ment under section 502(d)), such manufacturer shall be entitled to a credit, calculated under clause (ii), which shall be "(I) deducted from the amount of any civil penalty which has been or may be assessed against such manufacturer for a violation of section 507 (1) occurring in the model year immediately prior to the model year in which such manufacturer exceeds such applicable average fuel economy standard, and "(II) to the extent that such credit is not deducted pursuant to subclause (I), deducted from the amount of any civil penalty assessed against such manufacturer for a violation of section 507 (1) occurring in the model year immediately following the model year in which such manufacturer exceeds such applicable average fuel economy standard. "(ii) The amount of credit to which a manufacturer is entitled under clause (i) shall be equal to "(I) $5 for each tenth of a mile per gallon by which the average fuel economy of the passenger automobiles manufactured by such manufacturer in the model year in which the credit is earned pursuant to clause (i) exceeds the applicable average fuel economy standard established under section 502 (a) or (c), multiplied by "(II) the total number of passenger automobiles manufactured by such manufacturer during such model year. "(B) (i) Whenever the average fuel economy of a class of automobiles which are not passenger automobiles and which are manufactured by a manufacturer in a particular model year exceeds an average fuel economy standard applicable to automobiles of such class under section 502(b), such manufacturer shall be entitled to a credit, calculated under clause (ii), which shall be— "(I) deducted from the amount of any civil penalty which has been or may be assessed against such manufacturer for a violation of section 507 (2) occurring in the model year immediately prior to the model year in which such manufacturer exceeds such applicable average fuel economy standard, and "(II) to the extent that such credit is not deducted pursuant to subclause (I), deducted from the amount of any such civil penalty assessed against such manufacturer for a violation of section 507 (2) occurring in the model year immediately following the model year in which such manufacturer exceeds such applicable average fuel economy standard. "(ii) The amount of credit to which a manufacturer is entitled under clause (i) shall be equal to "(I) $5 for each tenth of a mile per gallon by which the average fuel economy of the automobiles of such class manufactured by such manufacturer in the model year in which the credit is earned pursuant to clause (i) exceeds the applicable average fuel economy standard established under section 502 (b), multiplied by "(II) the total number of automobiles of such class manufactured by such manufacturer during such model year. "(C) Whenever a civil penalty has been assessed and collected under this section from a manufacturer who is entitled to a credit under this paragraph with respect to such civil penalty, the Secretary of the Treasury shall refund to such manufacturer the amount of credit to which such manufacturer is so entitled, except that the amount of such refund shall not exceed the amount of the civil penalty so collected "(D) The Secretary may prescribe rules for purposes of carrying Rules. out the provisions of this paragraph. "(b) (1) (A) Any manufacturer whom the Secretary determines under subsection (a) to have violated a provision of section 507 (1), shall be liable to the United States for a civil penalty equal to (i) $5 for each tenth of a mile per gallon by which the average fuel economy of the passenger automobiles manufactured by such manufacturer during such model year is exceeded by the applicable average fuel economy standard established under section 502 (a) and (c), multiplied by (ii) the total number of passenger automobiles manufactured by such manufacturer during such model year. "(B) Any manufacturer whom the Secretary determines under subsection (a) to have violated section 507 (2) shall be liable to the United States for a civil penalty equal to (i) $5 for each tenth of a mile per gallon by which the applicable average fuel economy standard exceeds the average fuel economy of automobiles to which such standard applies, and which are manufactured by such manufacturer during the model year in which the violation occurs, multiplied by (ii) the total number of automobiles to which such standard applies and which are manufactured by such manufacturer during such model year. "(2) Any person whom the Secretary determines under subsection (a) to have violated a provision of section 507 (3) shall be liable to the United States for a civil penalty of not more than $10,000 for each violation. Each day of a continuing violation shall constitute a separate violation for purposes of this paragraph. (3) The amount of such civil penalty shall be assessed by the Secretary by written notice. The Secretary shall have the discretion to compromise, modify, or remit, with or without conditions, any civil penalty assessed under this subsection against any person, except that any civil penalty assessed for a violation of section 507 (1) or (2) may be so compromised, modified, or remitted only to the extent "(A) necessary to prevent the insolvency or bankruptcy of such manufacturer, "(B) such manufacturer shows that the violation of section 507 (1) or (2) resulted from an act of God, a strike, or a fire, or "(C) the Federal Trade Commission has certified that modification of such penalty is necessary to prevent a substantial lessening of competition, as