Alternative Fuel Transportation Program by Tapisserie



                                        Rules and Regulations                                                                                         Federal Register
                                                                                                                                                      Vol. 73, No. 51

                                                                                                                                                      Friday, March 14, 2008

                                        This section of the FEDERAL REGISTER                      B. Comments on Analysis for the Potential           of the projected consumption of motor
                                        contains regulatory documents having general                 Impact of the Rule                               fuel in the United States for each such
                                        applicability and legal effect, most of which             C. Comments on What Fleets and Other                year, with at least half of such
                                        are keyed to and codified in the Code of                     Organizations Are Doing To Reduce                replacement fuels being domestic fuels.
                                        Federal Regulations, which is published under                Petroleum Use
                                                                                                  D. Comments Providing Suggestions for
                                                                                                                                                      (Replacement Fuel Goal; 42 U.S.C.
                                        50 titles pursuant to 44 U.S.C. 1510.
                                                                                                     DOE, Other Agencies, or Congress                 13252(b)(2)) Under section 504(b) of
                                        The Code of Federal Regulations is sold by              IV. Definitions and Statutory Requirements            EPAct 1992, if DOE determines that the
                                        the Superintendent of Documents. Prices of                A. Definitions                                      section 502 goals are unachievable, DOE
                                        new books are listed in the first FEDERAL                 B. Key Statutory Requirements                       must establish achievable goals. (42
                                        REGISTER issue of each week.                              C. Other Relevant Requirements                      U.S.C. 13254(b))
                                                                                                  D. No Fuel Use Requirement Authority                   In determining whether to establish a
                                                                                                V. Analysis for Private and Local Fleets Rule         Private and Local Government Fleet
                                        DEPARTMENT OF ENERGY                                         Determination                                    Requirement, DOE is directed to
                                                                                                  A. Achievability of the Replacement Fuel
                                                                                                                                                      determine if such a requirement is
                                        10 CFR Part 490                                                                                               ‘‘necessary.’’ (42 U.S.C. 13257(e)(1)) The
                                                                                                  B. Potential Contribution of a Private and
                                        RIN 1904–AB69                                                Local Government Fleet Requirement to            ‘‘necessity’’ determination is a two part
                                                                                                     the Production Capacity of Alternative           test. First, DOE must determine if the
                                        Alternative Fuel Transportation                              Fuel                                             Replacement Fuel Goal established
                                        Program; Private and Local                              VI. Determination                                     under section 502, or as modified under
                                        Government Fleet Determination                          VII. Regulatory Review                                section 504 of EPAct 1992, is achievable
                                                                                                VIII. Approval By the Office of the Secretary         absent a Private and Local Government
                                        AGENCY:  Office of Energy Efficiency and
                                        Renewable Energy, Department of                         I. Introduction                                       Fleet Requirement. (42 U.S.C.
                                        Energy (DOE).                                                                                                 13257(e)(1)(A)) Next, the ‘‘necessity’’
                                                                                                   Under the Energy Policy Act of 1992                determination requires DOE to
                                        ACTION: Final determination.                            (EPAct 1992; Pub. L. 102–486), DOE is                 determine if such a goal is practicable
                                        SUMMARY: Pursuant to the Energy Policy
                                                                                                required to determine if a requirement                and actually achievable through
                                        Act of 1992 (EPAct 1992), the                           for certain private and local government              implementation of a Private and Local
                                        Department of Energy (DOE) has                          vehicle fleets to acquire alternative                 Government Fleet Requirement in
                                        determined that a regulatory                            fueled vehicles (AFVs) is necessary, as               combination with voluntary means and
                                        requirement for the owners and                          specified in EPAct 1992. (42 U.S.C.                   other relevant programs. (42 U.S.C.
                                        operators of certain private and local                  13257(e)) If DOE determines that the                  13257(e)(1)(B)) If DOE determines that
                                        government fleets to acquire alternative                Private and Local Government Fleet                    the Replacement Fuel Goal is not
                                        fueled vehicles (AFVs) is not necessary                 Requirement is ‘‘necessary,’’ then DOE                achievable absent the Private and Local
                                        to achieve the recently modified EPAct                  must issue regulations requiring certain              Fleet Requirement, and that such goal
                                        1992 Replacement Fuel Goal. DOE                         fleets to acquire light-duty AFVs                     would be practicable and actually
                                        therefore has determined that it cannot                 annually. (42 U.S.C. 13257(g)) Fleets                 achievable through implementation of
                                        issue a requirement for certain private                 subject to such a mandate would                       such a requirement, DOE must then
                                        and local government fleets to acquire                  include all fleets that have at least 50              establish the Private and Local Fleet
                                        alternative fueled vehicles.                            light duty motor vehicles, and would                  Requirement under section 507(g). (42
                                                                                                exclude Federal fleets, State fleets, and             U.S.C. 13257(e)(1)) If either of these
                                        DATES: Effective Date: This
                                                                                                fleets covered under the Alternative                  findings cannot be made, then DOE is
                                        determination is effective April 1, 2008.               Fuel Provider mandate. (42 U.S.C.
                                        FOR FURTHER INFORMATION CONTACT: For                                                                          precluded from establishing the Private
                                                                                                13257(g)(1)) If DOE determines that the               and Local Fleet Requirement under
                                        information concerning this final                       Private and Local Government Fleet
                                        determination, contact Mr. Dana V.                                                                            section 507(g).
                                                                                                Requirement is not necessary then DOE                    Under the Private and Local
                                        O’Hara, Office of Energy Efficiency and                 must publish such determination in the
                                        Renewable Energy (EE–2G), U.S.                                                                                Government Fleet provisions, if DOE
                                                                                                Federal Register as a final agency                    initiates a rulemaking under section
                                        Department of Energy, 1000                              action, including an explanation of the
                                        Independence Avenue, SW.,                                                                                     507(g), DOE is again directed to
                                                                                                findings on which such a determination                determine whether to modify the
                                        Washington, DC 20585–0121; (202) 586–                   is made and the basis for the
                                        9171;; or                                                                       Replacement Fuel Goal. (42 U.S.C.
                                                                                                determination. (42 U.S.C. 13257(f))                   13257(e)(2)) If the Replacement Fuel
                                        Mr. Chris Calamita, Office of the                          Relevant to the evaluation of a Private
                                        General Counsel, U.S. Department of                                                                           Goal is not achievable, DOE has to set
                                                                                                and Local Government Fleet                            a Replacement Fuel Goal that is
                                        Energy, 1000 Independence Avenue,                       Requirement is the replacement fuel
                                        SW., Washington, DC 20585–0121; (202)                                                                         achievable. (42 U.S.C. 13257(e)(2))
                                                                                                goal established in section 502(b) of                    In a previous rulemaking, DOE has
                                        586–9507.                                               EPAct 1992. (42 U.S.C. 13252(b))                      already determined that the original
                                        SUPPLEMENTARY INFORMATION:                              Section 502(b)(2) establishes goals of                Replacement Fuel Goal of 30 percent in
                                                                                                producing sufficient replacement fuels
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                                        Table of Contents                                                                                             2010 is not achievable and a modified
                                                                                                to replace:                                           Replacement Fuel Goal of 30 percent by
                                        I. Introduction
                                        II. Background                                             at least ten percent by the year 2000,             2030 was published March 15, 2007. 72
                                        III. Discussion of Public Comments                            and                                             FR 12042. The purpose of today’s
                                           A. Comments on Proposed Determination                   at least thirty percent by the year 2010           document is to determine whether or

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                                        13730               Federal Register / Vol. 73, No. 51 / Friday, March 14, 2008 / Rules and Regulations

