Labeling Requirements for Alternative Fuels and Alternative Fueled Vehicles
Federal RegisterMay 19, 1995
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SUMMARY: Section 406(a) of the Energy Policy Act of 1992 (``EPA 92'')
directs the Federal Trade Commission (``Commission'') to establish
uniform labeling requirements, to the greatest extent practicable, for
alternative fuels and alternative fueled vehicles. On November 18,
1994, the Commission published a supplemental notice of proposed
rulemaking in the Federal Register announcing the substance of proposed
labeling requirements and sought written comment on its proposal. In
this notice the Commission announces its final labeling requirements,
and explains why it has modified certain requirements from those
proposed.
EFFECTIVE DATE: Subpart A and Subpart B of 16 CFR Part 309 are
effective on August 21, 1995. Subpart C of 16 CFR Part 309 is effective
on November 20, 1995. The incorporation by reference of certain
publications listed in subpart B of 16 CFR Part 309 is approved by the
Director of the Federal Register as of August 21, 1995. The
incorporation by reference of certain publications listed in subpart C
of 16 CFR Part 309 is approved by the Director of the Federal Register
as of November 20, 1995.
FOR FURTHER INFORMATION CONTACT: Jeffrey E. Feinstein, Attorney, 202/
326-2372, or Neil J. Blickman, Attorney, 202/326-3038, Division of
Enforcement, Federal Trade Commission, Washington, DC 20580.
SUPPLEMENTARY INFORMATION:
Statement of Basis and Purpose
I. Introduction
EPA 921 establishes a comprehensive national energy strategy
designed to increase U.S. energy security and improve the economy in
cost effective and environmentally beneficial ways.2 It seeks to
reduce the dependence of the United States on oil imports; promote
energy efficiency; reduce the use of petroleum-based fuels in motor
vehicles; and provide new energy options. Other programs in titles III,
IV, V, and VI of EPA 92 promote the development of alternative
fuels3 and alternative fueled vehicles (``AFVs'').4
\1\Pub. L. 102-486, 106 Stat. 2776 (1992).
\2\H. Rep. No. 102-474(I), 102d Cong., 2d Sess. 132, reprinted
in 1992 U.S.C.C.A.N. at 1954, 1955.
\3\``Alternative fuels'' are defined as:
[M]ethanol, denatured ethanol, and other alcohols; mixtures
containing 85 percent or more (or such other percentage, but not
less than 70 percent, as determined by the Secretary [of Energy], by
rule, to provide for requirements relating to cold start, safety, or
vehicle functions) by volume of methanol, denatured ethanol, and
other alcohols with gasoline or other fuels; natural gas; liquefied
petroleum gas; hydrogen; coal-derived liquid fuels; fuels (other
than alcohol) derived from biological materials; electricity
(including electricity from solar energy); and any other fuel the
Secretary determines, by rule, is substantially not petroleum and
would yield substantial energy security benefits and substantial
environmental benefits[.]
42 U.S.C. 13211(2) (Supp. IV 1993).
\4\An ``alternative fueled vehicle'' is ``a dedicated vehicle or
a dual fueled vehicle[.]'' 42 U.S.C. 13211(3). Each term is further
defined in 42 U.S.C. 13211 (6) and (8).
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Two provisions in title IV of EPA 92 require that information on
alternative fuels and AFVs be made available to consumers. In one
provision, section 406(a) of EPA 92 directs the Commission to issue a
rule establishing uniform labeling requirements, to the greatest extent
practicable, for alternative fuels and alternative fueled
vehicles.5 The Act does not specify what information should be
displayed on these labels. Instead, it provides generally that the rule
must require disclosure of ``appropriate,'' ``useful,'' and ``timely''
cost and benefit information on ``simple'' labels.6 The purpose of
the labeling requirements is to enable consumers to make reasonable
choices and comparisons. In formulating the rule, the Commission must
consider the problems associated with developing and publishing the
required information, taking into account lead time, costs, frequency
of changes in costs and benefits that may occur, and other relevant
factors. Where appropriate, the labels required by section 406(a) are
to be consolidated with other labels providing information to
consumers. EPA 92 requires the Commission to update its labeling
requirements ``periodically to reflect the most recent available
information.''7
\5\Section 406(a) is codified at 42 U.S.C. 13232(a) (Supp. IV
1993).
\6\42 U.S.C. 13232(a).
\7\Id.
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A second and complementary provision directs the Secretary of
Energy (``DOE'') to develop an information package for consumers.8
Specifically, section 405 of EPA 92 requires DOE to produce and make
available an information package for consumers to help them choose
among alternative fuels and AFVs.9 DOE's information package must
provide ``relevant and objective'' information addressing ``motor
vehicle characteristics and fuel characteristics as compared to
gasoline'' (including environmental performance, energy efficiency,
domestic content, cost, maintenance requirements, reliability, and
safety), information about the conversion of conventional motor
vehicles to AFVs, and ``such other information as the Secretary [of
DOE] determines is reasonable and necessary to help promote the use of
alternative fuels in motor vehicles.''10
\8\42 U.S.C. 13231. DOE is also required to provide technical
assistance to the Commission in developing labeling requirements,
and coordinate such technical assistance with its development of a
consumer information package. 42 U.S.C. 13232(b).
\9\42 U.S.C. 13231. The information package required by this
section was intended ``to enable [consumers] to understand and to
help them choose among alternative fuels and AFVs.'' H. Rep. No.
102-474(I), 102d Cong., 2d Sess. 185, reprinted in 1992 U.S.C.C.A.N.
at 1954, 2008.
\10\42 U.S.C. 13231. EPA 92 also directs the DOE Secretary to
create an additional public education program targeted specifically
to the Federal government. Under that mandate, the DOE Secretary,
``in cooperation with the Administrator of General Services,'' must
``promote programs and educate officials and employees of Federal
agencies on the merits of [AFVs].'' 42 U.S.C. 13214(a). That section
further requires that the DOE Secretary ``shall provide and
disseminate information to Federal agencies on,'' inter alia, ``the
range and performance capabilities of [AFVs].'' Id.
This is the Commission's second rulemaking concerning labeling
requirements for alternative fuels. In a separate proceeding also
required by EPA 92,11 the Commission extended the requirements of
its former Octane Rule12 (renamed the ``Fuel Rating Rule'') beyond
gasoline to include liquid alternative fuels.13 As a result,
retailers of such fuels are now required, among other things, to post
labels identifying the commonly used name of the fuel and the amount,
expressed as a minimum percentage by volume, of the fuel's principal
component.14
\11\15 U.S.C. 2821-2823.
\12\Octane Posting and Certification, 16 CFR Part 306.
\13\16 CFR 306.0(i)(2) (1994). In that proceeding, the
Commission had no authority to extend the rule's requirements beyond
liquid alternative fuels. 15 U.S.C. 2821 (Supp. IV 1993).
\14\16 CFR 306.0(j)(2) (1994). The Fuel Rating Rule became
effective October 25, 1993. 58 FR 41356, 41356, Aug. 3, 1993.
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II. Public Participation
EPA 92 required the Commission, in formulating its labeling
requirements, to ``obtain the views of affected industries, consumer
organizations, Federal and State agencies, and others.''15 It also
required the Commission to issue a Notice of Proposed Rulemaking
(``NPR'') in consultation with DOE, the Administrator of the
Environmental Protection Agency (``EPA''), and the Secretary of
Transportation (``DOT'') [[Page 26927]] within eighteen months after
October 24, 1992 (the statute's enactment date).16 To comply with
those requirements, the Commission received information from the public
relating to this proceeding from five sources: written comments filed
in response to an Advanced Notice of Proposed Rulemaking (``ANPR'')
published on December 10, 1993,17 written comments filed in
response to an NPR published on May 9, 1994,18 testimony during a
Public Workshop-Conference (``Workshop'') held on July 20, 1994,
supplemental written comments filed after the Workshop, and written
comments filed in response to a Supplemental Notice of Proposed
Rulemaking (``SNPR'') published on November 18, 1994.19 All such
information (i.e., the written comments and Workshop transcript) was
placed on the public record of this proceeding. The discussion below
includes information from all five sources, as well as documents placed
on the public record by the Commission's staff.20 The Commission
considered all these materials in developing this final labeling rule.
\15\42 U.S.C. 13232(a).
\16\Id. Commission staff consulted with staff from DOE, EPA, and
DOT's National Highway Traffic Safety Administration while
developing its initial and supplemental labeling proposals.
\17\58 FR 64914.
\18\59 FR 24014.
\19\59 FR 59666.
\20\Commission's Rulemaking Record No. R311002. Comments
submitted in response to the SNPR are coded either ``I'' (indicating
that they were filed by nongovernmental parties) or ``J''
(indicating that they were filed by governmental agencies). Written
comments submitted in response to prior Federal Register notices are
coded either ``D'' or ``E'' (in response to the ANPR) or ``G'' or
``H'' (in response to the NPR). Written requests to participate in
the Workshop are coded ``A.'' The Workshop transcript is filed in
category ``L.'' Information placed on the public record by
Commission staff is coded ``B.''
In this notice, comments are cited by identifying the commenter
(by abbreviation), the comment number, and the relevant page
number(s), e.g., ``RFA, I-3, 1-3.'' Supplemental comments filed
after the Workshop are designated as (Supp.), e.g., ``RFA (Supp.),
G-5, 1.'' Discussion in the Workshop is cited by identifying the
party, a reference to the transcript, and the relevant page
number(s), e.g., ``EPA (Tr.), 184.'' Staff submissions are cited by
identifying the document number, relevant page number(s), and
document date, e.g., ``B-13, 3, Jan. 25, 1994.''
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A. The Commission's ANPR
In its ANPR, the Commission sought written comment on basic issues
raised by section 406(a)'s mandate. Accordingly, it requested comment
on issues relating to which fuels and vehicles should be covered by the
labeling requirements (i.e., the proposed rule's scope), and what
information should be required to be displayed on labels (i.e., the
proposed rule's disclosures).21 The Commission also sought comment
on how the labeling requirements should be updated, and the extent to
which the labels should be consolidated with other labels providing
information to consumers. In response, the Commission received 28
written comments addressing these issues. The comments were summarized
in the Commission's NPR.22
\21\58 FR 64914, 64915.
\22\59 FR 24015-24017.
B. The Commission's NPR
The Commission considered written comments responding to the ANPR
in developing its initial labeling proposal, which was published in the
Federal Register as the Commission's NPR. The NPR announced the
substance of proposed labeling requirements and a proposed rule
implementing section 406(a)'s mandate. In that NPR, the Commission
invited interested persons to submit written comments on any issue of
fact, law or policy that might have bearing upon the proposed labeling
requirements. In response, the Commission received 37 written comments
addressing the Commission's proposal. The comments responding to the
NPR were summarized in the Commission's SNPR.
C. Public Workshop-Conference
The Commission announced in the NPR that its staff would conduct a
Workshop to afford staff and interested parties an opportunity to
discuss issues raised in the rulemaking proceeding.23 The Workshop
was not intended to achieve a consensus of opinion among participants
or between participants and Commission staff with respect to any issue.
Instead, its purpose was to examine publicly areas of significant
controversy or divergent opinions that were raised in the written
comments.
\23\59 FR 24014, 24020.
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Twenty-one interested parties timely submitted written requests to
participate in the Workshop.24 Twenty of those parties filed
written comments as required,25 and all twenty were invited to
participate. Two parties (Chrysler and Greenpeace) subsequently elected
not to attend, and, as a result, individuals representing eighteen
interested parties participated at the Workshop.26 The Workshop
was held on July 20, 1994, at the Commission's headquarters and was
conducted as announced in the NPR.27
\24\AAMA, A-2 (on behalf of AAMA, Chrysler, Ford, and GM); AGA/
NGVC, A-8; AMI, A-10; API, A-12; Boston Edison, A-16; CAS, A-14;
DOE, A-1; Eckert Seamans Cherin & Mellott, A-17 (on behalf of
unidentified clients in the automotive industry); EMA, A-3 (request
submitted by Neal Gerber & Eisenberg); ETC, A-11 (request submitted
by Van Ness Feldman); EPA, A-9; Flxible, A-6; Greenpeace, A-18;
NACAA, A-7; NAFA, A-13 (request submitted by Kent & O'Connor, Inc.);
NPGA, A-5 (on behalf of NPGA and Phillips 66); RFA, A-4 (request
submitted by Downstream Alternatives, Inc.); UCS, A-15.
\25\The law firm Eckert Seamans Cherin & Mellott did not file a
written comment.
\26\Lois E. Bennett, GM; Timothy D. Davis, Columbia Gas
(representing AGA/NGVC); Robert Graham and Peter Morman, CAS; Marcel
L. Halberstadt, AAMA; Nancy L. Homeister, Ford; Evan W. Johnson, MC-
MD (representing NACAA); Martin S. Karl, Boston Edison; Allen R.
Larson, Esq., Larson and Curry (representing Boston Edison); Paul
McArdle, DOE; Denise McCourt, API; Patrick O'Connor, Kent & O'Connor
(representing NAFA); Larry D. Osgood, Phillips 66 Propane Company
(representing NPGA); Robert E. Reynolds, Downstream Alternatives,
Inc. (representing RFA); Glyn Short, AMI; Lisa A. Stegink, Esq.,
Neal Gerber & Eisenberg (representing EMA); Jaime C. Steve, UCS;
Lance Watt, Flxible; Ellen S. Young, Esq., Van Ness Feldman
(representing ETC); Kenneth L. Zerafa, EPA. Philip J. Harter, Esq.,
served as the Workshop's moderator.
\27\The NPR announced that the Workshop would take place over
two days, but the participants concluded discussing the agenda staff
had prepared in one day. As a result, the Workshop's second day was
cancelled. (Tr.), 238.
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D. Post-Workshop Comments
In its NPR, the Commission announced that Workshop participants
would be permitted one week to file supplemental written comments
addressing concerns raised during the Workshop.28 Eight
participants elected to file such comments.29 The Commission also
announced that after reviewing written comments received in response to
the NPR, the Workshop transcript, and the post-Workshop comments, it
would publish an SNPR. The SNPR would propose the text of a labeling
rule and allow the public an opportunity to comment on the revised
labeling proposal.
\28\59 FR 24014, 24023.
\29\AAMA, AGA/NGVC, Boston Edison, CAS, EMA, Flxible, NPGA, and
RFA.
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E. Supplemental Notice of Proposed Rulemaking
The Commission considered written comments on the public record,
the Workshop transcript,30 and staff submissions in developing a
revised labeling proposal, which was published in the Federal Register
as the Commission's SNPR. The SNPR announced modifications to the
Commission's initial labeling proposal and the specific language of a
proposed labeling rule. The Commission invited interested persons to
submit written [[Page 26928]] comments until December 19, 1994,
addressing any issue they believed might bear upon the proposed rule.
As described below, the Commission received 24 written comments in
response to its SNPR from vehicle manufacturers,31 fuel
producers,32 governmental entities,33 a consumer
organization,34 organizations representing affected
interests,35 and other interested individuals.36
\30\Two commenters endorsed the Commission's reliance on the
Workshop transcript in its preparation of the SNPR. See API, I-15,
cover letter at 3 (``We believe the issues expressed in the July
[Workshop] were fairly addressed by the FTC in its [SNPR].''); RFA,
I-3, 2 (``We believe that the changes reflected in the revised final
rule were justified based on written comments and the information
covered at the public workshop.'').
\31\Ford Motor Company (``Ford''), I-4; Electro Automotive
(``Electro Auto''), I-7; Toyota Motor Corporation (``Toyota''), I-
11; Chrysler Corporation (``Chrysler''), I-13.
\32\Mobil Oil Corporation (``Mobil''), I-2; Unocal Corporation
(``Unocal''), I-5; Commercial Electronics NGV Systems Division
(``Comm Elec''), I-8; Boston Edison and Edison Electric Institute
(submitted by Larson and Curry) (``Boston Edison/EEI''), I-14.
\33\U.S. Department of Energy (``DOE''), J-1; City of Chicago,
Illinois (``Chicago''), J-2; California Air Resources Board
(``CARB''), J-3; U.S. Department of Energy, Energy Information
Administration, Energy End Use and Integrated Statistics Division
(``EIA/EEU-ISD''), J-4; U.S. Department of Transportation, National
Highway Traffic Safety Administration (``DOT/NHTSA''), J-5.
\34\Center for Auto Safety (``CAS''), I-12.
\35\Renewable Fuels Association (submitted by Downstream
Alternatives, Inc.) (``RFA''), I-3; Engine Manufacturers Association
(submitted by Neal Gerber & Eisenberg) (``EMA''), I-6; Electric
Transportation Coalition (submitted by Van Ness Feldman) (``ETC''),
I-9; National Association of Fleet Administrators, Inc. (``NAFA''),
I-10; American Petroleum Institute (``API''), I-15; American
Automobile Manufacturers Association (``AAMA''), I-16; American Gas
Association and Natural Gas Vehicle Coalition (``AGA/NGVC''), I-18;
Natural Gas Vehicle Producers Association (``NGVPA''), I-19.
