Medium- and Heavy-Duty Vehicle Fuel Efficiency Program, 43631-43634 [2015-18073]
Download as PDF
<![CDATA[
43631
Federal Register / Vol. 80, No. 141 / Thursday, July 23, 2015 / Rules and Regulations
Dated: June 18, 2015.
H. Curtis Spalding,
Regional Administrator, EPA New England.
PART 52—APPROVAL AND
PROMULGATION OF
IMPLEMENTATION PLANS
Part 52 of chapter I, title 40 of the
Code of Federal Regulations is amended
as follows:
■
1. The authority citation for part 52
continues to read as follows:
Regulations, is amended by adding an
entry in numerical order for Air
Pollution Control Regulation 44 to read
as follows:
§ 52.2070
*
Authority: 42 U.S.C. 7401 et seq.
Subpart OO—Rhode Island
Identification of plan.
*
*
(c) * * *
*
*
2. In § 52.2070, the table in paragraph
(c), EPA-Approved Rhode Island
■
EPA-APPROVED RHODE ISLAND REGULATIONS
State citation
*
*
Air Pollution Control Regulation
44.
*
*
*
*
*
Control of Volatile Organic Compounds from Adhesives and
Sealants.
*
*
*
*
*
[FR Doc. 2015–17852 Filed 7–22–15; 8:45 am]
BILLING CODE 6560–50–P
DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety
Administration
49 CFR Part 535
Medium- and Heavy-Duty Vehicle Fuel
Efficiency Program
CFR Correction
In Title 49 of the Code of Federal
Regulations, Parts 400 to 571, revised as
of October 1, 2014, on page 146, § 535.9
is reinstated to read as follows:
rmajette on DSK7SPTVN1PROD with RULES
§ 535.9
Enforcement approach.
(a) Compliance. (1) NHTSA will
assess compliance with fuel
consumption standards each year, based
upon EPA final verified data submitted
to NHTSA for its heavy-duty vehicle
fuel efficiency program established
pursuant to 49 U.S.C. 32902(k). NHTSA
may conduct verification testing
throughout a given model year in order
to validate data received from
manufacturers and will discuss any
potential issues with EPA and the
manufacturer.
(2) Credit values in gallons are
calculated based on the final CO2
emissions and fuel consumption data
submitted by manufacturers and
verified/validated by EPA.
(3) NHTSA will verify a
manufacturer’s credit balance in each
averaging set for each given model year.
VerDate Sep<11>2014
State effective
date
Title/subject
13:16 Jul 22, 2015
Jkt 235001
EPA approval
date
*
06/04/2009
*
*
The average set balance is based upon
the engines or vehicles performance
above or below the applicable regulatory
subcategory standards in each
respective averaging set and any credits
that are traded into or out of an
averaging set during the model year.
(i) If the balance is positive, the
manufacturer is designated as having a
credit surplus.
(ii) If the balance is negative, the
manufacturer is designated as having a
credit deficit.
(4) NHTSA will provide written
notification to the manufacturer that has
a negative balance for any averaging set
for each model year. The manufacturer
will be required to confirm the negative
balance and submit a plan indicating
how it will allocate existing credits or
earn, and/or acquire by trade credits, or
else be liable for a civil penalty as
determined in paragraph (b) of this
section. The manufacturer must submit
a plan within 60 days of receiving
agency notification.
(5) Credit shortfall within an
averaging set may be carried forward
only three years, and if not offset by
earned or traded credits, the
manufacturer may be liable for a civil
penalty as described in paragraph (b) of
this section.
(6) Credit allocation plans received
from a manufacturer will be reviewed
and approved by NHTSA. NHTSA will
approve a credit allocation plan unless
it determines that the proposed credits
are unavailable or that it is unlikely that
the plan will result in the manufacturer
earning sufficient credits to offset the
subject credit shortfall. If a plan is
approved, NHTSA will revise the
PO 00000
Frm 00017
Fmt 4700
*
07/23/2015
[Insert Federal Register
citation]
Sfmt 4700
*
Explanations
*
*
respective manufacturer’s credit account
accordingly by identifying which
existing or traded credits are being used
to address the credit shortfall, or by
identifying the manufacturer’s plan to
earn future credits for addressing the
respective credit shortfall. If a plan is
rejected, NHTSA will notify the
respective manufacturer and request a
revised plan. The manufacturer must
submit a revised plan within 14 days of
receiving agency notification. The
agency will provide a manufacturer one
opportunity to submit a revised credit
allocation plan before it initiates civil
penalty proceedings.
(7) For purposes of this regulation,
NHTSA will treat the use of future
credits for compliance, as through a
credit allocation plan, as a deferral of
civil penalties for non-compliance with
an applicable fuel consumption
standard.
(8) If NHTSA receives and approves a
manufacturer’s credit allocation plan to
earn future credits within the following
three model years in order to comply
with regulatory obligations, NHTSA will
defer levying civil penalties for noncompliance until the date(s) when the
manufacturer’s approved plan indicates
that credits will be earned or acquired
to achieve compliance, and upon
receiving confirmed CO2 emissions and
fuel consumption data from EPA. If the
manufacturer fails to acquire or earn
sufficient credits by the plan dates,
NHTSA will initiate civil penalty
proceedings.