                                        not the Private and Local Government                    v. Abraham, et al., No. C 02–00027                    1992 Replacement Fuel Goal of 30
                                        Fleet Requirement is necessary to                       (N.D. Cal., 2002). On January 17, 2003,               percent by 2010 was not achievable and
                                        achieve the modified Replacement Fuel                   the Court subsequently granted a 30-day               announced its proposal to extend the
                                        Goal.                                                   extension (to February 26, 2003) of the               time for achieving the 30 percent
                                           DOE has determined that it is not                    deadline for DOE to complete work on                  replacement fuel production capacity
                                        ‘‘necessary’’ to promulgate a regulation                the notice of proposed rulemaking.                    goal to 2030. 71 FR 54771. In that
                                        requiring private and local government                  (Center for Biological Diversity v.                   notice, DOE evaluated four scenarios
                                        fleets to acquire AFVs. DOE has                         Abraham, et al., No. C 02–00027 (N.D.                 that identified projected replacement
                                        determined that establishment of a                      Cal., 2002), Order No. 55 (Entered 01/                fuel capacities of 8.65 percent, 17.84
                                        Private and Local Government Fleet                      23/2003)).                                            percent, 35.25 percent, and 47.06
                                        Requirement is not required for                            On March 4, 2003, as required by                   percent, by 2030. (Updated analyses
                                        achievement of the Replacement Fuel                     section 507 of EPAct 1992 and in                      conducted for the final rule resulted in
                                        Goal of 30 percent of U.S. motor fuels                  accordance with the Court order under                 the first and third of these becoming
                                        by 2030, as modified by DOE in March                    Center for Biological Diversity v.                    7.38 percent and 33.13 percent,
                                        2007. 72 FR 12041. As discussed below,                  Abraham, et al., DOE issued a notice of               respectively.) These projections
                                        this determination is based on DOE’s                    a proposed determination regarding the                reflected considerations of numerous
                                        analysis in revising the Replacement                    Private and Local Fleet Requirement, in               variables including oil prices,
                                        Fuel Goal, under which DOE                              which DOE tentatively determined that                 technological breakthroughs, and
                                        demonstrated a pathway to achieve the                   a requirement was not ‘‘necessary,’’ and              market acceptance. The modified goal
                                        modified Replacement Fuel Goal                          therefore should not be imposed. 68 FR                proposed by DOE fell in the mid-range
                                        without establishment of a Private and                  10320. DOE finalized the proposed                     among these scenarios.
                                        Local Government Fleet Requirement.                     determination that a regulation                          On January 23, 2007, the President, in
                                        72 FR 12041. Additionally, DOE also                     requiring private and local government                his State of the Union Address,
                                        provides an analysis demonstrating that                 fleets to acquire AFVs is not                         proposed replacing 20 percent of the
                                        were a Private and Local Government                     ‘‘necessary’’ and, therefore, cannot be               projected gasoline usage in 10 years
                                        Fleet Requirement established, the                      promulgated, which was published                      (‘‘Twenty in Ten’’ initiative). The first
                                        number of fleets potentially covered by                 January 29, 2004. 69 FR 4219. The                     element was to increase the use of
                                        such a requirement, the number of AFVs                  necessity determination was based on                  alternative fuels to 35 billion gallons in
                                        likely to be acquired, and the amount of                DOE’s findings that a private and local               2017, reducing projected gasoline
                                        U.S. motor fuel likely displaced would                  government fleet vehicle acquisition                  consumption by 15 percent, through
                                        not make an appreciable contribution                    mandate would not appreciably increase                advancements in many fields including
                                        towards achieving the modified                          the percentage of alternative fuel or                 cellulosic ethanol, butanol, and
                                        Replacement Fuel Goal.                                  replacement fuel used in motor vehicles               biodiesel. In the second element of
                                           Today’s document implements the                      in the United States and thus would                   ‘‘Twenty in Ten,’’ the President asked
                                        March 6, 2006, order of the U.S. District               make no more than a negligible                        Congress to give the Administration
                                        Court for Northern District of California               contribution to the achievement of                    authority to reform the fuel efficiency
                                        to prepare and publish a determination                  EPAct 1992’s existing 2010 Replacement                standards for passenger cars, which
                                        on the Private and Local Government                     Fuel Goal of 30 percent, or of a revised              could save another 5 percent of U.S.
                                        Fleets rule. See Center for Biological                  Replacement Fuel Goal were one                        projected gasoline usage in 2017.
                                        Diversity v. U.S. Department of Energy                  adopted.                                                 On March 15, 2007, DOE published a
                                        et al., C 05–01526 WHA (N.D. Cal. 2006)                    Subsequent to the publication of the               final rule for the Replacement Fuel
                                        (Order Re Timing of Relief).                            January 29, 2004, final rule, DOE was                 Goal. 72 FR 12041. In the final rule,
                                                                                                sued in Federal court by the Center for               DOE determined that the EPAct 1992
                                        II. Background
                                                                                                Biological Diversity and Friends of the               goal of establishing sufficient
                                           On January 2, 2002, EarthJustice, on                 Earth for failing to impose a private and             replacement fuel production capacity to
                                        behalf of the Center for Biological                     local government fleet acquisition                    replace 30 percent on an energy
                                        Diversity, Bluewater Network, and                       mandate and for not revising the                      equivalent basis of all U.S. motor fuel by
                                        Sierra Club, filed a lawsuit in the U.S.                replacement fuel production goal for                  2010 was not achievable. This
                                        District Court for the Northern District                2010 as part of its determination. On                 determination was based on a similar
                                        of California that, in part, sought to                  March 6, 2006, the U.S. District Court                evaluation of the projected U.S.
                                        compel DOE to ‘‘issue a proposed rule                   for the Northern District of California               production capacity of replacement
                                        and final determination on the necessity                vacated DOE’s final determination                     fuels as was presented in the notice of
                                        of a private and municipal fleet                        regarding the Private and Local                       proposed rulemaking. The Replacement
                                        program.’’ (Plaintiffs Complaint for                    Government Fleet Mandate. See Center                  Fuel Goal final rule extended the 30
                                        Injunctive and Declaratory Relief, pg 55,               for Biological Diversity v. U.S.                      percent Replacement Fuel Goal out to
                                        paragraph 171, dated January 2, 2002).                  Department of Energy et al., 419 F.Supp.              2030 based on an analysis similar to that
                                        On July 26, 2002, the Court granted                     2d 1166 (N.D. Cal 2006). The Court                    presented in the notice of proposed
                                        plaintiffs’ motion for summary                          directed DOE to prepare notices of                    rulemaking. The Replacement Fuel Goal
                                        judgment on the issue of whether DOE                    proposed rulemaking and final rules on                final rule complied with DOE’s
                                        had missed the deadline set forth in                    both the Replacement Fuel Goal for                    obligation under section 504(b) of EPAct
                                        EPAct 1992 section 507(e) for                           2010 and the private and local                        1992 to ‘‘establish goals that are
                                        completing the rulemaking. See Center                   government fleet determination. See                   achievable, for the purposes of this
                                        for Biological Diversity v. Abraham, et                 Center for Biological Diversity v. U.S.               title.’’ (42 U.S.C. 13254(b))
                                        al., (218 F.Supp.2d 1143 (N.D. Cal.,                    Department of Energy et al., C 05–01526                  On September 14, 2007, DOE
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                                        2002)). On September 27, 2002, the                      WHA (N.D. Cal. 2006) (Order Re Timing                 published a proposed determination in
                                        District Court ordered DOE to complete                  of Relief).                                           which DOE preliminarily determined
                                        its proposed rulemaking by January 27,                     On September 19, 2006, DOE                         that a Private and Local Government
                                        2003, and its final rule by November 27,                published a notice announcing its                     Fleet Rule was not necessary to meet the
                                        2003.                                                   proposed determination that the EPAct                 revised Replacement Fuel Goal. 72 FR

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                                        52496. DOE requested comment on the                     National Association of Fleet                         home vehicles are excluded, alternative
                                        proposed determination and held a                       Administrators (NAFA), and PHH/                       fuel use cannot be required, etc.).
                                        public meeting. The comments received                   Arval. AALA; Associated Builders and                    Of the other commenters that
                                        are discussed below.                                    Contractors, Inc.; the Automotive Fleet               addressed the potential impact of the
                                           Following publication of the proposed                and Leasing Association (AFLA);                       rule in replacement and alternative fuel
                                        notice of a determination, and partially                Automotive Resources International                    use, all of these commenters also agreed
                                        in response to the President’s Twenty in                (ARI); General Electric; LeasePlan USA;               with DOE’s initial conclusion. No
                                        Ten initiative, Congress passed and on                  Mohawk Industries, Inc.; Natural Gas                  commenters expressed support for
                                        December 19, 2007, President Bush                       Vehicle America (NGVAmerica); PHH                     promulgating a fleet rule.
                                        signed into law the Energy                              Arval; ServiceMaster; Small Business                  B. Comments on Analysis for the
                                        Independence and Security Act of 2007                   and Entrepreneurship Council; and                     Potential Impact of the Rule
                                        (Pub. L. 110–140; EISA 2007). The most                  Wheels, Inc. submitted written
                                        significant elements of EISA 2007 in the                statements. It should be noted that the                  In preparing the NOPR, DOE updated
                                        context of the EPAct 1992 fleet                         Mohawk Industries, Inc. comments were                 the analysis of the potential impact of a
                                        programs follow the framework of                        submitted three days after the deadline.              Private and Local Government Fleet
                                        Twenty in Ten, by calling for greater use               While DOE chose to review Mohawk’s                    Rule originally presented as part of a
                                        of non-petroleum fuels and increases in                 comments, they were in line with                      previous determination in 2003,
                                        light-duty vehicle fuel economy.                        virtually all the other comments                      discussed later in this document. The
                                        Specifically, EISA 2007 calls for:                      submitted, and therefore did not                      result of this analysis compared closely
                                           • An increase in the Renewable Fuel                  materially impact DOE’s decision in this              with previously conducted analyses,
                                        Standard required under Clean Air Act                   final determination.                                  indicating an expected replacement fuel
                                        to 36 billion gallons per year by 2022                                                                        contribution of 0.1–0.7 percent. 72 FR
                                                                                                   All statements and comments                        52503.
                                        (42 U.S.C. 7545(o)(2));                                 submitted agreed with the Department’s
                                           • An increase in Corporate Average                                                                            Three of the four statements provided
                                                                                                preliminary determination that a Private              at the public meeting and eight of the
                                        Fuel Economy (CAFE) to 35 miles per                     and Local Government Fleet
                                        gallon by 2020 (42 U.S.C. 32902(b));                                                                          twelve written comments submitted
                                                                                                Requirement is not ‘‘necessary’’ and that             specifically referred to this analysis. All
                                           • Extending CAFE credits for flexible
                                                                                                a fleet rule is not to be promulgated. It             but one stated that the analysis is
                                        fuel vehicle manufacturing through
                                                                                                should be noted, however, that six of                 reasonable without detailed comment.
                                        2019 (fully through 2014, and ramping
                                                                                                the written submissions appeared to                   AALA, in more detailed written
                                        down in amount of credit through
                                                                                                largely be form letters with slight                   comments, conducted a more thorough
                                           • Federal fleets to reduce petroleum                 variations, based upon the rationale                  review of the analysis. While AALA
                                        consumption, increase alternative fuel                  provided by AALA. These included:                     expressed its general agreement with the
                                        use, and install renewable fuel                         AFLA; LeasePlan USA; Mohawk                           approach taken in the analysis, AALA
                                        infrastructure; and                                     Industries, Inc; PHH/Arval;                           stated that it believes that the lowest (10
                                           • The inclusion of certain vehicle                   ServiceMaster; and Wheels, Inc.                       percent) alternative fuel use rate in the
                                        types and activities (e.g., hybrids,                    A. Comments on Proposed                               analysis was the most likely scenario
                                        neighborhood electric vehicles,                         Determination                                         given the lack of DOE’s ability to
                                        alternative fuel refueling infrastructure,                                                                    mandate alternative fuel use instead of
                                        and investments in technology                              In general, all of the comments                    the modest 25 percent. It then cited a
                                        development) to the list of vehicles and                received, both through the public                     General Accountability Office (GAO)
                                        activities that can qualify for acquisition             meeting and the comment period,                       report (U.S. Postal Service: Vulnerability
                                        credit for certain EPAct fleets.                        supported DOE’s proposed                              to Fluctuating Fuel Prices Requires
                                           Each of these elements, but in                       determination not to promulgate a                     Improved Tracking and Monitoring of
                                        particular the significant expansion of                 Private and Local Government Fleet                    Consumption Information, GAO–07–
                                        the Renewable Fuel Standard and the                     Rule. All but one commenter agreed that               244, February 16, 2007) on alternative
                                        revised CAFE requirements, will greatly                 a Private and Local Government Fleet                  fuel use by the United States Postal
                                        increase the achievability of the revised               Rule was not necessary to meet the                    Service (USPS), pointing out that given
                                        Replacement Fuel Goal, thus                             Replacement Fuel Goal (as modified to                 USPS’ alternative fuel usage rate of
                                        strengthening DOE’s preliminary                         30 percent by 2030, 72 FR 12041), and                 1.5%, even the 10% utilization rate in
                                        determination that a Private and Local                  that this goal was achievable. One                    the NOPR might be optimistic. [See
                                        Government Fleet Rule would not be                      commenter, NGVAmerica, did not                        AALA written comments, pages 3–10.]
                                        necessary to meet the revised                           comment directly on whether such a                       All statements and comments
                                        Replacement Fuel Goal. For this reason,                 rule would be necessary, and instead                  indicated that there was a probable
                                        DOE concluded that the provisions of                    focused solely on the potential impact                additional impact from a potential rule,
                                        EISA 2007 did not materially affect the                 of a Private and Local Government Fleet               which was not explicitly taken into
                                        analysis or conclusions described in the                Rule. NGVAmerica agreed with DOE’s                    account in the analysis provided in the
                                        September 2007 NOPR or in this final                    initial conclusion that such a rule                   NOPR. This was the potential of fleets
                                        determination.                                          would result in a small amount of                     disbanding and changing over to
                                                                                                additional replacement or alternative                 employee reimbursement programs in
                                        III. Discussion of Public Comments                      fuel use. NGVAmerica stated that ‘‘such               the event of a fleet rule. NGVAmerica
                                           In response to DOE’s September 2007                  a rule, by itself, would not appreciably              also pointed out that it might be
                                        NOPR, four statements were provided at                  increase levels of alternative fuel use.’’            expected that some fleets would simply
                                        the public hearing, and twelve written                  [See NGVAmerica comments, page 3.]                    acquire larger vehicles (above the 8,500
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                                        comments were submitted. The                            NGVAmerica went on to discuss the                     pound Gross Vehicle Weight Rating cut-
                                        following organizations provided                        many limitations on the overall scope of              off) to avoid acquisition requirements.
                                        statements at the hearing: American                     and DOE’s authority under the Private                 AALA indicated that decisions whether
                                        Automotive Leasing Association                          and Local Government Fleet Rule (only                 to continue fleet operations are highly
                                        (AALA), Donlen Corporation, the                         light-duty vehicles are covered, take-                cost-sensitive, and thus any change to

