037.755 for making final
determinations on whether vehicles and engines comply with fuel
consumption standards.
    (5) A manufacturer fails to comply with fuel consumption standards
if its final reports are not provided in accordance with Sec.  535.8
and 40 CFR 86.1865, 1036.730, and 1037.730. Manufacturers not providing
complete or accurate final reports or any plans by the required
deadlines do not comply with fuel consumption standards. A manufacturer
that is unable to provide any emissions results along with comparable
fuel consumption values must obtain permission for EPA to exclude the
results prior to the deadline for submitting final reports.
    (6) A manufacturer that would otherwise fail to directly comply
with fuel consumption standards as described in paragraphs (c)(1)
through (3) of this section may use one or more of the credit
flexibilities provided under the NHTSA averaging, banking and trading
program, as specified in Sec.  535.7, but must offset all credit
deficits in its averaging sets to achieve compliance.
    (7) A manufacturer failing to comply with the provisions specified
in this part may be liable to pay civil penalties in accordance with
Sec.  535.9.
    (8) A manufacturer may also be liable to pay civil penalties if
found by EPA or NHTSA to have provided false information as identified
through NHTSA or EPA enforcement audits or new vehicle verification
testing as specified in Sec.  535.9 and 40 CFR parts 86, 1036, and
1037.

    Issued in Washington, DC, under authority delegated in 49 CFR
1.95 and 49 CFR 501.5.
Steven S. Cliff,
Administrator.
[FR Doc. 2022-17134 Filed 9-12-22; 8:45 am]
BILLING CODE 4910-59-P


[Federal Register Volume 81, Number 12 (Wednesday, January 20, 2016)]
[Notices]
[Page 3235]
[FR Doc No: 2016-00975]

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

Agency Information Collection Activities: Requests for Comments;
Clearance of Renewed Approval of Information Collection: FAA Airport
Master Record

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Notice and request for comments.

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SUMMARY: In accordance with the Paperwork Reduction Act of 1995, FAA
invites public comments about our intention to request the Office of
Management and Budget (OMB) approval to renew an information
collection. Aeronautical information is required by the FAA in order to
carry out agency missions such as those related to aviation flying
safety, flight planning, airport engineering and federal grants
analysis, aeronautical chart and flight information publications, and
the promotion of air commerce as required by statute.

DATES: Written comments should be submitted by February 19, 2016.

ADDRESSES: Interested persons are invited to submit written comments on
the proposed information collection to the Office of Information and
Regulatory Affairs, Office of Management and Budget. Comments should be
addressed to the attention of the Desk Officer, Department of
Transportation/FAA, and sent via electronic mail to
<EMAIL_ADDRESS>or faxed to<PHONE_NUMBER>, or mailed to
the Office of Information and Regulatory Affairs, Office of Management
and Budget, Docket Library, Room 10102, 725 17th Street NW.,
Washington, DC 20503.

FOR FURTHER INFORMATION CONTACT: Ronda Thompson at<PHONE_NUMBER>, or
by email at<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:
    Public Comments Invited: You are asked to comment on any aspect of
this information collection, including (a) Whether the proposed
collection of information is necessary for FAA's performance; (b) the
accuracy of the estimated burden; (c) ways for FAA to enhance the
quality, utility and clarity of the information collection; and (d)
ways that the burden could be minimized without reducing the quality of
the collected information. The agency will summarize and/or include
your comments in the request for OMB's clearance of this information
collection.
    OMB Control Number: 2120-0015.
    Title: FAA Airport Master Record.
    Form Numbers: FAA Forms 5010-1, 5010-2, 5010-3, 5010-5.
    Type of Review: Renewal of an information collection.
    Background: The Federal Register Notice with a 60-day comment
period soliciting comments on the following collection of information
was published on November 10, 2015 (80 FR 69771). 49 U.S.C. 329(b)
empowers and directs the Secretary of Transportation to collect and
disseminate information on civil aeronautics. Aeronautical information
is required by the FAA in order to carry out agency missions such as
those related to aviation flying safety, flight planning, airport
engineering and federal grants analysis, aeronautical chart and flight
information publications, and the promotion of air commerce as required
by statute. The safety information collected includes, but is not
limited to, the following: Airport name, associated city, airport owner
and airport manager, airport latitude, longitude, elevation, runway
description, services available, runway approach light systems,
communications frequency, airport use, number of operations and based
aircraft, obstruction data, and pertinent general remarks.
    Respondents: Approximately 19,800 Airport owners/managers and state
inspectors.
    Frequency: Information is collected on occasion.
    Estimated Average Burden per Response: 1 hour.
    Estimated Total Annual Burden: 8,870 hours.