(9) In the event that NHTSA fails to
receive or is unable to approve a plan
for a non-compliant manufacturer due
to insufficiency or untimeliness,
E:\FR\FM\23JYR1.SGM
23JYR1
rmajette on DSK7SPTVN1PROD with RULES
43632
Federal Register / Vol. 80, No. 141 / Thursday, July 23, 2015 / Rules and Regulations
NHTSA may initiate civil penalty
proceedings.
(10) In the event that a manufacturer
fails to report accurate fuel consumption
data for vehicles or engines covered
under this rule, noncompliance will be
assumed until corrected by submission
of the required data, and NHTSA may
initiate civil penalty proceedings.
(b) Civil penalties. (1) Generally.
NHTSA may assess a civil penalty for
any violation of this part under 49
U.S.C. 32902(k). This section states the
procedures for assessing civil penalties
for violations of § 535.5. The provisions
of 5 U.S.C. 554, 556, and 557 do not
apply to any proceedings conducted
pursuant to this section.
(2) Initial determination of
noncompliance. An action for civil
penalties is commenced by the
execution of a Notice of Violation. A
determination by NHTSA’s Office of
Enforcement of noncompliance with
applicable fuel consumption standards
utilizing the certified and reported CO2
emissions and fuel consumption data
provided by the Environmental
Protection Agency as described in this
part, and after considering all the
flexibilities available under § 535.7,
underlies a Notice of Violation. If
NHTSA Enforcement determines that a
manufacturer’s averaging set of vehicles
or engines fails to comply with the
applicable fuel consumption standard(s)
by generating a credit shortfall, the
chassis, vehicle or engine manufacturer,
as relevant, shall be subject to a civil
penalty.
(3) Numbers of violations and
maximum civil penalties. Any violation
shall constitute a separate violation with
respect to each vehicle or engine within
the applicable regulatory averaging set.
The maximum civil penalty is not more
than $37,500.00 per vehicle or engine.
The maximum civil penalty under this
section for a related series of violations
shall be determined by multiplying
$37,500.00 times the vehicle or engine
production volume for the model year
in question within the regulatory
averaging set. NHTSA may adjust this
civil penalty amount to account for
inflation.
(4) Factors for determining penalty
amount. In determining the amount of
any civil penalty proposed to be
assessed or assessed under this section,
NHTSA shall take into account the
gravity of the violation, the size of the
violator’s business, the violator’s history
of compliance with applicable fuel
consumption standards, the actual fuel
consumption performance related to the
applicable standards, the estimated cost
to comply with the regulation and
applicable standards, the quantity of
VerDate Sep<11>2014
13:16 Jul 22, 2015
Jkt 235001
vehicles or engines not complying, and
the effect of the penalty on the violator’s
ability to continue in business. The
‘‘estimated cost to comply with the
regulation and applicable standards,’’
will be used to ensure that penalties for
non-compliance will not be less than
the cost of compliance.
(5) NHTSA enforcement report of
determination of non-compliance. (i) If
NHTSA Enforcement determines that a
violation has occurred, NHTSA
Enforcement may prepare a report and
send the report to the NHTSA Chief
Counsel.
(ii) The NHTSA Chief Counsel will
review the report prepared by NHTSA
Enforcement to determine if there is
sufficient information to establish a
likely violation.
(iii) If the Chief Counsel determines
that a violation has likely occurred, the
Chief Counsel may issue a Notice of
Violation to the party.
(iv) If the Chief Counsel issues a
Notice of Violation, he or she will
prepare a case file with recommended
actions. A record of any prior violations
by the same party shall be forwarded
with the case file.
(6) Notice of violation. (i) The Notice
of Violation will contain the following
information:
(A) The name and address of the
party;
(B) The alleged violation(s) and the
applicable fuel consumption standard(s)
violated;
(C) The amount of the proposed
penalty and basis for that amount;
(D) The place to which, and the
manner in which, payment is to be
made;
(E) A statement that the party may
decline the Notice of Violation and that
if the Notice of Violation is declined
within 30 days of the date shown on the
Notice of Violation, the party has the
right to a hearing, if requested within 30
days of the date shown on the Notice of
Violation, prior to a final assessment of
a penalty by a Hearing Officer; and
(F) A statement that failure to either
pay the proposed penalty or to decline
the Notice of Violation and request a
hearing within 30 days of the date
shown on the Notice of Violation will
result in a finding of violation by default
and that NHTSA will proceed with the
civil penalty in the amount proposed on
the Notice of Violation without
processing the violation under the
hearing procedures set forth in this
subpart.
(ii) The Notice of Violation may be
delivered to the party by:
(A) Mailing to the party (certified mail
is not required);
PO 00000
Frm 00018
Fmt 4700
Sfmt 4700
(B) Use of an overnight or express
courier service; or
(C) Facsimile transmission or
electronic mail (with or without
attachments) to the party or an
employee of the party.
(iii) At any time after the Notice of
Violation is issued, NHTSA and the
party may agree to reach a compromise
on the payment amount.
(iv) Once a penalty amount is paid in
full, a finding of ‘‘resolved with
payment’’ will be entered into the case
file.
(v) If the party agrees to pay the
proposed penalty, but has not made
payment within 30 days of the date
shown on the Notice of Violation,
NHTSA will enter a finding of violation
by default in the matter and NHTSA
will proceed with the civil penalty in
the amount proposed on the Notice of
Violation without processing the
violation under the hearing procedures
set forth in this subpart.