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                                        13732               Federal Register / Vol. 73, No. 51 / Friday, March 14, 2008 / Rules and Regulations

                                        the economics (such as from a rule)                     year. Donlen stated that it maintains a               incentives for deployment of new
                                        could drive fleets to employee                          call center to ensure that vehicles are               vehicle technologies and fuels.
                                        reimbursement. In general, the vast                     maintained properly to reduce                            The most extensive list of
                                        majority of the comments and                            consumption, and is collaborating with                recommendations was provided by
                                        statements (including all of those from                 the Sierra Club on voluntary measuring                NGVAmerica, which indicated that such
                                        fleets or fleet management/leasing                      and reducing CO2.                                     recommendations should be reported to
                                        organizations) more or less agreed with                    GE indicated in its comments that it               Congress. In general, NGVAmerica
                                        the rationale provided for not imposing                 has developed programs to help                        recommended the development of
                                        a rule, AALA contended that fleets                      customers reduce energy consumption.                  further support for natural gas as an
                                        would continue to be able to make the                   ARI indicated that some of its clients are            alternative fuel. NGVAmerica also
                                        decisions concerning operating fleets                   already reducing carbon emissions, both               recommended that DOE carefully
                                        and incorporating AFVs that make sense                  voluntarily and to meet government-set                review the recent California Energy
                                        based upon their particular                             goals. LeasePlan has launched                         Commission (CEC) report list of policy
                                        circumstances.                                          GreenPlan, in partnership with                        measures and regulatory actions. [See
                                           AALA also stated that energy and                     American Forests, which is focused on                 State Alternative Fuels Plan—FINAL
                                        environmental impacts are typically                     ‘‘carbon neutralizing’’ its corporate fleet           Committee Report, publication number
                                        much less under a managed fleet than                    and planting trees in Atlanta and                     CEC–600–2007–011–CTF, October 2007,
                                        under employee reimbursement                            Chicago. ServiceMaster noted that it is               available at
                                        programs, because under reimbursement                   already testing and evaluating electric               2007publications/CEC-600-2007-011/
                                        there is no control over vehicle types                  lawn care equipment, mild hybrids, and                CEC-600-2007-011-CTF.PDF. In
                                        utilized or frequency of maintenance.                   idle reduction technologies; has already              particular, NGVAmerica expressed its
                                        Because managed fleets have a specific                  started introducing smaller vehicles;                 support for CEC’s assessment
                                        interest in keeping costs down, they are                and will continue to evaluate alternative             concerning continued needs for
                                        more likely to acquire the most cost-                   fuel and advanced technologies.                       incentives, the benefits of focusing on
                                        effective vehicle necessary to complete                 Mohawk Industries, Inc. noted that it                 medium- and heavy-duty vehicles, the
                                        a job, and maintain it in a responsible                 has established programs to reduce                    need for R&D, the need for incentives
                                        manner. AALA contended that better                      energy and water consumption, and is                  for utilities to increase involvement, and
                                        maintained vehicles are generally more                  promoting recycling.                                  the need for dedicated funding for
                                        efficient and have lower tailpipe                                                                             infrastructure. All of NGVAmerica’s
                                        emissions.                                              D. Comments Providing Suggestions for                 recommendations are provided in its
                                                                                                DOE, Other Agencies, or Congress                      comment, which can be viewed at
                                        C. Comments on What Fleets and Other
                                        Organizations are Doing To Reduce                         In addition to discussing existing        
                                        Petroleum Use                                           voluntary efforts to reduce petroleum                 vehiclesandfuels/epact/private/plg-
                                                                                                use or environmental impacts, several                 ab69_docket.html.
                                          While all of the fleet organizations
                                                                                                organizations provided suggestions to                    The suggestions provided by
                                        who commented on the NOPR agreed
                                                                                                DOE, other agencies, or Congress to                   commenters on possible efforts to
                                        with the proposed determination to not
                                                                                                encourage the use of alternative fuels                reduce petroleum consumption and
                                        promulgate a rule, they expressed
                                                                                                and to reduce petroleum consumption.                  increase alternative fuel use are outside
                                        support for efforts to reduce petroleum
                                                                                                  AALA ended its written comments                     the scope of this determination.
                                        use or minimize environmental impacts
                                        emissions from fleet operations. Many                   with several recommendations and                      However, DOE will consider all of the
                                        indicated in their comments that they                   statements of principles. First, it                   recommendations under the alternative
                                        have initiated voluntary efforts within                 indicated that government policies                    fuel programs, as appropriate. DOE will
                                        their organizations to accomplish these                 concerning fleets need to be consistent,              take notice of this information, and
                                        objectives.                                             which AALA believes they have not                     review it and include it as relevant
                                          For example, PHH noted that it is                     been. AALA indicated that more                        when preparing the report to Congress
                                        voluntarily implementing a Greenfleet                   intergovernmental coordination is                     under section 509 of EPAct 1992 (42
                                        program (that it established with                       required. Second, AALA stated that                    U.S.C. 13259).
                                        Environmental Defense). As described                    future programs should build upon                     IV. Definitions and Statutory
                                        by PHH, it works with fleets to identify                successful efforts, like EPA’s SmartWay               Requirements
                                        ways to reduce emissions without                        program. AALA stated that it simply
                                        increasing costs (which actually often                  does not believe that mandates have                   A. Definitions
                                        results in lower costs), and focuses on                 been successful. Third, AALA stated                      Under EPAct 1992, an ‘‘alternative
                                        overall outcomes rather than specific                   that lack of access to alternative fuel is            fuel vehicle’’ is a ‘‘dedicated vehicle or
                                        technologies. The key component of the                  the current ‘‘choke point’’, and efforts              a dual fueled vehicle.’’ (42 U.S.C.
                                        program is the creation of a greenhouse                 are underway to improve this. Fourth,                 13211(3))
                                        gas baseline, along with                                AALA expressed a preference for broad-                   A ‘‘dedicated vehicle’’ means ‘‘a
                                        recommendations for reducing or                         based solutions that include the general              dedicated automobile, such as the term
                                        offsetting emissions through vehicle                    public, not a focus on a narrow band of               is defined in section 513(h)(1)(D) of the
                                        choice or operation. PHH further stated                 the market that fleets represent. Fifth,              Motor Vehicle Information and Cost
                                        that it makes information on the most                   AALA stated that transitional                         Savings Act or a motor vehicle other
                                        fuel efficient or cleanest vehicles easily              approaches must be selected to lessen                 than an automobile, that operates solely
                                        available to fleets, to help decision-                  disruptions. It indicated that a desired              on alternative fuels.’’ (42 U.S.C.
                                        making.                                                 path would be if cost-effective after-                13211(6))
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                                          Similarly, Donlen noted that it has                   market devices were available to allow                   A ‘‘dual fuel vehicle’’ is one ‘‘capable
                                        already implemented a fuel                              retrofitting existing vehicles.                       of operating on alternative fuel and on
                                        management program for customers that                     ARI suggested that to encourage                     gasoline or diesel fuel.’’ (42 U.S.C.
                                        monitors fuel economy and can reduce                    petroleum reduction in fleets, the                    13211(8)(A)) DOE notes that because a
                                        consumption by up to 15 percent per                     Federal Government should focus on                    dual fueled vehicle can be operated on

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                                                              Federal Register / Vol. 73, No. 51 / Friday, March 14, 2008 / Rules and Regulations                                              13733