\36\E. A. Mechtly, Ph.D., Engineering Educator, University of
Illinois (``Mechtly''), I-1; Louis F. Sokol, CAMS, Metrification
Consultant (``Sokol''), I-17.
III. Labeling Requirements Proposed in the SNPR
A. Comment Suggestions Beyond Commission's Authority Under EPA 92
As noted previously, section 406(a) directs the Commission to
establish labeling requirements for alternative fuels and AFVs
disclosing cost and benefit information. Because this rulemaking
proceeding is mandated by statute, the Commission's authority is
limited to what is authorized by EPA 92. During this proceeding,
however, several commenters suggested regulatory options that are
beyond the Commission's statutory authority because they involve
matters other than labeling requirements, alternative fuels or AFVs,
and cost and benefit information.
For example, several commenters suggested that the Commission
require AFV dealers to have copies of the DOE brochure available for
consumer inspection and use.37 These commenters believed that the
Commission could model such a requirement on an existing EPA regulation
directing automobile dealers to make available free copies of EPA's Gas
Mileage Guide (a booklet comparing the fuel economy of similarly-sized
new automobiles).38 Such a requirement does not appear to be
reasonably within section 406(a)'s scope, which is limited to uniform
labeling requirements. In any event, the Commission notes that EPA's
regulation was promulgated pursuant to a specific Congressional
directive that EPA require dealers to provide such information to
consumers.39 In the absence of a similar Congressional directive,
the Commission believes that such a requirement may be beyond its
authority under EPA 92.40
\37\ETC, G-24, 6; NAFA, G-20, 3-5; NPGA (Tr.), 188-89. CAS
suggested that the Commission require AFV dealers and conversion
companies to provide copies of the DOE package to consumers, and
that consumers acknowledge receipt by signing a designated sales
document. CAS, G-17, 7; (Tr.), 174; (Supp.), G-17, 4. See also CAS,
I-12, 1 (FTC should ``encourage availability'' of DOE brochure at
AFV dealerships). CAS also proposed that the AFV label advise
consumers that a free copy of the DOE brochure is available from the
dealer. CAS (Supp.), G-17, 4. ETC also suggested, however, that
dealers would find it in their interest to have the DOE brochures
available to consumers. ETC (Tr.), 168.
\38\40 CFR 600.401-77 to 600.407-77 (1993).
\39\See 15 U.S.C. 2006(b)(2) (``The EPA Administrator * * *
shall prescribe rules requiring dealers to make available to
prospective purchasers [fuel economy information] compiled by the
EPA Administrator under paragraph (1).'').
\40\The Commission notes, however, that a DOE official at the
Workshop stated that DOE would consider distributing copies of the
information package to AFV dealerships. DOE (Tr.), 227-28. In its
comment, RFA wrote to ``encourage some formal review process'' of
that brochure by industry. RFA, I-3, 2.
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For similar reasons, the Commission has also concluded that
requiring any of the following may exceed its authority under EPA 92:
(1) labeling for conventional fueled vehicles;41 (2) that
information on AFV labels be provided to consumers (in a non-label
format) at the time an AFV is offered for sale;42 (3) that ``all
pertinent information'' (e.g., fuel hazards, tank capacity, refueling
or recharging time, and cruising range) be disclosed in vehicle owners'
manuals;43 and (4) that a ``simple card'' describing factors
consumers should consider before acquiring an AFV be placed within new
and used vehicles.44
\41\AGA/NGVC, G-6, 11 (requiring disclosures only for AFVs could
unnecessarily raise consumer concerns about these products).
\42\NAFA, I-10, 2; G-20, 2 (``For example, when a representative
of a conversion company meets with a consumer to offer to convert a
vehicle, the representative would provide the consumer with the
appropriate information in a format similar to the vehicle
label.''). NAFA based this suggestion on its concern that consumers
would not always be able to inspect labels prior to acquisition. Id.
\43\NACAA, H-6, 2. The Commission also believes that one
suggestion (that it develop an information bulletin discussing
pertinent considerations), while not beyond its authority, may not
be necessary because of DOE's mandate to complete the same task.
CEC, H-8, 1-2, 6; NAFA, G-20, 3. In any event, the Commission
normally issues consumer education materials after new rules are
issued, and that will be considered when this proceeding is
completed.
\44\AAMA, I-16, 6.
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B. Labeling Requirements for Alternative Fuels
1. Scope of the Labeling Requirements
In the SNPR, the Commission proposed that the scope of its labeling
requirements extend to three non-liquid alternative fuels: compressed
natural gas (``CNG''), hydrogen gas (``hydrogen'') and
electricity.45 One comment addressed this aspect of the
Commission's proposal.46 For safety reasons, that comment
recommended that the Commission limit the scope of the rule to
alternative fuels that have been tested and approved for use by
EPA.47 The Commission notes that EPA 92 specifically defines the
term ``alternative fuel'' to include the three fuels at issue;48
and because they are readily available, DOE identifies them and
encourages their use in its literature.49 Furthermore, other than
emission certification procedures, EPA has no procedures for certifying
fuels as being safe for use.
\45\These are the only non-liquid fuels defined as ``alternative
fuels'' in EPA 92. 42 U.S.C. 13211(2) (Supp. IV 1993).
\46\Five other comments generally supported all aspects of the
Commission's alternative fuels labeling proposal without addressing
this specific issue. Boston Edison/EEI, I-14, 4; Chicago, J-2, 2-3;
DOE, J-1, 2; EIA/EEU-ISD, J-4, 1; RFA, I-3, 2. In addition, comments
on an earlier Commission proposal similarly supported limiting the
scope of this proceeding to non-liquid alternative fuels. API, G-25,
1-3; CEC, H-8, 1-6; Mobil, G-2, 1-3; NAFA, G-20, 1; NPGA, G-18, 2-3;
Phillips 66, G-15, 1; RFA (Supp.), G-5, 1; SIGMA, G-23, 1; Sun, G-1,
1.
\47\Chicago, J-2, 2-3.
\48\42 U.S.C. 13211(2) (Supp. IV 1993).
\49\U.S. Dep't of Energy, Taking An Alternative Route, B-33.
The Commission's SNPR proposal was limited to non-liquid fuels
because the Commission's Fuel Rating Rule contains labeling
requirements for liquid alternative fuels. Further, the Commission
proposed requirements for the non-liquid fuels that are similar to the
Fuel Rating Rule's requirements for liquid alternative fuels. Although
that rule serves a somewhat different purpose,50 the Commission
believes that harmonizing labeling requirements, [[Page 26929]] when
practicable, is appropriate. Thus, the Commission's SNPR proposal had
the effect of imposing labeling requirements on non-liquid alternative
fuels that are similar to those that currently exist for liquid
alternative fuels.
\50\The purpose of the EPA 92 amendments to Title II of the
Petroleum Marketing Practices Act, 15 U.S.C. 2821-2825, was to give
purchasers information they need to choose the correct type or grade
of fuel for their vehicles. 58 FR 41356. Section 406(a)'s purpose is
to provide consumers with appropriate cost and benefit information
to enable them to make informed choices among alternative fuels and
AFVs. 59 FR 59666.
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After considering the record, the Commission has determined that
the scope of the rule shall be limited to the non-liquid alternative
fuels CNG, hydrogen and electricity.51 This will result in equal,
uniform, fuel-neutral labeling requirements for all alternative fuels
that are currently used or contemplated for use as automotive fuels.
Further, in accordance with section 406(a)'s directive to review the
rule ``periodically to reflect the most recent available
information,''52 the Commission will supplement the list of
covered fuels if and when DOE designates new non-liquid fuels as
alternative fuels.53
\51\See 59 FR 59666, 59669-59670 for a general description of
the qualities of the alternative fuels covered by the final rule.
\52\42 U.S.C. 13232(a) (Supp. IV 1993).
\53\The Secretary of the Department of Energy has the
responsibility to designate, by rule, new fuels as alternative
fuels. 42 U.S.C. 13211(2) (Supp. IV 1993).
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2. Label Disclosures for Non-liquid Alternative Fuels
a. SNPR proposals. In the SNPR, the Commission proposed that
retailers selling CNG, hydrogen and electricity to consumers post
standard labels identifying the commonly used names of those fuels on
public fuel dispensers (including electric dispensers used to recharge
batteries in electric vehicles).54 The labels would be placed
conspicuously in full view of consumers (i.e., ultimate purchasers) and
as near as reasonably practical to the fuel's unit price disclosure. No
comments were submitted regarding this facet of the SNPR proposal. The
Commission, therefore, has determined to adopt these requirements in
the final rule for the reasons stated in the SNPR.55
\54\See proposed rule Secs. 309.1(q) and 309.15, 59 FR 59666,
59704, 59706.
\55\59 FR 59666, 59671-59672.
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With respect to CNG and hydrogen, the Commission also proposed
requiring disclosure of the fuel's principal component and permitting
disclosure of other components,56 expressed as minimum molecular
percentages (``minimum mole percent'').57 These proposals are
analogous to provisions in the Fuel Rating Rule pertaining to liquid
alternative fuels.58 In the SNPR, the Commission tentatively
concluded that its proposal to require disclosure of the minimum
methane content of CNG would assist consumers in purchasing CNG that
satisfies requirements specified by engine manufacturers to meet
performance and emissions certification levels.59 The Commission
also concluded that its proposal would be consistent with the Fuel
Rating Rule's requirements for liquid alternative fuels,60 and
would assist consumers in identifying the proper fuel for their
vehicles. The Commission further noted that because CNG exists with too
low a methane content to be used as a transportation fuel,61
requiring disclosure of the minimum methane content would help ensure
that CNG that is not suitable for use as a transportation fuel is not
inadvertently sold for that purpose. Although CNG sold as a
transportation fuel must always meet minimum vehicle needs, information
about minimum methane content could help assure consumers that the CNG
they are purchasing will meet their engines' needs.62
\56\CNG vehicle fuel is composed primarily of methane with small
percentages of ethane, propane, butane, nitrogen, helium, carbon
dioxide and hydrogen sulfide. Hydrogen vehicle fuel is composed
primarily of hydrogen, with very small percentages of water, oxygen,
and nitrogen.
\57\Under the international system of units, ``the mole is the
amount of substance of a system which contains as many elementary
entities as there are atoms in 0.012 kilogram of carbon 12. When the
mole is used, the elementary entities must be specified and may be
atoms, molecules, ions, electrons, other particles, or specified
groups of such particles.'' ``The International System of Units
(SI),'' NIST Special Publication 330 (1991 edition), August 1991,
U.S. Department of Commerce, National Institute of Standards and
Technology (hereinafter ``NIST Publication 330''), B-43, 4-5.
\58\16 CFR 306.10(b)(1) and 306.10(f) (1994).
\59\59 FR 59666, 59671. See AAMA (Tr.), 37, 62 (label should
identify the fuel), 81 (at this time a minimum methane content
disclosure is appropriate); Flxible (Tr.), 74, (Supp.), G-12, 2
(dispensers for CNG should be labeled with the minimum methane
content due to the requirements dictated by some engine
manufacturers to meet performance and emissions certification
levels); RFA, G-5, 3; Sun, G-1, 1.
\60\59 FR 59666, 59671. See API, G-25, 1-3 (until a private,
voluntary, consensus standards organization develops specifications
for alternative fuels, additional disclosure requirements are
inappropriate; expand Fuel Rating Rule to cover non-liquid
alternative fuels to encourage fuel-neutral regulatory scheme; and
labeling of principal component may provide useful information to
consumers); EIA/EEU-ISD, H-2, 1 (expressed general support for the
proposed rule); Mobil, G-2, 1-3 (the proposed label is consistent
with the Fuel Rating Rule, and no other disclosures should be
required); NAFA, G-20, 1 (endorses a uniform labeling requirement
for alternative fuels); NPGA, G-18, 2-3 (extremely important that
all alternative fuels be subject to essentially identical
requirements, and the Commission's proposal is sufficient under the
statutory requirements), (Tr.) 48-49 (issue is how to get the
consumer to the correct pump, and in that respect, the orange labels
for liquid alternative fuels do an effective job); Phillips 66, G-
15, 1; RFA, G-5, 2-3 (the benefit of providing additional
information beyond that proposed is not well established), (Tr.),
28, 31, 38, (Supp.), G-5, 1 (the current labeling requirements for
alternative fuels under the Fuel Rating Rule are adequate and the
same labeling requirements should be extended to gaseous fuels);
SIGMA, G-23, 1 (supports the proposed requirements and urges the
Commission to adopt the proposed rule without change); Sun, G-1, 1-2
(agrees with the Commission's proposal to extend the Fuel Rating
Rule labeling requirements to non-liquid alternative fuels thereby
placing equal regulatory requirements on all alternative fuels).
\61\See Flxible (Tr.), 74-77.
\62\59 FR 59666, 59671.
The Commission also recognized that electricity used for recharging
electric vehicle (``EV'') batteries might need to be subject to
different labeling disclosures.63 Accordingly, for electricity,
the SNPR proposed requiring that labels on public electric vehicle fuel
dispensing systems include the commonly used name of the fuel, kilowatt
capacity, voltage, current (either AC or DC), amperage and type of
charger (either conductive or inductive).64 In the SNPR, the
Commission tentatively concluded that such disclosures were the minimum
operating parameters that would be necessary to protect consumers
operating the equipment, the vehicles whose batteries would be charged,
as well as the charging equipment.65
\63\Unlike the other alternative fuels, the electricity used to
recharge the batteries that power electric vehicles is not dispensed
from a conventional fuel pump. It is dispensed from an electrical
dispenser or recharging station and produces different physical
effects depending on the type of dispenser or charging equipment
through which it is dispensed. Therefore, the Commission recognized
that electricity used as a vehicle fuel might have to be rated in
accordance with the characteristics of the specific electrical
dispenser or recharging station.
\64\See proposed rule Secs. 309.1(q)(2) and 309.15, 59 FR 59666,
59704, 59706.
\65\The specific bases for the Commission's SNPR proposal are
discussed in more detail at 59 FR 59666, 59671-59672.
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Sixteen comments addressed the issues raised in the SNPR. Five
comments generally supported the Commission's proposals in their
entirety because if adopted, the proposals would provide appropriate
and useful information to consumers attempting to make alternative fuel
purchasing decisions.66 The remaining eleven comments are
discussed in the following section and in section III(B)(3) infra.
\66\Boston Edison/EEI, I-14, 4; Chicago, J-2, 2-3; DOE, J-1, 2;
EIA/EEU-ISD, J-4, 1; RFA, I-3, 2.
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b. Comments on SNPR concerning CNG. Two comments questioned whether
the Commission's SNPR proposal to require disclosure of the minimum
methane content of CNG would be helpful to consumers in the absence of
standards requiring a minimum methane content for CNG vehicle
fuel.67 The Commission believes [[Page 26930]] that consensus
standards specifying a minimum methane content for CNG as a vehicle
fuel would be helpful, but recognizes that they do not presently exist.
The Commission's proposed labeling approach for CNG and hydrogen
provides a basic measure of fuel quality and, used in conjunction with
the owner's manual containing the vehicle manufacturer's fuel
recommendations, it provides consumers with the information necessary
to select the fuel on which their vehicle has been designed to
perform.68
\67\API, I-15, 2; Mobil, I-2, 3.
\68\Although at present CNG vehicles apparently are designed to
run on the broad range of methane content in available vehicle CNG,
in the future manufacturers may design vehicles favoring specific,
higher methane contents.
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Accordingly, the Commission has determined that the fuel rating for
CNG and hydrogen must include the commonly used name of the fuel and
the amount, expressed as a minimum molecular percentage, of the
principal component of the fuel. The label also may include a
disclosure of other components as minimum molecular percentages, if
desired.69 This rating approach will provide consumers with
information necessary to make informed fuel purchasing decisions. It
also will provide fuel producers and marketers with the flexibility to
develop and blend fuels appropriate for location and climate,
consistent with United States Environmental Protection Agency and
original equipment manufacturer requirements. The Commission's action,
therefore, will assist in the development and use of non-liquid
alternative fuels and alternative fueled vehicles.
\69\See final rule Secs. 309.1(q)(1) and 309.15 infra.
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c. Comments on SNPR concerning electricity. The Commission proposed
in the SNPR that the electric recharging station label disclose the
voltage at which electrical power is supplied by the electric charging
equipment, the maximum current in amperes that can be delivered,
whether the charging equipment supplies alternating or direct current,
whether the unit is a conductive charger (a plug on a cord) or an
inductive charger (a paddle in a port system), and the kilowatt
capacity of the charging equipment to tell consumers how quickly their
vehicles can recharge. Three comments specifically related to these
proposals. One comment questioned the need for a kilowatt capacity
disclosure since consumers could derive it from the proposed voltage/
amperage disclosure for electricity dispensers. The comment also
recommended that when two charging methods are available from the same
electricity dispenser (e.g., 240 vac/40 amps and 120 vac/15 amps) the
Commission should require that both methods be disclosed.70
\70\Toyota, I-11, 2.