determined under paragraph (4). The Attorney General shall collect any civil penalty for which a manufacturer is liable under this subsection in a civil action under subsection (c) (2) (unless the manufacturer pays such penalty to the Secretary). "(4) Not later than 30 days after a determination by the Secretary under subsection (a) (2) that a manufacturer has violated section 507 (1) or (2), such manufacturer may apply to the Federal Trade Commission for a certification under this paragraph. If the manufacturer shows and the Federal Trade Commission determines that modification of the civil penalty for which such manufacturer is otherwise liable is necessary to prevent a substantial lessening of competition in that segment of the automobile industry subject to the standard with respect to which such penalty was assessed, the Commission shall so certify. The certification shall specify the maximum amount that such penalty may be reduced. To the maximum extent practicable, the Commission shall render a decision with respect to an application under this paragraph not later than 90 days after the application is filed with the Commission. A proceeding under this paragraph shall not have the effect of 5 USC 701 et seq. 15 USC 2009. delaying the manufacturer's liability under this section for a civil penalty for more than 90 days after such application is filed, but any payment made before a decision of the Commission under this paragraph becomes final shall be paid to the court in which the penalty is collected, and shall (except as otherwise provided in paragraph (5)), be held by such court, until 90 days after such decision becomes final (at which time it shall be paid into the general fund of the Treasury). "(5) Whenever a civil penalty has been assessed and collected from a manufacturer under this section, and is being held by a court in accordance with paragraph (4), and the Secretary subsequently determines to modify such civil penalty pursuant to paragraph (3) (C) the Secretary shall direct the court to remit the appropriate amount of such penalty to such manufacturer. "(6) A claim of the United States for a civil penalty assessed against a manufacturer under subsection (b) (1) shall, in the case of the bankruptcy or insolvency of such manufacturer, be subordinate to any claim of a creditor of such manufacturer which arises from an extension of credit before the date on which the judgm in any collection action under this section becomes final (without regard to paragraph (4)). "(c) (1) Any interested person may obtain review of a determination (A) of the Secretary pursuant to which a civil penalty has been assessed under subsection (b), or (B) of the Federal Trade Commission under subsection (b) (4), in the United States Court of Appeals for the District of Columbia, or for any circuit wherein such person resides or has his principal place of business. Such review may be obtained by filing a notice of appeal in such court within 30 days after the date of such determination, and by simultaneously sending a copy of such notice by certified mail to the Secretary or the Federal Trade Commission, as the case may be. The Secretary or the Commission, as the case may be, shall promptly file in such court a certified copy of the record upon which such determination was made. Any such determination shall be reviewed in accordance with chapter 7 of title 5, United States Code. "(2) If any person fails to pay an assessment of a civil penalty after it has become a final and unappealable order, or after the appropriate court of appeals has entered final judgment in favor of the Secretary, the Attorney General shall recover the amount for which the manufacturer is liable in any appropriate district court of the United States. In such action, the validity and appropriateness of the final order imposing the civil penalty shall not be subject to review. "EFFECT ON STATE LAW "SEC. 509. (a) Whenever an average fuel economy standard established under this part is in effect, no State or political subdivision of a State shall have authority to adopt or enforce any law or regulation relating to fuel economy standards or average fuel economy standards applicable to automobiles covered by such Federal standard. "(b) Whenever any requirement under section 506 is in effect with respect to any automobile, no State or political subdivision of a State shall have authority to adopt or enforce any law or regulation with respect to the disclosure of fuel economy of such automobile, or of fuel cost associated with the operation of such automobile, if such law or regulation is not identical with such requirement. "(c) Nothing in this section shall be construed to prevent any State or political subdivision thereof from establishing requirements with respect to fuel economy of automobiles procured for its own use. "USE OF FUEL EFFICIENT PASSENGER AUTOMOBILES BY THE FEDERAL GOVERNMENT "SEC. 510. (a) The President shall, within 120 days after the date Rules. of enactment of this title, promulgate rules which shall require that 15 USC 2010. all passenger automobiles acquired by all executive agencies in each fiscal year which begins after such date of enactment achieve a fleet average fuel economy for such year not less than "(1) 18 miles per gallon, or "(2) the average fuel economy standard applicable under section 502 (a) for the model year which includes January 1 of such fiscal year, whichever is greater. "(1) The term 'fleet average fuel economy' means (A) the total number of passenger automobiles acquired in a fiscal year to which this section applies