                                        gasoline or diesel, the purchase of a                       leased, or otherwise controlled by a                Government Fleet Requirement ‘‘shall
                                        dual fueled vehicle does not assure that                    governmental entity or other person who             be considered necessary’’ only if (1)
                                        ‘‘alternative’’ or ‘‘replacement’’ fuel will                owns, operates, leases, or otherwise controls       DOE finds that ‘‘the goal of replacement
                                                                                                    50 or more such vehicles, by any person who
                                        be used to operate the vehicle.                             controls such person, by any person
                                                                                                                                                        fuel use * * * is not expected to be
                                           ‘‘Replacement fuel’’ is defined by                       controlled by such person, and by any person        actually achieved * * * without such a
                                        EPAct 1992 under section 301(14) to                         under common control with such person,              fleet requirement program;’’ and (2)
                                        mean ‘‘the portion of any motor fuel that                   except that such term does not include—             ‘‘such goal is practicable and actually
                                        is methanol, ethanol, or other alcohols,                       (A) Motor vehicles held for lease or rental      achievable * * * through
                                        natural gas, liquefied petroleum gas,                       to the general public;                              implementation of such a fleet
                                        hydrogen, coal derived liquefied fuels,                        (B) Motor vehicles held for sale by motor        requirement program in combination
                                        fuels (other than alcohol) derived from                     vehicle dealers, including demonstration            with voluntary means and the
                                        biological materials, electricity                           motor vehicles;
                                                                                                                                                        application of other programs relevant
                                                                                                       (C) Motor vehicles used for motor vehicle
                                        (including electricity from solar energy),                  manufacturer product evaluations or tests;          to achieving such goals.’’ (42 U.S.C.
                                        ethers, or any other fuel that the                             (D) Law enforcement motor vehicles;              13257(e)(1)(A) and (B))
                                        Secretary determines meets certain                             (E) Emergency motor vehicles;                       EPAct 1992 authorizes DOE to
                                        statutory requirements.’’ (42 U.S.C.                           (F) Motor vehicles acquired and used for         conduct two separate rulemakings to
                                        13211(14); emphasis added)                                  military purposes that the Secretary of             determine whether to promulgate a
                                           ‘‘Alternative fuel’’ is defined to                       Defense has certified to the Secretary must be      Private and Local Government Fleet
                                        include many of the same types of fuels                     exempt for national security reasons;               Requirement. First, section 507(b)
                                        as ‘‘replacement fuel’’ (such as                               (G) Nonroad vehicles, including farm and         directs DOE to conduct an early
                                                                                                    construction motor vehicles; or                     rulemaking, to be completed by
                                        methanol, natural gas, hydrogen and
                                                                                                       (H) Motor vehicles which under normal
                                        electricity), but also includes certain                     operations are garaged at personal residences
                                                                                                                                                        December 15, 1996. (42 U.S.C. 13257(b))
                                        ‘‘mixtures’’ of petroleum-based fuel and                    at night.                                           The deadline for the ‘‘early rulemaking’’
                                        other fuels. (10 CFR 490.2 (2002) 1)                                                                            passed without final action and has no
                                        Thus, a certain mixture might constitute                    (42 U.S.C. 13211(9))                                continuing relevance. The second
                                        an ‘‘alternative fuel,’’ but only the                          EPAct 1992 defines the Replacement               rulemaking provision is under section
                                        portion of the fuel that is within the                      Fuel Goal in terms of producing                     507(e), which directs DOE to make a
                                        definition of ‘‘replacement fuel’’ would                    sufficient replacement fuels to replace,            ‘‘necessity’’ determination by January 1,
                                        actually constitute ‘‘replacement fuel.’’                   on an energy equivalent basis, a                    2000. (42 U.S.C. 13257(e)(1)) It is under
                                        For example, a mixture of 85 percent                        specified percentage of the projected               section 507(e) that DOE issues today’s
                                        methanol and 15 percent gasoline                            consumption of motor fuel in the United             final determination.
                                        would, in its entirety, constitute                          States for each such year, with at least
                                                                                                    one half of such replacement fuels being            C. Other Relevant Requirements
                                        ‘‘alternative fuel,’’ but only the 85
                                        percent that was methanol would                             domestic fuels. (42 U.S.C. 13252(b)(2))                There are a number of other sections
                                        constitute ‘‘replacement fuel.’’ Also by                       Section 301(12) of EPAct 1992 defines            of EPAct 1992 that must be weighed in
                                        way of example, B20 (a fuel blend                           ‘‘motor fuel’’ as ‘‘any substance suitable          considering a potential Private and
                                        typically consisting of approximately 20                    as fuel for a motor vehicle.’’ (42 U.S.C.           Local Government Fleet Requirement,
                                        percent biodiesel and 80 percent diesel),                   13211(12)) Moreover, the term motor                 primarily under the second prong of the
                                        considered as a total fuel blend, would                     vehicle is defined in section 301(13) of            ‘‘necessity’’ determination. These
                                        not qualify as an ‘‘alternative fuel,’’ but                 EPAct 1992, through reference to 42                 considerations include how such a
                                        the 20 percent that is biodiesel would                      U.S.C. 7550(2), as a self-propelled                 requirement would be limited in
                                        qualify as ‘‘replacement fuel.’’                            vehicle that is designed for transporting           application and practice, and other
                                           For the purpose of considering a                         persons or property on a street or                  considerations and steps related to the
                                        Private and Local Government Fleet                          highway. (42 U.S.C. 13261(13)) As DOE               determination process.
                                        Requirement, the term ‘‘covered fleet’’ is                  is required to evaluate the Replacement                Under section 507(i), a promulgated
                                        a ‘‘fleet, other than Federal fleet, State                  Fuel Goals established in section                   Private and Local Government Fleet
                                        fleet, or fleet owned, operated, leased, or                 502(b)(2) in terms of the capacity of               Requirement must provide for an
                                        otherwise controlled by a covered                           producing sufficient replacement fuels              exemption of a fleet from the applicable
                                        person under section 501 [of EPAct                          to offset a certain percentage of U.S.              requirements on grounds of: (1) Non-
                                        1992].’’ (42 U.S.C. 13257(g)) This is                       ‘‘motor fuel’’ consumption, DOE, for the            availability of appropriate AFVs and
                                        interpreted to mean all private and local                   purposes of Title V of EPAct 1992, has              alternative fuels; (2) non-availability of
                                        government fleets not already covered                       interpreted the term motor fuel to                  appropriate alternative fuels; and (3)
                                        under the existing fleet requirements                       include all fuels that are used in motor            with respect to local government
                                        program.                                                    vehicles. This includes fuels used in               entities, financial hardship. (42 U.S.C.
                                           A ‘‘fleet’’ is defined in section 301(9)                 light-, medium-, and heavy-duty on-                 13527(i))
                                        of EPAct 1992 as follows:                                   road vehicles. 71 FR 54771 (September                  EPAct 1992 furthermore contains a
                                                                                                    9, 2006)                                            petition provision in section 507(n).
                                        [T]he term ‘‘fleet’’ means a group of 20 or                                                                     That section provides that:
                                        more light duty motor vehicles, used                        B. Key Statutory Requirements
                                        primarily in a metropolitan statistical area or                                                                   As part of the rule promulgated * * *
                                        consolidated metropolitan statistical area, as                 The issue DOE addresses in this final            pursuant to subsection * * * (g) of this
                                        established by the Bureau of the Census, with               determination is whether a Private and              section, the Secretary shall establish
                                        a 1980 population of more than 250,000, that                Local Government Fleet Requirement is               procedures for any fleet owner or operator or
                                        are centrally fueled or capable of being                    ‘‘necessary’’ under section 507(e) of               motor vehicle manufacturer to request that
                                        centrally fueled and are owned, operated,                   EPAct 1992. (42 U.S.C. 13257(e)(1))                 the Secretary modify or suspend a fleet
                                                                                                                                                        requirement program * * * nationally, by
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                                                                                                    Under section 507(e)(1) a Private and
                                          1 EPAct defines ‘‘alternative fuel’’ (see 42 U.S.C.                                                           region, or in an applicable fleet area because,
                                                                                                    Local Government Fleet shall be                     as demonstrated by the petitioner, the
                                        13211(2)), but DOE has exercised its authority to
                                        modify, by regulation, this definition. Therefore, the
                                                                                                    promulgated if DOE determines such a                infrastructure or fuel supply or distribution
                                        currently effective definition of ‘‘alternative fuel’’ is   program is ‘‘necessary.’’ (42 U.S.C.                system for an applicable alternative fuel is
                                        set forth at 10 CFR 490.2 (2006).                           13257(e)(1)) A Private and Local                    inadequate to meet the needs of a fleet.

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                                        13734               Federal Register / Vol. 73, No. 51 / Friday, March 14, 2008 / Rules and Regulations

                                        (42 U.S.C. 13527(n)) As a result, even to                 DOE believes that because Congress                  30 percent by 2030. 72 FR 12041. In
                                        the extent a fleet constitutes a ‘‘fleet’’              specifically required use of alternative              establishing the modified Replacement
                                        under the narrow EPAct 1992                             fuel in sections 501(a)(4) and 302(a)(2)              Fuel Goal, DOE determined that such a
                                        definition, and does not otherwise                      of EPAct 1992, but not in section 507,                goal is achievable.
                                        qualify for one of the statutory                        the omission was deliberate. As a result,                In evaluating and modifying the goal,
                                        exemptions, it could petition for relief                DOE believes that Congress did not                    DOE was directed to balance
                                        or suspension of a fleet mandate for any                intend for DOE, when acting under                     considerations to establish goals that are
                                        one of several different reasons.                       section 507, to have authority to                     ‘‘achievable.’’ (42 U.S.C. 13254(b)) The
                                          Section 507(m) of EPAct 1992                          promulgate regulations containing a                   Replacement Fuel Goal must promote
                                        requires DOE to consult with the                        requirement that fleet vehicles use                   replacement fuels to the ‘‘maximum
                                        Secretary of Transportation (DOT),                      particular types of fuel.                             extent possible’’ while remaining
                                        Administrator of the Environmental                        This interpretation is consistent with              technologically and economically
                                        Protection Agency (EPA), and other                      Congressman Philip Sharp’s remarks                    feasible. (42 U.S.C. 13254(a) and (b)(2))
                                        appropriate agencies in carrying out the                when he called up the conference report               DOE determined that the modified goal
                                        requirements of section 507. DOE                        on EPAct 1992 for U.S. House of                       meets these requirements, for several
                                        provided a pre-publication draft of the                 Representatives approval. Congressman                 reasons. First, DOE based its analysis on
                                        proposed determination to DOT, EPA,                     Sharp was one of the key architects of                the best information available, from
                                        and the Office of Management and                        EPAct 1992, and the floor manager for                 published and peer-reviewed sources. In
                                        Budget (OMB) for their review. The                      the bill in the House of Representatives.             particular, much of DOE’s analysis was
                                        analysis presented in today’s final                     Congressman Sharp said:                               based on the Energy Information
                                        determination is essentially the same as                                                                      Administration’s (EIA) Annual Energy
                                                                                                   Under section 501, covered persons must
                                        that previously provided to DOT, EPA,                   actually run their alternative fueled vehicles        Outlook (AEO) 2005 through 2007.
                                        and OMB.                                                on alternative fuels when the vehicle is              Second, DOE’s analysis generally was
                                                                                                operating in an area where the fuel is                based on the current budget and policy
                                        D. No Fuel Use Requirement Authority                    available. This requirement was not included          framework, under which many
                                                                                                in the fleet requirement program under                technologies show reasonable potential
                                           It is important to note that the ability             section 507, because the conferees were               for success and market penetration.
                                        of a Private and Local Government Fleet                 concerned that the alternative fuel providers         Thus, the analysis assumed virtually no
                                        Requirement to affect petroleum                         might charge unreasonable fuel prices to the
                                                                                                                                                      major new policies or funding
                                        consumption also depends, in                            fleets that are not alternative fuel providers
                                                                                                if such fleets were required to use the               initiatives beyond those already in
                                        significant part, on whether DOE can                                                                          place. Third and last, the modified goal
                                        require covered fleets to use alternative               alternative fuel.
                                                                                                                                                      balances the minimum and maximum
                                        or replacement fuels in addition to                       138 Cong. Rec. H11399 at H11400                     projected replacement fuel production
                                        requiring that they acquire AFVs. The                   (October 5, 1992).                                    capacities from several reasonable
                                        only explicit requirements for fuel use                                                                       scenarios. A complete discussion of the
                                                                                                V. Analysis for Private and Local Fleets
                                        in EPAct 1992 are contained in section                                                                        analysis relied on in the final rule for
                                                                                                Rule Determination
                                        501(a)(4), which applies only to                                                                              the modified Replacement Fuel Goal
                                        alternative fuel provider fleets, and                     As stated above, DOE must issue a
                                                                                                Private and Local Government Fleet                    and the supporting documents can be
                                        section 302(a)(2) (amending section                                                                           reviewed at
                                        400AA of the Energy Policy and                          Requirement if DOE determines that
                                        Conservation Act), which applies only                   such a requirement is ‘‘necessary.’’ (42
                                        to Federal fleets. (42 U.S.C. 13251(a)(4)               U.S.C. 13257(e)(1)) For the purpose of
                                                                                                                                                         In evaluating a modification to the
                                        and 6374(a)) While not modifying the                    this determination, a Private and Local               Replacement Fuel Goal, DOE analyzed
                                        specific alternative fuel use requirement               Government Fleet Requirement is                       four scenarios to generate a range of
                                        for Federal Fleets under EPAct 1992                     necessary if:                                         potential replacement fuel production
                                        Section 302(a)(2) (as modified by EPAct                   i. The Replacement Fuel Goal under                  capacities. In none of these scenarios
                                        2005 Section 701), EISA 2007 did                        section 502(b)(2)(B), or as modified under            did DOE include potential increases in
                                        include a related provision. Section 141                section 504, is not actually expected to be           alternative fuel production as a result of
                                        of EISA 2007 appears to incorporate into                achieved by 2010, or the date established
                                                                                                                                                      a Private and Local Government Fleet
                                        legislation the primary elements of                     under section 504, without such a fleet
                                                                                                requirement; and                                      Requirement. As such, DOE determined
                                        Executive Order 13423, which required                     ii. Such a goal is practicable and actually         that the modified Replacement Fuel
                                        Federal Fleets to reduce petroleum                      achievable within the appropriate period,             Goal of 30 percent by 2030 is expected
                                        consumption by 20 percent (2015 vs.                     through implementation of such a fleet                to be achieved without establishing a
                                        2005), while increasing use of                          requirement in combination with voluntary             Private and Local Government Fleet
                                        alternative fuels by 10 percent per year.               means and the application of other programs           Requirement.
                                        Thus, while not specifically going                      relevant to achieving such goals.                        Given the determination in the
                                        beyond the existing Federal alternative                 (42 U.S.C. 13257(e)(1)(A) and (B))                    modified Replacement Fuel Goal final
                                        fuel use requirement from EPAct 1992                                                                          rule that the modified goal is expected
                                        and 2005, EISA 2007 did add an                          A. Achievability of the Replacement                   to be achieved by 2030 without a Private
                                        additional overall metric for Federal                   Fuel Goal                                             and Local Government Fleet
                                        fleets based upon alternative fuel use.                   As stated above, DOE recently                       Requirement, DOE has determined that
                                        Section 507 of EPAct 1992, which                        determined that the Replacement Fuel                  the first prong of the ‘‘necessity’’
                                        concerns private and local government                   Goal of 30 percent by 2010 established                determination has not been met.
                                        fleets, does not contain any similar                    under section 502(b)(2)(B) is not                        With the enactment of EISA 2007, the
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                                        provision, nor does it contain a                        achievable. 72 FR 12041. Pursuant to its              Renewable Fuel Standard has been
                                        provision either authorizing DOE to                     statutory authority to do so, DOE                     significantly expanded to 36B gallons by
                                        mandate fuel use or explicitly                          established a modified goal by                        2022. In addition, consumption of
                                        prohibiting DOE from mandating fuel                     extending the goal date to 2030, i.e.,                petroleum fuels will decrease through
                                        use.                                                    establishing a Replacement Fuel Goal of               the increased CAFE requirements as a