    Issued in Washington, DC on January 13, 2016.
Ronda Thompson,
FAA Information Collection Clearance Officer, Performance, Policy &
Records Management Branch, ASP-110.
[FR Doc. 2016-00975 Filed 1-19-16; 8:45 am]
 BILLING CODE 4910-13-P


[Federal Register Volume 78, Number 133 (Thursday, July 11, 2013)]
[Rules and Regulations]
[Pages 41687-41689]
[FR Doc No: 2013-16613]

=======================================================================
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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2013-0558]
RIN 1625-AA00

Safety zone; Ohio River, Mile 469.4-470.0; Bellevue, KY

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary safety zone for
all waters of the Ohio River, surface to bottom, extending from Ohio
River mile 469.4 to mile 470.0. This temporary safety zone is necessary
to protect commercial and recreational vessels from fireworks fallout
associated with the City of Bellevue Beach Park Concert fireworks
display. During the period of enforcement, no vessels may be located
within this Coast Guard regulated area and entry into this Coast Guard
regulated area is prohibited unless specifically authorized by the
Captain of the Port Ohio Valley or other designated representative.

DATES: This rule is effective from 10 p.m. to 10:45 p.m. on July 13,
2013.

ADDRESSES: Documents mentioned in this preamble are part of docket
USCG-2013-0558. To view documents mentioned in this preamble as being
available in the docket, go to http://www.regulations.gov, type the
docket number in the ``SEARCH'' box and click ``SEARCH.'' Click on Open
Docket Folder on the line associated with this rulemaking. You may also
visit the Docket Management Facility in Room W12-140 on the ground
floor of the Department of Transportation West Building, 1200 New
Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m.,
Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule,
call or email Petty Officer Denise Buckingham, Marine Safety Detachment
Cincinnati, Coast Guard; telephone<PHONE_NUMBER>, email
<EMAIL_ADDRESS>If you have questions on viewing or
submitting material to the docket, call Barbara Hairston, Program
Manager, Docket Operations, telephone<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION:

Table of Acronyms

DHS Department of Homeland Security
FR Federal Register
NPRM Notice of Proposed Rulemaking
USACE United States Army Corps of Engineers

A. Regulatory History and Information

    The Coast Guard is issuing this temporary final rule without prior
notice and opportunity to comment pursuant to authority under section
4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This
provision authorizes an agency to issue a rule without prior notice and
opportunity to comment when the agency for good cause finds that those
procedures are ``impracticable, unnecessary, or contrary to the public
interest.'' Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good
cause exists for not publishing a notice of proposed rulemaking (NPRM)
with respect to this rule because it is impracticable. The Coast Guard
was made aware of this fireworks display on June 17, 2013. An NPRM is
impracticable in the time remaining before the event. This display
presents potential hazards associated with a fireworks display over or
on the Ohio River and a safety zone is required to protect persons and
property on or near the waterway during the display. Providing notice
and comment through the NPRM process would be impracticable as it would
delay this rule and the safety measures it provides.
    For the same reasons, under 5 U.S.C. 553(d)(3), the Coast Guard
finds that good cause exists for making this rule effective less than
30 days after publication in the Federal Register. Providing a full 30
days notice would be impracticable and would unnecessarily delay the
effective date of this rule. Delaying the effective date would also be
contrary to public interest since immediate action is necessary to
protect persons and property from potential hazards associated with a
fireworks display on the Ohio River.

B. Basis and Purpose

    A fireworks display is planned to conclude the City of Bellevue
Beach Park Concert on July 13, 2013. This display will feature
fireworks being launched between miles 469.4 and 470.0 on the Ohio
River at Bellevue, Kentucky. The Coast Guard determined that a safety
zone is necessary to keep persons and property clear of any potential
hazards associated with the launching of fireworks on or over the
waterway.
    The legal basis and authorities for this rule are found in 33
U.S.C. 1231, 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33
CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Pub. L. 107-295, 116 Stat. 2064;
and Department of Homeland Security Delegation No.

0170.1, which collectively authorize the Coast Guard to establish and
define regulatory safety zones.
    The purpose of the rule is to establish a temporary safety zone
that provides protection for persons and property, including
spectators, commercial and recreational vessels, and others that may be
in the area during the noticed display times from the hazards
associated with the fireworks display on and over the waterway.

C. Discussion of the Final Rule

    The Coast Guard is establishing this temporary safety zone from 10
p.m. to 10:45 p.m. on Saturday, July 13, 2013, for the City of Bellevue
Beach Park Concert fireworks display. The Coast Guard will enforce the
temporary safety zone and may be assisted by other federal, state and
local agencies and the Coast Guard Auxiliary. Fireworks will be
occurring on the Ohio River between miles 469.4 and 470.0 of the Ohio
River at Bellevue, Kentucky. During the period of enforcement, no
vessels may be located within this Coast Guard regulated area and entry
into this Coast Guard regulated area is prohibited unless specifically
authorized by the Captain of the Port Ohio Valley or other designated
representative.

D. Regulatory Analyses

    We developed this rule after considering numerous statutes and
executive orders related to rulemaking. Below we summarize our analyses
based on a number of these statutes or executive orders.