(vi) If within 30 days of the date
shown on the Notice of Violation a party
fails to pay the proposed penalty on the
Notice of Violation, and fails to request
a hearing, then NHTSA will enter a
finding of violation by default in the
case file, and will assess the civil
penalty in the amount set forth on the
Notice of Violation without processing
the violation under the hearing
procedures set forth in this subpart.
(vii) NHTSA’s order assessing the
civil penalty following a party’s default
is a final agency action.
(7) Hearing Officer. (i) If a party
timely requests a hearing after receiving
a Notice of Violation, a Hearing Officer
shall hear the case.
(ii) The Hearing Officer will be
appointed by the NHTSA
Administrator, and is solely responsible
for the case referred to him or her. The
Hearing Officer shall have no other
responsibility, direct or supervisory, for
the investigation of cases referred for the
assessment of civil penalties. The
Hearing Officer shall have no duties
related to the light-duty fuel economy or
medium- and heavy-duty fuel efficiency
programs.
(iii) The Hearing Officer decides each
case on the basis of the information
before him or her.
(8) Initiation of action before the
Hearing Officer. (i) After the Hearing
Officer receives the case file from the
Chief Counsel, the Hearing Officer
notifies the party in writing of:
(A) The date, time, and location of the
hearing and whether the hearing will be
conducted telephonically or at the DOT
Headquarters building in Washington,
DC;
E:\FR\FM\23JYR1.SGM
23JYR1
rmajette on DSK7SPTVN1PROD with RULES
Federal Register / Vol. 80, No. 141 / Thursday, July 23, 2015 / Rules and Regulations
(B) The right to be represented at all
stages of the proceeding by counsel as
set forth in paragraph (b)(9) of this
section;
(C) The right to a free copy of all
written evidence in the case file.
(ii) On the request of a party, or at the
Hearing Officer’s direction, multiple
proceedings may be consolidated if at
any time it appears that such
consolidation is necessary or desirable.
(9) Counsel. A party has the right to
be represented at all stages of the
proceeding by counsel. A party electing
to be represented by counsel must notify
the Hearing Officer of this election in
writing, after which point the Hearing
Officer will direct all further
communications to that counsel. A
party represented by counsel bears all of
its own attorneys’ fees and costs.
(10) Hearing location and costs. (i)
Unless the party requests a hearing at
which the party appears before the
Hearing Officer in Washington, DC, the
hearing may be held telephonically. In
Washington, DC, the hearing is held at
the headquarters of the U.S. Department
of Transportation.
(ii) The Hearing Officer may transfer
a case to another Hearing Officer at a
party’s request or at the Hearing
Officer’s direction.
(iii) A party is responsible for all fees
and costs (including attorneys’ fees and
costs, and costs that may be associated
with travel or accommodations)
associated with attending a hearing.
(11) Hearing procedures. (i) There is
no right to discovery in any proceedings
conducted pursuant to this subpart.
(ii) The material in the case file
pertinent to the issues to be determined
by the Hearing Officer is presented by
the Chief Counsel or his or her designee.
(iii) The Chief Counsel may
supplement the case file with
information prior to the hearing. A copy
of such information will be provided to
the party no later than 3 business days
before the hearing.
(iv) At the close of the Chief Counsel’s
presentation of evidence, the party has
the right to examine respond to and
rebut material in the case file and other
information presented by the Chief
Counsel. In the case of witness
testimony, both parties have the right of
cross-examination.
(v) In receiving evidence, the Hearing
Officer is not bound by strict rules of
evidence. In evaluating the evidence
presented, the Hearing Officer must give
due consideration to the reliability and
relevance of each item of evidence.
(vi) At the close of the party’s
presentation of evidence, the Hearing
Officer may allow the introduction of
VerDate Sep<11>2014
13:16 Jul 22, 2015
Jkt 235001
rebuttal evidence that may be presented
by the Chief Counsel.
(vii) The Hearing Officer may allow
the party to respond to any rebuttal
evidence submitted.
(viii) After the evidence in the case
has been presented, the Chief Counsel
and the party may present arguments on
the issues in the case. The party may
also request an opportunity to submit a
written statement for consideration by
the Hearing Officer and for further
review. If granted, the Hearing Officer
shall allow a reasonable time for
submission of the statement and shall
specify the date by which it must be
received. If the statement is not received
within the time prescribed, or within
the limits of any extension of time
granted by the Hearing Officer, it need
not be considered by the Hearing
Officer.
(ix) A verbatim transcript of the
hearing will not normally be prepared.
A party may, solely at its own expense,
cause a verbatim transcript to be made.
If a verbatim transcript is made, the
party shall submit two copies to the
Hearing Officer not later than 15 days
after the hearing. The Hearing Officer
shall include such transcript in the
record.
(12) Determination of violations and
assessment of civil penalties. (i) Not
later than 30 days following the close of
the hearing, the Hearing Officer shall
issue a written decision on the Notice of
Violation, based on the hearing record.
This may be extended by the Hearing
officer if the submissions by the Chief
Counsel or the party are voluminous.
The decision shall address each alleged
violation, and may do so collectively.