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                                        result of the Act. Thus, the probability                (DOE/PO–0042) (January 1996)                          Alternative Fuel Transition: Results
                                        of achieving the revised Replacement                    [hereinafter Technical Report 14].                    from the TAFV Model of Alternative
                                        Fuel Goal has been greatly increased,                      DOE’s Section 506 Report 2 was only                Fuel Use in Light-Duty Vehicles 1996–
                                        further negating the need for a Private                 slightly more optimistic, indicating that             2000 3 (TAFV Model Report), which
                                        and Local Government Fleet Rule to                      ‘‘[a]lternative fuel use by EPAct [1992]              incorporated more realistic assumptions
                                        meet the Goal.                                          covered fleets, even with the contingent              regarding these fleet programs. The
                                                                                                mandates for private and local                        TAFV Model Report stated that,
                                        B. Potential Contribution of a Private                  government fleets, is unlikely to provide
                                        and Local Government Fleet                                                                                       In particular, over all of the price
                                                                                                more than about 1.5 percent                           scenarios, we find that the [private and local
                                        Requirement to the Production Capacity                  replacement fuel use[.]’’ Section 506
                                        of Alternative Fuel                                                                                           government fleet] rule increases the
                                                                                                Report at p. 35. In either case,                      alternative fuel penetration in 2010 from
                                           The second prong of the ‘‘necessity’’                subtracting the portion of replacement                0.12% (without the private and local
                                        determination requires DOE to                           fuel use represented by the existing                  government rule) to, at most, 0.37% [with a
                                        determine whether the Replacement                       (Federal, State, and alternative fuel                 private and local government rule] of total
                                        Fuel Goal is actually achievable were a                 provider) fleet programs would leave                  fuel sales.
                                        Private and Local Fleet Requirement                     the potential private and local                          TAFV Model Report at p. 28. Thus,
                                        established. (42 U.S.C. 13257(e)(1)(B))                 government fleet program contribution                 the analysis in the TAFV Model Report
                                        As stated above, DOE has determined                     closer to a maximum of 1 percent.                     placed contributions from the Private
                                        that the modified Replacement Fuel                         However, both these earlier reports
                                                                                                                                                      and Local Government Fleet Rule at
                                        Goal is achievable. Although DOE has                    included calculations based only upon
                                                                                                                                                      0.25 percent. As with Technical Report
                                        determined that the Private and Local                   the percentage of light-duty gasoline
                                                                                                                                                      14 and the Section 506 Report, these
                                        Government Fleet Requirement is not                     fuel use. For purposes of the goal
                                                                                                                                                      percentages were calculated based on
                                        necessary to achieve the modified                       contained in section 502 of EPAct 1992,
                                                                                                                                                      the total fuel sales of the fuel used by
                                        Replacement Fuel Goal, DOE also                         DOE has repeatedly asserted that fuel
                                                                                                                                                      light-duty vehicles only. Thus, the
                                        performed an initial analysis to estimate               replacement should be considered in
                                                                                                                                                      projected contribution from a potential
                                        the contribution that such a requirement                the context of all on-highway motor fuel
                                                                                                                                                      rule dropped to below 0.2 percent when
                                        would make to the Replacement Fuel                      use, including heavy-duty vehicle fuel
                                                                                                use, because the goal is to be considered             evaluated as part of all on-highway
                                        Goal, if such a requirement were                                                                              motor fuel use and can be reconciled
                                        established. This analysis was revised                  in the context of the ‘‘projected
                                                                                                consumption of motor fuel in the United               somewhat with those found by the
                                        with the latest information available for                                                                     earlier reports. As indicated in section
                                        the Final determination.                                States.’’ (42 U.S.C. 13252(b)(2))
                                                                                                Therefore, the figures provided in these              II above, DOE does not have authority
                                           In the mid-1990s, DOE initially                      earlier reports, when adjusted to reflect             to mandate that AFVs acquired actually
                                        estimated that between 1.7 and 7.3                      the impact on all on-highway motor fuel               operate on alternative fuels. Experience
                                        million AFVs would be acquired over                     use, show that a Private and Local                    with the existing State Fleet Program,
                                        19 years if a possible Private and Local                Government Fleet Rule—even with a                     where fleets are similarly not required
                                        Government Fleet Requirement was                        fuel use requirement, which as noted                  to use alternative fuel, has shown that
                                        implemented. The purchases of AFVs                      above, DOE does not have the authority                alternative fuel use rates are typically in
                                        under such a fleet program level out at                 to impose—would provide at most on                    the ten to twenty-five percent range.
                                        approximately 400,000 to 500,000 AFVs                   the order of 0.7–0.8 percent motor fuel               Thus, when adjusting the levels found
                                        annually starting in 2010. As discussed                 replacement, assuming virtually                       in Technical Report 14 and the Section
                                        below, however, more detailed analyses                  complete use of alternative fuel in the               506 Report by such utilization levels,
                                        showed DOE’s initial estimates were                     AFVs required.                                        the overall projected impacts likely end
                                        probably too high.                                         Both the analyses in Technical Report              up in about the 0.2 percent range.
                                           Several follow-up analyses were                      14 and the Section 506 Report were                       It also should be noted that during
                                        conducted by DOE from 1996 to 2000 to                   conducted before DOE had much                         earlier rulemaking processes, no
                                        attempt to determine not just how many                  experience with implementation and                    commenter presented any persuasive
                                        AFVs would be required to be acquired,                  operation of the EPAct 1992 fleet                     analysis or data to counter or dispute
                                        but more importantly, what the                          programs. DOE’s experience with those                 the data and conclusions in Technical
                                        potential contribution of a Private and                 programs now has shown that the                       Report 14, the Section 506 Report, or the
                                        Local Government Fleet Requirement                      number of fleets originally envisioned to             TAFV Model Report. Therefore, DOE
                                        would be to replacing U.S. motor fuel.                  be covered was far larger than the                    concluded from these reports that a
                                        The limitations on the potential                        number of fleets covered in actual                    Private and Local Government Fleet
                                        contribution of a private and local                     practice, and that these fleets could not,            Requirement under authority provided
                                        government fleet program to the                         in the absence of a specific mandate, be              to DOE by EPAct 1992 section 507
                                        Replacement Fuel Goal are discussed in                  assumed to use alternative fuel in their              would be expected to contribute, at best,
                                        section II above. In brief, however, one                AFVs 100 percent of the time. Thus,                   an extremely small amount toward
                                        DOE report issued in 1996 estimated                     DOE believes that the figures in these                achievement of the Replacement Fuel
                                        that total fuel use from all fleets,                    reports probably overstated the potential             Goal (below 1 percent and likely below
                                        including private and local government                  impact of a Private and Local                         0.2 percent of all on-highway motor fuel
                                        fleets, potentially covered by EPAct                    Government Fleet Rule. This view was                  use). Even without the additional
                                        1992 fleet programs to be approximately                 supported by analyses contained in a                  statutory limitations described above,
                                        1.2 percent of U.S. gasoline use. See                   later DOE-supported report, The                       which EPAct 1992 places on such a
                                        Assessment of Costs and Benefits of                                                                           Private and Local Government Fleet
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                                        Flexible and Alternative Fuel Use in the                  2 See Energy Efficiency and Renewable Energy,
                                                                                                                                                      Requirement, the contribution from
                                        U.S. Transportation Sector, Technical                   DOE, Replacement Fuel and Alternative Fuel            such a mandate to the EPAct 1992
                                                                                                Vehicle—Technical and Policy Analysis p. viii-ix
                                        Report Fourteen: Market Potential and                   (Dec. 1999—Amendments Sept. 2000); http://
                                        Impacts of Alternative Fuel Use in Light-            3 ORNL.TM2000/168) (September 17, 2000)

                                        Duty Vehicles: A 2000/2010 Analysis                     plf_docket/section506.pdf.                  

