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Federal Register / Vol. 86, No. 247 / Wednesday, December 29, 2021 / Proposed Rules
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industry, DOE proposed to revive and update the method of calculating EV
CAFE values.23 The agency proposed a suite of changes from the 1981 rule, including to change the way the electricity generation output, input, and relative value terms are calculated, to incorporate off-peak electric vehicle charging and the relative scarcity of electricity generation fuel sources, and to change the test procedure used to determine the electrical efficiency of EVs.24 DOE noted that while the determination of the energy efficiency of an EV . . . is a straightforward task based on physical testing, the remaining required factors were subject to less precise quantification. 25 As proposed, the PEF
would no longer have included the relative value weighting of fuels by marginal price per BTU, and would instead have added a relative scarcity factor derived from the U.S. share of the world reserve market and the rate at which the U.S. was depleting each fuel sources reserves. 26 These proposed regulations did not meaningfully account specifically for the need of the Nation to conserve all forms of energy or for the relative . . . value of generation fuels. The 1994 proposal was never finalized.
In 1999, DOE withdrew the 1994
proposal and proposed an alternative PEF methodology.27 Noting criticisms related to the scarcity factor, DOE
elected to perform an additional search of the literature and determined that the fuels used to produce electricity are quite abundant such that scarcity did not appear to be a concern and should not be a guiding factor in the rulemaking at that time. 28 DOE then examined existing law at 49 U.S.C.
32905 for determining the petroleumequivalent fuel economy of other types of alternative fuel vehicles. 29 Two of the most common liquid alternative fuels, M85 and E85, contained 85%
alternative fuel and 15 percent unleaded gasoline by volume, so the statute deemed the petroleum equivalent fuel economy of E85 and M85 powered vehicles to be the measured fuel economy value divided 23 Electric and Hybrid Vehicle Research, Development, and Demonstration Program;
Equivalent Petroleum-Based Fuel Economy Calculation, Proposed Rule, 59 FR 5336, 5337 Feb.
4, 1994.
24 Id.
25 Id.
26 Id. at 5338.
27 Electric and Hybrid Vehicle Research, Development, and Demonstration Program;
Petroleum-Equivalent Fuel Economy Calculation, Proposed Rule, 64 FR 37905 July 14, 1999.
28 Id. at 37907.
29 Id.

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by 0.15.30 DOE then noted that Section 32905c extends this approach to gaseous fueled vehicles, dividing by 0.15, even though the gaseous fuel contains no gasoline whatsoever. 31
Observing that the methods specified in Section 32905 intentionally and substantially overstated the true energy efficiency of those vehicles, DOE proposed an EV PEF conceptually based on the provisions at 49 U.S.C.
42905c. 32 The agency contended that this approach would help to accelerate the early commercialization of electric vehicles and be more consistent with the regulatory treatment of other alternative fuel vehicles. 33 DOE thus proposed eliminating the relative value and scarcity factors from the 1981 rule and the 1994 proposal and instead including a fuel content factor of 1/
0.15 in the PEF.34 In effect, the fuel content factor added a multiple of 6.67 to every EVs imputed fuel economy.35 DOE justified this multiplier, drawn from statutory provisions applicable to gaseous fueled vehicles, as providing consistency, similar treatment to manufacturers of all types of alternative fuel vehicles, and simplicity and directness. 36
The agency finalized the proposal in 2000 without substantial modification.37 DOE also committed to review the regulations after five years and publish the findings of the review. 38 Petitioners have been unable to locate this publication, and it is not clear if the review occurred.
DOE Should Update Regulations for Calculating EV CAFE Values DOEs regulations for calculating CAFE program fuel economy values for EVs are long overdue to be updated.
Statute requires the agency to review those values each year and determine and propose necessary revisions based on the enumerated statutory factors.39
The regulations have not been updated in more than twenty years and the data underlying the extant regulations are materiallyand increasingly inaccurate. Further, the statute requires that the equivalency values be based on the statutory factors.40 The extant 30 Id.
31 Id.
32 Id.

at 37907.
at 37906.
34 Id. at 37907908.
35 Id. at 37908.
36 Id.
37 Electric and Hybrid Vehicle Research, Development, and Demonstration Program;
Petroleum-Equivalent Fuel Economy Calculation, Final Rule, 65 FR 36986 June 12, 2000.
38 See 10 CFR 474.5.
39 49 U.S.C. 32904a2B emphasis added.
40 49 U.S.C. 32904a2B.
33 Id.

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EV equivalency values are instead based on other statutory provisions applicable to gaseous fueled vehicles, with the consequence that EV CAFE values are driven by the seven-fold multiplier of the fuel content factor 41 rather than the statutory factors applicable to EVs.
The effect is that EV CAFE values are significantly inflated beyond what the relevant statutory factors contemplate.
The consequences of outdated regulations are not academic. Because NHTSA is prohibited from considering the fuel economy of EVs when determining the maximum feasible CAFE standards for a given model year,42 but must include EVs when calculating compliance with those standards,43 excessively high imputed fuel economy values for EVs means that a relatively small number of EVs will mathematically guarantee compliance without meaningful improvements in the real-world average fuel economy of automakers overall fleets.
DOE Should Update Its Regulations To Include the Best Available Data The values for several component terms in the PEF equation are no longer accurate. For example, the gasolineequivalent energy content of electricity factor Eg is determined by combining various values for the efficiency of national electricity and petroleum generation and distribution.44 The efficiency of many of these processes has improved over the last twenty years.
When DOE last updated regulations in 2000, the U.S. average fossil-fuel electricity generation efficiency Tg was 0.328, but the actual current efficiency is closer to 0.389.45
Further, the generation fuel mix has changed significantly since 2000. In 2000, fossil fuels made up about 71% of the generation mix, while renewables made up only about 9% and nuclear power provided the remaining 20%.46
In 2020, fossil fuels made up only about 60%, and within that pool natural gas is increasingly supplanting coal and petroleum.47 Renewables made up 20%
41 65

FR at 36987.
U.S.C. 32902h.
43 49 U.S.S. 32904a2B.
44 65 FR at 36987.
45 Compare id. with, e.g., U.S. Energy Information Administration EIA, Electric Power Annual, Data Tables, https www.eia.gov/electricity/annual/ last visited October 22, 2021; EPA, eGRID: Download Data, https www.epa.gov/egrid/download-data last visited October 22, 2021.
46 EIA, Total Energy, https www.eia.gov/
totalenergy/data/annual/showtext.php?t=ptb0802a last visited October 8, 2021.
47 EIA, Electricity explained, https www.eia.gov/
energyexplained/electricity/electricity-in-the-usgenerationcapacity-and-sales.php last visited October 8, 2021.
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