For each alleged violation, the decision
shall find a violation or no violation and
provide a basis for the finding. The
decision shall set forth the basis for the
Hearing Officer’s assessment of a civil
penalty, or decision not to assess a civil
penalty. In determining the amount of
the civil penalty, the gravity of the
violation, the size of the violator’s
business, the violator’s history of
compliance with applicable fuel
consumption standards, the actual fuel
consumption performance related to the
applicable standard, the estimated cost
to comply with the regulation and
applicable standard, the quantity of
vehicles or engines not complying, and
the effect of the penalty on the violator’s
ability to continue in business. The
assessment of a civil penalty by the
Hearing Officer shall be set forth in an
accompanying final order. The Hearing
Officer’s written final order is a final
agency action.
(ii) If the Hearing Officer assesses civil
penalties in excess of $1,000,000, the
PO 00000
Frm 00019
Fmt 4700
Sfmt 4700
43633
Hearing Officer’s decision shall contain
a statement advising the party of the
right to an administrative appeal to the
Administrator within a specified period
of time. The party is advised that failure
to submit an appeal within the
prescribed time will bar its
consideration and that failure to appeal
on the basis of a particular issue will
constitute a waiver of that issue in its
appeal before the Administrator.
(iii) The filing of a timely and
complete appeal to the Administrator of
a Hearing Officer’s order assessing a
civil penalty shall suspend the
operation of the Hearing Officer’s
penalty, which shall no longer be a final
agency action.
(iv) There shall be no administrative
appeals of civil penalties assessed by a
Hearing Officer of less than $1,000,000.
(13) Appeals of civil penalties in
excess of $1,000,000. (i) A party may
appeal the Hearing Officer’s order
assessing civil penalties over $1,000,000
to the Administrator within 21 days of
the date of the issuance of the Hearing
Officer’s order.
(ii) The Administrator will review the
decision of the Hearing Officer de novo,
and may affirm the decision of the
hearing officer and assess a civil
penalty, or
(iii) The Administrator may:
(A) Modify a civil penalty;
(B) Rescind the Notice of Violation; or
(C) Remand the case back to the
Hearing Officer for new or additional
proceedings.
(iv) In the absence of a remand, the
decision of the Administrator in an
appeal is a final agency action.
(14) Collection of assessed or
compromised civil penalties. (i)
Payment of a civil penalty, whether
assessed or compromised, shall be made
by check, postal money order, or
electronic transfer of funds, as provided
in instructions by the agency. A
payment of civil penalties shall not be
considered a request for a hearing.
(ii) The party must remit payment of
any assessed civil penalty to NHTSA
within 30 days after receipt of the
Hearing Officer’s order assessing civil
penalties, or, in the case of an appeal to
the Administrator, within 30 days after
receipt of the Administrator’s decision
on the appeal.
(iii) The party must remit payment of
any compromised civil penalty to
NHTSA on the date and under such
terms and conditions as agreed to by the
party and NHTSA. Failure to pay may
result in NHTSA entering a finding of
violation by default and assessing a civil
penalty in the amount proposed in the
Notice of Violation without processing
E:\FR\FM\23JYR1.SGM
23JYR1
43634
Federal Register / Vol. 80, No. 141 / Thursday, July 23, 2015 / Rules and Regulations
the violation under the hearing
procedures set forth in this part.
(c) Changes in corporate ownership
and control. Manufacturers must inform
NHTSA of corporate relationship
changes to ensure that credit accounts
are identified correctly and credits are
assigned and allocated properly.
(1) In general, if two manufacturers
merge in any way, they must inform
NHTSA how they plan to merge their
credit accounts. NHTSA will
subsequently assess corporate fuel
consumption and compliance status of
the merged fleet instead of the original
separate fleets.
(2) If a manufacturer divides or
divests itself of a portion of its
automobile manufacturing business, it
must inform NHTSA how it plans to
divide the manufacturer’s credit
holdings into two or more accounts.
NHTSA will subsequently distribute
holdings as directed by the
manufacturer, subject to provision for
reasonably anticipated compliance
obligations.
(3) If a manufacturer is a successor to
another manufacturer’s business, it must
inform NHTSA how it plans to allocate
credits and resolve liabilities per 49 CFR
part 534.
[FR Doc. 2015–18073 Filed 7–22–15; 8:45 am]
BILLING CODE 1505–01–D
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 300
[Docket No. 150619537–5615–01]
RIN 0648–BF19
International Fisheries; Western and
Central Pacific Fisheries for Highly
Migratory Species; Bigeye Tuna Catch
Limits in Longline Fisheries for 2015
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Final rule.
AGENCY:
NMFS issues regulations
under authority of the Western and
Central Pacific Fisheries Convention
Implementation Act (WCPFC
Implementation Act) to establish a catch
limit of 3,502 metric tons (mt) of bigeye
tuna (Thunnus obesus) for vessels in the
U.S. pelagic longline fisheries operating
in the western and central Pacific Ocean
(WCPO) for calendar year 2015. The
limit does not apply to vessels in the
longline fisheries of American Samoa,
rmajette on DSK7SPTVN1PROD with RULES
SUMMARY:
VerDate Sep<11>2014
13:16 Jul 22, 2015
Jkt 235001
Guam, or the Commonwealth of the
Northern Mariana Islands (CNMI). Once
the limit of 3,502 mt is reached in 2015,
retaining, transshipping, or landing
bigeye tuna caught in the area of
application of the Convention on the
Conservation and Management of
Highly Migratory Fish Stocks in the
Western and Central Pacific Ocean
(Convention), which comprises the
majority of the WCPO, will be
prohibited for the remainder of the
calendar year, with certain exceptions.
