Interpretation ID: 1984-3.13

TYPE: INTERPRETATION-NHTSA

DATE: 08/23/84

FROM: AUTHOR UNAVAILABLE; Frank Berndt; NHTSA

TO: P. Winkler-Doman -- Office of the General Counsel, Ford Motor Co.

TITLE: FMVSS INTERPRETATION

TEXT:

Ms. P. Winkler-Doman Office of the General Counsel Ford Motor Company The American Rd. Dearborn, MI 48121

Dear Ms. Winkler-Doman: This responds to your July 19, l984, letter regarding the timing of petitions to amend average fuel economy standards. As you know, the agency has taken the position that Ford's petition to amend the l984 and l985 light truck average fuel economy standards was not timely filed with regard to the 1984 model year.

A model year is presumed to begin sometime in the autumn of the preceding calendar year (see Center for Auto Safety v. NHTSA, 710 F.2d 842 (D.C. Cir. l983)). The Ford petition was filed on November 21, l983, and amended on January 20, l984. Since model year l984 began in the fall of l983, it is clear that the l984 light truck standards could not have been amended in response to the Ford petition prior to the start of that model year.

Section 502(b) of the Motor Vehicle Information and Cost Savings Act (15 U.S.C. 2002(b) requires the Secretary of Transportation to issue average fuel economy standards for light trucks for each model year beginning with l979. These standards must be set at the "maximum feasible average fuel economy level" and must be prescribed at least "18 months prior to the beginning of" the model year to which they apply. 1d.

Section 502(f)(1) of the Act provides that the "Secretary may, from time to time, amend" any light truck fuel economy standard "as long as such standard, as amended, meets the requirements" of section 502(b). An amendment which makes standards more stringent must be promulgated "at least l8 months prior to the beginning of the model year to which such amendment will apply." See section 502(f)(2), 15 U.S.C. 2002(f)(2). With regard to any timing requirements applicable to amendments which make standards less stringent, section 502(f) is not explicit but could be interpreted in two ways. The language in paragraph ( ) (1) authorizing amendments "from time to time" could be interpreted to permit amendments at any time. Alternatively, the language in that paragraph requiring that amendments to standards must comply with requirements applicable to their original enactment could be interpreted to impose the l8 month rule, one of the requirements of section 502(b), on amendments to reduce standards. Under the letter approach, all amendments would have to be issued at least l8 months prior to the start of the effected model year.

Where a statutory provision is ambiguous on its face, rules of statutory construction dictate that the legislative history of the provision must be considered. See Sutherland, "Statutory Construction," 4th Ed., section 48.01. An Act's Conference Report has been considered the "most persuasive evidence of congressional intent" in this regard. Denby v. Schwelker, 671 F.2d 507, 510 (D.C. Cir. l981). The Conference Report on th Energy Policy and Conservation Act (the statute which added the fuel economy provisions to the Motor Vehicle Information and Cost Savings Act) contains the following discussion:

Average fuel economy standards prescribed by the ST (Secretary of Transportation) for passenger automobiles in model years after l980, for non-passenger automobiles, and for passenger automobiles manufactured by manufacturers of fewer than 10,000 passenger automobiles may be amended from time to time as long as each such amendment satisfies the l8 month rule-i.e., any amendment which has the effect of making an average fuel economy standard more stringent must be promulgated at least l8 months prior to the beginning of the model year to which such amendment will apply. An amendment which has the effect of making an average fuel economy standard less stringent can be promulgated at any time prior to the beginning of the model year in question.

See Sen. Rep. 94-516, 94th Cong., lst Sess. (1979) at 157. (Emphasis added.)

Although this discussion does not expressly prohibit amendments after the start of a model year, the last sentence certainly implies that result. If no limit on the timing of relaxatory amendments had been intended, The underlined sentence would have been ended after the words "...promulgated at any time.." The agency believes that Congress intended to provide certainty and finality for all parties concerned with regard to the levels of standards, to permit planning by the manufacturers and the agency through cutting off amendments once a model year has begun.

Ford has argued that a failure to permit amendments to fuel economy standards after the start of a model year places manufacturers in a difficult position, since unanticipated sales trends during the model year might impair its ability to comply. However, the agency is also concerned that amendments made after production has begun have some characteristics of ex postfacto law. We believe that Congress intended standards to be established before production begins, to encourage the achievement of particular fuel economy levels rather than simply rectifying past conduct. Chrysler Corporation has expressed similar concerns in its comments in our pending light truck rulemaking, noting that late changes in standards levels could adversely effect manufacturers who planned to meet the original levels. Therefore, we must reaffirm our previous position that petitions to amend fuel economy standards must be submitted in time to permit necessary rulemaking to be completed prior to the start of the model year.

Ford has also requested that the agency specify the precise data by which petitions to amend fuel economy standards must be filed. As noted above, the single court to address the issue has stated only that a given model year begins in the fall of the preceding calendar year (e.g., fall l984 is the beginning of the l985 model year). In its final rule establishing fuel economy reporting requirements, the agency took the position that, in the absence of my single "annual production period," the model year would be deemed to coincide with the calendar year, e.g., the l985 model year would begin January l, l985. See l9 U.S.C. 2001 (12) and 42 FR 62374 (December 12, l977). A further complicating issue is the time necessary to conduct a rulemaking proceeding. Since any amendments to standards must be promulgated prior to the start of the model year, petitions must be filed in time to permit the agency to complete a rulemaking proceeding on the petition prior to the start of the model year. The time necessary for such a proceeding will vary greatly depending on the complexity and controversiality of the issues involved. A proceeding would involve agency analysis of the petition, preparation and publication of the necessary analysis of comments, and preparation and publication of the documentation necessary to accompany the final decision. Such a proceeding could not in any case be completed in less than 6 months. The various uncertainties involved make it impossible for the agency to specify a precise date after which petitions will not be accepted. However, it is clear that the Ford petition, which was filed in November of the preceding calendar year, was not timely. Petitions regarding a particular model year's standards should be submitted no later than the early part of the preceding calendar year, and preferrably before that time.

If you have further questions on this matter, please contact us. Sincerely, Frank Berndt, Chief Counsel