by all executive agencies (excluding passenger automobiles designed to perform combat related missions for the Armed Forces or designed to be used in law enforcement work or emergency rescue work), divided by (B) a sum of terms, each term of which is a fraction created by dividing "(i) the number of passenger automobiles so acquired of a given model type, by "(ii) the fuel economy of such model type. "(2) The term 'executive agency' has the same meaning as such term has for purposes of section 105 of title 5, United States Code. "(3) The term 'acquired' means leased for a period of 60 continuous days or more, or purchased. "RETROFIT DEVICES Definitions. "SEC. 511. (a) The Federal Trade Commission shall establish a 15 USC 2011. program for systematically examining fuel economy representations made with respect to retrofit devices. Whenever the Commission has reason to believe that any such representation may be inaccurate, it shall request the EPA Administrator to evaluate, in accordance with subsection (b), the retrofit device with respect to which such representation was made. "(b) (1) Upon application of any manufacturer of a retrofit device (or prototype thereof), upon the request of the Federal Trade Commission pursuant to subsection (a), or upon his own motion, the EPA Administrator shall evaluate, in accordance with rules prescribed under subsection (d), any retrofit device to determine whether the retrofit device increases fuel economy and to determine whether the representations (if any) made with respect to such retrofit device are accurate. "(2) If under paragraph (1) the EPA Administrator tests, or causes to be tested, any retrofit device upon the application of a manufacturer of such device, such manufacturer shall supply, at his own expense, one or more samples of such device to the Administrator and shall be liable for the costs of testing which are incurred by the Administrator. The procedures for testing retrofit devices so supplied may include a requirement for preliminary testing by a qualified independent testing laboratory, at the expense of the manufacturer of such device. "(c) The EPA Administrator shall publish in the Federal Register a summary of the results of all tests conducted under this section, together with the EPA Administrator's conclusions as to 89 STAT. 915 Publication in "Retrofit device." 15 USC 2012. "Electric vehicle." "(1) the effect of any retrofit device on fuel economy; 66 and (2) the effect of any such device on emissions of air pollutants; "(3) any other information which the Administrator determines to be relevant in evaluating such device. Such summary and conclusions shall also be submitted to the Secretary and the Federal Trade Commission. "(d) Within 180 days after the date of enactment of this title, the EPA Administrator shall, by rule, establish "(1) testing and other procedures for evaluating the extent to which retrofit devices affect fuel economy and emissions of air pollutants, and "(2) criteria for evaluating the accuracy of fuel economy representations made with respect to retrofit devices. "(e) For purposes of this section the term 'retrofit device' means any component, equipment, or other device "(1) which is designed to be installed in or on an automobile (as an addition to, as a replacement for, or through alteration or modification of, any original component, equipment, or other device); and "(2) which any manufacturer, dealer, or distributor of such device represents will provide higher fuel economy than would have resulted with the automobile as originally equipped, as determined under rules of the Administrator. Such term also includes a fuel additive for use in an automobile. "REPORTS TO CONGRESS "SEC. 512. (a) Within 180 days after the date of enactment of this title, the Secretary shall prepare and submit to the Congress and the President a comprehensive report setting forth findings and containing conclusions and recommendations with respect to (1) a requirement that each new automobile be equipped with a fuel flow instrument reading directly in miles per gallon, and (2) the most feasible means of equipping used automobiles with such instruments. Such report shall include an examination of the effectiveness of such instruments in promoting voluntary reductions in fuel consumption, the cost of such instruments, means of encouraging automobile purchasers to voluntarily purchase automobiles equipped with such instruments, and any other factor bearing on the cost and effectiveness of such instruments and their use. "(b) (1) Within 180 days after the date of enactment of this title, the Secretary shall prepare and submit to the Congress and the Presi dent a comprehensive report setting forth findings and containing conclusions and recommendations with respect to whether or not electric vehicles and other vehicles not consuming fuel (as defined in the first sentence of section 501(5)) should be covered by this part. Such report shall include an examination of the extent to which any such vehicle should be included under the provisions of this part, the manner in which energy requirements of such vehicles may be compared with energy requirements of fuel-consuming vehicles, the extent to which inclusion of such vehicles would stimulate their production and introduction into commerce, and any recommendations for legislative action. "(2) As used in this subsection, the term 'electric vehicle' means a vehicle powered primarily by an electric motor drawing current from rechargeable batteries, fuel cells, or other portable sources of electrical current.". |