Toyota Motor North America, Inc.
Suite 910 South
601 13th Street, NW
Washington, DC 20005
Dear Mr. Stricker:
This responds to your letter dated June 10, 2010 concerning the definition of the term transfer, as used in relation to Corporate Average Fuel Economy (CAFE) credits. You asked several questions relating to the revision to the definition of transfer in the April 2010 final rule establishing CAFE standards for model years 2012-2016.
By way of background, credits are earned by automobile manufacturers for over-compliance with passenger car and light truck CAFE standards, and may be used by the manufacturer to make up shortfalls in different model years and different compliance categories, subject to certain statutory and regulatory constraints, and may also be provided to or acquired from other manufacturers. Manufacturers have been able to carry-forward and carry-back CAFE credits since the early 1980s, but NHTSA only gained authority to permit credit trading and transferring as part of the Energy Independence and Security Act (EISA) of 2007.
NHTSA established 49 CFR Part 536 in 2009 to implement a program pursuant to this authority, and defined credit transfer as
the application by a manufacturer of credits earned by that manufacturer in one compliance category [domestic passenger cars, imported passenger cars, light trucks] or credits acquired by trade (and originally earned by another manufacturer in that category) to achieve compliance with fuel economy standards with respect to a different compliance category. For example, a manufacturer may purchase light truck credits from another manufacturer, and transfer them to achieve compliance in the manufacturers domestically manufactured passenger car fleet.
As a way to improve the transferring flexibility mechanism for manufacturers, as part of the rulemaking establishing CAFE standards for MYs 2012-2016, NHTSA clarified its interpretation of EISA, saying that EISA allowed the banking of credits for use in later model years. The agency amended the definition of transfer accordingly. Specifically, we added the following sentence to the end of the above definition of transfer:
Subject to the credit transfer limitations of 49 U.S.C. 32903(g)(3), credits can also be transferred across compliance categories and banked or saved in that category to be carried forward or backward later to address a credit shortfall.
You have asked several questions with regard to this revision to the definition of credit transfer, which we will answer in turn below.
1. Does the revised definition apply to MY 2011 and later credits, and may such credits be transferred across compliance categories in the same or later model year and banked or saved in that compliance category, subject to the limitations specified by 49 U.S.C. 32903(g)(3) and the adjustment factor specified at 49 CFR 536.4(c)?
Answer: Yes, this is correct. We note that credits are not adjusted until they are actually used for compliance purposes. See 49 CFR 536.4(c) and 536.5(d)(5).
2. Once transferred, are such credits considered to be credits within the compliance category to which they were transferred, and may they be applied without further adjustment, in the same manner as a credit that was generated as a result of over-compliance in that compliance category?
Answer: No, this is incorrect. 49 CFR 536.4(c) states clearly that the adjustment factor is applied to credits when traded or transferred and used, and 536.5(d)(5) similarly states that the value of traded or transferred credits is adjusted when used for compliance. (Emphasis added.) Thus, when credits are transferred and banked, they are simply stored in the compliance category to which they are transferred, but they retain their original character and value until they are used for compliance, at which time they are adjusted.
3. Does 49 U.S.C. 32903(g)(3) limit the credits that can be transferred into a compliance category in a given model year?
Answer: 49 U.S.C. 32903(g)(3) limits the maximum CAFE increase in any compliance category attributable to the application of credits earned in a different compliance category to 1.0 mpg for model years 2011-2013; to 1.5 mpg for model years 2014-2017; and to 2.0 for model years 2018 and beyond. The statute does not limit how many credits may be transferred in a given model year, rather it limits the application of transferred credits to improve fuel economy in a compliance category. Thus, manufacturers may transfer as many credits into a compliance category as they wish, but transferred credits may not increase a manufacturers CAFE level beyond the statutory limits.
4. Given the transfer cap in 32903(g)(3), is there a limit on how many credits can be transferred out of a compliance category in a given model year, or a limit on transferring credits from one compliance category to multiple compliance categories in the same model year or across model years, as long as the transfer cap in 32903(g)(3) and the adjustment factor in 49 CFR 536.4(c) are not violated?
Answer: Again, manufacturers may transfer as many credits out of a compliance category to either of the other compliance categories as they wish, but transferred credits may not increase a manufacturers CAFE level beyond the statutory limits. Furthermore, the adjustment factor is only relevant when the transferred credits are used for compliance; they are not applied at time of transfer.
5. Is the expiry date of transferred credits established by the model year in which such credits are originally earned, regardless of the model year or compliance category to which they are transferred?
Answer: Yes, this is correct. Please see the definitions for credits and expiry date in 49 CFR 536.3.
6. When a compliance category has a shortfall in a given model year, is there any restriction on the order in which available banked credits and available transfer credits must be applied? E.g., could a manufacturer meet a shortfall by carrying forward available credits banked in that compliance category, and then transfer additional credits into that compliance category to be banked or saved, subject to the limitations of 32903(g)(3) and the adjustment factor in 49 CFR 536.4(c)?
Answer: Your example is correct. Part 536 is intended to give manufacturers maximum flexibility to apply credits in the manner that they deem most appropriate, thus there is no restriction on the order in which available banked credits and available transferred credits can be applied to a shortfall. As long as the credit transfer cap of 32903(g)(3) is not violated, and as long as the adjustment factor in 49 CFR 536.4(c) is properly applied when the banked credits are used, the situation described should be permissible.
If you have any further questions, please feel free to contact Rebecca Yoon of my staff at (202) 366-2992.
O. Kevin Vincent
Ref: Part 536
 That is, apply credits earned for a fleets over-compliance in one year to a shortfall for that same fleet in a subsequent model year (e.g., credit earned for over-compliance with the MY 2000 light truck standard could be applied to a shortfall with respect to the MY 2002 light truck standard).
 That is, apply credits earned for a fleets over-compliance in one year to a shortfall for that same fleet in a previous model year (e.g., credit earned for over-compliance with the MY 2000 light truck standard could be applied to a shortfall (or deficit) with respect to the MY 1998 light truck standard).
 See 49 U.S.C. 32903(f) and (g).
 We note that credit transfers are also subject to the limitation in 49 U.S.C. 32903(g)(4) , which requires manufacturers to meet the minimum standards for domestically-manufactured passenger cars without the use of transferred credits.
 See 74 Fed. Reg. 49454, 49736-37 (Sept. 28, 2009) and 75 Fed. Reg. 25324, 25665-66 (May 7, 2010) for NHTSAs discussion of this issue in the MYs 2012-2016 CAFE standards rulemaking.