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                                        13736                   Federal Register / Vol. 73, No. 51 / Friday, March 14, 2008 / Rules and Regulations

                                        Replacement Fuel Goal would be very                             the United States acquired 2,849,837                             requirements for coverage of a fleet’s
                                        small.                                                          light-duty vehicles (cars and light                              acquisitions. (42 U.S.C. 13211(9)) The
                                           When the prior private and local                             trucks), of which 1,944,581 (68.2                                fleet must be owned or controlled by an
                                        fleets determination was conducted in                           percent) were acquired for rental fleets.                        entity that owns at least 50 light-duty
                                        2003 through 2004, the analyses relied                          Because rental vehicles are specifically                         vehicles nationwide, of which 20 must
                                        upon by DOE were the most recent,                               excluded from coverage under EPAct                               reside in one of the 125 covered
                                        relevant analyses that it had. As such,                         1992 section 301(9) (42 U.S.C.                                   Metropolitan Statistical Areas (MSAs,
                                        these were all dated 2000 or earlier.                           13211(9)), the remaining potentially                             with 1980 population of more than
                                        With the passage of several more years                          covered vehicle acquisitions drop to                             250,000) and are centrally fueled or
                                        between that determination and this                             905,256 vehicles. Note that this does not                        capable of being centrally fueled. (42
                                        rulemaking, DOE believed it was                                 exclude any leased vehicles, of which                            U.S.C. 13211(9))
                                        important to conduct an updated                                 the Fact Book indicates there were
                                        analysis to determine if circumstances                                                                                              In arriving at the 50 and 20 light-duty
                                                                                                        another 326,832 acquired in 2004. Many                           vehicle minimums, several classes of
                                        had changed sufficiently to warrant                             of these may ultimately be excluded as
                                        imposition of acquisition requirements                                                                                           vehicles are excluded from
                                                                                                        perhaps either shorter term leases or                            consideration, including emergency and
                                        upon fleets. The approach taken was to                          vehicles specifically held for lease to
                                        first conduct a somewhat more                                                                                                    law enforcement vehicles (42 U.S.C.
                                                                                                        others (another excluded class). Because
                                        simplified analysis than the previous                                                                                            13211(9)(D) and (E)), vehicles taken
                                                                                                        there is no way to determine which
                                        ones, and if this analysis indicated                                                                                             home at night by employees (42 U.S.C.
                                                                                                        portion of these leased vehicles would
                                        significantly different results, than a                                                                                          13211(9)(H)), and non-road vehicles (42
                                                                                                        most likely be excluded, DOE chose to
                                        more detailed and lengthy analysis                                                                                               U.S.C. 13211(9)(G)). With these
                                                                                                        rely on the 905,256 value as the number
                                        would be commissioned. (Note that at                                                                                             exclusions the number of potentially
                                                                                                        of vehicles purchased by fleets that
                                        the end of this section, the discussion of                                                                                       required AFV acquisitions drops even
                                                                                                        would potentially be subject to a Private
                                        the analysis is included which was                                                                                               further. For example, if just the 2004
                                                                                                        and Local Government Fleet
                                        updated for today’s final action.)                                                                                               acquisitions of Ford Crown Victorias
                                           To conduct the current analysis, the                                                                                          and Chevy Impalas are reviewed, the
                                                                                                           Next, the current annual acquisitions                         non-rental numbers acquired for
                                        Department relied, in large part, upon                          of vehicles already subject to EPAct
                                        fleet industry data developed by                                                                                                 commercial and government fleets totals
                                                                                                        1992 fleet requirements needed to be                             nearly 90,000 vehicles (according to the
                                        Automotive Fleet, a leading publisher in
                                                                                                        subtracted. Data was obtained from the                           2005 Fact Book). These two vehicles are
                                        the field. Each year, Automotive Fleet
                                                                                                        Department’s EPAct 1992 Web sites, at                            often acquired for use as police vehicles,
                                        publishes an annual Fact Book, which
                                                                                                                                   or else taxicabs (a class of vehicles
                                        includes detailed data on a number of
                                                                                                        vehiclesandfuels/epact/. For Federal                             whose status under the program is
                                        fleet subjects. Unfortunately,
                                                                                                        Fleets, there were 18,426 covered light-                         undetermined for this analysis and for
                                        Automotive Fleet does not provide the
                                                                                                        duty vehicles acquired in 2004. For                              which many might not ultimately be
                                        specific data necessary to support
                                                                                                        State and Alternative Fuel Provider                              covered due to fleet size, location, or
                                        today’s draft determination (namely the
                                                                                                        Fleets, there were 13,374 covered light-                         other reasons).
                                        likely number of AFVs that would need
                                                                                                        duty vehicles acquired. Thus, the
                                        to be acquired by fleets meeting EPAct                                                                                              Based on DOE’s experience with the
                                        1992’s coverage criteria). Therefore the                        remaining number of potentially
                                                                                                        covered acquisitions drops to 873,456.                           Federal, State, and Alternative Fuel
                                        Fact Book data was used as a starting                                                                                            Provider Fleet requirements and the
                                        point, with other information (such as                             In 2004, a total of 16,537,440 light-
                                                                                                        duty vehicles were acquired throughout                           vehicle classes excluded from
                                        from the EIA Annual Energy Outlook)                                                                                              consideration by EPAct 1992, DOE
                                        and various assumptions used to further                         the United States. This means that the
                                                                                                        maximum potential pool of covered                                considered two scenarios for this
                                        refine the data to move closer to the                                                                                            analysis, one where 50 percent of the
                                        specific types of numbers required for                          light-duty vehicles under a Private and
                                                                                                        Local Fleet Requirement would                                    maximum potential annual acquisitions
                                        today’s action.                                                                                                                  are required (305,710 AFVs), and one
                                           For the purpose of today’s final                             represent 5.3 percent of total
                                                                                                        acquisitions for the year. Because the                           (considered much more likely) where 25
                                        determination, two analyses were
                                                                                                        maximum acquisition requirement                                  percent of the maximum potential
                                        conducted to determine what portion of
                                                                                                        percentage under the potential Private                           annual acquisitions are required
                                        U.S. motor fuel use might be replaced
                                                                                                        and Local Government Fleet Rule is 70                            (152,855 AFVs). These two scenarios
                                        with replacement fuels by vehicle
                                                                                                        percent (42 U.S.C. 13257(g)), the                                thus represent 1.8 and 0.9 percent,
                                        acquisitions resulting from a potential
                                                                                                        maximum potential number of AFVs                                 respectively, of overall annual light-
                                        fleet rule. The first method compares
                                                                                                        that would need to be acquired on an                             duty acquisitions.
                                        annual acquisitions under a potential
                                        rule to the total annual U.S.                                   annual basis would be 611,419. This                                 So the net result of this portion of the
                                        acquisitions. The second method of                              number represents approximately 3.7                              analysis is that a fleet rule could result
                                        analysis compares vehicles in operation                         percent of all light-duty vehicles                               in requirements to acquire between
                                        due to a potential rule to all vehicles in                      acquired in the United States.                                   150,000 and just over 600,000 AFVs
                                        operation. Both methods were used as                               DOE’s experience, however, is that                            each year, representing between
                                        analogs to determine the overall                                the maximum potential number of                                  approximately 1 to 3.7 percent of total
                                        percentage replacement of U.S. motor                            required acquisitions is quite different                         annual light-duty vehicle acquisitions,
                                        fuel.                                                           from the actual number of required                               based on 2004 data. This portion of the
                                           According to the 2005 Fact Book                              acquisitions. This is because section                            annual acquisition analysis is
                                        (which reports data for 2004), fleets in                        301(9) includes several basic                                    summarized below in Figure 1.
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                                                                            FIGURE 1.—SUMMARY OF ANNUAL ACQUISITION ANALYSIS, FLEET VEHICLES

                                        Total New Cars and Trucks Registered by Fleets in 2004 .................................................................................................................   2,849,837
                                        Total New Cars and Trucks Registered by Rental Fleets in 2004 .....................................................................................................        1,944,581

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                                                                      FIGURE 1.—SUMMARY OF ANNUAL ACQUISITION ANALYSIS, FLEET VEHICLES—Continued
                                        Percentage in Rental Fleets ................................................................................................................................................................           68.2%
                                        Remainder of New Cars and Trucks, not in Rental Fleets 2004 ........................................................................................................                                  905,256
                                        New Covered LDV acquisitions in 2004, Federal Fleet ......................................................................................................................                             18,426
                                        New Covered LDV acquisitions in 2004, State and Fuel Provider Fleets ..........................................................................................                                        13,374
                                        Net New Cars/Truck Registered, not in Fleets Already Covered .......................................................................................................                                  873,456
                                        Total New LDV Registrations, 2004 ....................................................................................................................................................             16,537,440
                                        Max Potential Portion of 2004 Fleet acquisitions covered out of total registrations ...........................................................................                                         5.3%
                                        EPAct 1992 Maximum Acquisition Requirement .................................................................................................................................                             70%
                                        Max Potential AFV Acquisitions per year, numbers of AFVs required ...............................................................................................                                     611,419
                                        Max Potential AFV Acquisitions per year, percentage of total acquisitions .......................................................................................                                       3.7%
                                        If 50% of maximum potential actually covered, number of AFVs required ........................................................................................                                        305,710
                                        If 50% of maximum potential actually covered, percentage of total acquisitions ...............................................................................                                          1.8%
                                        If 25% of maximum potential actually covered, number of AFVs required ........................................................................................                                        152,855
                                        If 25% of maximum potential actually covered, percentage of total acquisitions ...............................................................................                                          0.9%

                                           The analysis above is in the context                                     Requirement. In terms of total motor                                  realistic. DOE has seen alternative fuel
                                        of light-duty vehicles and would                                            fuel consumption, the contribution of                                 usage levels as low as 10 percent.
                                        represent between one and 3.7 percent                                       the potential AFV acquisitions under a                                   For the purposes of this analysis, DOE
                                        of motor fuel consumption by light-duty                                     Private and Local Government Fleet                                    looked at cases where alternative fuels
                                        vehicles. For the purpose of section                                        Requirement must be adjusted down to                                  were used 50, 25, and 10 percent of the
                                        507(e)(1)(B), DOE must evaluate the                                         0.7 to 2.8 percent.                                                   time in the potentially required AFVs.
                                        potential contribution of a Private and                                                                                                           These results yielded percentages of
                                                                                                                      The expected contribution of AFVs
                                        Local Government Fleet Requirement to                                                                                                             overall motor fuel consumption
                                        the Replacement Fuel Goal. (42 U.S.C.                                       acquired under a Private and Local                                    replaced of 0.1 to 1.4 percent, with the
                                        13257(e)(1)(B)) The Replacement Fuel                                        Government Fleet to alternative fuel                                  high value represented by the maximum
                                        Goal is in terms of motor fuel                                              consumption must be further adjusted.                                 potential case (already identified as
                                        consumption, including consumption                                          As explained above, EPAct 1992 does                                   overly optimistic) with a 50 percent
                                        from medium- and heavy-duty vehicles.                                       not allow DOE to require alternative fuel                             alternative fuel use level. Thus, the
                                        As indicated in the Energy Information                                      use in the required AFVs, the potential                               likely range of consumption replaced is
                                        Administration’s Annual Energy                                              consumption values represent the                                      better represented by the 25 and 50
                                        Outlook 2007 (AEO 2007), light-duty                                         portion of petroleum consumption                                      percent of maximum potential
                                        vehicles only account for 75.22 percent                                     replaced at an alternative fuel use level                             acquisition cases, which ranged from
                                        of on-road motor fuel use in the United                                     of 100 percent. Experience with                                       0.1 to 0.7 percent.
                                        States, with the remainder consumed by                                      programs for which fuel use is not                                       The summary for this portion of the
                                        medium- and heavy-duty classes,                                             required (such as the State Fleet                                     analysis is shown in Figure 2, where the
                                        neither of which is covered by the                                          Program) indicates that the assumption                                shaded zone represents the more likely
                                        Private and Local Government Fleet                                          of 100 percent alternative fuel use is not                            range of results.