1. Regulatory Planning and Review

    This rule is not a significant regulatory action under section 3(f)
of Executive Order 12866, Regulatory Planning and Review, as
supplemented by Executive Order 13563, Improving Regulation and
Regulatory Review, and does not require an assessment of potential
costs and benefits under section 6(a)(3) of Executive Order 12866 or
under section 1 of Executive Order 13563. The Office of Management and
Budget has not reviewed it under those Orders. This rule prohibits
vessels from entering into or being located within this Coast Guard
regulated area unless specifically authorized by the Captain of the
Port Ohio Valley or other designated representative. Based on the
location, limited size, and short 45 minute duration of the safety
zone, this rule is not a significant regulatory action. Additionally,
notice of this safety zone or any changes will be made via broadcast
notices to mariners and deviation from this rule may be requested from
the COTP and will be considered on a case-by-case basis.

2. Impact on Small Entities

    The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as
amended, requires federal agencies to consider the potential impact of
regulations on small entities during rulemaking. The Coast Guard
certifies under 5 U.S.C. 605(b) that this rule will not have a
significant economic impact on a substantial number of small entities.
    This rule would affect the following entities, some of which might
be small entities: The owners or operators of vessels intending to
transit or anchor between Ohio River miles 469.4 and 470.0 from 10 p.m.
to 10:45 p.m. on July 13, 2013.
    This safety zone would not have a significant economic impact on a
substantial number of small entities due to the fact that this safety
zone would be activated, and thus subject to enforcement, for only 45
minutes and before the activation of the zone, a broadcast notice to
mariners will be issued and will be widely available to users of the
river.

3. Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104-121), we want to assist small
entities in understanding this rule. If the rule would affect your
small business, organization, or governmental jurisdiction and you have
questions concerning its provisions or options for compliance, please
contact the person listed in the FOR FURTHER INFORMATION CONTACT,
above.
    Small businesses may send comments on the actions of Federal
employees who enforce, or otherwise determine compliance with, Federal
regulations to the Small Business and Agriculture Regulatory
Enforcement Ombudsman and the Regional Small Business Regulatory
Fairness Boards. The Ombudsman evaluates these actions annually and
rates each agency's responsiveness to small business. If you wish to
comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR
(1-888-734-3247). The Coast Guard will not retaliate against small
entities that question or complain about this rule or any policy or
action of the Coast Guard.

4. Collection of Information

    This rule will not call for a new collection of information under
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

5. Federalism

    A rule has implications for federalism under Executive Order 13132,
Federalism, if it has a substantial direct effect on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government. We have analyzed this rule under that Order and determined
that this rule does not have implications for federalism.

6. Protest Activities

    The Coast Guard respects the First Amendment rights of protesters.
Protesters are asked to contact the person listed in the FOR FURTHER
INFORMATION CONTACT section to coordinate protest activities so that
your message can be received without jeopardizing the safety or
security of people, places or vessels.

7. Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538)
requires Federal agencies to assess the effects of their discretionary
regulatory actions. In particular, the Act addresses actions that may
result in the expenditure by a State, local, or tribal government, in
the aggregate, or by the private sector of $100,000,000 (adjusted for
inflation) or more in any one year. Though this rule will not result in
such expenditure, we do discuss the effects of this rule elsewhere in
this preamble.

8. Taking of Private Property

    This rule will not cause a taking of private property or otherwise
have taking implications under Executive Order 12630, Governmental
Actions and Interference with Constitutionally Protected Property
Rights.

9. Civil Justice Reform

    This rule meets applicable standards in sections 3(a) and 3(b)(2)
of Executive Order 12988, Civil Justice Reform, to minimize litigation,
eliminate ambiguity, and reduce burden.

10. Protection of Children

    We have analyzed this rule under Executive Order 13045, Protection
of Children from Environmental Health Risks and Safety Risks. This rule
is not an economically significant rule and does not create an
environmental risk to health or risk to safety that may
disproportionately affect children.

11. Indian Tribal Governments

    This rule does not have tribal implications under Executive Order
13175, Consultation and Coordination with Indian Tribal Governments,

because it does not have a substantial direct effect on one or more
Indian tribes, on the relationship between the Federal Government and
Indian tribes, or on the distribution of power and responsibilities
between the Federal Government and Indian tribes.

12. Energy Effects

    This action is not a ``significant energy action'' under Executive
Order 13211, Actions Concerning Regulations That Significantly Affect
Energy Supply, Distribution, or Use.

13. Technical Standards

    This rule does not use technical standards. Therefore, we did not
consider the use of voluntary consensus standards.