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An explicit kilowatt capacity disclosure is an important dispenser
parameter that is useful in assisting consumers to determine
immediately how quickly their vehicles' batteries will recharge.
Although the Commission acknowledges that kilowatt capacity can be
calculated from the voltage/amperage disclosure, the kilowatt capacity
disclosure obviates the need for engaging in mathematical calculations
at the dispenser. The Commission has decided to address the issue of
the availability of multiple charging methods from the same dispenser
by requiring in the final rule that they both be disclosed, as
recommended by the comment, but on separate labels on the
dispenser.71
\71\See proposed rule Sec. 309.15, 59 FR 59666, 59706, and final
rule Sec. 309.15 infra.
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Another comment recommended that the Commission's amperage
disclosure on the label be expressed as an ``A'' instead of by the word
``amps,'' as proposed.72 The Commission has concluded, however,
that use of the word ``amps'' on the label, because it is more
descriptive than an ``A,'' may make consumers more familiar with the
electricity refueling infrastructure and, therefore, be more useful in
assisting consumers to locate the correct electricity dispenser.
Finally, one comment suggested that the efficiency of electric vehicle
chargers is a parameter that perhaps should eventually appear on
charger labels once standardized test procedures are developed to
determine efficiency.73 The Commission notes that electric vehicle
chargers are not 100 percent efficient. Some energy is lost to heat in
the process of converting the energy that is supplied to the charger to
a form that is usable by the vehicle battery. The Commission will
monitor the development of standardized test procedures to determine
electric vehicle charger efficiency, and consider including this factor
when more information becomes available.
\72\Sokol, I-17, 1.
\73\CARB, J-3, 1.
Accordingly, after considering the comments on its SNPR proposal,
the Commission has determined that labels on public electric vehicle
fuel dispensing systems shall include the commonly used name of the
fuel (e.g., electricity), kilowatt capacity, voltage, current (either
AC or DC), amperage and type of charger (either conductive or
inductive).74 Such disclosures will assist consumers in locating
electric fuel dispensers that are compatible with their vehicles, and
in determining how much time it will take for their vehicles' batteries
to recharge.
\74\See final rule Secs. 309.1(q)(2) and 309.15 infra.
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d. Summary. In summary, the requirements for CNG, hydrogen and
electricity will provide consumers with the most important pieces of
information needed when refueling: fuel type and composition (or, for
electricity, other relevant parameters). Although in the absence of
such requirements sellers could be expected to identify the fuels sold,
they may not do so in a standardized format that assists consumers in
identifying the proper fuel quickly. Furthermore, it is uncertain
absent these requirements whether sellers would provide information
regarding the precise composition of the fuels, or relevant parameters
of the EV fuel dispenser.
3. Label Disclosures Considered but not Adopted in Final Rule
In addition, the Commission concludes that other information on the
fuel dispenser concerning alternative fuels is unlikely to be useful in
most instances. For consumers with dedicated AFVs (i.e., vehicles
capable of operating on only one fuel), the selection process between
competing fuels is concluded once an AFV is acquired. Consumers driving
dual or flexible fueled vehicles (i.e., vehicles capable of being
powered both by a conventional and an alternative fuel) will be limited
to purchasing fuels meeting their engines' requirements. Thus,
providing consumers with other information designed to permit
comparisons among various types of alternative fuels is best done prior
to the time the vehicle is acquired.
Further, excluding less important information avoids information
overload. In contrast to vehicle purchases, fuel purchases typically
occur in a quick transaction. In a report to Congress assessing the
need for a uniform national label on fuel pumps, the Commission noted
that time constraints may affect how consumers read, understand, and
use information.75 Indeed, ``studies show that less accurate
information processing occurs under time constraints; test subjects
focus on fewer pieces of information and unduly emphasize negative
information.''76 Simplicity therefore is an even greater
[[Page 26931]] consideration in the labeling of fuels than in the
labeling of AFVs.
\75\Federal Trade Commission, Study of a Uniform National Label
for Devices That Dispense Automotive Fuels to Consumers (1993), at
29.
\76\Id., at 29 n.152.
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In formulating its labeling requirements, the Commission sought to
reconcile several competing concerns. As noted previously, EPA 92
directs the Commission to develop uniform labels disclosing appropriate
cost and benefit information. However, in determining what information
is appropriate, the Commission must consider the problems associated
with developing and publishing such information on simple labels. Given
this context, and after considering the comments, the Commission
considered and rejected in the SNPR several alternative disclosures for
dispenser labels suggested by various comments. The SNPR generated
additional comments, however, as discussed below. An analysis of these
comments has not persuaded the Commission to require any of the
previously rejected disclosures.
a. Octane rating. In the SNPR, the Commission rejected a proposal
that it require the posting of octane ratings for non-liquid
alternative fuels. Three comments were submitted in response to that
tentative determination in the SNPR. To prevent commercial, heavy-duty
vehicle and fleet operators from misfueling and experiencing related
problems, EMA recommended that the Commission require the posting of
octane ratings for all non-liquid alternative fuels.77 Due to the
variability in the fuel quality of natural gas, Commercial Electronics
recommended that the Commission require disclosure of CNG's octane
rating.78 API, however, stated that the non-liquid alternative
fuel dispenser labels should not include octane ratings.79
\77\EMA, I-6, 2-4.
\78\Comm Elec, I-8, 2-7.
\79\API, I-15, 1.
After considering the comments submitted, the Commission has
determined not to require the posting of octane ratings for CNG and
hydrogen. To the extent that commercial fleet operators have their own
fueling facilities, they can specify a required octane rating and
insist in contracts with their suppliers that they determine such
rating by an agreed method for the fuel purchased. Commercial operators
might also obtain such information if, for example, it were posted
voluntarily on fuel dispensers. Generally, however, as explained in the
SNPR, the Commission concludes that octane ratings for alternative
fuels are high enough to avoid engine knock problems in vehicles
presently designed to use alternative fuels, and such ratings do not
provide significant information relevant to vehicle performance of
alternative fueled vehicles.80 In addition, the octane ratings of
a given type of alternative fuel would not vary significantly.81
Further, there might be practical problems in implementing a reliable
octane certification and posting program for alternative liquid
automotive fuels, because of the lack of a standardized test method,
such as an ASTM-approved test method for determining octane ratings of
such fuels.82
\80\59 FR 59666, 59673. See AGA/NGVC, I-18, Attachment at 8 (The
antiknock performance of natural gas is best for pure methane or
methane/inert gas mixtures, and declines somewhat with increasing
concentrations of non-methane hydrocarbons. This effect is not
usually significant for the typical range of pipeline gas
composition, but may become important [in the future] in high-
compression engines burning unprocessed gas or propane-air
mixtures).
\81\AGA/NGVC, G-6, 5-6 (octane levels for natural gas are not
likely to vary at different retailers); and Phillips 66/NPGA (Tr.),
49-50.
\82\AGA/NGVC, I-18, Attachment at 8 (no standard octane testing
methods exist for natural gas); Phillips 66/NPGA (Tr.), 49-50 (there
are no standards for determining the octane ratings of CNG or
hydrogen).
---------------------------------------------------------------------------
There also are significant disadvantages to requiring octane
posting and certification for alternative fuels. In particular, the
Commission is reluctant to require a disclosure that might mislead
consumers about the benefits of alternative fuels, the octane ratings
of which exceed those of gasoline. Further, it might foster consumer
misperceptions that higher octane necessarily signifies higher quality
and better performance. Such a disclosure also might cause consumers to
believe that gasoline and alternative fuels are interchangeable, or
that different alternative fuels are interchangeable with one another.
b. Comparative information based upon BTUs or gasoline-gallon-
equivalents. In the SNPR, the Commission considered but rejected
proposals that the Commission require the use of alternative fuel
labels that either: (1) advise consumers of the price of an alternative
fuel and the quantity of the alternative fuel dispensed in terms of
gasoline-gallon-equivalent (``GGE'') units based on the energy contents
of the alternative fuels, or (2) identify the heating value or energy
content of a fuel expressed in British thermal units (``BTUs''). In
response to the SNPR, the two comments addressing this issue supported
the Commission's position, recommending that the Commission not adopt a
labeling approach that would require disclosure of comparative
information based upon BTUs or gasoline-gallon-equivalents.83
Accordingly, for the reasons stated in the SNPR, the Commission is not
requiring such disclosures on fuel dispenser labels.84
\83\API, I-15, 1; Mobil, I-2, 2 (In summary, comparative type
cost data are not conducive to fuel labeling. Labels that provide
consumer information already exist today in the form of pricing
information that enables consumers to make choices and comparisons
as required by section 406 of EPA 92. The National Conference on
Weights and Measures is currently in the process of setting the
measurement standard for alternative fuels. A uniform unit of
measure, such as the gasoline equivalent gallon, will provide
consumers additional economic information helpful in making informed
purchasing decisions).
\84\59 FR 59666, 59673-59674 (e.g., GGE disclosures are not
conducive to keeping the fuel label simple, as required by EPA 92;
this information is more an equipment metering issue that is more
properly addressed by weights and measures organizations; the energy
content of a fuel, as measured by its BTU rating, does not always
accurately reflect actual fuel economy).
---------------------------------------------------------------------------
c. Performance effects (cruising range). In the SNPR, the
Commission considered and rejected a proposal that the Commission
require fuel dispenser labels to advise consumers that the cruising
range of a vehicle when running on an alternative fuel will be less
than when the vehicle is running on gasoline, due to the alternative
fuel's lower energy content. In response to the SNPR, the one comment
addressing this issue supported the Commission's position, opposing a
requirement that dispenser labels include performance effects of the
non-liquid alternative fuel.85 Accordingly, for the reasons stated
in the SNPR, the Commission is not requiring disclosure of performance
effects as an element of fuel dispenser labels.86
\85\API, I-15, 1.
\86\59 FR 59666, 59674 (e.g., cruising range is not necessarily
less when operating on an alternative fuel; a general statement on a
fuel dispenser label relating to cruising range would not provide
sufficient comparative information to consumers to enable them to
make reasonable purchasing choices and comparisons between fuels of
the same type).
However, the Commission recognizes that information relating to
cruising range would be useful to consumers when choosing a vehicle or
deciding whether to convert an existing vehicle to an alternative fuel.
Therefore, the Commission has determined that information relating to
cruising range would be appropriate on labels it is requiring for
covered AFVs, as discussed in section III(C) infra.
d. Compliance with material specifications. In the SNPR, the
Commission rejected a proposal that it require that dispenser labels
indicate whether the fuel meets the alternative fuel specifications
defined by the California Air Resources Board in
[[Page 26932]] 1993.87 In rejecting the proposal, the Commission
stated, in part, that California's specifications were not developed by
a consensus process, were developed for California's particular needs
and, therefore, may not be practical for the rest of the
country.88 In the SNPR, the Commission also rejected a proposal
that CNG dispenser labels indicate whether the fuel meets the Society
of Automotive Engineers' (``SAE'') ``recommended practice'' for CNG
called J1616. In rejecting that proposal, the Commission stated that
recommended practice SAE J1616 was issued as a guide to address the
composition of natural gas used as an automotive fuel, not as a
standard for CNG. The guide states it anticipates that a CNG standard
will evolve, but emphasizes that experience and more technical
knowledge are needed.89
\87\See Specifications for Compressed Natural Gas, Title 13,
California Code of Regulations, section 2292.5 (1993), B-41;
Specifications for Hydrogen, Title 13, California Code of
Regulations, section 2292.7 (1993), B-42.
\88\59 FR 59666, 59674.
\89\Society of Automotive Engineers, ``Recommended Practice for
Compressed Natural Gas Vehicle Fuel,'' SAE J1616, B-40, 16.
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Three comments responded to those determinations in the SNPR. These
comments stated that inasmuch as consistent fuel quality is required to
ensure proper vehicle operation, including emissions control, the
Commission should require that dispenser labels indicate compliance or
non-compliance with fuel quality specifications and refueling equipment
standards, with specific references to each, when they are developed
for CNG and hydrogen.90 A disclosure based on accepted and
approved fuel specifications and standards could provide meaningful
comparative information to consumers relating to the quality of the
fuel they are purchasing. However, the aforementioned comments appear
to confirm that adequate, generally accepted standards and
specifications suitable for nationwide use do not presently exist for
most alternative fuels, and specifically do not exist for CNG or
hydrogen. Therefore, the Commission has determined not to require that
fuel dispenser labels guarantee the delivery of fuels meeting certain
specifications.
\90\AAMA, I-16, 7-8; EMA, I-6, 2-4; NGVPA, I-19, 1.
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The Commission, however, continues to favor the development of
specifications and standards that define alternative fuels by a
consensus standards-setting organization, such as ASTM, or by a
government agency with appropriate engineering and technical expertise
to set such specifications and standards for nationwide use. This type
of standards development would include participation by affected
parties such as alternative fuel producers and providers, engine
manufacturers, regulators, consumers, and organizations or government
agencies with pertinent technical expertise. It also would provide a
mechanism for evaluating proposed test methods and procedures necessary
to determine compliance with the standards. The Commission will monitor
the development of alternative fuel standards and consider including
them as an element of the dispenser labels when more information
becomes available.
e. Environmental benefits (emissions). In the SNPR, the Commission
considered and rejected a proposal that the Commission require fuel
dispenser labels to generally advise consumers of the environmental
benefits of alternative fuels.91 In response to the SNPR, the one
comment addressing this issue supported the Commission's
position.92 Accordingly, for the reasons stated in the SNPR, the
Commission is not requiring that fuel dispenser labels indicate the
environmental benefits of alternative fuels.93
\91\AMI, G-3, 2; Phillips 66/NPGA (Tr.), 51.
\92\API, I-15, 1.
\93\59 FR 59666, 59675 (e.g., a statement on a fuel dispenser
label advising consumers of the environmental benefits of
alternative fuels would not provide sufficient information to assist
consumers in making choices and comparisons between fuels of the
same type).
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However, the Commission recognizes that information relating to
emissions and the environmental benefits of alternative fuels would be
useful to consumers when choosing an alternatively fueled vehicle or
deciding whether to convert an existing vehicle to an alternative fuel.
Therefore, the Commission has determined that information relating to
emissions would be appropriate on the labels it is requiring for
covered AFVs, as discussed in section III(C) infra.
f. Pressure. In the SNPR, the Commission considered and rejected a
proposal that the Commission require CNG dispenser labels to display
the fueling pressure, either 2,400, 3,000 or 3,600 P.S.I. (pounds per
square inch), and the nozzle type to indicate whether dispenser fueling
pressure is compatible with CNG vehicle tank storage pressure.94
The two comments on the Commission's SNPR proposal addressing this
issue recommended that the Commission require that CNG dispenser labels
indicate the nozzle type and corresponding fill pressure of the CNG
dispenser, to avoid consumer inconvenience at the CNG fueling
site.95
\94\59 FR 59666, 59675. See Flxible (Supp.), G-12, 2; Thomas BB,
G-10, 1; Phillips 66/NPGA (Tr.), 51; AGA/NGVC (Tr.), 103-104.
\95\AAMA, I-16, 8; NGVPA, I-19, 1.
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The Commission agrees that fueling pressure is useful information.
The industry, however, already has taken independent steps to address
this issue. Specifically, the industry has developed standards for
pressure coding dispenser/vehicle CNG connectors so that consumers will
not be able to overfuel a low pressure vehicle from a high pressure
dispenser.96 Further, the use of standard CNG vehicle fueling
connectors complying with the ANSI/AGA NGV1 specification is required
at public dispensing points by National Fire Protection Association
safety standard 52 (``NFPA 52''), which is a fire code adopted by most,
if not all, states.97 Accordingly, the Commission has determined
that requiring the disclosure of fueling pressure and nozzle type on
CNG dispenser labels is unnecessary at this time.
\96\See ANSI/AGA NGV1-1994 American National Standard For
Compressed Natural Gas Vehicle (NGV) Fueling Connection Devices,
attached to AGA/NGVC's comment, G-6.
\97\ANSI/NFPA 52 Compressed Natural Gas (CNG) Vehicular Fuel
Systems, 1992, B-39. See also Stookey, An Analysis of the 1994
Uniform Fire Code Requirements for CNG Fuel Stations, Nat. Gas
Fuels, June 1994, B-48, 27-30.
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g. Safety warnings. In the SNPR, the Commission considered but
rejected proposing safety warnings as an element of the alternative
fuel labels.98 The one comment on the Commission's SNPR proposal
addressing this issue recommended that the Commission require that non-
liquid alternative fuel dispenser labels include information about the
fuel's potential hazards and limitations on use.99
\98\59 FR 59666, 59675.
\99\EMA, I-6, 3.