                                                                                                                                               [In Percent]

                                                                                                                                                                                                               50% of                      25% of
                                                                                                                                                                                       Maximum              maximum po-                 maximum po-
                                                                                                                                                                                      acquisitions         tential acquisi-            tential acquisi-
                                                                                                                                                                                                                tions                       tions

                                        AFVs Required, Percentage of Total LDVs ..........................................................................                                        3.7                        1.8                    0.9

                                        Portion of Total Motor Fuel Use Due to LDVs ......................................................................                                                        75.22

                                        Potential Maximum Consumption Percentage for Required AFVs (100% Alternative Fuel
                                          Use) ....................................................................................................................................               2.8                        1.4                    0.7

                                        Potential Consumption Percentage for Required AFVs (50% Alternative Fuel Use) ...........                                                                 1.4                        0.7                    0.3

                                        Potential Maximum Consumption Percentage for Required AFVs (25% Alternative Fuel
                                          Use) ....................................................................................................................................               0.7                        0.3                    0.2

                                        Potential Maximum Consumption Percentage for Required AFVs (10% Alternative Fuel
                                          Use) ....................................................................................................................................               0.3                        0.1                    0.1

                                          It should be noted that this likely                                         The second analysis, as indicated                                   rule as a way to determine the portion
                                        range of consumption replacement                                            above, sought to use the portion of the                               of overall motor fuel use replaced. This
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                                        under the potential rule, 0.1 to 0.7                                        in-use inventory of vehicles on the road                              case then assumes that once the
                                        percent, is very close to that predicted                                    in the United States that were                                        program reaches the maximum
                                        by the TAFV report in 2000 (0.2 to 0.8                                      represented by the cumulative numbers                                 acquisition requirement (70 percent),
                                        percent).                                                                   of AFVs acquired under the potential                                  and levels off, all relationships between

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                                        13738                       Federal Register / Vol. 73, No. 51 / Friday, March 14, 2008 / Rules and Regulations

                                        the consumption of the required AFVs                                        the United States that would be AFVs,                                    But, as indicated in the first (annual
                                        and the overall on-road fleet are                                           once the potential Private and Local                                  acquisition) analysis above, light-duty
                                        relatively unchanged over time. It also                                     Government Fleet Requirements                                         vehicles only represent approximately
                                        explicitly assumes that the AFVs                                            reached maximum, steady-state                                         75 percent of U.S. motor fuel use.
                                        acquired under this potential rule use                                      requirements. (Under section 507(g), the                              Therefore, even if everything else is
                                        the same amount of fuel, on average, as                                     requirements actually include a ramp-                                 equal concerning consumption patterns,
                                        all other light-duty vehicles in operation                                  up of the AFV acquisition requirements,                               the percentage of all light-duty vehicles
                                        in the United States.                                                       starting at 20 percent and rising to 70                               that the AFVs under the potential
                                           This second analysis, therefore, uses                                    percent. (42 U.S.C. 13257(g)) This                                    program represent must be adjusted
                                        the annual AFV acquisition                                                  steady-state, maximum case status,                                    before identifying the likely
                                        requirements identified in the first                                        therefore, would be determined by                                     replacement of petroleum consumption.
                                        analysis, ranging from just over 150,000                                    looking at the portion of the on-road                                 Thus, if these AFVs are assumed to use
                                        AFVs/year (25 percent of maximum                                                                                                                  alternative fuels one hundred percent of
                                                                                                                    fleet that would be AFVs based upon
                                        potential acquisitions covered) to just                                                                                                           the time, the maximum replacement of
                                                                                                                    five years of acquisitions of the AFVs
                                        over 610,000 AFVs/year (for maximum                                                                                                               petroleum due to these vehicles ranges
                                        potential acquisitions covered). The                                        required under the program. For the                                   from 0.3 to 1.1 percent.
                                        2004 Fact Book identifies that the                                          maximum potential case, this meant                                       There is, however, one final
                                        average amount of time a light-duty                                         roughly three million AFVs, while for                                 adjustment that needs to be made. Just
                                        vehicle stays in a fleet ranges from 31                                     the 50 percent and 25 percent of                                      as in the first analysis, it must be noted
                                        to 56 months depending on model type,                                       maximum potential cases this meant 1.5                                that DOE cannot mandate alternative
                                        or just a bit less than five years.                                         million and 760,000 AFVs, respectively.                               fuel use in these vehicles. To account
                                        Therefore, to provide an estimate of the                                    Because AEO2007 identified the on-                                    for less than complete alternative fuel
                                        maximum portion of the on-road fleet                                        road inventory of light-duty vehicles in                              use, DOE further adjusted the analysis,
                                        that could be AFVs due to the potential                                     the United States in 2004 as just over                                developing estimates for alternative fuel
                                        rule, DOE chose to use a five-year                                          215 million vehicles, this means that the                             use from ten to fifty percent of the time.
                                        period for AFVs to operate in the                                           AFVs under this program would                                         Thus, the more likely contribution from
                                        covered fleets.                                                             represent 0.4 to 1.4 percent of all light-                            the potential fleet rule ranged from 0.03
                                           The approach taken was to develop                                        duty vehicles on the road in the United                               to 0.3 percent. Figure 3 summarizes
                                        the percentage of the on-road vehicles in                                   States.                                                               these results.

                                                                                                           FIGURE 3.—SUMMARY OF CUMULATIVE ANALYSIS
                                                                                                                                                                                                            50% of           25% of
                                                                                                                                                                                       Maximum             maximum          maximum
                                                                                                                                                                                       potential           potential        potential
                                                                                                                                                                                      acquisitions        acquisitions     acquisitions

                                        AFVs Required Annually .......................................................................................................                      611,419              305,710         152,855

                                        AFVs Added to Fleet over Five Years, at Maximum Fleet Requirement (70%) ...................                                                       3,057,096            1,528,548         764,274

                                        Total Number of Light-Duty Vehicles in Operation in the United States, 2004 ....................                                                                  215,370,000

                                        Maximum Portion of On-Road LDV Fleet that are AFVs in this Program ............................                                                        1.4%                0.7%             0.4%

                                        Portion of U.S. Motor Fuel Use from Light-Duty Vehicles ....................................................                                                          75.22%

                                        Potential Maximum Consumption Percentage for Required AFVs (100% Alternative Fuel
                                          Use) ....................................................................................................................................            1.1%                0.5%             0.3%

                                        Potential Consumption Percentage for Required AFVs (50% Alternative Fuel Use) ...........                                                            0.53%                0.27%           0.13%

                                        Potential Maximum Consumption Percentage for Required AFVs (25% Alternative Fuel
                                          Use) ....................................................................................................................................          0.27%                0.13%           0.07%

                                        Potential Maximum Consumption Percentage for Required AFVs (10% Alternative Fuel
                                          Use) ....................................................................................................................................          0.11%                0.05%           0.03%

                                          In preparing today’s final action, the                                    data showed some changes of relevance                                 to approximately 760,000 and 4.7
                                        Department revisited the analysis                                           to the analysis, such as an increase in                               percent of total light-duty acquisitions.
                                        conducted for the NOPR. During the                                          the number of light-duty vehicles                                     In addition, the portion of overall motor
                                        interim between the proposed                                                acquired by fleets during the year from                               (on highway) fuel use represented by
                                        determination and today’s action, some                                      about 2.8 million in 2004 to nearly 3.3                               light-duty vehicles rose from 75.22
                                        additional information was released. To                                     million in 2006, as well as a drop in the                             percent to 78.34 percent.
                                        ensure that the analysis is still accurate                                  overall acquisition of light-duty vehicles                               Overall, however, these changes did
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                                        and correct with the latest data                                            by the U.S. market, from approximately                                not impact the analysis results
                                        available, DOE updated the analysis.                                        16.5M in 2004 to just under 16.2M in                                  significantly. Under the annual
                                        The revised analysis was done with data                                     2006. Thus the maximum potential AFV                                  acquisition approach, potential impact
                                        representing primarily 2006, rather than                                    acquisitions rose from 611,000 and 3.7                                from the Rule changed from 0.1 to 0.7
                                        2004 in the previous action. The 2006                                       percent of total light-duty acquisitions                              percent in the NOPR analysis to 0.1 to