14. Environment

    We have analyzed this rule under Department of Homeland Security
Management Directive 023-01 and Commandant Instruction M16475.lD, which
guide the Coast Guard in complying with the National Environmental
Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have determined
that this action is one of a category of actions that do not
individually or cumulatively have a significant effect on the human
environment. This rule involves establishment of a temporary safety
zone for all waters of the Ohio River, surface to bottom, extending
from mile 469.4 to 470.0 on the Ohio River at Bellevue, Kentucky. This
safety zone is necessary to protect commercial and recreational vessels
from fireworks fallout associated with the City of Bellevue Beach Park
Concert fireworks display. During the period of enforcement, no vessels
may be located within this Coast Guard regulated area and entry into
this Coast Guard regulated area is prohibited unless specifically
authorized by the Captain of the Port Ohio Valley or other designated
representative. This rule is categorically excluded from further review
under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. An
environmental analysis checklist supporting this determination and a
Categorical Exclusion Determination are available in the docket where
indicated under ADDRESSES.

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and
recordkeeping requirements, Security measures, Waterways.

    For the reasons discussed in the preamble, the Coast Guard amends
33 CFR Part 165 as follows:

PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS

0
1. The authority citation for part 165 continues to read as follows:

    Authority:  33 U.S.C. 1231; 46 U.S.C. Chapter 701, 3306, 3703;
50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6 and 160.5; Pub. L.
107-295, 116 Stat. 2064; Department of Homeland Security Delegation
No. 0170.1

0
2. Add Sec.  165.T08-0558 to read as follows:

Sec.  165.T08-0558  Safety Zone; Ohio River, Mile 469.4-470.0,
Bellevue, KY.

    (a) Location. The following area is the safety zone: All waters of
the Ohio River, surface to bottom, from mile 469.4 to mile 470.0 on the
Ohio River at Bellevue, Kentucky. These markings are based on the
USACE's Ohio River Navigation Charts (Chart 115 June 2010).
    (b) Effective Date. This section is effective from 10 p.m. to 10:45
p.m. on July 13, 2013.
    (c) Periods of Enforcement. This rule will be in effect for a total
of 45 minutes (10 p.m. through 10:45 p.m.) on July 13, 2013. The
Captain of the Port Ohio Valley or a designated representative will
inform the public through broadcast notice to mariners of the
enforcement period for the safety zone as well as any changes in the
planned schedule.
    (d) Regulations. (1) In accordance with the general regulations in
Sec.  165.23 of this part, entry into, movement within, or departure
from this zone is prohibited unless authorized by the Captain of the
Port Ohio Valley or a designated representative.
    (2) Persons or vessels requiring entry into, departure from, or
movement within a regulated area must request permission from the
Captain of the Port Ohio Valley or a designated representative. They
may be contacted on VHF-FM Channel 13 or 16, or through Coast Guard
Sector Ohio Valley at 1-800-253-7465.
    (3) All persons and vessels shall comply with the instructions of
the Captain of the Port Ohio Valley and designated on-scene U.S. Coast
Guard patrol personnel. On-scene U.S. Coast Guard patrol personnel
includes Commissioned, Warrant, and Petty Officers of the U.S. Coast
Guard.

    Dated: June 26, 2013.
R. Timme,
Captain, U.S. Coast Guard, Captain of the Port Ohio Valley.
[FR Doc. 2013-16613 Filed 7-10-13; 8:45 am]
BILLING CODE 9110-04-P


[Federal Register Volume 87, Number 49 (Monday, March 14, 2022)]
[Rules and Regulations]
[Pages 14174-14177]
[FR Doc No: 2022-05259]

=======================================================================
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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 312

[EPA-HQ-OLEM-2021-0946 FRL-9334-02-OLEM]

Standards and Practices for All Appropriate Inquiries

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action to amend the Standards and
Practices for All Appropriate Inquiries to reference a standard
practice recently made available by ASTM International, a widely
recognized standards developing organization. Specifically, this direct
final rule amends the All Appropriate Inquiries Rule to reference ASTM
International's E1527-21 ``Standard Practice for Environmental Site
Assessments: Phase I Environmental Site Assessment Process'' and allow
for its use to satisfy the requirements for conducting all appropriate
inquiries under the Comprehensive Environmental Response, Compensation
and Liability Act.

DATES: This rule is effective on May 13, 2022, without further notice,
unless EPA receives adverse comment by April 13, 2022. If EPA receives
such comment, we will publish a timely withdrawal in the Federal
Register informing the public that this rule will not take effect.

ADDRESSES: Submit your comments, identified by Docket ID No. [EPA-HQ-
OLEM-2021-0946] at https://www.regulations.gov. Follow the on-line
instructions for submitting comments. Once submitted, comments cannot
be edited or removed from regulations.gov. The EPA may publish any
comment received to its public docket. Do not submit electronically any
information you consider to be Confidential Business Information (CBI)
or other information whose disclosure is restricted by statute.
Multimedia submissions (audio, video, etc.) must be accompanied by a
written comment. The written comment is considered the official comment
and should include discussion of all points you wish to make. The EPA
will generally not consider comments or comment contents located
outside of the primary submission (i.e., on the web, cloud, or other
file sharing system). For additional submission methods, the full EPA
public comment policy, information about CBI and multimedia
submissions, and general guidance on making effective comments, please
visit https://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: For more detailed information on
specific aspects of this rule, contact Patricia Overmeyer, Office of
Brownfields and Land Revitalization (5105T), U.S. Environmental
Protection Agency, 1200 Pennsylvania Avenue NW, Washington, DC 20460-
0002,<PHONE_NUMBER>, or [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us,''
and ``our'' refer to the EPA.