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The Commission notes that safety standards for operation of motor
vehicle fuel-dispensing stations are covered by the Uniform Fire
Code.100 Further, to [[Page 26933]] some extent, the fuel labeling
requirements, particularly those for electric vehicle (``EV'') public
dispenser systems, implicitly consider safety issues for refueling by
directing consumers to the proper fuel dispenser. Beyond this (and fire
code requirements that are already in place), consumers may find safety
information about various fuels more pertinent when purchasing an AFV
than when refueling. Thus, the Commission is not persuaded that
including a safety warning statement on a fuel dispenser label would
help consumers make reasonable fuel choices and comparisons. The
Commission has determined that rather than require that safety
disclosures appear on fuel dispenser labels, it will require a
reference to DOE's consumer information brochure and DOT/NHTSA's
Vehicle Safety Hotline on labels for covered AFVs, as discussed in
section III(C) infra. The DOT/NHTSA Hotline acts as a clearinghouse and
can refer consumers to other sources where, for example, information
can be obtained about how to safely refuel CNG vehicles. Further, the
Commission anticipates that a marketer's refueling instructions,
whether appearing in an AFV owner's manual or on the fuel dispenser,
will discuss or incorporate relevant safety measures. However, if in
the future information demonstrates a need for the Commission to
require safety-related disclosures on the dispenser labels, the
Commission can revisit this issue.
\100\For example, in July 1993, the voting membership of the
Uniform Fire Code (``UFC'') and Uniform Fire Code Standards adopted
new regulations for the design, construction and operation of CNG
motor vehicle fuel-dispensing stations. The UFC voting membership is
a democratic code development organization that includes fire and
building officials, design professionals, equipment manufacturers
and trade organizations. The UFC's minimum requirements are
primarily based on the requirements of NFPA 52, ``Standard for CNG
Vehicular Fueling Systems,'' 1992 edition. The Uniform Fire Code
Standards are a model code that establishes requirements for
building and site fire protection, the safe storage and use of
hazardous materials, and the fire safety and fire protection designs
of the Uniform Building Code. Article 52 of the 1994 UFC addresses
the design, construction, commissioning and operation of all motor
vehicle fuel-dispensing stations. See Stookey, An Analysis of the
1994 Uniform Fire Code Requirements for CNG Fuel Stations, Nat. Gas
Fuels, June 1994, B-48, 27.
h. Refueling instructions. In the SNPR, the Commission considered
but rejected proposing refueling instructions as an element of the fuel
dispenser labels. No comments were submitted regarding this tentative
determination. Therefore, for the reasons stated in the SNPR, the
Commission has determined not to require such disclosures.101
\101\59 FR 59666, 59675 (e.g., this information can be expected
to be provided voluntarily).
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i. Wobbe number. In the SNPR, the Commission considered but
rejected proposing the Wobbe number as an element of the CNG dispenser
label. The one comment addressing this issue recommended that the
Commission require that CNG fuel dispenser labels include the fuel's
Wobbe number, a measure of its air-fuel metering properties.102
Although AGA/NGVC recommended that the Commission require disclosure of
the Wobbe number, it also pointed out that all gas pipelines and
utilities monitor and control closely the Wobbe number of natural gas.
For gas distributed in most of the United States, AGA/NGVC stated that
the Wobbe number typically is maintained between 1320 and 1360, well
within the range recommended for natural gas vehicle fuel by SAE J1616
(1300-1420).103
\102\AGA/NGVC, I-18, 8-11.
\103\Id. AGA/NGVC had previously opposed a Wobbe number
disclosure, stating it would be so difficult to explain that
consumers would not find it useful (AGA/NGVC (Tr.), 43).
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After considering AGA/NGVC's comment, the Commission is not
persuaded that the purported benefits to consumers of including the
Wobbe number on CNG labels are sufficiently significant to justify
requiring its disclosure. Depending on the fuel metering technology,
variations in the Wobbe number may slightly affect engine performance
and emissions. The effect of variations in the Wobbe number for
gaseous-fueled vehicles is similar to the effect of variations in the
fuel energy content of gasoline in conventional vehicles. Further,
modern spark-ignition engines are able to compensate for reasonable
variations in the Wobbe number, just as they compensate for variations
in gasoline energy content due to refining differences or use of
alcohol blends.104 Wobbe numbers for natural gas vehicle fuels
also appear to be high enough to avoid engine problems in vehicles
presently designed to use CNG. While the Wobbe number may be important
to engine manufacturers and fuel producers as an important element of a
fuel specification, it would not appear to provide consumers with
significant additional information relevant to vehicle performance.
Accordingly, the Commission has determined not to require disclosure of
the Wobbe number on CNG dispenser labels.
\104\AGA/NGVC, I-18, Attachment at 5.
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4. Additional Requirements of Final Rule
a. Label size and format. In the SNPR, the Commission proposed that
labels for non-liquid alternative fuels follow the same standardized
size and format requirements as those for liquid alternative fuels
under the Fuel Rating Rule.105 Labels required by the Fuel Rating
Rule are 3 inches wide by 2\1/2\ inches long, with process black type
on an orange background.106 Although section 406(a) does not
specify size and format standards for alternative fuel labels, it
directs the Commission ``to establish uniform labeling requirements, to
the greatest extent practicable.'' It also specifies that ``[r]equired
labeling under the rule shall be simple and, where appropriate,
consolidated with other labels providing information to the
consumer.''107
\105\See proposed rule Sec. 309.17, 59 FR 59666, 59706-59707.
Several comments received during this proceeding had recommended
that labels for non-liquid alternative fuels follow the same size
and format requirements as those for liquid alternative fuels under
the Fuel Rating Rule. The reasons given for keeping the requirements
the same were: to promote consistency, fairness and equity, and to
keep information simple so that consumers can easily understand the
labels (AGA/NGVC, G-6, 8; API, G-25, 4; Mobil, G-2, 4; NPGA, G-18,
4; RFA, G-5, 4; SIGMA, G-23, 1; Sun, G-1, 2; Thomas BB, G-10, 2).
\106\16 CFR 306.12 (1994).
\107\In the NPR, the Commission proposed and rejected the idea
of consolidating the non-liquid alternative fuel labels with other
mandatory labels (59 FR 24014, 24018). The one comment addressing
this issue agreed that consolidation would appear to provide no
benefit and would only lead to public confusion (TVA, H-5, 1).
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Two comments addressed this proposal. Both supported the
Commission's proposal because it promoted consistency in the labeling
of all alternative fuels.108 Accordingly, the Commission has
determined to require that labels for non-liquid alternative fuels
follow the same standardized size and format requirements as those for
liquid alternative fuels under the Fuel Rating Rule.109 Further,
to keep the labels uniform and simple, the Commission is not requiring
any label consolidation.
\108\API, I-15, 4; Mobil, I-2, 5.
\109\See 59 FR 59666, 59676. See also final rule Sec. 309.17
infra.
b. Substantiation, certification, and recordkeeping requirements.
In the SNPR, to ensure the accuracy of the required dispenser labels,
the Commission proposed substantiation, certification, and
recordkeeping requirements for importers, producers, refiners and
distributors of gaseous alternative fuels, and manufacturers and
distributors of electric vehicle fuel dispensing systems. The
Commission also proposed substantiation and recordkeeping requirements
for retail sellers of the three non-liquid alternative vehicle
fuels.110 The Commission based its SNPR proposal on its conclusion
that the requirements are justified because they are rationally related
to the establishment of ``uniform labeling requirements'' that provide
important information to consumers.111 As described below, several
comments addressed two aspects of the Commission's proposal. The
comments related to who should bear the burden for substantiating the
fuel rating for CNG, and whether a particular ASTM [[Page 26934]] test
method for determining the minimum molecular percent of CNG should be
required. Because there were no comments on the other facets of the
substantiation, certification and recordkeeping provisions proposed in
the SNPR, the Commission has determined to issue them as proposed.
These requirements are explained below.
\110\See proposed rule Secs. 309.10-309.16, 59 FR 59666, 59704-
59706.
\111\See 59 FR 59666, 59676-59679.
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In the SNPR the Commission proposed, in part, that importers,
producers and refiners of natural gas comply with the proposed rule's
CNG fuel rating determination, certification and recordkeeping
requirements, which includes determining and certifying the minimum
percentage of methane in natural gas.112 The Commission based its
proposal on its conclusion that it would be impractical, and probably
more expensive to the consumer, to require retail sellers to test each
delivery of a gaseous fuel. In making disclosures to consumers, retail
sellers of alternative fuels, therefore, could rely on the accuracy of
the information provided to them from gaseous fuel importers,
producers, refiners and distributors.
\112\See proposed rule Secs. 309.10, 309.11, 309.12, 59 FR
59666, 59704-59705.
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Three comments recommended that the Commission not impose such
requirements on importers and producers of natural gas because the
requirements would be overly burdensome, and do not reflect current
industry practice in the distribution of natural gas.113 According
to the comments, producers of natural gas currently adhere to a heating
value specification as required by their customers (i.e., local natural
gas distribution companies and/or natural gas utilities). Most
producers currently do not test for or certify the methane content of
the natural gas they sell. Furthermore, the comments state that this
information would be of little value at the retail level because
natural gas distributors (i.e., utilities) purchase natural gas from a
multitude of producers, blend it together, test it, and distribute it
for home and industry use, as well as for retail sale.114
\113\AGA/NGVC, I-18, 3-6; API, I-15, 1-5; Unocal, I-5, 2.
\114\Id.
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Two of the comments recommended that the Commission require natural
gas distributors/utilities to comply with the fuel rating
determination, certification and recordkeeping requirements that the
Commission proposed for natural gas importers and producers.115 On
the other hand, AGA/NGVC recommended that the fuel rating determination
and recordkeeping requirements be imposed only on CNG retailers since
they market the fuel to consumers. AGA/NGVC contended that if a
retailer cannot verify the fuel rating, it can insist in contracts with
its suppliers that they determine the fuel rating. Thus, companies
interested in profiting from selling natural gas to retailers will view
the testing as the cost of doing business and will decide whether to
perform the test. AGA/NGVC also stated, though, that in some cases
local utilities will be heavily involved in the marketing and selling
of natural gas transportation fuel. In those instances, AGA/NGVC
recommends that the Commission require such distributors to determine
and certify the fuel rating of the natural gas they supply.116
Unocal commented that the Commission should permit natural gas
retailers to rely on their suppliers (distributors/utilities) for fuel
rating certifications to substantiate the information displayed on the
CNG dispenser labels.117
\115\API, I-15, 4; Unocal, I-5, 2.
\116\AGA/NGVC, I-18, 4-6.
\117\Unocal, I-5, 2.
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In response, the Commission notes that information about the
methane content of natural gas would be useful to distributors who
blend natural gas and transfer it as natural gas vehicle fuel, because
they could use such information in determining and thereafter
certifying its fuel rating.118 The Commission notes further that,
in most cases, it is necessary to upgrade natural gas to pipeline
specifications in a gas processing plant before injecting it into the
transportation and distribution network. In order to assure consistent
combustion behavior, major natural gas pipelines generally impose
specifications on the composition of the gas they will accept for
transport. These specifications typically limit the percentage of
propane, butane, and higher hydrocarbons, and stipulate acceptable
ranges for the heating value, and the Wobbe number.119 For
example, water and hydrogen sulfide must be removed to prevent
corrosion damage to the pipeline network, and excess amounts of higher
hydrocarbons must be removed to prevent them from condensing under the
high pressures in the gas transmission network. Thus, although natural
gas producers may not have to adhere to a specific minimum methane
pipeline specification, the methane content of the gas likely would
fall within a fairly narrow range.
\118\See proposed rule Sec. 309.13, 59 FR 59666, 59705.
\119\AGA/NGVC, I-18, Attachment at 3-4.
After considering the comments on its SNPR proposal, the Commission
concludes that substantiation, certification, and recordkeeping
requirements for importers, producers, refiners and distributors of
gaseous alternative vehicle fuels, and manufacturers and distributors
of electric vehicle fuel dispensing systems, and substantiation and
recordkeeping requirements for retail sellers of non-liquid alternative
vehicle fuels (including electricity) are necessary to ensure that the
information posted on labels on retail fuel dispensers is accurate. The
Commission is not persuaded that retail sellers of CNG are in a
position to be held exclusively responsible for determining the
accuracy of the fuel rating to be disclosed on the CNG dispenser
labels. The Commission believes that the rule's requirements are
consistent with current industry practice of conforming natural gas to
minimum specifications for transport. But, the Commission believes that
the comments from Unocal, API and AGA/NGVC could be addressed by
further clarifying that the Commission's rule does not apply to
producers of natural gas for residential, commercial and industrial
purposes. Thus, the rule's fuel rating determination, certification and
recordkeeping requirements apply to producers of natural gas only when
transferred for use as a vehicle fuel. In this regard, the Commission
expects that natural gas producers may wish to take reasonably prudent
precautions to ensure that their customers understand the limited use
for which the gas is being transferred, if they determine that the rule
does not apply to them.
(1) Substantiation. The Commission's rule requires labeling
disclosures of the type of non-liquid alternative vehicle fuel
(including electricity), and of the minimum molecular percent (a more
accurate description than volume of the content of a gas) of the
principal component of each gaseous alternative vehicle fuel and of
specific, limited information about the output of the electric vehicle
fuel dispenser system. In accordance with the Commission's advertising
substantiation doctrine, which requires sellers to have a reasonable
basis to support material, objective claims,120 the Commission is
requiring that importers, producers, and refiners of non-liquid
alternative vehicle fuel (other than electricity) have a reasonable
basis, consisting of competent and reliable evidence, that
substantiates the minimum molecular percent of the principal component
that retailers must disclose on fuel dispenser [[Page 26935]] labels.
The rule further states that importers and producers may use private
facilities for fuel rating determinations. This would be important to
producers who do not have testing equipment of their own.121 These
requirements are consistent with the substantiation requirements of the
Fuel Rating Rule,122 which were mandated by the Petroleum
Marketing Practices Act.123
\120\See Thompson Medical Co., 104 F.T.C. 648, 839 (1984)
(Appendix), aff'd, 791 F.2d 189 (D.C. Cir. 1986), cert. denied, 479
U.S. 1086 (1987).
\121\See final rule Sec. 309.10 infra.
\122\16 CFR 306.5(b) (1994).
\123\15 U.S.C. 2822.
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For the minimum molecular percent content of hydrogen (the
principal component) in hydrogen gas, the Commission proposed requiring
that the reasonable basis be tests conducted according to ASTM D 1946-
90. For the minimum molecular percent content of methane (the principal
component) in CNG, the Commission proposed requiring that the
reasonable basis be tests conducted according to ASTM D 1945-91. Three
comments addressed the CNG testing issue. One comment supported
requiring the use of ASTM D 1945-91.124 AGA/NGVC opposed requiring
the use of a specific test method. Instead, that comment suggested that
the Commission afford sellers of CNG the flexibility to demonstrate
that they possessed a reasonable basis consisting of competent and
reliable evidence for their determination of the minimum methane
content of CNG.125 Commercial Electronics commented that other
test methods are being developed to measure CNG fuel quality.126
\124\API, I-15, 4.
\125\AGA/NGVC, I-18, 7 (affording such flexibility would avoid
unnecessary future actions by the Commission to amend its rule each
time a new test procedure is developed).
\126\Comm Elec, I-8, 7.
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After considering the record, the Commission concludes that it is
important that sellers base objective disclosures on uniform
measurements when recognized and accepted test methods are available.
The aforementioned ASTM documents include test procedures, developed
through the ASTM consensus process, to determine the chemical
composition of hydrogen and CNG, respectively, including the molecular
percent of hydrogen in hydrogen gas and methane in CNG. Because ASTM
has issued test procedures to measure the minimum molecular percent of
the principal components of hydrogen and CNG, the Commission is
requiring use of the ASTM test procedures to substantiate those
disclosures.127
\127\The Fuel Rating Rule did not require that specific ASTM
test methods be used to satisfy the Rule's reasonable basis standard
for liquid alternative fuels because existing ASTM test methods were
undergoing verification review to determine whether they would be
appropriate for use in establishing standards for the liquid
alternative fuels. Further, the Commission was informed that other
test methods were being developed that might serve equally well as
part of a liquid alternative fuel standard. On the other hand, the
Commission understands that the ASTM test methods it is requiring as
a reasonable basis for determining the minimum molecular percentages
of the principal components of CNG and hydrogen have been ASTM test
methods for many years and have been recognized as competent and
reliable procedures. Further, the Commission understands that no
other test methods that could be used to make these determinations
have been proposed to the California Air Resources Board or are
under development by any standards-setting organizations. If
additional test methods are developed in the future, the Commission
will consider whether to include them among the required test
methods.
For the minimum molecular percent content of any other component
that importers, producers, or refiners wish to certify, the rule does
not specify the test procedure that must be used, but only that they
have a reasonable basis, consisting of competent and reliable evidence,
to substantiate the claim. The Commission's approach to requiring
substantiation without specifying a particular test method for
components other than the principal component, allows sellers to rely
on existing industry test procedures if they are reasonable and yield
accurate results. For example, the California specifications list
specific ASTM procedures to be used to determine the molecular percent
of various components of CNG and hydrogen, in addition to the methane
content of CNG and the hydrogen content of hydrogen gas. Because the
Commission has not specified additional components that might be
disclosed, it has no basis on the record to specify test procedures
that must be used to measure them. The Commission, therefore, will
accept, but not require, use of the ASTM test procedures cited in the
California specifications as the required reasonable basis for
voluntary disclosure of additional components of CNG and hydrogen that
are included in those specifications.128
\128\See further references to California's specifications in
section III(B)(3)(d) supra.