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                                        0.9 percent. Again, this result was not                 modified goal could be achieved                       D. Review Under the National
                                        far off from the TAFV result in 2000 of                 through a number of replacement fuel                  Environmental Policy Act of 1969
                                        0.2 to 0.8 percent. Under the cumulative                technologies, including biofuels, other               (NEPA)
                                        (inventory) analysis approach, the                      alternative fuels, and energy efficiency.                DOE has not prepared an
                                        changes were even less. While the                       In demonstrating the achievability of the             environmental impact statement or an
                                        NOPR analysis had indicated that a                      new goal, DOE did not assume                          environmental assessment for this
                                        realistic range for the impact was 0.03                 imposition of a Private and Local                     rulemaking, and has determined that
                                        to just under 0.3 percent, the updated                  Government Fleet Requirement. Given                   neither is required. This final
                                        analysis based upon 2006 data indicated                 that DOE has demonstrated the                         determination implements the March 6,
                                        that this range would be 0.03 to just                   achievability of the Replacement Fuel                 2006, Order of the U.S. District Court of
                                        over 0.3 percent. Thus, neither analysis                Goal absent a Private and Local                       California to issue a final determination
                                        method as revised showed sufficiently                   Government Fleet requirement, DOE has                 under section 507(e) of EPAct 1992.
                                        significant changes to impact today’s                   determined that a Private and Local                   Center for Biological Diversity, 419
                                        determination.                                          Government Fleet requirement is not
                                           It should be noted, however, that one                                                                      F.Supp 2d 1166. The Court order held
                                                                                                necessary under the EPAct Fleet                       that the Secretary is not ‘‘obligated to
                                        other relevant change occurred in the                   program. Moreover, were DOE to
                                        interim between the NOPR and today’s                                                                          prepare an impact statement under
                                                                                                establish such a requirement, its                     NEPA in either accepting or rejecting a
                                        final determination. When Congress                      projected impact would likely be on the
                                        passed EISA 2007, it included in section                                                                      fleet rule.’’ Id. at 1173.
                                                                                                order of about 0.2 percent of U.S. motor                 EPAct 1992 requires DOE to issue a
                                        133 an expansion of the vehicle types                   fuel consumption.
                                        and other actions that qualified for                                                                          Private and Local Government Fleet
                                                                                                   Therefore, DOE has determined that                 Requirement if such a requirement is
                                        credit as AFVs under EPACT’s Title V
                                                                                                the Private and Local Government Fleet                necessary. (42 U.S.C. 13257(e)) Today’s
                                        fleet programs. In doing so, it included
                                                                                                Requirement is not ‘‘necessary’’ as                   final determination establishes that a
                                        such vehicle types or actions as hybrid
                                        vehicles, plug-in hybrid electric                       specified in section 507(e)(1) of EPAct               Private and Local Government Fleet
                                        vehicles, investments in refueling                      1992, and DOE is not proposing to                     Requirement is not necessary, and
                                        infrastructure, investments in advanced                 establish a Private and Local                         therefore DOE is not issuing a
                                        technologies, and other elements. While                 Government Fleet Requirement.                         requirement. Once the Secretary has
                                        improving the flexibility for covered                   VII. Regulatory Review                                made the determination, the Secretary
                                        fleets, this change could ultimately                                                                          has no discretion whether to issue the
                                        decrease the estimated contribution                     A. Review Under Executive Order 12866                 requirement. See Center for Biological
                                        from a potential Private and Local                                                                            Diversity, 419 F.Supp. 2d 1166, 1173.
                                                                                                   This action has been determined to be
                                        Government Fleet Rule even further, by                  a ‘‘significant regulatory action’’ under             E. Review Under Executive Order 12988
                                        allowing fleets to comply with                          Executive Order 12866, Regulatory
                                        currently-available hybrid vehicles.                                                                             With respect to the review of existing
                                                                                                Planning and Review. 58 FR 51735                      regulations and the promulgation of
                                        These vehicles, while generally                         (October 4, 1993). Accordingly, today’s
                                        representing an increase in efficiency,                                                                       new regulations, section 3(a) of
                                                                                                action was reviewed under the                         Executive Order 12988, Civil Justice
                                        do not allow for the use of alternative                 Executive Order by the Office of
                                        fuels as do AFVs, and thus would not                                                                          Reform, 61 FR 4729 (February 7, 1996),
                                                                                                Information and Regulatory Affairs                    imposes on Executive agencies the
                                        contribute significant use of                           (OIRA).
                                        replacement fuels beyond low-level                                                                            general duty to adhere to the following
                                        blends. They also do not help to build                  B. Review Under Regulatory Flexibility                requirements: (1) Eliminate drafting
                                        demand for alternative fuel refueling                   Act                                                   errors and ambiguity; (2) write
                                        infrastructure, which is a key to greater                                                                     regulations to minimize litigation; and
                                        displacement of petroleum. Thus, this                      The Regulatory Flexibility Act, 5                  (3) provide a clear legal standard for
                                        change would be expected in many                        U.S.C. 601–612, requires preparation of               affected conduct rather than a general
                                        cases to result in replacement of even                  a regulatory flexibility analysis for any             standard and promote simplification
                                        less petroleum fuel, probably reducing                  rule that is likely to have a significant             and burden reduction. With regard to
                                        the levels estimated in the analyses even               economic impact on a substantial                      the review required by section 3(a),
                                        further.                                                number of small entities. The negative                section 3(b) of Executive Order 12988
                                           In summary, the updated analysis                     determination under EPAct 1992 section                specifically requires that Executive
                                        conducted for today’s action does not                   507(e) will not result in compliance                  agencies make every reasonable effort to
                                        appear to change significantly from                     costs on small entities. Therefore, DOE               ensure that the regulation: (1) Clearly
                                        those analyses relied upon for the                      certifies that today’s determination will             specifies the preemptive effect, if any;
                                        previous private and local fleet                        not have a significant economic impact                (2) clearly specifies any effect on
                                        determination. Under either updated                     on a substantial number of small                      existing Federal law or regulation; (3)
                                        analysis approach used now, the                         entities, and accordingly, no initial                 provides a clear legal standard for
                                        potential contribution from a Private                   regulatory flexibility analysis has been              affected conduct while promoting
                                        and Local Government Fleet rule                         prepared.                                             simplification and burden reduction; (4)
                                        appears to be far below one percent,                    C. Review Under the Paperwork                         specifies the retroactive effect, if any; (5)
                                        probably on the order of 0.2–0.3                        Reduction Act                                         adequately defines key terms; and (6)
                                        percent, similar to the levels identified                                                                     addresses other important issues
                                        in the 2003–2004 determination.                           Because DOE is not promulgating                     affecting clarity and general
                                        Therefore no further analyses were                      requirements for private and local                    draftsmanship under any guidelines
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                                        deemed necessary by DOE.                                government fleets, no new                             issued by the Attorney General. Section
                                                                                                recordkeeping requirements, subject to                3(c) of Executive Order 12988 requires
                                        VI. Determination                                       the Paperwork Reduction Act, 44 U.S.C.                Executive Agencies to review
                                          In establishing a revised Replacement                 3501, et seq., would be imposed by                    regulations in light of applicable
                                        Fuel Goal, DOE demonstrated how the                     today’s determination.                                standards in section 3(a) and 3(b) to

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                                        13740               Federal Register / Vol. 73, No. 51 / Friday, March 14, 2008 / Rules and Regulations

                                        determine whether they are met or it is                 Act, 1999, Public Law 105–277, requires               directly regulate emissions, or to
                                        unreasonable to meet one or more of                     Federal agencies to issue a Family                    substantially and predictably affect
                                        them. Today’s final action does not                     Policymaking Assessment for any rule                  emissions, of greenhouse gases from
                                        establish a new regulation.                             that may affect family well-being.                    motor vehicles, nonroad vehicles,
                                                                                                Today’s determination will not have any               nonroad engines, or the use of motor
                                        F. Review Under Executive Order 13132
                                                                                                impact on the autonomy or integrity of                vehicle fuels, including alternative
                                          Executive Order 13132, Federalism,                    the family as an institution.                         fuels, shall’’ conduct the rulemaking
                                        64 FR 43255 (August 4, 1999), imposes                   Accordingly, DOE has concluded that it                jointly with other agencies, to the extent
                                        certain requirements on agencies                        is not necessary to prepare a Family                  permitted by law; consider, as
                                        formulating and implementing policies                   Policymaking Assessment.                              appropriate, laws, information, and
                                        or regulations that preempt State law or                                                                      recommendations of the other agencies;
                                        that have federalism implications.                      I. Review of Treasury and General
                                                                                                Government Appropriations Act, 2001                   exercise the agency’s authority
                                        Agencies are required to examine the                                                                          effectively; and obtain concurrence or
                                        constitutional and statutory authority                     The Treasury and General                           other views by the other agencies
                                        supporting any action that would limit                  Government Appropriations Act, 2001                   throughout the rulemaking process. In
                                        the policymaking discretion of the                      (44 U.S.C. 3516 note) provides for                    meeting this requirement, the
                                        States and carefully assess the necessity               agencies to review most disseminations                Department consulted with both DOT
                                        for such actions. DOE has examined                      of information to the public under                    and EPA during development of the
                                        today’s determination and has                           guidelines established by each agency                 proposed determination. The analysis
                                        determined that it would not have a                     pursuant to general guidelines issued by              reviewed by the DOT and EPA is
                                        substantial direct effect on the States, on             OMB. OMB’s guidelines were published                  essentially the same as that presented in
                                        the relationship between the national                   at 67 FR 8452 (February 22, 2002), and                the final determination.
                                        government and the States, or on the                    DOE’s guidelines were published at 67
                                        distribution of power and                               FR 62446 (October 7, 2002). DOE has                   VIII. Approval by the Office of the
                                        responsibilities among the various                      reviewed today’s final determination                  Secretary
                                        levels of government.                                   under the OMB and DOE guidelines,                       The issuance of the Private and Local
                                          Because DOE is determining that a                     and has concluded that it is consistent               Government Fleet Determination has
                                        private and local government fleet AFV                  with applicable policies in those                     been approved by the Office of the
                                        program is not ‘‘necessary’’ under                      guidelines.                                           Secretary.
                                        section 507(e) and therefore is not
                                                                                                J. Review Under Executive Order 13211                   Issued in Washington, DC, on March 6,
                                        promulgating such a program, no                                                                               2008.
                                        significant impacts upon State and local                   Executive Order 13211, Actions
                                                                                                Concerning Regulations That                           Alexander A. Karsner
                                        governments are anticipated. The
                                                                                                Significantly Affect Energy, Supply,                  Assistant Secretary, Energy Efficiency and
                                        position of State fleets currently covered
                                                                                                Distribution, or Use, 66 FR 28355 (May                Renewable Energy.
                                        under the existing EPAct 1992 fleet
                                                                                                22, 2001) requires preparation and                    [FR Doc. E8–5143 Filed 3–13–08; 8:45 am]
                                        program is unchanged by this action.
                                                                                                submission to OMB of a Statement of                   BILLING CODE 6450–01–P
                                        G. Review of Unfunded Mandates                          Energy Effects for significant regulatory
                                        Reform Act of 1995                                      actions under Executive Order 12866
                                           Title II of the Unfunded Mandates                    that are likely to have a significant                 FEDERAL TRADE COMMISSION
                                        Reform Act of 1995, Public Law 104–4,                   adverse effect on the supply,
                                        requires each Federal agency to assess                  distribution, or use of energy. A                     16 CFR Part 453
                                        the effects of Federal regulatory actions               determination that a private and local
                                                                                                                                                      Regulatory Review of the Trade
                                        on State, local and tribal governments                  government fleet AFV acquisition
                                                                                                                                                      Regulation Rule on Funeral Industry
                                        and the private sector. The Act also                    program is not ‘‘necessary’’ under EPAct
                                        requires a Federal agency to develop an                 1992 section 507(e) does not require
                                        effective process to permit timely input                private and local government fleets,                  AGENCY:    Federal Trade Commission.
                                        by elected officials on a proposed                      suppliers of energy, or distributors of               ACTION:   Confirmation of rule.
                                        ‘‘significant intergovernmental                         energy to do or to refrain from doing
                                        mandate,’’ and requires an agency plan                  anything. Thus, although today’s                      SUMMARY: The Federal Trade
                                        for giving notice and opportunity for                   determination is a significant regulatory             Commission (the ‘‘Commission’’ or the
                                        timely input to potentially affected                    action, the determination will not have               ‘‘FTC’’) has completed its regulatory
                                        small governments before establishing                   a significant adverse impact on the                   review of the Trade Regulation Rule on
                                        any requirements that might                             supply, distribution, or use of energy.               Funeral Industry Practices (‘‘the Funeral
                                        significantly or uniquely affect small                                                                        Rule’’ or ‘‘the Rule’’). The Rule sets forth
                                                                                                K. Review Under Executive Order 13432                 preventive requirements in the form of
                                        governments. On March 18, 1997, DOE
                                        published in the Federal Register a                       Executive Order 13432, Cooperation                  price and information disclosures to
                                        statement of policy on its process for                  Among Agencies in Protecting the                      ensure funeral providers avoid engaging
                                        intergovernmental consultation under                    Environment With Respect to                           in acts or practices the Commission has
                                        the Act (62 FR 12820). Today’s final                    Greenhouse Gas Emissions from Motor                   identified as unfair or deceptive acts or
                                        determination does not contain any                      Vehicles, Nonroad Vehicles, and                       practices. Pursuant to the review, the
                                        Federal mandate, so the requirements of                 Nonroad Engines, 72 FR 27717 (May 16,                 Commission concludes that the Rule in
                                        the Unfunded Mandates Reform Act do                     2007) requires DOE to work with DOT                   its current form continues to be valuable
                                        not apply.                                              and EPA when conducting rulemakings                   to consumers, and the benefits of the
sroberts on PROD1PC70 with RULES

                                                                                                that could be considered to affect                    Rule outweigh the costs. Because of
                                        H. Review of Treasury and General                       emissions. In particular, this Executive              insufficient support in the record, the
                                        Government Appropriations Act, 1999                     Order requires that ‘‘the head of an                  Commission declines to propose
                                          Section 654 of the Treasury and                       agency undertaking a regulatory action                amendments that some commenters
                                        General Government Appropriations                       that can reasonably be expected to                    advocated, namely to: expand the scope

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