Table of Contents

I. Why is the EPA using a direct final rule
II. Does this action apply to me?
III. What should I consider as I prepare my comments for the EPA?
IV. Statutory Authority
V. Background
VI. What action is the EPA taking?
VII. Statutory and Executive Order Reviews

I. Why is the EPA using a direct final rule?

    EPA is publishing this direct final rule without prior proposal
because the Agency views this as a noncontroversial action and
anticipates no adverse comment given that this action will provide
flexibility for grant recipients and other entities that may benefit
from the use of the ASTM E1527-21 standard. We believe that this action
is reasonable and can be promulgated without consideration of public
comment because it allows for the use of a generally accepted business
standard developed by a recognized standards developing organization.
The standard was reviewed by EPA and determined to be equivalent to the
Agency's all appropriate inquiries requirements. This action does not
disallow the use of the previously recognized standards (ASTM E1527-13
or ASTM E2247-16), and it does not alter the requirements of the
previously promulgated All Appropriate Inquiries Rule. In addition,
this action will potentially increase flexibility for some parties who
may make use of the new standard, without placing any additional burden
on those parties who prefer to use either the ASTM E1527-13 standard,
the ASTM E2247-16 standard, or follow the requirements of the All
Appropriate Inquiries Rule when conducting all appropriate inquiries.
    Although we view this action as noncontroversial, in the ``Proposed
Rules'' section in this issue of the Federal Register, we are
publishing a separate proposed rule containing the clarification
summarized above. That proposed rule will serve as the proposal to be
revised if adverse comments are received. If EPA does not receive
adverse comment in response to this direct final rule prior to April
13, 2022, this rule will become effective on May 13, 2022, without
further notice. If EPA receives adverse comment, we will publish a
timely withdrawal of this direct final rule in the Federal Register,
informing the public that the rule will not take effect. We will
address all public comments in a subsequent final rule. We will not
institute a second comment period on this action. Any parties
interested in commenting must do so at this time and before April 13,
2022.

II. Does this action apply to me?

    This action offers certain parties the option of using an available
industry standard to conduct all appropriate inquiries. Parties
purchasing potentially contaminated properties may use the ASTM E1527-
21 standard practice to comply with the all appropriate inquiries
requirements of the Comprehensive Environmental Response, Compensation,
and Liability Act (CERCLA). This rule does not require any entity to
use this standard. Any party who wants to claim protection from
liability under one of CERCLA's landowner liability

protections may follow the regulatory requirements of the All
Appropriate Inquiries Rule at 40 CFR part 312, use the ASTM E1527-13
``Standard Practice for Phase I Environmental Site Assessments,'' use
the ASTM E2247-16 ``Standard Practice for Environmental Site
Assessments: Phase I Environmental Site Assessment Process for
Forestland or Rural Property,'' or use the standard recognized in this
direct final rule, the ASTM E1527-21 standard, to comply with the all
appropriate inquiries provision of CERCLA.
    Entities potentially affected by this action, or who may choose to
use the newly referenced ASTM standard to perform all appropriate
inquiries, include public and private parties who, as bona fide
prospective purchasers, contiguous property owners, or innocent
landowners, are purchasing potentially contaminated properties and wish
to establish a limitation on CERCLA liability in conjunction with the
property purchase. In addition, any entity conducting a site
characterization or assessment on a property with funding from a
brownfields grant awarded under CERCLA Section 104(k)(2)(B)(ii) may be
affected by this action. This includes state, local, and Tribal
governments that receive brownfields site assessment grants. A summary
of the potentially affected industry sectors (by North American
Industry Classification System (NAICS) codes) is displayed in the table
below.

------------------------------------------------------------------------
         Industry category                       NAICS code
------------------------------------------------------------------------
Real Estate.......................  531
Insurance.........................  52412
Banking/Real Estate Credit........  522292
Environmental Consulting Services.  54162
State, Local and Tribal Government  926110, 925120
Federal Government................  925120, 921190, 924120
------------------------------------------------------------------------

    The list of potentially affected entities in the above table may
not be exhaustive. Our aim is to provide a guide for readers regarding
those entities that EPA is aware potentially could be affected by this
action. However, this action may affect other entities not listed in
the table. If you have questions regarding the applicability of this
action to a particular entity, consult the person listed in the
preceding section entitled FOR FURTHER INFORMATION CONTACT.

