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Federal Register / Vol. 86, No. 169 / Friday, September 3, 2021 / Proposed Rules 536.7

Treatment of carryback credits.

a Carryback credits earned in a compliance category in any model year may be used in carryback plans approved by NHTSA, pursuant to 49
U.S.C. 32903b, for up to three model years prior to the year in which the credit was earned.
b For purposes of this part, NHTSA
will treat the use of future credits for compliance, as through a carryback plan, as a deferral of penalties for noncompliance with an applicable fuel economy standard.
c If NHTSA receives and approves a manufacturers carryback plan to earn future credits within the following three model years in order to comply with current regulatory obligations, NHTSA
will defer levying fines for noncompliance until the dates when the manufacturers approved plan indicates that credits will be earned or acquired to achieve compliance, and upon receiving confirmed CAFE data from EPA. If the manufacturer fails to acquire or earn sufficient credits by the plan dates, NHTSA will initiate compliance proceedings.
d In the event that NHTSA fails to receive or approve a plan for a noncompliant manufacturer, NHTSA will levy fines pursuant to statute. If within three years, the non-compliant manufacturer earns or acquires additional credits to reduce or eliminate the non-compliance, NHTSA will reduce any fines owed, or repay fines to the extent that credits received reduce the non-compliance.
e No credits from any source earned, transferred and/or traded will be accepted in lieu of compliance if those credits are not identified as originating within one of the three model years after the model year of the confirmed shortfall.

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536.8

Conditions for trading of credits.

a Trading of credits. If a credit holder wishes to trade credits to another party, the current credit holder and the receiving party must jointly issue an instruction to NHTSA, identifying the quantity, vintage, compliance category, and originator of the credits to be traded. If the recipient is not a current account holder, the recipient must provide sufficient information for NHTSA to establish an account for the recipient. Once an account has been established or identified for the recipient, NHTSA completes the trade by debiting the transferors account and crediting the recipients account.
NHTSA will track the quantity, vintage, compliance category, and originator of all credits held or traded by all accountholders.

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b Trading between and within compliance categories. For credits earned in model year 2011 or thereafter, and used to satisfy compliance obligations for model year 2011 or thereafter:
1 Manufacturers may use credits originally earned by another manufacturer in a particular compliance category to satisfy compliance obligations within the same compliance category.
2 Once a manufacturer acquires by trade credits originally earned by another manufacturer in a particular compliance category, the manufacturer may transfer the credits to satisfy its compliance obligations in a different compliance category, but only to the extent that the CAFE increase attributable to the transferred credits does not exceed the limits in 49 U.S.C.
32903g3. For any compliance category, the sum of a manufacturers transferred credits earned by that manufacturer and transferred credits obtained by that manufacturer through trade must not exceed that limit.
c Changes in corporate ownership and control. Manufacturers must inform NHTSA of corporate relationship changes to ensure that credit accounts are identified correctly and credits are assigned and allocated properly.
1 In general, if two manufacturers merge in any way, they must inform NHTSA how they plan to merge their credit accounts. NHTSA will subsequently assess corporate fuel economy and compliance status of the merged fleet instead of the original separate fleets.
2 If a manufacturer divides or divests itself of a portion of its automobile manufacturing business, it must inform NHTSA how it plans to divide the manufacturers credit holdings into two or more accounts.
NHTSA will subsequently distribute holdings as directed by the manufacturer, subject to provision for reasonably anticipated compliance obligations.
3 If a manufacturer is a successor to another manufacturers business, it must inform NHTSA how it plans to allocate credits and resolve liabilities per 49 CFR
part 534.
d No short or forward sales. NHTSA
will not honor any instructions to trade or transfer more credits than are currently held in any account. NHTSA
will not honor instructions to trade or transfer credits from any future vintage i.e., credits not yet earned. NHTSA
will not participate in or facilitate contingent trades.
e Cancellation of credits. A credit holder may instruct NHTSA to cancel
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its currently held credits, specifying the originating manufacturer, vintage, and compliance category of the credits to be cancelled. These credits will be permanently null and void; NHTSA will remove the specific credits from the credit holders account, and will not reissue them to any other party.
f Errors or fraud in earning credits.
If NHTSA determines that a manufacturer has been credited, through error or fraud, with earning credits, NHTSA will cancel those credits if possible. If the manufacturer credited with having earned those credits has already traded them when the error or fraud is discovered, NHTSA will hold the receiving manufacturer responsible for returning the same or equivalent credits to NHTSA for cancellation.
g Error or fraud in trading. In general, all trades are final and irrevocable once executed, and may only be reversed by a new, mutuallyagreed transaction. If NHTSA executes an erroneous instruction to trade credits from one holder to another through error or fraud, NHTSA will reverse the transaction if possible. If those credits have been traded away, the recipient holder is responsible for obtaining the same or equivalent credits for return to the previous holder.
536.9 Use of credits with regard to the domestically manufactured passenger automobile minimum standard.

a Each manufacturer is responsible for compliance with both the minimum standard and the attribute-based standard.
b In any particular model year, the domestically manufactured passenger automobile compliance category credit excess or shortfall is determined by comparing the actual CAFE value against either the required standard value or the minimum standard value, whichever is larger.
c Transferred or traded credits may not be used, pursuant to 49 U.S.C.
32903g4 and f2, to meet the domestically manufactured passenger automobile minimum standard specified in 49 U.S.C. 32902b4 and in 49 CFR 531.5d.
d If a manufacturers average fuel economy level for domestically manufactured passenger automobiles is lower than the attribute-based standard, but higher than the minimum standard, then the manufacturer may achieve compliance with the attribute-based standard by applying credits.
e If a manufacturers average fuel economy level for domestically manufactured passenger automobiles is lower than the minimum standard, then the difference between the minimum
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