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The rule also does not require that importers, producers, or
refiners meet particular material specifications or standards for the
common name they use to describe the non-liquid alternative vehicle
fuel (other than electricity) they distribute, but that they have a
reasonable basis, consisting of competent and reliable evidence, to
substantiate the fuel rating they determine and certify to others.
Although the Commission has decided not to require that non-liquid
alternative vehicle fuels conform to any specific material
specification, the Commission's requirement that marketers disclose the
principal component of each fuel should encourage the industry to
develop uniform material specifications or standards for these fuels in
consensus organizations to ensure the uniform quality of the fuels in
the marketplace. The development of material specifications or
standards for non-liquid (gaseous) alternative vehicle fuels should
help facilitate acceptance of these fuels.
Similarly, manufacturers of electric vehicle fuel dispenser systems
are required to have a reasonable basis, consisting of competent and
reliable evidence, to substantiate the information retail sellers must
post on labels on the electric vehicle fuel dispensers. For public
electric vehicle fuel dispensing systems, the information the
Commission requires to be disclosed can be determined using standard
measuring devices or procedures. Therefore, accurate measurements made
using standard electric industry procedures that are recognized as
competent and reliable are sufficient to serve as the required
reasonable basis.
Distributors and retail sellers may be able to rely on the fuel
rating certifications they receive, as discussed infra, so their
substantiation burden will be minimal. Distributors and retailers need
not make the actual determinations unless they alter the fuel before
selling it.129
\129\See final rule Secs. 309.13(c), 309.15(c) infra.
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(2) Certification. The Commission is requiring that importers,
producers, refiners, and distributors of non-liquid alternative fuels
(other than electricity), and that manufacturers and distributors of
electric vehicle fuel dispensing systems certify to others to whom they
distribute the information that retailers must post on fuel
dispensers.130 Importers, producers, and refiners of non-liquid
alternative fuels (other than electricity) are required to certify to
distributors their determination of the minimum molecular percent of
the fuel's major component, and of any additional component they wish
to disclose. Manufacturers of electric vehicle fuel dispensing systems
are required to certify to distributors and/or retailers the
information retailers are required to disclose on labels on fuel
dispensers. Distributors of non-liquid alternative fuels (other than
electricity) and of electric vehicle fuel dispensing
[[Page 26936]] systems are required to certify to retailers consistent
with the certification they received.131
\130\See final rule Secs. 309.11, 309.13 infra.
\131\See final rule Sec. 309.13 infra. If distributors blend
fuels, Sec. 309.13(c) of the rule requires them to substantiate the
minimum percentage of the principal component according to the
requirements of Sec. 309.10, and certify that information to their
non-consumer customers.
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Importers, producers, and refiners of non-liquid alternative
vehicle fuel (other than electricity) may make the certification in
either of two ways:
(a) By including with each transfer a delivery ticket or other
paper (such as an invoice, bill of lading, bill of sale, terminal
ticket, delivery ticket or any other written proof of transfer). The
delivery ticket or other paper must contain at least the importer's,
producer's, or refiner's name, the name of the person to whom the non-
liquid alternative fuel is transferred, the date of the transfer, the
common name of the fuel and the minimum molecular percent of the fuel's
major component, and of any additional component the importer, producer
or refiner wishes to disclose.
(b) By giving the person to whom the fuel is transferred a letter
or written statement, including the date, the importer's, producer's or
refiner's name, the name of the person to whom the fuel is transferred,
the common name of the fuel, and the minimum molecular percent of the
fuel's major component, and of any additional component the importer,
producer or refiner wishes to disclose. The letter or written statement
is effective until the importer, producer, or refiner transfers non-
liquid alternative vehicle fuel with a lower percentage of the major
component, or of any other component claimed. At that time, the
importer, producer, or refiner will have to certify the new information
about the fuel with a new notice.132
\132\See final rule Sec. 309.11 infra.
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Distributors of non-liquid alternative vehicle fuel (other than
electricity) are required to make the certification in each transfer to
anyone who is not a consumer. Distributors may make the required
certification in either of two ways:
(a) By using a delivery ticket or other paper with each transfer,
as outlined for importers, producers and refiners in item (a), above.
(b) By using a letter of certification, as outlined for importers,
producers, and refiners in item (b), above.133
\133\See final rule Sec. 309.13 infra.
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Manufacturers of electric vehicle fuel dispensing systems are
required to make the certification in each transfer of such systems to
anyone who is not a consumer. Manufacturers may do so in either of two
ways:
(a) By including a delivery ticket or other paper with each
transfer of an EV fuel dispensing system. It may be an invoice, bill of
lading, bill of sale, delivery ticket, or any other written proof of
transfer. It is required to contain at least the manufacturer's name,
the name of the person to whom the EV fuel dispensing system is
transferred, the date of the transfer, the model number or other
identifier of the EV fuel dispensing system, and the information
required to be disclosed on the retail fuel dispenser label.
(b) By placing clearly and conspicuously on the EV fuel dispensing
system a permanent legible marking or permanently attached label that
discloses the manufacturer's name, the model number or other identifier
of the EV fuel dispensing system, and the information required to be
disclosed on the retail fuel dispenser label. Such marking or label is
required to be located where it can be seen after installation of the
EV fuel dispensing system. The marking or label is deemed ``legible,''
in terms of placement, if it is located in close proximity to the
manufacturer's identification marking. This marking or label is
required to be in addition to, and not as a substitute for, the label
required to be posted on the public EV fuel dispenser at the point of
retail sale.134
\134\See final rule Sec. 309.11 infra.
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Distributors of electric vehicle fuel dispensing systems are
required to make the certification in each transfer to anyone who is
not a consumer. Distributors may do so in either of two ways:
(a) By using a delivery ticket or other paper with each transfer,
as outlined for manufacturers of electric vehicle fuel dispensing
systems in item (a) above.
(b) By using the permanent marking or label permanently attached to
the system by the manufacturer, as outlined for manufacturers of
electric vehicle fuel dispensing systems in item (b) above.135
\135\See final rule Sec. 309.13 infra.
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These requirements are consistent with the certification
requirements for sellers of liquid alternative fuels under the Fuel
Rating Rule.136
\136\16 CFR 306.6, 306.8 (1994).
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(3) Recordkeeping. The Commission is requiring that importers,
producers, and refiners of non-liquid alternative fuels (other than
electricity) maintain records of the tests performed by or for them, or
other data, that they rely upon as their required reasonable basis for
their certifications.137 The Commission likewise is requiring that
manufacturers of electric vehicle fuel dispensing systems maintain
records of the tests or measurements performed by or for them, or of
other data or records, that they rely upon as their required reasonable
basis for their certifications.138 The Commission also requires
that distributors and retailers of non-liquid alternative fuels (other
than electricity) maintain records consisting of the certifications
they receive from importers, producers, refiners, or distributors of
non-liquid alternative fuels (other than electricity), and that
distributors of electric vehicle fuel dispensing systems and retailers
of electricity maintain records consisting of the certifications they
receive from manufacturers or distributors of the systems.139 The
rule requires that these records be kept for one year. These
requirements are consistent with those for sellers of liquid
alternative fuels under the Fuel Rating Rule.140
\137\See final rule Sec. 309.12 infra.
\138\Id.
\139\See final rule Secs. 309.14, 309.16 infra.
\140\16 CFR 306.7, 306.9, 306.11 (1994).
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c. Effective date. Section 406(a) of EPA 92 requires the Commission
to issue its final labeling rules within one year of the NPR's
publication, but does not specify when the rules shall become
effective. In the SNPR, the Commission proposed making the non-liquid
alternative fuels labeling requirements effective 90 days after
publication of a final rule in the Federal Register.141 In
developing its SNPR proposal, the Commission considered how best to
balance consumers' needs for comparative information with industry's
need for a reasonable period of time to come into compliance.142
The one comment on this issue supported the proposed effective
date.143 The Commission, therefore, has determined to make the
non-liquid alternative fuels labeling requirements effective 90 days
after publication of a final rule in the Federal Register.144
\141\The effective date of the final amendments adding liquid
alternative fuels to the Fuel Rating Rule was less than 90 days
after publication of the final rules in the Federal Register. The
final rules were published on August 3, 1993. They became effective
on October 25, 1993, as required by EPA 92. 58 FR 41356.
\142\The Commission based the SNPR proposal on an analysis of
several comments stating that the proposed 90-day time period gave
sufficient time for covered parties to comply with the proposed
requirements. One comment contended, however, that at least six
months was necessary. 59 FR 59666, 59679.
\143\Mobil, I-2, 6.
\144\See 59 FR 59666, 59679. In contrast, the effective date for
the AFV labeling requirements is 180 days after publication in the
Federal Register. See discussion in section III(C)(5) infra.
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d. Periodic updating of labels. In the SNPR, the Commission
proposed no [[Page 26937]] specific timetable for future reviews of the
final labeling rules, although it recognized that section 406(a) of EPA
92 requires the Commission to update its labeling requirements
``periodically.'' The Commission determined not to specify a timetable
after analyzing comments encouraging it to review the rule as consensus
specifications are developed for alternative fuels, as new alternative
fuels enter the marketplace and as technology develops.145 The
Commission received no comments addressing this aspect of its SNPR
proposal.
\145\See discussion of comments of API, CEC, and TVA in the
SNPR, 59 FR 59666, 59679.
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Based on other comments in this proceeding, and recognizing that it
cannot predict when new relevant developments may occur, the Commission
has determined not to establish a specific timetable for future reviews
of the final rule. As required by section 406(a) of EPA 92, the
Commission intends to conduct reviews to update the rule periodically,
as needed, to take into consideration relevant developments, such as
when DOE designates new non-liquid alternative fuels. The rule,
however, will be reviewed at least once every ten years pursuant to the
Commission's ongoing regulatory review project.
C. Labeling Requirements for AFVs
Twenty-one of the 24 comments received in response to the SNPR
addressed some aspect of the Commission's proposed labeling
requirements for AFVs. These comments addressed either the scope of the
proposed labeling requirements (i.e., which vehicles would be covered
by the labeling requirements) or the proposed rule's disclosures (i.e.,
what information would be required to be displayed on labels and how
that information would be displayed).146 Those comments, and the
Commission's modifications to the proposed rule in response to those
comments, are discussed below.
\146\Two of the three other comments were limited to encouraging
metric disclosures on AFV labels. See Mechtly, I-1, Sokol, I-17,
discussed infra section VI. The third comment was limited to the
SNPR's proposal as it related to alternative fuels. Unocal, I-5.
1. Scope of the AFV Labeling Requirement
In its SNPR, the Commission proposed that the scope of its AFV
labeling requirements be based upon, or derived from, existing
pertinent federal regulations. Eleven comments addressed this aspect of
the AFV labeling requirements. Six other comments indicated general
support for the Commission's labeling proposal, but did not address
this specific issue.147 The remaining five addressed one or more
issues pertaining to the scope of the AFV labeling requirements, as
discussed below.
\147\AGA/NGVC, I-18, 2, 3; Boston Edison/EEI, I-14, 4; Comm
Elec, I-8, 8; EIA/EEU-ISD, J-4, 1; NAFA, I-10, 1, 2; RFA, I-3, 1-2.
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a. Covered AFVs. In the SNPR, the Commission considered whether its
labeling requirements should apply to all AFVs, as that term is defined
in EPA 92, or whether they should apply to only certain vehicles. As
defined by that statute, an AFV is either ``a dedicated vehicle or a
dual fueled vehicle.''148 As further defined, a ``dedicated
vehicle'' means an automobile (or other self-propelled vehicle),
designed for transporting persons or property on a street or highway,
that operates solely on alternative fuel.149 Similarly, a ``dual
fueled vehicle'' is an automobile (or other self-propelled vehicle),
designed for transporting persons or property on a street or highway,
that is capable of operating on alternative fuel and on gasoline or
diesel fuel.150 As such, the statutory scope of an ``AFV'' is
quite wide and includes tour buses, transit buses, heavy-duty
commercial trucks, and large motor homes.
\148\42 U.S.C. 13211(3) (Supp. IV 1993).
\149\See 42 U.S.C. 13211(6) (Supp. IV 1993) (a ``dedicated
vehicle'' is either a ``dedicated automobile,'' as defined in 15
U.S.C. 2013(h)(1)(C) (Supp. IV 1993), or a ``motor vehicle,'' as
defined in 42 U.S.C. 7550(2), other than an automobile, that
operates solely on alternative fuel).
\150\See 42 U.S.C. 13211(8) (Supp. IV 1993) (a ``dual fueled
vehicle'' is either a ``dual fueled automobile,'' as defined in 15
U.S.C. 2013(h)(1)(D) (Supp. IV 1993), or a ``motor vehicle,'' as
defined in 42 U.S.C. 7550(2), other than an automobile, that is
capable of operating on alternative fuel and on gasoline or diesel
fuel).
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After considering the practicality and appropriateness of including
all AFVs within the scope of its labeling requirements, the Commission
proposed in the SNPR to exclude AFVs with gross vehicle weight ratings
(``GVWR''151) over 8,500 lbs. The SNPR included a definition of
``covered vehicles'' (i.e., in substance, AFVs under 8,500 lbs. GVWR),
in the proposed rule.152 The Commission derived that definition
from EPA 92's definition of the term ``light duty motor vehicles,'' a
term given special significance by that statute.153 EPA 92's
definition of that term references two vehicle classifications used by
the Clean Air Act (light duty trucks or light duty vehicles) ``of less
than or equal to 8,500 pounds [GVWR].''154 The Clean Air
Act155 in turn refers to existing EPA definitions of both vehicle
classifications.156 Thus, the proposed definition of ``covered
vehicle'' basically encompassed the same category of vehicle referenced
in EPA 92's fleet acquisition requirements.
\151\EPA defines GVWR as a vehicle's actual weight (including
all standard and optional equipment and fuel) plus 300 pounds. See
40 CFR 86.082-2 (1993) (defining ``GVWR,'' ``loaded vehicle
weight,'' and ``vehicle curb weight'').
\152\See proposed rule Sec. 309.1(f) (defining ``covered
vehicle''), 59 FR 59666, 59703. The term ``covered vehicle'' was
derived from the Energy Policy and Conservation Act's (``EPCA'') use
of the term ``covered product.'' See 42 U.S.C. 6291(a)(2), 6292(a)
(statute's scope defined in terms of enumerated consumer products);
16 CFR 305.2, 305.3 (1994) (same for Commission's Appliance Labeling
Rule implementing EPCA).
\153\Three of EPA 92's five ``major'' alternative-fuel
provisions impose minimum vehicle-acquisition requirements on
designated entities (i.e., the Federal government; alternative fuel
providers; and other non-Federal fleets). H. Rep. No. 102-474(I),
102d Cong., 2d Sess. 137, reprinted in 1992 U.S.C.C.A.N. 1954, 1960.
For alternative fuel providers and other non-Federal fleets, the
vehicles covered by those mandates are ``light duty motor
vehicles.'' See 42 U.S.C. 13251 (Supp. IV 1993) (mandatory
acquisition requirement for alternative fuel providers); 42 U.S.C.
13257 (Supp. IV 1993) (contingent acquisition requirement for other
non-Federal fleet operators).
The Federal fleet is required to acquire ``light duty [AFVs],''
a term not defined in EPA 92, instead of ``light duty motor
vehicles.'' See 42 U.S.C. 13212 (Supp. IV 1993) (mandatory
acquisition requirement for Federal government). Neither the statute
nor its legislative history suggests that those terms have different
meanings and the discrepancy may have been inadvertent. In any
event, it appears that the intent was to tailor the Federal fleet's
acquisition requirement to certain AFVs.
\154\42 U.S.C. 13211(11) (Supp. IV 1993) (``The term `light duty
motor vehicle' means a light duty truck or light duty vehicle, as
such terms are defined under section 216(7) of the Clean Air Act (42
U.S.C. 7550(7)), of less than or equal to 8,500 pounds [GVWR].'').
\155\42 U.S.C. 7550(7) (the terms ``light duty truck'' and
``light duty vehicle'' ``have the meaning provided in regulations
promulgated by the [EPA] Administrator and in effect as of the
enactment of the Clean Air Act Amendments of 1990'').
\156\A light duty truck is defined as ``[a]ny motor vehicle
rated at 8,500 pounds GVWR or less which as (sic) a vehicle curb
weight of 6,000 pounds or less and which has a basic vehicle frontal
area of 45 square feet or less, which is (1) Designed primarily for
purposes of transportation of property or is a derivation of such a
vehicle, or (2) Designed primarily for transportation of persons and
has a capacity of more than 12 persons, or (3) Available with
special features enabling off-street or off-highway operation and
use.'' 40 CFR 86.082-2 (1993). A light duty vehicle is defined as
``a passenger car or passenger car derivative capable of seating 12
passengers or less.'' Id.