III. What should I consider as I prepare my comments for the EPA?

    Direct your comments to Docket ID No. EPA-HQ-OLEM-2021-0946. EPA's
policy is that all comments received will be included in the public
docket without change and may be made available online at
www.regulations.gov, including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute.
    A. Submitting CBI: Do not submit any information through
www.regulations.gov or email that you consider to be CBI or otherwise
protected. You can only submit CBI to EPA via U.S. mail at: HQ EPA
Docket Center, EPA/DC, EPA West, Room 3334, 1301 Constitution Ave. NW,
Washington, DC 20460. Clearly mark all information that you claim to be
CBI. For CBI submitted on a disk or CD ROM that you mail to EPA, mark
the outside of the disk or CD ROM as CBI and then identify
electronically within the disk or CD ROM the specific information that
is claimed as CBI. In addition to one complete version of the comment
that includes information claimed as CBI, a copy of the comment that
does not contain the information claimed as CBI must be submitted along
with the comment that includes CBI. The version of the comment that
does not include CBI will be included in the public docket. Information
marked as CBI will not be disclosed except in accordance with
procedures set forth in 40 CFR part 2.
    B. Tips for Preparing Your Comments: When submitting comments,
remember to:
     Identify the rulemaking by docket number and other
identifying information (subject heading, Federal Register date and
page number).
     Explain why you agree or disagree; suggest alternatives
and substitute language for your requested changes.
     Describe any assumptions and provide any technical
information and/or data you used.
     If you estimate potential costs or burdens, explain how
you arrived at your estimate in sufficient detail to allow for it to be
reproduced.
     Provide specific examples to illustrate your concerns and
suggest alternatives.
     Explain your views as clearly as possible, avoiding the
use of profanity or personal threats.
     Make sure to submit your comments by the comment period
deadline identified.
    The www.regulations.gov website is an ``anonymous access'' system,
which means EPA will not know your identity or contact information
unless you provide it in the body of your comment. If you send an email
comment directly to EPA without going through www.regulations.gov, your
email address will be automatically captured and included as part of
the comment that is placed in the public docket and made available on
the Internet. If you submit an electronic comment, EPA recommends that
you include your name and other contact information in the body of your
comment and with any disk or CD-ROM you submit. If EPA cannot read your
comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment. Electronic
files should avoid the use of special characters or any form of
encryption, and be free of any defects or viruses. For additional
information about EPA's public docket visit the EPA Docket Center
homepage at https://www2.epa.gov/dockets/commenting-epa-dockets.
    C. The docket: All documents in the docket are listed in the
www.regulations.gov index. Certain types of information claimed as CBI,
and other information whose disclosure is restricted by statute, will
not be available for public viewing in EPA's electronic public docket.
EPA's policy is that copyrighted material, such as ASTM International's
E1527-21 ``Standard Practice for Environmental Site Assessments: Phase
I Environmental Site Assessment Process'' will not be placed in EPA's
electronic public docket but will be publicly available only in printed
form in the official public docket. Publicly available docket materials
are available either electronically in www.regulations.gov or in hard
copy at the HQ EPA Docket Center, EPA/DC, EPA West, Room 3334, 1301
Constitution Ave. NW, Washington, DC 20460. Please note: Due to public
health concerns related to COVID-19, the EPA Docket Center and Reading
Room are open to the public by appointment only, and walk-ins are not
allowed. Visitors to the Reading Room must complete docket material
requests in advance and then make an appointment to retrieve the
material. Please contact the EPA Reading Room staff at<PHONE_NUMBER>
or via the Dockets Customer Service email at [email protected] to arrange material requests and appointments.

IV. Statutory Authority

    This direct final rule amends the All Appropriate Inquiries Rule
setting Federal standards for the conduct of ``all appropriate
inquiries'' at 40 CFR part 312. The All Appropriate Inquiries Rule sets
forth standards and practices necessary for fulfilling the requirements

of CERCLA section 101(35)(B) to obtain CERCLA liability protection and
for conducting site characterizations and assessments with the use of
brownfields grants per CERCLA section 104(k)(2)(B)(ii).