This action is necessary for the United
States to satisfy its obligations under the
Convention, to which it is a Contracting
Party.
DATES: Effective on July 23, 2015.
ADDRESSES: Copies of supporting
documents prepared for this final rule,
including the regulatory impact review
(RIR) and the Programmatic
Environmental Assessment (PEA), are
available via the Federal e-Rulemaking
Portal, at www.regulations.gov (search
for Docket ID NOAA–NMFS–2015–
0085. Those documents are also
available from NMFS at the following
address: Michael D. Tosatto, Regional
Administrator, NMFS, Pacific Islands
Regional Office (PIRO), 1845 Wasp
Blvd., Building 176, Honolulu, HI
96818.
FOR FURTHER INFORMATION CONTACT: Rini
Ghosh, NMFS PIRO, 808–725–5033.
SUPPLEMENTARY INFORMATION:
Background on the Convention
The Convention focuses on the
conservation and management of highly
migratory species (HMS) and the
management of fisheries for HMS. The
objective of the Convention is to ensure,
through effective management, the longterm conservation and sustainable use
of HMS in the WCPO. To accomplish
this objective, the Convention
established the Commission on the
Conservation and Management of
Highly Migratory Fish Stocks in the
Western and Central Pacific Ocean
(Commission or WCPFC). The
Commission includes Members,
Cooperating Non-members, and
Participating Territories (hereafter,
collectively ‘‘members’’). The United
States is a Member. American Samoa,
Guam, and the CNMI are Participating
Territories.
As a Contracting Party to the
Convention and a Member of the
Commission, the United States is
obligated to implement the decisions of
the Commission. The WCPFC
Implementation Act (16 U.S.C. 6901 et
seq.) authorizes the Secretary of
Commerce, in consultation with the
Secretary of State and the Secretary of
PO 00000
Frm 00020
Fmt 4700
Sfmt 4700
the Department in which the United
States Coast Guard is operating
(currently the Department of Homeland
Security), to promulgate such
regulations as may be necessary to carry
out the obligations of the United States
under the Convention, including
implementation of the decisions of the
Commission. The WCPFC
Implementation Act further provides
that the Secretary of Commerce shall
ensure consistency, to the extent
practicable, of fishery management
programs administered under the
WCPFC Implementation Act and the
Magnuson-Stevens Fishery
Conservation and Management Act
(MSA; 16 U.S.C. 1801 et seq.), as well
as other specific laws (see 16 U.S.C.
6905(b)). The Secretary of Commerce
has delegated the authority to
promulgate regulations under the
WCPFC Implementation Act to NMFS.
A map showing the boundaries of the
area of application of the Convention
(Convention Area), which comprises the
majority of the WCPO, can be found on
the WCPFC Web site at: www.wcpfc.int/
doc/convention-area-map.
WCPFC Decision on Tropical Tunas
At its Eleventh Regular Session, in
December 2014, the WCPFC adopted
Conservation and Management Measure
(CMM) 2014–01, ‘‘Conservation and
Management Measure for Bigeye,
Yellowfin and Skipjack Tuna in the
Western and Central Pacific Ocean.’’
CMM 2014–01 is the most recent in a
series of CMMs for the management of
tropical tuna stocks under the purview
of the Commission. It is a successor to
CMM 2013–01, adopted in December
2013. These and other CMMs are
available at: www.wcpfc.int/
conservation-and-managementmeasures.
The stated general objective of CMM
2014–01 and several of its predecessor
CMMs is to ensure that the stocks of
bigeye tuna (Thunnus obesus),
yellowfin tuna (Thunnus albacares),
and skipjack tuna (Katsuwonus pelamis)
in the WCPO are, at a minimum,
maintained at levels capable of
producing their maximum sustainable
yield as qualified by relevant
environmental and economic factors.
The CMM includes specific objectives
for each of the three stocks: For each,
the fishing mortality rate is to be
reduced to or maintained at levels no
greater than the fishing mortality rate
associated with maximum sustainable
yield.
CMM 2014–01 went into effect
February 3, 2015, and is generally
applicable for the 2015–2017 period.
The CMM includes provisions for purse
E:\FR\FM\23JYR1.SGM
23JYR1
]]>Agencies
[Federal Register Volume 80, Number 141 (Thursday, July 23, 2015)]
[Rules and Regulations]
[Pages 43631-43634]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-18073]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
49 CFR Part 535
Medium- and Heavy-Duty Vehicle Fuel Efficiency Program
CFR Correction
In Title 49 of the Code of Federal Regulations, Parts 400 to 571,
revised as of October 1, 2014, on page 146, Sec. 535.9 is reinstated
to read as follows:
Sec. 535.9 Enforcement approach.
(a) Compliance. (1) NHTSA will assess compliance with fuel
consumption standards each year, based upon EPA final verified data
submitted to NHTSA for its heavy-duty vehicle fuel efficiency program
established pursuant to 49 U.S.C. 32902(k). NHTSA may conduct
verification testing throughout a given model year in order to validate
data received from manufacturers and will discuss any potential issues
with EPA and the manufacturer.
(2) Credit values in gallons are calculated based on the final
CO2 emissions and fuel consumption data submitted by
manufacturers and verified/validated by EPA.