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Three comments specifically addressed this issue. AAMA157 and
EMA supported excluding AFVs over 8,500 lbs. GVWR from the scope of the
AFV labeling requirements.158 However, these comments also
suggested that one element of the SNPR's definition of ``covered
vehicle'' be modified to exclude vehicles configured ``with special
features enabling off-street or [[Page 26938]] off-highway operation
and use.''159 It appears that this suggestion may have been based
upon their belief that consumers considering such vehicles would not
likely make choices and comparisons based upon simple labels. The City
of Chicago, however, generally supported including all AFVs within the
scope of the AFV labeling requirements without specifically addressing
the Commission's proposal.160
\157\Three comments fully supported AAMA's comment. Chrysler, I-
13, 1; Ford, I-4, 2; NGVPA, I-19, 1.
\158\AAMA, I-16, cover letter at 1; EMA, I-6, 1-2.
\159\See proposed rule Sec. 309.1(f)(2)(iii), 59 FR 59666,
59703; AAMA, I-16, cover letter at 1; EMA, I-6, 2.
\160\Chicago, J-2, 2. AAMA and Mobil also made the general
observation that definitions in the AFV labeling requirements should
be consistent with other regulatory plans. AAMA, I-16, 7 (``The
definitions used in the regulation must be consistent with those
used by other regulatory agencies.''); Mobil, I-2, 8 (``As long as
the definition in this rule is coordinated with DOE, then this
rulemaking will be consistent with forthcoming EPAct rules from
DOE.''). AAMA further commented that ``common definitions would also
be useful.'' AAMA, I-16, 7. It did not specify, however, how the FTC
should determine where ``common definitions,'' as opposed to
definitions used by other agencies, would be more appropriate.
After considering the record, the Commission has determined to
issue its SNPR proposal as to this subject with one modification. As
noted previously, the Commission must issue uniform labeling
requirements for AFVs only ``to the greatest extent
practicable.''161 Labeling requirements for all such vehicles
might help educate consumers about the general availability of AFVs of
all sizes. However, the Commission has concluded that consumers
considering vehicles over 8,500 lbs. GVWR would not likely make choices
and comparisons based on the cost-benefit information contained in a
simple label.162 The Commission also considered including all AFVs
(regardless of weight) and developing different label formats tailored
to the apparently different needs of light and heavy-duty AFV
consumers. This did not appear to be practical because heavier vehicles
are typically custom ordered. While these evaluations may change in the
future, for now at least it seems likely that for consumers considering
such vehicles, disclosures in a labeling format may not be appropriate,
useful, or timely. The Commission also notes that EPA's fuel economy
requirements (disclosing fuel economy information in window stickers)
do not apply to vehicles over 8,500 lbs. GVWR.163 As a result, the
Commission has determined that, at the present time, AFVs over 8,500
lbs. GVWR will not be included within the scope of its AFV labeling
requirements.
\161\42 U.S.C. 13232(a) (Supp. IV 1993).
\162\EMA, G-21, 2, 3-4, 7, (Tr.), 123. EMA cited examples where
the considerations relevant to ordering a heavy-duty AFV were
summarized in an OEM's 25-page sales brochure and a 400-page truck
data book. EMA (Supp.), G-21, 2-3. See also AAMA, G-7, 3-4, (Tr.),
124 (purchasing decision ``will already have been made long before
[purchaser] walks into the showroom and sees the label''); Flxible
(Supp.), G-12, 1-3 (window stickers should be for vehicles purchased
for personal use and from dealer lots, i.e., under 8,500 lbs. GVWR),
(Tr.), 134 (rule should be limited to passenger-type vehicles).
Chrysler and Ford supported AAMA's position that these vehicles
should be excluded from the scope of the Commission's AFV labeling
requirements. Chrysler, G-13, 1; Ford, G-14, 1.
\163\EPA (Tr.), 122; 40 CFR 600.002-85(4)(iii) (1993).
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For similar reasons, the Commission has also determined that it
should modify its definition of ``covered vehicle'' by excluding from
its scope ``off-street'' or ``off-highway'' vehicles. Such vehicles
would more likely be acquired for specialized commercial uses, instead
of general commercial or individual use. The Commission also notes that
EPA's fuel economy requirements (disclosing fuel economy information in
window stickers) do not apply to such vehicles.164 As such, the
Commission believes that consumers considering such vehicles would not
likely make choices and comparisons based on the cost-benefit
information contained in a simple label. Accordingly, such vehicles are
excluded from the AFV labeling requirements.
\164\See 40 CFR 600.002-85(4) (defining ``automobile'').
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b. AFV Manufacturers and Conversion Companies. Another facet of the
proposal regarding covered AFVs involved conversions (i.e., existing
conventional-fuel vehicles reconfigured to permit operation on
alternative fuel) and what entity would be responsible for compliance.
In developing the proposed rule, the Commission took particular note of
recently-issued EPA regulations addressing this subject. Those
regulations implemented a provision of the 1990 Clean Air Act
Amendments (``CAAA'') deeming that ``person[s] who convert conventional
vehicles to clean-fuel vehicles'' are ``manufacturers,'' and thus
responsible for complying with some or all of EPA's certification,
production, line testing, in-use testing, warranty, and recall
requirements.165 In the preamble announcing those regulations, EPA
noted that two entities could be considered the ``person who
converts'': the person who installs the conversion kit (i.e., the
hardware converting the vehicle to alternative fuel), or the person who
manufactures the conversion kit.166 After considering the
advantages and disadvantages of assigning liability to either entity,
EPA concluded that assigning liability strictly to either entity was
not appropriate. Instead, it determined it should assign liability
based on which party was in the best position to be familiar with
pertinent vehicle-performance characteristics.
\165\42 U.S.C. 7587(c); Emission Standards for Clean-Fuel
Vehicles and Engines, Requirements for Clean-Fuel Vehicle
Conversions, and California Pilot Test Program (``Fleet Standards
Rule''), 59 FR 50042, 50061-50062, Sept. 30, 1994.
\166\Fleet Standards Rule, 59 FR 50042, 50061.
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Interpreting its own regulations, EPA determined that the entity
best suited to comply with these requirements was the entity (kit
installer, manufacturer, or other) who had applied for and received a
certificate of conformity that the vehicle meets appropriate EPA
emission standards.167 Based on public comment received during
that proceeding, EPA anticipated that in most cases the kit
manufacturer would be the certifying party because this entity would be
in the best position to perform the required certification
testing.168 Accordingly, EPA further expected that its regulations
would encourage certifiers to develop oversight programs and enter into
indemnification agreements with installers to insure that installations
were performed properly.169
\167\Fleet Standards Rule, 59 FR 50042, 50062.
\168\Fleet Standards Rule, 59 FR 50042, 50061-50062.
\169\Fleet Standards Rule, 59 FR 50042, 50061-50062, 50064.
Given the nature of their liability, EPA noted that ``[k]it
manufacturers would be wholly within their rights to require such
indemnification agreements before allowing installers to install
their kit.'' Fleet Standards Rule, 59 FR 50042, 50062.
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In considering the issue of AFV conversions, the Commission noted
that section 406 does not address the issue of AFV conversions. The
Commission's intent in considering this topic was to address what the
Commission understood was a significant segment of the AFV industry.
DOE has noted that: ``Because of the limited availability and selection
of [OEM] vehicles, conversions are providing a transition to the time
when automakers produce more [AFVs] for public sale.''170
\170\B-3, inside front cover.
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The demand for AFVs is being driven, at least in part, by the
acquisition requirements for centrally fueled fleets contained in the
1990 CAAA.171 Those requirements ``may be met through the
conversion of existing or new gasoline or diesel-powered vehicles to
clean-fuel vehicles.''172 Parties affected by those mandates, as
well as others interested in achieving the clean-air benefits of
driving AFVs, may have an incentive to [[Page 26939]] convert existing
vehicles to alternative fuel. The Commission therefore believed that it
should address this issue in this proceeding to the greatest extent
practicable, and thereby help consumers compare different alternative
fuels and conversion systems.
\171\The CAAA's acquisition requirements are in addition to
similar requirements, described infra section III(C)(1)(c), imposed
by EPA 92.
\172\42 U.S.C. 7587(a).
Accordingly, in the SNPR, the Commission proposed that the entity
responsible for complying with the labeling requirements for new
covered vehicles173 would be the vehicle's ``manufacturer.'' The
proposed rule defined ``manufacturer'' as ``the person who obtains a
certificate of conformity that the vehicle complies with the standards
and requirements of [EPA's emission and clean-fuel vehicle
regulations].''174 Under the proposed rule, manufacturers of new
covered vehicles would be required to affix (or cause to be affixed)
new vehicle labels on each such vehicle prior to its being offered for
acquisition by consumers.175 If, however, an ``aftermarket
conversion system'' (i.e., a conversion kit)176 is installed on a
vehicle by a person other than the manufacturer prior to being acquired
by a consumer, the manufacturer would be responsible for providing that
person with the objective information regarding that vehicle required
by the proposed rule.177
\173\AFV labeling requirements for used covered vehicles are
discussed infra section III(C)(1)(d).
\174\Proposed rule Sec. 309.1(r), 59 FR 59666, 59704.
\175\Proposed rule Sec. 309.20(a)(1), 59 FR 59666, 59707.
\176\See proposed rule Sec. 309.1(b) (defining ``aftermarket
conversion system''), 59 FR 59666, 59707. This definition was
derived from a recently-issued EPA definition of the same term. See
59 FR 48472, 48490, to be codified at 40 CFR 85.502(c).
\177\See proposed rule Sec. 309.20(a)(2), 59 FR 59666, 59707.
Specific data proposed to be disclosed on labels for new covered
AFVs is discussed infra section III(C)(2)(a).
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The Commission's intent in formulating these definitions was to
distinguish between two different categories of conversions based on
whether a vehicle was converted to alternative fuel before or after it
is delivered to the first consumer. Conversions performed before a
vehicle is delivered to a first consumer bear similarities to OEM AFVs
because in both circumstances the vehicles are configured to
alternative fuel before delivery to the first consumer. In the SNPR,
the Commission tentatively determined that consumers considering these
converted AFVs would thus have equal need for comparative information
as consumers considering other ``new'' vehicles.178 It therefore
proposed to include such conversions within the scope of its AFV
labeling requirements.
\178\See AGA/NGVC (Supp.), G-6 (``We agree with the FTC and
others that vehicles that are converted prior to being delivered to
the first time buyer should be labeled in the same fashion as other
'new' vehicles.''); ETC, G-24, 4 (``All vehicles that are considered
`new' vehicles, regardless of whether they are sold by an original
equipment manufacturer or a converter or upfitter, should be subject
to the labeling requirement.''). Commenters responding to the
Commission's ANPR were in similar agreement. See 59 FR 24014, 24016
nn. 53, 54 and accompanying text.
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As to the second category, the Commission proposed that companies
performing conversions after the vehicle is delivered to a consumer (so
called ``aftermarket conversions'') should be excluded from the AFV
labeling requirements because those consumers would have already been
educated about the costs and benefits of alternative fuels.179 The
Commission based that proposal on its determination that consumers
considering conversion of existing vehicles would not benefit from a
``labeling'' requirement, and that the circumstances surrounding such
conversions may make such a requirement impractical or
unnecessary.180 For example, the Commission understood that some
consumers convert their vehicles themselves without utilizing the
services of a conversion installation company. Further, companies
performing conversions, at a consumer's request, would have nothing to
label until the consumer had already decided to do a conversion, and
labeling the vehicle post-conversion would not be helpful,181 as
consumers presumably already have evaluated alternative fuels in
deciding to have their vehicle converted. Finally, requiring conversion
companies to disclose objective information as to comparative factors
will likely be problematic because such information can vary with the
vehicle's condition.182
\179\AGA/NGVC (Supp.), G-6, 3-4, (Tr.), 231-232; ETC, G-24, 4.
\180\DOE, E-10, 3-4 (``It would be more difficult, and perhaps
unnecessary, for in-use vehicles (already owned and operated) that
are converted to use alternative fuels during their vehicle life to
meet the AFV labeling requirements.'').
\181\Further, as noted, requiring disclosure other than in a
labeling format may be beyond the scope of the Commission's
authority under EPA 92. See supra section III(A).
\182\EPA (Tr.), 220.
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In any event, the Commission noted that DOE has addressed
conversions of existing vehicles in its consumer information
brochure.183 Some of the information contained in that brochure is
general (e.g., electric vehicle conversions ``are available in larger
metropolitan areas. Contact OEM dealer for qualified converter and
warranty information''),184 while some is more specific and
objective. For example, the brochure notes that converting an existing
conventional-fueled vehicle to CNG ``costs about $2,700 to $5,000 per
vehicle.''185 Given the apparent impracticalities surrounding a
requirement for aftermarket alternative-fuel conversions, and the
availability of pertinent information in DOE's brochure, the Commission
proposed excluding from its AFV labeling requirements situations where
conventional fueled vehicles are converted to alternative fuel after
being acquired by consumers.186
\183\EPA 92 requires that DOE's information package ``include
information with respect to the conversion of conventional motor
vehicles to [AFVs].'' 42 U.S.C. 13231 (Supp. IV 1993).
\184\B-3, 16.
\185\B-3, 23.
\186\See proposed rule Sec. 309.20(a)(2) (limiting labeling
requirements for new covered vehicles to conversion systems
installed ``prior to such vehicle's being acquired by a consumer''),
59 FR 59666, 59707.
Four comments addressed this issue. AAMA and Mobil generally
observed that definitions in the AFV labeling requirements should be
consistent with other regulatory plans.187 Regarding the substance
of the Commission's proposal, Electro Auto generally supported
exempting aftermarket conversions while the City of Chicago opposed
such an exemption because it believed that future buyers of AFVs should
have access to the same information as buyers of original
equipment.188 Comments previously filed agreed that all vehicles
designed and assembled by OEMS to operate on alternative fuel should be
included within the scope of the Commission's AFV labeling
requirements.189
\187\AAMA, I-16, 7; Mobil, I-2, 8.
\188\Chicago, J-2, 1, 2, 3; Electro Auto, I-7, 1.
\189\See, e.g., Boston Edison (Supp.), G-26, 13; ETC, G-24, 4.
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After considering the record, the Commission has determined to
adopt the SNPR proposal regarding which conversions are covered without
modification. Because harmonizing regulatory approaches, when
practicable, is appropriate and desirable, the Commission has based its
approach to determining which entities are responsible for complying
with its AFV labeling requirements on EPA's regulations addressing the
same issue. The Commission has determined to designate the certifier as
being responsible for compliance with these requirements because that
entity will be in the best position to know the vehicle's performance
attributes. The Commission also expects that certifiers will take steps
to insure compliance with this revised labeling proposal by installers,
such as developing oversight programs and entering into
[[Page 26940]] indemnification agreements with installers to insure
that accurate labels are posted as required.
c. Acquisitions by consumers. In the SNPR, the Commission proposed
that its labeling requirements apply to covered vehicles offered for
``acquisition'' to consumers.190 The intent of this proposal was
to include purchases and long-term leasing arrangements within the
scope of the AFV labeling requirements. The Commission also proposed to
define the term ``consumer'' to include individuals, corporations,
partnerships, associations, States, municipalities, political
subdivisions of States, and agencies, departments, or instrumentalities
of the United States.191 Responding to this aspect of the
Commission's proposal, AAMA and Mobil generally observed that
definitions in the AFV labeling requirements should be consistent with
other regulatory plans.192
\190\See proposed rule Secs. 309.20(a)(1) (new covered
vehicles), 309.21(a) (used covered vehicles), 59 FR 59666, 59707.
\191\See proposed rule Sec. 309.1(d) (defining ``consumer''), 59
FR 59666, 59703.
\192\AAMA, I-16, 7; Mobil, I-2, 8.
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After considering the record, the Commission has determined to
issue its SNPR proposal as to this subject without modification. As to
the definition of ``consumer,'' the proposed definition of this term
was derived from section 302(e) of the 1990 Clean Air Act
Amendments193 and EPA's regulation implementing that section, 40
CFR Sec. 88.302-94 (1993). The Commission believes that this definition
properly includes within its scope all affected interests.
\193\42 U.S.C. 7602(e) (defining ``person'').
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As to leasing arrangements, because Congressional mandates will
require consumers to ``acquire'' AFVs,194 the Commission has
determined that its AFV labeling requirements should include such
arrangements to the greatest extent practicable to further EPA 92's
legislative purpose. In determining what is practicable, the Commission
believes that consumers entering into leasing arrangements may have
different information needs depending upon the length of the
arrangement. For example, consumers entering into long-term leasing
arrangements often do so for commercial purposes, and make leasing
choices based on evaluating factors pertinent to a commercial
acquisition. These persons likely would need the same vehicle
information as purchasers and should be covered by the rule. Consumers
entering into short-term arrangements (e.g., weekend rentals to the
general public for non-commercial purposes) may or may not have similar
or equal need for pertinent information, but it seems unlikely that
consumers entering into short-term leasing arrangements would make
decisions based upon information disclosed in a label. In any event,
they may not view the vehicle until after it has been leased. As a
result, the labels would not help consumers make choices and
comparisons. Accordingly, the Commission has determined that including
short-term leasing arrangements in the final rule is not necessary.