V. Background

    On January 11, 2002, President Bush signed the Small Business
Liability Relief and Brownfields Revitalization Act (``the Brownfields
Amendments''). In general, the Brownfields Amendments to CERCLA provide
funds to assess and clean up brownfields sites; clarify existing and
establish new CERCLA liability provisions related to certain types of
owners of contaminated properties; and provide funding to establish or
enhance State and Tribal cleanup programs. The Brownfields Amendments
revised some of the provisions of CERCLA Section 101(35) and limited
liability under Section 107 for bona fide prospective purchasers and
contiguous property owners, in addition to clarifying the requirements
necessary to establish the innocent landowner liability protection
under CERCLA. The Brownfields Amendments clarified the requirement that
parties purchasing potentially contaminated property undertake ``all
appropriate inquiries'' into prior ownership and use of property before
purchasing the property to qualify for protection from CERCLA
liability.
    The Brownfields Amendments of 2002 required EPA to develop
regulations establishing standards and practices for how to conduct all
appropriate inquiries. EPA promulgated regulations that set standards
and practices for all appropriate inquiries on November 1, 2005 (70 FR
66070). In the final regulation, EPA referenced, and recognized as
compliant with the rule, the ASTM E1527-05 ``Standard Practice for
Environmental Site Assessments: Phase I Environmental Site Assessment
Process.'' In December 2008, EPA amended the All Appropriate Inquiries
Rule to recognize another ASTM standard as compliant with the rule,
ASTM E2247-08 ``Standard Practice for Environmental Site Assessments:
Phase I Environmental Site Assessment Process for Forestland or Rural
Property.'' Both standards, the ASTM E1527-05 and the ASTM E2247-08,
were subsequently revised by ASTM International. EPA referenced the
revised ASTM E1527-13 standard on August 15, 2013 (78 FR 49690) and
referenced the revised ASTM E2247-16 Standard on September 15, 2017 (82
FR 43310) as compliant with the All Appropriate Inquiries Rule.
Currently, the All Appropriate Inquiries Rule (40 CFR part 312) allows
for the use of the ASTM E1527-13 standard or the ASTM E2247-16 standard
to conduct all appropriate inquiries, in lieu of following requirements
included in the rule. Once this action is final, the All Appropriate
Inquiries Rule also will allow for the use of the ASTM E1527-21
standard.
    Recently, ASTM International published a revised standard for
conducting Phase I environmental site assessments. This standard, ASTM
E1527-21, ``Standard Practice for Environmental Site Assessments: Phase
I Environmental Site Assessment Process,'' was reviewed by EPA, and
determined by EPA to be compliant with the requirements of the All
Appropriate Inquiries Rule.

VI. What action is the EPA taking?

    This direct final rule amends the All Appropriate Inquiries Rule to
allow for the use of the recently revised ASTM International standard,
ASTM E1527-21, to satisfy the all appropriate inquiries requirements
under CERCLA for establishing the bona fide prospective purchaser,
contiguous property owner, and innocent landowner liability
protections.
    With this action, parties seeking liability relief under CERCLA's
landowner liability protections, as well as recipients of brownfields
grants for conducting site assessments, will be considered in
compliance with the requirements for all appropriate inquiries, if such
parties comply with the procedures provided in the ASTM E1527-21,
``Standard Practice for Environmental Site Assessments: Phase I
Environmental Site Assessment Process.'' EPA determined that it is
reasonable to promulgate this clarification as a direct final rule that
is effective immediately, rather than delay promulgation of the
clarification until after receipt and consideration of public comments.
EPA made this determination based upon the Agency's finding that the
ASTM E1527-21 standard is compliant with the All Appropriate Inquiries
Rule, and the Agency sees no reason to delay allowing for its use in
conducting all appropriate inquiries.
    The Agency notes that this action does not require any party to use
the ASTM E1527-21 standard. Any party conducting all appropriate
inquiries to comply with CERCLA's bona fide prospective purchaser,
contiguous property owner, and innocent landowner liability protections
may continue to follow the provisions of the All Appropriate Inquiries
Rule at 40 CFR part 312, use the ASTM E1527-13 standard or use the ASTM
E2247-16 standard. This action merely allows for the option of using
ASTM International's E1527-21 ``Standard Practice for Environmental
Site Assessments: Phase I Environmental Site Assessment Process'' by
those parties purchasing potentially contaminated properties in lieu of
following the specific requirements of the All Appropriate Inquiries
Rule.
    The Agency notes that there are no legally significant differences
between the regulatory requirements and the ASTM E1527-21 standard. To
facilitate an understanding of the slight differences between the All
Appropriate Inquiries Rule and the revised ASTM E1527-21 ``Standard
Practice for Environmental Site Assessments: Phase I Environmental Site
Assessment Process,'' as well as the applicability of the E1527-21
standard to certain types of properties, EPA developed, and placed in
the docket for this action, the document ``Comparison of All
Appropriate Inquiries Regulation, the ASTM E1527-13 Phase I
Environmental Site Assessment Process, and ASTM E1527-21 Phase I
Environmental Site Assessment Process.'' The document provides a
comparison of the two ASTM E1527 standards.
    This action includes no changes to the All Appropriate Inquiries
Rule other than to add an additional reference to the new ASTM E1527-21
standard. EPA is not seeking comments on the standards and practices
included in the rule published at 40 CFR part 312. Also, EPA is not
seeking comments on the ASTM E1527-21 standard. EPA's only action with
this direct final rule is recognition of the ASTM E1527-21 standard as
compliant with the all appropriate inquiries requirements and,
therefore it is only this action on which the Agency is seeking
comment.