(3) NHTSA will verify a manufacturer's credit balance in each
averaging set for each given model year. The average set balance is
based upon the engines or vehicles performance above or below the
applicable regulatory subcategory standards in each respective
averaging set and any credits that are traded into or out of an
averaging set during the model year.
(i) If the balance is positive, the manufacturer is designated as
having a credit surplus.
(ii) If the balance is negative, the manufacturer is designated as
having a credit deficit.
(4) NHTSA will provide written notification to the manufacturer
that has a negative balance for any averaging set for each model year.
The manufacturer will be required to confirm the negative balance and
submit a plan indicating how it will allocate existing credits or earn,
and/or acquire by trade credits, or else be liable for a civil penalty
as determined in paragraph (b) of this section. The manufacturer must
submit a plan within 60 days of receiving agency notification.
(5) Credit shortfall within an averaging set may be carried forward
only three years, and if not offset by earned or traded credits, the
manufacturer may be liable for a civil penalty as described in
paragraph (b) of this section.
(6) Credit allocation plans received from a manufacturer will be
reviewed and approved by NHTSA. NHTSA will approve a credit allocation
plan unless it determines that the proposed credits are unavailable or
that it is unlikely that the plan will result in the manufacturer
earning sufficient credits to offset the subject credit shortfall. If a
plan is approved, NHTSA will revise the respective manufacturer's
credit account accordingly by identifying which existing or traded
credits are being used to address the credit shortfall, or by
identifying the manufacturer's plan to earn future credits for
addressing the respective credit shortfall. If a plan is rejected,
NHTSA will notify the respective manufacturer and request a revised
plan. The manufacturer must submit a revised plan within 14 days of
receiving agency notification. The agency will provide a manufacturer
one opportunity to submit a revised credit allocation plan before it
initiates civil penalty proceedings.
(7) For purposes of this regulation, NHTSA will treat the use of
future credits for compliance, as through a credit allocation plan, as
a deferral of civil penalties for non-compliance with an applicable
fuel consumption standard.
(8) If NHTSA receives and approves a manufacturer's credit
allocation plan to earn future credits within the following three model
years in order to comply with regulatory obligations, NHTSA will defer
levying civil penalties for non-compliance until the date(s) when the
manufacturer's approved plan indicates that credits will be earned or
acquired to achieve compliance, and upon receiving confirmed
CO2 emissions and fuel consumption data from EPA. If the
manufacturer fails to acquire or earn sufficient credits by the plan
dates, NHTSA will initiate civil penalty proceedings.
(9) In the event that NHTSA fails to receive or is unable to
approve a plan for a non-compliant manufacturer due to insufficiency or
untimeliness,
[[Page 43632]]
NHTSA may initiate civil penalty proceedings.
(10) In the event that a manufacturer fails to report accurate fuel
consumption data for vehicles or engines covered under this rule,
noncompliance will be assumed until corrected by submission of the
required data, and NHTSA may initiate civil penalty proceedings.
(b) Civil penalties. (1) Generally. NHTSA may assess a civil
penalty for any violation of this part under 49 U.S.C. 32902(k). This
section states the procedures for assessing civil penalties for
violations of Sec. 535.5. The provisions of 5 U.S.C. 554, 556, and 557
do not apply to any proceedings conducted pursuant to this section.
(2) Initial determination of noncompliance. An action for civil
penalties is commenced by the execution of a Notice of Violation. A
determination by NHTSA's Office of Enforcement of noncompliance with
applicable fuel consumption standards utilizing the certified and
reported CO2 emissions and fuel consumption data provided by
the Environmental Protection Agency as described in this part, and
after considering all the flexibilities available under Sec. 535.7,
underlies a Notice of Violation. If NHTSA Enforcement determines that a
manufacturer's averaging set of vehicles or engines fails to comply
with the applicable fuel consumption standard(s) by generating a credit
shortfall, the chassis, vehicle or engine manufacturer, as relevant,
shall be subject to a civil penalty.
(3) Numbers of violations and maximum civil penalties. Any
violation shall constitute a separate violation with respect to each
vehicle or engine within the applicable regulatory averaging set. The
maximum civil penalty is not more than $37,500.00 per vehicle or
engine. The maximum civil penalty under this section for a related
series of violations shall be determined by multiplying $37,500.00
times the vehicle or engine production volume for the model year in
question within the regulatory averaging set. NHTSA may adjust this
civil penalty amount to account for inflation.
(4) Factors for determining penalty amount. In determining the
amount of any civil penalty proposed to be assessed or assessed under
this section, NHTSA shall take into account the gravity of the
violation, the size of the violator's business, the violator's history
of compliance with applicable fuel consumption standards, the actual
fuel consumption performance related to the applicable standards, the
estimated cost to comply with the regulation and applicable standards,
the quantity of vehicles or engines not complying, and the effect of
the penalty on the violator's ability to continue in business. The
``estimated cost to comply with the regulation and applicable
standards,'' will be used to ensure that penalties for non-compliance
will not be less than the cost of compliance.
(5) NHTSA enforcement report of determination of non-compliance.
(i) If NHTSA Enforcement determines that a violation has occurred,
NHTSA Enforcement may prepare a report and send the report to the NHTSA
Chief Counsel.
(ii) The NHTSA Chief Counsel will review the report prepared by
NHTSA Enforcement to determine if there is sufficient information to
establish a likely violation.