\194\For example, EPA 92 requires that, ``The Federal Government
shall acquire at least 5,000 light duty [AFVs] in fiscal year
1993.'' 42 U.S.C. 13212(a)(1)(A) (Supp. IV 1993).
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The final rule defines an acquisition as including either of the
following: (1) acquiring the beneficial title to a covered vehicle; or
(2) acquiring a covered vehicle for transportation purposes pursuant to
a contract or similar arrangement for a period of 120 days or
more.195 This definition was derived from a recent EPA regulation
implementing aspects of the 1990 Clean Air Act Amendments,196
which used the 120 day period as the dividing line between short and
long-term leases. In the preamble announcing that regulation, EPA
determined that the 120 day period is slightly longer than a calendar
season and that leases of less than that period were therefore short-
term and temporary.197 The Commission finds that the 120 day
period reflects a reasonable demarcation between short- and long-term
rentals, and therefore has adopted EPA's determination.
\195\See proposed rule Sec. 309.1(a) (defining ``acquisition''),
59 FR 59666, 59703.
\196\Clean Fuel Fleet Program; Definitions and General
Provisions, 58 FR 64679, 64689-64690, Dec. 9, 1993 (defining the
phrase ``owned or operated, leased or otherwise controlled by such
person'' as used in section 241(5) of the 1990 Clean Air Act
Amendments, 42 U.S.C. 7581(5)).
\197\58 FR 64679, 64689, 64690 (excluding leases under 120 days
from Clean Fuel Fleet Program).
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d. Used AFVs. In the SNPR, the Commission tentatively determined
that both new and used AFVs should be included within the scope of its
labeling requirements, but that they should be subject to different
requirements. The proposed rule defined the terms ``new covered
vehicle'' and ``used covered vehicle'' and established labeling
requirements as to each classification.198 Under the proposed
rule, a new covered vehicle was defined as a covered vehicle which has
not yet been acquired by a consumer,199 while a used covered
vehicle was defined (in substance) as a covered vehicle which
previously has been acquired by a consumer.200 The proposed rule
also defined the terms ``new vehicle dealer''201 and ``used
vehicle dealer.''202
\198\See proposed rule Secs. 309.20 (``Labeling requirements for
new covered vehicles''), 309.21 (``Labeling requirements for used
covered vehicles''), 59 FR 59666, 59707.
\199\See proposed rule Sec. 309.1(t) (defining ``new covered
vehicle''), 59 FR 59666, 59704.
\200\See proposed rule Sec. 309.1(dd) (defining ``used covered
vehicle''), 59 FR 59666, 59704. This definition was derived from the
Commission's definition of the term ``used vehicle'' in its Used Car
Rule, 16 CFR 455.1(d)(2) (1994).
\201\See proposed rule Sec. 309.1(u), 59 FR 59666, 59704. This
definition was derived from EPA's definition of the term ``dealer,''
the entity responsible for maintaining fuel economy labels on new
automobiles. See 40 CFR 600.002-93(a)(18) (1993) (defining
``dealer''). Under EPA's regulations, consumers selling used
automobiles are not required to post or maintain fuel economy
labels. In this final rule, the Commission similarly intends that
individual consumers not be required to comply with the AFV labeling
requirements.
\202\See proposed rule Sec. 309.1(ee), 59 FR 59666, 59704. This
definition was derived from the Commission's definition of
``dealer'' in its Used Car Rule, 16 CFR 455.1(d)(3) (1994).
Because requiring the disclosure of comparative information on used
AFVs was deemed problematic,203 the proposed rule established two
labeling formats (i.e., new vehicle labels204 and used vehicle
labels205) disclosing different types of information for new and
used covered AFVs.206 For example, because some cost-benefit
information is included on temporary window stickers (e.g., EPA's fuel
economy rating) or in vehicle owner's manuals, a used AFV dealer may
not always possess such information. In any event, some comparative
information (e.g., EPA's fuel economy rating) could vary significantly
with the vehicle's condition.207 Requiring disclosure of
information based on the vehicle's condition when new could therefore
create a risk of misleading consumers.208 To address one problem
inherent in such a disclosure (i.e., the unavailability of pertinent
information), the Commission has considered requiring that disclosures
be displayed on permanent vehicle labeling.209 However, this
option would not surmount the more basic problem that objective
information may no longer accurately reflect the vehicle's present
condition [[Page 26941]] (and thus would not form a valid basis upon
which to make reasonable choices and comparisons).210
\203\ETC, G-24, 4; RFA (Tr.), 217.
\204\See proposed rule Sec. 309.1(v) (defining ``new vehicle
labels''), 59 FR 59666, 59704.
\205\See proposed rule Sec. 309.1(ff) (defining ``used vehicle
labels''), 59 FR 59666, 59704.
\206\See proposed rule Secs. 309.20(e) (new covered vehicles)
and 309.21(e) (used covered vehicles), 59 FR 59666, 59707.
\207\EPA (Tr.), 220.
\208\Id.
\209\Chicago, J-2, 2 (permanent labeling on all AFVs would help
state and local governments enforce regulations pertaining to
preferential parking and other transportation control measures).
\210\While consumers may expect that used vehicles will have
different performance attributes than new cars, if the Commission
required disclosure of specific data on standard labels (based on
the vehicle's condition when new), it might create the impression
with some consumers that these disclosures may still be valid.
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Three comments addressed this issue. AAMA supported including used
vehicles within the scope of the AFV labeling requirements.211
Electro Auto stated that they should be excluded.212 Mobil stated
that definitions in the AFV labeling requirements should be consistent
with other regulatory plans.213
\211\AAMA, I-16, 7. That comment, however, proposed a different
format for used vehicle labels.
\212\Electro Auto, I-7, 1. Electro Auto's objection may have
been based on a misapprehension that labels for used AFVs would
require disclosure of performance attributes specific to that
vehicle. The SNPR did not propose such disclosures.
\213\Mobil, I-2, 8 (``As long as the definition in this rule is
coordinated with DOE, then this rulemaking will be consistent with
forthcoming EPAct rules from DOE.'').
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After considering the record, the Commission determined to issue
its SNPR proposal as to this subject without modification. The
Commission notes that EPA 92's definition of AFV makes no distinction
between new and used vehicles.214 In addition, the record
indicated that consumers would likely have the same need for
information, and would consider the same factors, whether they were
contemplating a new or used AFV acquisition.215 At the Workshop,
two participants also stated that used AFVs should be included in this
proceeding at the present time because used AFVs are (or will soon be)
offered for sale to consumers.216 Thus, the Commission has
concluded that including such vehicles within the scope of its AFV
labeling requirements is appropriate. As described more fully below,
labeling for used covered AFVs does not require, however, disclosure of
objective performance data.
\214\See 42 U.S.C. 13211(3) (Supp. IV 1993) (defining ``AFV'').
\215\AMI (Tr.), 136, 218; Boston Edison, G-26, 10; ETC, G-24, 4;
NAFA, G-20, 5, (Tr.), 222; PCC, G-22, 2; RFA, G-5, 5, (Tr.), 217.
\216\See AMI (Tr.), 218 (``[T]his is a real problem now. There
are nearly 10,000 [flexible] fuel vehicles in California alone, and
* * * several hundred are being offered for sale now to private
consumers.''). See also NAFA (Tr.), 222:
I think one of the things you have to be concerned about looking
down the road with alternative fuels is that if there is not a
resale market for these vehicles, the program will wither and die *
* * So we don't have a procedure to provide information to that
second purchaser. And they have questions about alternative fuels.
And they don't know how to go about getting a brochure like this * *
* If you don't create the resale market, then the first market
doesn't really develop.
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2. Disclosures on AFV Labeling
As discussed below, 21 of the 24 commenters addressed the substance
of the Commission's proposed AFV labeling requirements (i.e., the
information to be disclosed on AFV labels).217 Pursuant to EPA
92's mandate, the Commission developed this aspect of the final rule
based on two sets of considerations. First, the Commission determined
the type of information consumers would find most appropriate, useful,
and timely in making AFV choices and comparisons. For example, the
Commission stated in the SNPR that consumers would require disclosure
of more comparative information when considering an AFV purchase than
when refueling.218 As a result, the Commission proposed that AFV
labels disclose more comprehensive cost-benefit information to
consumers than labels for alternative fuels. The Commission also stated
that because few consumers have extensive experience with AFVs, its
labeling proposal should be designed to be useful to a general consumer
audience.219 Finally, the Commission concluded that, because DOE
was required to prepare and distribute an information package for
consumers, there was less need to attempt to present complex
information in the constrained format of an AFV label.
\217\Unocal, I-5, addressed the proposal for labeling of
alternative fuels. Two other comments (Mechtly, I-1, and Sokol, I-
17) addressed metric issues. See section VI infra.
\218\59 FR 59666, 59684. All nine commenters addressing that
issue supported the Commission's assessment. AAMA (Tr.), 37-38; AMI,
G-3, 1; Boston Edison (Tr.), 84; CEC, H-8, 1; ETC (Tr.), 42; NAFA
(Tr.), 53; NPGA (Tr.), 50, 51; RFA, G-5, 4; Sun, G-1, 2.
\219\Chicago, J-2, 1 (AFV labeling requirement should target all
consumers).
After determining what would likely be appropriate, useful, and
timely to consumers, the Commission analyzed the problems associated
with developing and publishing such cost-benefit information. For
example, the Commission considered the extent to which balanced,
accurate information for pertinent comparative factors could be
conveyed on the ``simple'' label envisioned by Congress. It also
considered whether appropriate technical standards existed to compare
some factors, and whether providing the same information required on
labels by other government agencies (in different formats) could
confuse consumers.
After evaluating those issues, the Commission proposed in the SNPR
an AFV label disclosing a combination of information in a three-part
format,220 concluding this would be most useful to consumers
making choices and comparisons. The first part would disclose objective
information pertaining to each particular AFV, while the second and
third parts would disclose information pertaining to AFVs in general.
This final rule is the result of the Commission's analysis of all
pertinent considerations, the rulemaking record and recent
developments. As described in more detail below, the Commission
continues to find that a combination of objective and descriptive
information will best meet consumers' needs for comparative cost-
benefit information. The Commission also concludes that this format
will best address the problems associated with developing and
publishing such information.
\220\59 FR 24014, 24019-24020.
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a. Specific data disclosures. In the SNPR the Commission proposed
that labels for new covered AFVs disclose two types of objective
information particular to each AFV: cruising range and EPA
certification level.221 Seven comments addressed the
appropriateness of including objective information to consumers as to
those factors. Boston Edison/EEI and DOE supported disclosures as to
both factors.222 API stated that a disclosure for cruising range
would be a useful measure for consumer comparisons.223 Mobil
appeared to support requiring disclosure of cruising range, but stated
that EPA certification levels were generally not relevant to EPA
92.224 Chrysler supported requiring disclosure of EPA
certification levels, but appeared to oppose disclosure of vehicle
cruising range.225 Ford stated that ``most of the information
meeting [EPA 92's mandate] is already included on existing motor
vehicle labels.''226 AAMA stated that it ``support[ed] the intent
of the FTC proposal'' and that ``the specific information proposed is
appropriate with respect to costs and benefits, so as to reasonably
enable the consumer to make choices and comparisons.'''227
[[Page 26942]] The Commission's SNPR proposal as to both disclosures,
and the comments addressing those issues, are described in more detail
below.
\221\Labels for used covered AFVs would not disclose objective
information particular to each vehicle. See 59 FR 59666, 59688
n.312, 59690 n.358.
\222\Boston Edison/EEI, I-14, 4, 5-6 (both are useful to
consumers); DOE, J-1, 2.
\223\API, I-15, 2. API's comment did not address the
Commission's proposal to require disclosure of EPA certification
level.
\224\Mobil, I-2, cover letter at 3, 9-11.
\225\Chrysler, I-13, 1.
\226\Ford, I-4, 1.
\227\AAMA, I-16, 1. AAMA did not, however, support the ``manner
by which this information is [displayed].'' Id. For used covered
vehicles, AAMA stated that labels should ``contain only the
information necessary to indicate that the vehicle operates on
alternative fuels and to list the fuels that can be used in the
vehicle.'' AAMA, I-16, 1. As noted previously, three comments fully
supported AAMA's comment. Chrysler, I-13, 1; Ford, I-4, 2; NGVPA, I-
19, 1.
(1) Cruising range. In the SNPR, the Commission proposed that
cruising range should be disclosed on labels for new covered
AFVs.228 Under the Commission's revised proposal, cruising range
would be displayed on AFV labels in two formats. The first labeling
format would be for dedicated covered AFVs (i.e., covered AFVs designed
to operate solely on alternative fuel).229 Labels for these
vehicles would disclose the manufacturer's ``estimated cruising range''
for that vehicle (i.e., the manufacturer's reasonable estimate of the
number of miles a covered vehicle will travel between refueling or
recharging), expressed as a lower estimate and an upper
estimate.230
\228\The Commission did not propose requiring disclosure of this
information on labels for used covered AFVs because that information
could vary significantly with a vehicle's condition. Requiring
disclosure of cruising range information on used vehicles could
therefore mislead consumers.
\229\See proposed rule Sec. 309.1(g) (defining ``dedicated''),
59 FR 59666, 59703.
\230\See proposed rules Secs. 309.1(o) (defining ``estimated
cruising range''), 309.20(e)(2)(i) (requiring disclosure of
estimated cruising range for dedicated vehicles), 59 FR 59666,
59704, 59707.
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The second labeling format would be for dual-fueled covered AFVs
(i.e., vehicles capable of being powered both by an alternative fuel
and a conventional fuel).231 Labels for these vehicles would
disclose two sets of values: the manufacturer's reasonable estimate of
(a) the minimum and maximum number of miles the vehicle will travel
between refuelings or rechargings when operated exclusively on
alternative fuel, and (b) the minimum and maximum number of miles the
vehicle will travel between refuelings or rechargings when operated
exclusively on conventional fuel.232 Because the disclosure would
relate solely to the manufacturer's estimated (and not actual) cruising
range, both label formats would include a statement advising consumers
that their actual cruising range will vary with options, driving
conditions, driving habits and the AFV's condition.233
\231\See proposed rule Sec. 309.1(i) (defining ``dual fueled''),
59 FR 59666, 59704.
\232\See proposed rule Sec. 309.20(e)(2)(ii) (requiring
disclosure of estimated cruising range for dual-fueled vehicles), 59
FR 59666, 59707.
\233\EPA's fuel economy labels contain a similar statement. See
40 CFR 600.307-86(a)(3)(ii)(A) (1993) (``Actual mileage will vary
with options, driving conditions, driving habits, and [vehicle's/
truck's] condition.''). See SNPR Figures 4 and 5, 59 FR 59666,
59710-59711.
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Cruising range values would be expressed in whole numbers and
calculated in one of three ways. For vehicles required to comply with
EPA's fuel economy labeling provisions,234 cruising range values
would be calculated by reference to the vehicle's estimated fuel
economy rating.235 For example, the lower range value would be
determined by multiplying the vehicle's estimated city fuel economy by
its fuel tank or battery capacity, then rounding to the next lower
integer value.236 Conversely, the upper range value would be
determined by multiplying the vehicle's estimated highway fuel economy
by its fuel tank capacity, then rounding to the next higher integer
value.237
\234\See 40 CFR part 600 (1993) (``Fuel economy of motor
vehicles'').
\235\Numerous commenters suggested that cruising range values
could be so calculated. See, e.g., AAMA (Supp.), G-7, 3 (``Combining
MPG with tank capacity can give the customer a reasonable estimation
of driving range.''); AMI (Tr.), 141; CAS (Supp.), G-17, 1-2; EPA
(Tr.), 144; RFA (Tr.), 148.
\236\See proposed rule Sec. 309.22(a)(1)(i), 59 FR 59666, 59708.
\237\See proposed rule Sec. 309.22(a)(1)(ii), 59 FR 59666,
59708.
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As noted previously, EPA is required to include AFVs powered by all
alternative fuels within its fuel-economy labeling program, but has not
yet announced a timetable for doing so.238 During the transition
to that next phase, the Commission therefore proposed a different
approach for vehicles not yet required to comply with EPA's fuel-
economy labeling provisions. For EVs, the Commission noted that the
Society of Automotive Engineers (``SAE''), a consensus standard-setting
organization, has issued a ``Recommended Practice'' establishing
uniform procedures to calculate cruising range for EVs (``SAE
J1634'').239 The Commission believed that reliance on uniform
standards would facilitate comparability.240 Accordingly, the
proposed rule requires that cruising range values for EV's be
calculated in accordance with that standard.241
\238\59 FR 39638, 39639 (announcing fuel-economy test labeling
requirements for methanol and CNG vehicles). One comment suggested
that the Commission encourage EPA to develop further fuel economy
regulations. ETC, I-9, 1. The Commission does not believe that is
necessary because EPA is under a legal obligation to issue such
regulations.