VII. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993) and
Executive Order 13563 (76 FR 3821, January 21, 2011), this action is
not a ``significant regulatory action'' and is therefore not subject to
OMB review. This action merely amends the All Appropriate Inquiries
Rule to reference ASTM International's E1527-21 ``Standard Practice for
Environmental Site Assessments: Phase I Environmental Site Assessment
Process'' and allow for its use to satisfy the requirements for
conducting all appropriate inquiries under CERCLA. This action does not
impose any requirements on any entity, including small entities.
Therefore, pursuant to the Regulatory Flexibility

Act (5 U.S.C. 601 et seq. ), after considering the economic impacts of
this action on small entities, I certify that this action will not have
a significant economic impact on a substantial number of small
entities. This action does not contain any unfunded mandates or
significantly or uniquely affect small governments as described in
Sections 202 and 205 of the Unfunded Mandates Reform Act of 1999 (UMRA)
(Pub. L. 104-4). This action does not create new binding legal
requirements that substantially and directly affect Tribes under
Executive Order 13175 (63 FR 67249, November 9, 2000). This action does
not have significant Federalism implications under Executive Order
13132 (64 FR 43255, August 10, 1999). Because this action is exempt
from review under Executive Order 12866, this rule is not subject to
Executive Order 13211, entitled Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use (66 FR 28355,
May 22, 2001) or Executive Order 13045, entitled Protection of Children
from Environmental Health Risks and Safety Risks (62 FR 19885, April
23, 1997). This action does not contain any information collections
subject to OMB approval under the Paperwork Reduction Act of 1995
(PRA), 44 U.S.C. 3501 et seq., nor does it require any special
considerations under Executive Order 12898, entitled Federal Actions to
Address Environmental Justice in Minority Populations and Low-Income
Populations (59 FR 7629, February 16, 1994).
    This action does involve technical standards. Therefore, the
requirements of section 12(d) of the National Technology Transfer and
Advancement Act of 1995 (15 U.S.C. 272) (NTTAA) apply. The NTTAA was
signed into law on March 7, 1996, and, among other things, directs the
National Institute of Standards and Technology (NIST) to bring together
Federal agencies as well as state and local governments to achieve
greater reliance on voluntary consensus standards and decrease
dependence on in-house standards. It states that use of such standards,
whenever practicable and appropriate, is intended to achieve the
following goals: (a) Eliminate the cost to the government of developing
its own standards and decrease the cost of goods procured and the
burden of complying with agency regulations; (b) provide incentives and
opportunities to establish standards that serve national needs; (c)
encourage long-term growth for U.S. enterprises and promote efficiency
and economic competition through harmonization of standards; and (d)
further the policy of reliance upon the private sector to supply
government needs for goods and services. The Act requires that Federal
agencies adopt private sector standards, particularly those developed
by standards developing organizations (SDOs), whenever possible in lieu
of creating proprietary, non-consensus standards.
    This action is compliant with the spirit and requirements of the
NTTAA. This action allows for the use of the ASTM International
standard known as Standard E1527-21 and entitled ``Standard Practice
for Environmental Site Assessments: Phase I Environmental Site
Assessment Process.'' By taking this action, EPA is fulfilling the
intent and requirements of the National Technology Transfer and
Advancement Act of 1995 (NTTAA), Public Law 104-113.
    The Congressional Review Act, 5 U.S.C. 801 et seq., generally
provides that before certain actions may take effect, the agency
promulgating the action must submit a report, which includes a copy of
the action, to each House of the Congress and to the Comptroller
General of the United States. EPA submitted a report containing this
rule and other required information to the U.S. Senate, the U.S. House
of Representatives, and the Comptroller General of the United States
prior to publication of the rule in the Federal Register. This action
is not a ``major rule'' as defined by 5 U.S.C. 804(2). This rule is
effective on May 13, 2022 unless EPA receives adverse comment by May
13, 2022.

List of Subjects in 40 CFR Part 312

    Administrative practice and procedure, Hazardous substances.

Barry N. Breen,
Acting Assistant Administrator, Office of Land and Emergency
Management.

    For the reasons set out in the preamble, 40 CFR part 312 is amended
as follows:

PART 312--[AMENDED]

0
1. The authority citation for part 312 continues to read as follows:

    Authority: Section 101(35)(B) of CERCLA, as amended, 42 U.S.C.
9601(3)(B).

Subpart B--Definitions and References

0
2. Section 312.11 is amended by adding paragraph (c) to read as
follows:

Sec.  312.11   References.

* * * * *
    (c) The procedures of ASTM International Standard E1527-21 entitled
``Standard Practice for Environmental Site Assessments: Phase I
Environmental Site Assessment Process.'' This standard is available
from ASTM International at www.astm.org, 1-610-832-9585.

 [FR Doc. 2022-05259 Filed 3-11-22; 8:45 am]
 BILLING CODE 6560-50-P