(iii) If the Chief Counsel determines that a violation has likely
occurred, the Chief Counsel may issue a Notice of Violation to the
party.
(iv) If the Chief Counsel issues a Notice of Violation, he or she
will prepare a case file with recommended actions. A record of any
prior violations by the same party shall be forwarded with the case
file.
(6) Notice of violation. (i) The Notice of Violation will contain
the following information:
(A) The name and address of the party;
(B) The alleged violation(s) and the applicable fuel consumption
standard(s) violated;
(C) The amount of the proposed penalty and basis for that amount;
(D) The place to which, and the manner in which, payment is to be
made;
(E) A statement that the party may decline the Notice of Violation
and that if the Notice of Violation is declined within 30 days of the
date shown on the Notice of Violation, the party has the right to a
hearing, if requested within 30 days of the date shown on the Notice of
Violation, prior to a final assessment of a penalty by a Hearing
Officer; and
(F) A statement that failure to either pay the proposed penalty or
to decline the Notice of Violation and request a hearing within 30 days
of the date shown on the Notice of Violation will result in a finding
of violation by default and that NHTSA will proceed with the civil
penalty in the amount proposed on the Notice of Violation without
processing the violation under the hearing procedures set forth in this
subpart.
(ii) The Notice of Violation may be delivered to the party by:
(A) Mailing to the party (certified mail is not required);
(B) Use of an overnight or express courier service; or
(C) Facsimile transmission or electronic mail (with or without
attachments) to the party or an employee of the party.
(iii) At any time after the Notice of Violation is issued, NHTSA
and the party may agree to reach a compromise on the payment amount.
(iv) Once a penalty amount is paid in full, a finding of ``resolved
with payment'' will be entered into the case file.
(v) If the party agrees to pay the proposed penalty, but has not
made payment within 30 days of the date shown on the Notice of
Violation, NHTSA will enter a finding of violation by default in the
matter and NHTSA will proceed with the civil penalty in the amount
proposed on the Notice of Violation without processing the violation
under the hearing procedures set forth in this subpart.
(vi) If within 30 days of the date shown on the Notice of Violation
a party fails to pay the proposed penalty on the Notice of Violation,
and fails to request a hearing, then NHTSA will enter a finding of
violation by default in the case file, and will assess the civil
penalty in the amount set forth on the Notice of Violation without
processing the violation under the hearing procedures set forth in this
subpart.
(vii) NHTSA's order assessing the civil penalty following a party's
default is a final agency action.
(7) Hearing Officer. (i) If a party timely requests a hearing after
receiving a Notice of Violation, a Hearing Officer shall hear the case.
(ii) The Hearing Officer will be appointed by the NHTSA
Administrator, and is solely responsible for the case referred to him
or her. The Hearing Officer shall have no other responsibility, direct
or supervisory, for the investigation of cases referred for the
assessment of civil penalties. The Hearing Officer shall have no duties
related to the light-duty fuel economy or medium- and heavy-duty fuel
efficiency programs.
(iii) The Hearing Officer decides each case on the basis of the
information before him or her.
(8) Initiation of action before the Hearing Officer. (i) After the
Hearing Officer receives the case file from the Chief Counsel, the
Hearing Officer notifies the party in writing of:
(A) The date, time, and location of the hearing and whether the
hearing will be conducted telephonically or at the DOT Headquarters
building in Washington, DC;
[[Page 43633]]
(B) The right to be represented at all stages of the proceeding by
counsel as set forth in paragraph (b)(9) of this section;
(C) The right to a free copy of all written evidence in the case
file.
(ii) On the request of a party, or at the Hearing Officer's
direction, multiple proceedings may be consolidated if at any time it
appears that such consolidation is necessary or desirable.
(9) Counsel. A party has the right to be represented at all stages
of the proceeding by counsel. A party electing to be represented by
counsel must notify the Hearing Officer of this election in writing,
after which point the Hearing Officer will direct all further
communications to that counsel. A party represented by counsel bears
all of its own attorneys' fees and costs.
(10) Hearing location and costs. (i) Unless the party requests a
hearing at which the party appears before the Hearing Officer in
Washington, DC, the hearing may be held telephonically. In Washington,
DC, the hearing is held at the headquarters of the U.S. Department of
Transportation.
(ii) The Hearing Officer may transfer a case to another Hearing
Officer at a party's request or at the Hearing Officer's direction.
(iii) A party is responsible for all fees and costs (including
attorneys' fees and costs, and costs that may be associated with travel
or accommodations) associated with attending a hearing.
(11) Hearing procedures. (i) There is no right to discovery in any
proceedings conducted pursuant to this subpart.
(ii) The material in the case file pertinent to the issues to be
determined by the Hearing Officer is presented by the Chief Counsel or
his or her designee.
(iii) The Chief Counsel may supplement the case file with
information prior to the hearing. A copy of such information will be
provided to the party no later than 3 business days before the hearing.
(iv) At the close of the Chief Counsel's presentation of evidence,
the party has the right to examine respond to and rebut material in the
case file and other information presented by the Chief Counsel. In the
case of witness testimony, both parties have the right of cross-
examination.
(v) In receiving evidence, the Hearing Officer is not bound by
strict rules of evidence. In evaluating the evidence presented, the
Hearing Officer must give due consideration to the reliability and
relevance of each item of evidence.