\239\SAE's ``Electric Vehicle Energy Consumption and Range Test
Procedure,'' J1634, was issued in May 1993. B-33. This procedure is
based in part on EPA's pertinent test procedures. B-33, 1, 9-10.
Boston Edison stated that fuel economy ``can be [calculated] in a
manner that is procedurally identical to gasoline vehicles'' by
relying on SAE J1634. Boston Edison (Supp.), G-26, 5.
\240\59 FR 59666, 59688.
\241\See proposed rules Secs. 309.22(a)(2) (for dedicated
vehicles), 309.22(b)(2) (for dual-fueled vehicles), 59 FR 59666,
59708.
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For other vehicles not yet required to be labeled with EPA's fuel
economy stickers, the Commission knew of no comparable consensus
procedure that could yield cruising range values in the proposed
``minimum-maximum'' format. As a result, the Commission did not propose
that manufacturers use a specific standard to determine cruising range.
In similar situations (i.e., where the Commission has required the
disclosure of specific information, but no consensus standards exist to
measure such information), the Commission has required that
manufacturers have a ``reasonable basis'' for such disclosures.242
Accordingly, for those vehicles, the Commission proposed that
manufacturers be required to possess a reasonable basis, consisting of
competent and reliable evidence, of the minimum and maximum number of
miles the vehicle will travel between refuelings or
rechargings.243
\242\See, e.g., Fuel Rating Rule, 16 CFR 306.5(b) (1994) (``To
determine automotive fuel ratings for alternative liquid automotive
fuels, you must possess a reasonable basis, consisting of competent
and reliable evidence, for the percentage by volume of the principal
component of the [fuel] that you must disclose.''); Care Labeling
Rule, 16 CFR 423.6(c)(1)-(6) (1994) (``reasonable basis'' based on
``reliable evidence''); R-value Rule, 16 CFR 460.19(a) (1994) (``If
you say or imply in your ads, labels, or other promotional materials
that insulation can cut fuel bills or fuel use, you must have a
reasonable basis for the claim.'').
\243\See proposed rules Secs. 309.22(a)(3) (for dedicated
vehicles), 309.22(b)(3) (for dual-fueled vehicles), 59 FR 59666,
50708.
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The SNPR also stated that during this transition (i.e., while EPA
is developing fuel-economy labeling requirements), the Commission would
consider whether any new consensus test methods for determining
cruising range constitute a reasonable basis.244 The Commission
expected that industry compliance with this AFV labeling rule, in
conjunction with the need to avoid uncertainty about whether particular
test methods or calculations constitute a reasonable basis, will
encourage development of standardized test methods and specifications.
This, in turn, could facilitate widespread acceptance of AFVs.
\244\The Commission encourages DOE, as part of its ``technical
assistance,'' to direct the development of such transition
specifications. See 42 U.S.C. 13232(b) (Supp. IV 1993) (DOE ``shall
provide technical assistance'' to the Commission and coordinate that
assistance with its development of a consumer information brochure).
Fourteen comments addressed requiring disclosure of cruising range
as proposed in the SNPR. Five of the fourteen comments supported the
Commission's proposal because of its usefulness to consumers in making
[[Page 26943]] choices and comparisons.245 For example, survey
data cited by Boston Edison/EEI ``indicated that the distance that an
electric car can travel is the highest ranking concern of
consumers.''246 Similarly, CAS supported requiring disclosure of
this ``extremely useful'' information and NAFA stated that fleet
managers ``have identified cruising range as one of the most important
factors when making a decision to purchase AFVs.''247
\245\Five other comments generally supported the Commission's
AFV labeling requirements without addressing this issue. AGA/NGVC,
I-18, 2, 3; Chicago, J-2, 1; Comm Elec, I-8, 8; EIA/EEU-ISD, J-4, 1;
RFA, I-3, 1-2.
\246\Boston Edison/EEI, I-14, 4.
\247\CAS, I-12, 1; NAFA, I-10, 2. DOE and Mobil also supported a
disclosure of this information. DOE, J-1, 2; Mobil, I-2, 9-10, cover
letter at 1.
NAFA further suggested that the Commission specify that no
information ``be presented at the time an AFV is offered for sale
that conflicts with information provided on the AFV label, such as
cruising range.'' NAFA, I-10, 2. The Commission expects that
requiring disclosure of cruising range information could encourage
affected manufacturers and dealers generally to provide additional
information to meet consumers' expectations and needs. See AGA/NGVC,
G-6, 12 (``[F]uel retailers, vehicle manufacturers and trade
associations can target and educate specialty markets and their
consumers.''); Boston Edison, D-11, 13 (``[O]ver time, market forces
will create incentives for sellers to identify and respond to
consumer demands for information, much as gasoline sellers
supplement the information that they are required to provide under
the Commission's Octane Rule.''). The Commission concludes that it
is not necessary to address this issue here, because section 5 of
the FTC Act (15 U.S.C. 45) authorizes the Commission to seek
corrective action if, after investigation, it has reason to believe
that advertising or marketing falls within the scope of conduct
declared unlawful by the statute.
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Three of the fourteen comments made suggestions directed at
specific issues without specifically supporting or opposing the
Commission's SNPR proposal.248 For example, API noted that
cruising range was ``a useful measure for consumer comparison'' but
suggested that the information be expressed in terms of fuel tank
capacity ``and miles per gallon or gallon equivalent.''249 The
final two of those three comments were directed at the Commission's
proposal regarding how cruising range would be calculated for EVs.
Toyota supported the Commission's proposal to base calculation of
cruising range values for EVs on SAE J1634, but stated that procedure
did not yield an upper and lower limit of the vehicle's range.250
CARB stated that it ``has a number of concerns'' with SAE J1634,
including that it may allow for inflated range estimates and that its
treatment of EVs equipped with air conditioning was not sufficiently
precise.251
\248\A fourth comment, from DOT/NHTSA, noted that NHTSA recently
proposed gallon equivalent measurements for five gaseous fuels: CNG,
LNG, LPG, Hydrogen, and Hythane. DOT/NHTSA, J-5, 1.
\249\API, I-15, 5.
\250\Toyota, I-11, 2. As a result, Toyota recommended that the
Commission require that ``The range shall be actual driving range
determined in accordance with test methods set forth in the latest
SAE J1634 ``Electric Vehicle Energy Consumption and [R]ange
Procedure.'' Id. at 3.
\251\CARB, J-3, 2.
Comments from domestic automakers supported the Commission's
determination that cruising range would be ``useful''252 and
``important''253 information for consumers. However, those
commenters strongly opposed requiring a disclosure as to that factor
because cruising range ``cannot, at this time, be provided in a manner
which would be useful to the consumer.''254 The automakers based
their opposition on their belief that sufficient ``standards and
adjustment factors'' had not yet been developed to account for
differences in AFV technology.255
\252\AAMA, I-16, 2.
\253\Electro Auto, I-7, 2.
\254\Ford, I-4, 2. See also AAMA, I-16, 2 (``[W]e have been
unable to adequately develop a value which would be consistent
across fuels and manufacturers or useful to customers at this
time.''); Electro Auto, I-7, 2 (range is ``a difficult number to pin
down with any consistency''); ETC, I-9, 2 (Commission should defer
requiring disclosure ``until industry-wide accepted methodologies
for range measurement are available'').
\255\AAMA, I-16, 6 (``The disclosure of vehicle range should not
be provided until the standards and adjustment factors, as described
above, can be developed.'').
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For example, according to AAMA, without standard fuel
specifications,256 EPA test procedures, and a definition of fuel
tank capacity for all AFVs, a range of estimates would result based on
varying assumptions which would in turn generate inconsistent and
unhelpful estimates of vehicle range.257 The expected use of AFVs
by fleet operators, with different in-use driving cycles and vehicle
maintenance practices than those used in EPA's fuel economy
determinations, ``can [also] significantly affect range.''258 And
``inconsistencies and confusion'' exist between range estimates for
flexible fuel vehicles (i.e., AFVs capable of operating on an
alternative and conventional fuel in a single fuel tank) and bi-fuel
vehicles (i.e., AFVs equipped with separate fuel tanks for alternative
and conventional fuels).259
\256\The lack of commercial fuel specifications ``results in
highly variable fuel energy content which could greatly affect in-
use driving range.'' AAMA, Att. II at 1.
\257\AAMA, I-16, 2, 3, Att. II at 1, 2. Chrysler, however,
supported disclosure of fuel tank capacity and noted that that
information was ``currently provided.'' Chrysler, I-13, 1, 2.
\258\AAMA, I-16, 3.
\259\Id.
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AAMA suggested that additional problems exist regarding calculating
fuel economy values for EVs. For example, the SAE J1634 procedure for
calculating EV fuel-economy values currently measures only a combined
metro-highway fuel economy and is thus ``inadequate for these
calculations.''260 That Recommended Procedure also does not apply
to hybrid EVs (i.e., vehicles capable of operating on electricity and
conventional fuels at the same time).261 Battery capacity for EVs
also ``may vary with usage, age, temperature * * * and other
factors.''262 Accordingly, ``[f]urther experience with these
vehicles is necessary to provide an adequate prediction of the range
that a consumer may achieve in-use.''263 More generally, AAMA
concluded that
\260\AAMA, I-16, Att. II at 1. AAMA notes, however, that the SAE
procedure is ``currently being modified to measure city and highway
energy consumption,'' and that the new procedure will be approved
``some time in 1995.'' Id.
\261\AAMA, I-16, Att. II at 2.
\262\Id.
\263\Id.
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[A]ny requirement that manufacturers calculate and label vehicles
with range estimates must resolve the above issues, or least be
deferred until these issues can be resolved * * * These estimates not
only fail to provide valuable information to customers, but may also
result in failure to meet customer expectations leading to customer
dissatisfaction with [AFVs].264
\264\AAMA, I-16, 3.
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After considering the record relating to the threshold issue (i.e.,
whether cruising range should be disclosed on AFV labels), the
Commission has concluded that such information is appropriate and will
help consumers make reasonable choices and comparisons.265 It is
also one of the most important facts consumers need regarding whether
and which AFV to acquire; as AAMA noted: ``This information (i.e.,
range) is vital for the consumer when deciding between various
alternative fuels * * * .''266 Because cruising ranges for AFVs
can differ significantly from cruising ranges for conventional fuel
vehicles, with which consumers are most familiar, consumers also have a
practical need for cruising range disclosures on AFV labels. As a
Workshop participant stated,
\265\See, e.g., CAS (Tr.), 156 (range gives consumers ``the
ability to compare in the showroom a very visible number that you
can go from car to car to car and compare.''); (Supp.), G-17, 1.
\266\AAMA, G-7, 2. See also AMI (Tr.), 141 (range is one of the
most important factors); NAFA (Tr.), 147 (same); Boston Edison
(Supp.), G-26, 9; (Tr.), 142 (range is most important concern of
people considering an EV purchase).
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[I]f I was leaving on a 50 or 60-mile trip and my cruising range
could be as low as 30, I'd like to know that. So I [[Page 26944]] think
I would like to know the low end of it even if there is a broad, you
know, number that's not very well defined. I think it's still
beneficial to know what the minimum, certainly the minimums are,
because you have to be able to make it to the next fueling
point.267
\267\RFA (Tr.), 149. See also RFA (Tr.), 153, (Supp.), G-5, 2
(``[G]iven the sparsity and distance between alternative fuel
refueling stations, vehicle owners need to be aware of approximate
range.'').
Displaying cruising-range values in a meaningful way to consumers
also is feasible. Statements accompanying the cruising range values
identify the disclosure as being a ``manufacturer's estimate,'' and
advise consumers that actual cruising range ``will vary with options,
driving conditions, driving habits and the vehicle's condition.''
Consumers are further cautioned that the labels are for comparison
purposes and ``may not reflect actual driving range.'' A disclosure
displayed in this format is not likely to pose problems to consumers
accustomed to estimates.268
\268\AMI (Tr.), 155 (consumers understand that ``basic
information'' on the label is not going to be precise).
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The Commission has also determined that calculating cruising range
values is feasible, as shown by the prominence with which this factor
appears in marketing and advertising claims promoting AFV use.269
For example, Chrysler, GM and Ford have all made cruising range claims
regarding their EVs in congressional testimony,270 promotional
material271 and product specification sheets.272 Chrysler and
GM also address cruising range in owner's manuals for the 1994 Dodge
Spirit273 and 1993 Chevrolet Lumina.274 Peugeot has made
similar claims in its promotional material.275 Companies
converting cars to run on electricity276 and electricity
utilities277 are also making cruising range claims for EVs.
Similar claims are also being made for AFVs powered in whole or in part
by CNG,278 hydrogen,279 LPG,280 and methanol.281
Accordingly the Commission has determined to issue its SNPR proposal
regarding methods for calculating cruising range values (but with four
modifications described below) because those methods generate
comparable cruising-range estimates.
\269\The Commission described these claims and their prevalence
in detail in the SNPR. 59 FR 59666, 59687-59688. Automakers
responding to the SNPR did not address this issue.
\270\For example, at a May 11, 1993, congressional hearing,
representatives from Chrysler, Ford, and GM all made cruising range
claims for their EVs. See Status of Domestic Electric Vehicle
Development, 103d Cong., 1st Sess. (1993) (statement of Doran K.
Samples, Program Management Executive of the Electric Minivan
Project, Chrysler, at 52, 56; Roberta J. Nichols, Electric Vehicle
External Strategy Manager, Ford, at 60, 64, 66; and Kenneth R.
Baker, Vice President, GM, at 76).
\271\See GM, Progress Report, B-5, front, Spring/Summer 1993
(GM's Impact 4 EV has ``a driving range of 70 miles in the city and
90 miles in normal highway driving.''); GM, GM's ``Impact'' Show Car
and New Pre-Production Electric Vehicle Lead the 104th Tournament of
Roses, B-6, at 2, Dec. 29, 1992 (``The Impact and the pre-production
car . . . have a useful range of 100 miles . . .''); GM, General
Motors Electric Vehicles Fit Most Drivers' Lifestyles, B-7, at 1,
Oct. 20, 1992 (``GM's `Impact' prototype has a highway range of 100
miles.'').
\272\Chrysler 1994 Dodge Caravan/Plymouth Voyager, B-8, back,
May 7, 1993; Chrysler 1994 Dodge Caravan/Plymouth Voyager, B-9,
back, Aug. 31, 1992; Ford Ecostar, B-10, back panel, undated; GM
Impact 3, B-11, back, undated; GM Impact, B-12, back, undated (``It
has a practical range of 80 miles per charge.'').
\273\AAMA (Supp.), G-7, 1994 Dodge Spirit Owner's Manual at 105
(``Cruising Range: M-85 produces less energy when burned than
gasoline. Therefore, cruising ranges and miles per gallon (MPG) will
be considerably less when using M-85. Cruising ranges will increase
as the content of gasoline in the fuel tank increases.'').
\274\AAMA (Supp.), G-17, 1993 Chevrolet Lumina Owner's Manual--
Ethanol Supplement, at 4 (``When using an E-85 mixture of fuel, your
Lumina has a range of 250-300 miles (400-480 km).''); 1992 Chevrolet
Lumina Owner's Manual--Methanol Supplement, at 5 (``When using an M-
85 mixture of fuel, your Lumina has a range of 200-250 miles (320-
400 km).'').
\275\PSA Peugeot Citroen, Electric Vehicles, B-13, at 3-5, 1992
(Peugeot 106 has range of 90-160 km; Citela has range of 210 km @ 40
kph and 110 km city, and car continuously displays remaining range;
Peugeot 405 Station Wagon has battery range of 72 km at 40 kph and
highway range of 750 km at 100 kph).
\276\Dreisbach ElectroMotive, Inc., API Demi Motorola Saturn, B-
14, front, undated (range from 140 to 518 miles depending on battery
configuration); Electro Automotive, Electro Automotive Makes
Electric Cars Easy With The Voltsrabbit(tm) Kit, B-15, front,
undated (range: 60-80 miles); Solar Car Corporation, Specifications
for Chevy S-10 and GMC S-15 Pickup Truck (converted to run on
electricity), B-16, front, Aug. 1, 1992 (``Normal Daily Range--50 to
80 miles, depending on terrain, speed and driving conditions.'').
\277\Arizona Public Service Company, Electric Vehicle Program,
B-17, at first upper panel, undated (``Today's batteries give Evs a
range of 30 to 100 miles on a single charge.''); Electric Power
Research Institute, Electric Vehicle Infrastructure: How Far Will My
Electric Vehicle Take Me?, B-18, front, 1992 (``[T]oday's EV models
. . . offer a driving range of 60 to 100 miles. . . .''); Virginia
Power, The Electric Vehicle: Clean, Quiet and Efficien
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