(vi) At the close of the party's presentation of evidence, the
Hearing Officer may allow the introduction of rebuttal evidence that
may be presented by the Chief Counsel.
(vii) The Hearing Officer may allow the party to respond to any
rebuttal evidence submitted.
(viii) After the evidence in the case has been presented, the Chief
Counsel and the party may present arguments on the issues in the case.
The party may also request an opportunity to submit a written statement
for consideration by the Hearing Officer and for further review. If
granted, the Hearing Officer shall allow a reasonable time for
submission of the statement and shall specify the date by which it must
be received. If the statement is not received within the time
prescribed, or within the limits of any extension of time granted by
the Hearing Officer, it need not be considered by the Hearing Officer.
(ix) A verbatim transcript of the hearing will not normally be
prepared. A party may, solely at its own expense, cause a verbatim
transcript to be made. If a verbatim transcript is made, the party
shall submit two copies to the Hearing Officer not later than 15 days
after the hearing. The Hearing Officer shall include such transcript in
the record.
(12) Determination of violations and assessment of civil penalties.
(i) Not later than 30 days following the close of the hearing, the
Hearing Officer shall issue a written decision on the Notice of
Violation, based on the hearing record. This may be extended by the
Hearing officer if the submissions by the Chief Counsel or the party
are voluminous. The decision shall address each alleged violation, and
may do so collectively. For each alleged violation, the decision shall
find a violation or no violation and provide a basis for the finding.
The decision shall set forth the basis for the Hearing Officer's
assessment of a civil penalty, or decision not to assess a civil
penalty. In determining the amount of the civil penalty, the gravity of
the violation, the size of the violator's business, the violator's
history of compliance with applicable fuel consumption standards, the
actual fuel consumption performance related to the applicable standard,
the estimated cost to comply with the regulation and applicable
standard, the quantity of vehicles or engines not complying, and the
effect of the penalty on the violator's ability to continue in
business. The assessment of a civil penalty by the Hearing Officer
shall be set forth in an accompanying final order. The Hearing
Officer's written final order is a final agency action.
(ii) If the Hearing Officer assesses civil penalties in excess of
$1,000,000, the Hearing Officer's decision shall contain a statement
advising the party of the right to an administrative appeal to the
Administrator within a specified period of time. The party is advised
that failure to submit an appeal within the prescribed time will bar
its consideration and that failure to appeal on the basis of a
particular issue will constitute a waiver of that issue in its appeal
before the Administrator.
(iii) The filing of a timely and complete appeal to the
Administrator of a Hearing Officer's order assessing a civil penalty
shall suspend the operation of the Hearing Officer's penalty, which
shall no longer be a final agency action.
(iv) There shall be no administrative appeals of civil penalties
assessed by a Hearing Officer of less than $1,000,000.
(13) Appeals of civil penalties in excess of $1,000,000. (i) A
party may appeal the Hearing Officer's order assessing civil penalties
over $1,000,000 to the Administrator within 21 days of the date of the
issuance of the Hearing Officer's order.
(ii) The Administrator will review the decision of the Hearing
Officer de novo, and may affirm the decision of the hearing officer and
assess a civil penalty, or
(iii) The Administrator may:
(A) Modify a civil penalty;
(B) Rescind the Notice of Violation; or
(C) Remand the case back to the Hearing Officer for new or
additional proceedings.
(iv) In the absence of a remand, the decision of the Administrator
in an appeal is a final agency action.
(14) Collection of assessed or compromised civil penalties. (i)
Payment of a civil penalty, whether assessed or compromised, shall be
made by check, postal money order, or electronic transfer of funds, as
provided in instructions by the agency. A payment of civil penalties
shall not be considered a request for a hearing.
(ii) The party must remit payment of any assessed civil penalty to
NHTSA within 30 days after receipt of the Hearing Officer's order
assessing civil penalties, or, in the case of an appeal to the
Administrator, within 30 days after receipt of the Administrator's
decision on the appeal.
(iii) The party must remit payment of any compromised civil penalty
to NHTSA on the date and under such terms and conditions as agreed to
by the party and NHTSA. Failure to pay may result in NHTSA entering a
finding of violation by default and assessing a civil penalty in the
amount proposed in the Notice of Violation without processing
[[Page 43634]]
the violation under the hearing procedures set forth in this part.
(c) Changes in corporate ownership and control. Manufacturers must
inform NHTSA of corporate relationship changes to ensure that credit
accounts are identified correctly and credits are assigned and
allocated properly.
(1) In general, if two manufacturers merge in any way, they must
inform NHTSA how they plan to merge their credit accounts. NHTSA will
subsequently assess corporate fuel consumption and compliance status of
the merged fleet instead of the original separate fleets.
(2) If a manufacturer divides or divests itself of a portion of its
automobile manufacturing business, it must inform NHTSA how it plans to
divide the manufacturer's credit holdings into two or more accounts.
NHTSA will subsequently distribute holdings as directed by the
manufacturer, subject to provision for reasonably anticipated
compliance obligations.
(3) If a manufacturer is a successor to another manufacturer's
business, it must inform NHTSA how it plans to allocate credits and
resolve liabilities per 49 CFR part 534.
[FR Doc. 2015-18073 Filed 7-22-15; 8:45 am]
BILLING CODE 1505-01-D
