        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 660
        [Docket No. 0907281183-91184-01]
        RIN 0648-AX98
        Fisheries off West Coast States; Pacific Coast Groundfish Fishery; Data Collection for the Trawl Rationalization Program

          AGENCY:
           National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

          ACTION:
           Proposed rule; request for comments.

          SUMMARY:
           NMFS proposes to collect data to support implementation of a future trawl rationalization program under the Pacific Coast Groundfish Fishery Management Plan (FMP). NMFS proposes to collect ownership information from all potential participants in the trawl rationalization program. In addition, NMFS is notifying potential participants that the agency intends to use the Pacific States Marine Fisheries Commission's Pacific Fisheries Information Network (PacFIN) database and NMFS' Northwest Fisheries Science Center's Pacific whiting observer data from NORPAC (a database of North Pacific fisheries and Pacific whiting information) to determine initial allocation of quota share (QS) for the trawl rationalization program, if it is approved and implemented.

          DATES:
           Comments on this proposed rule must be received no later than 5 p.m., local time on October 16, 2009.

          ADDRESSES:
           You may submit comments, identified by RIN 0648-AX98 by any one of the following methods:

          Electronic Submissions: Submit all electronic public comments via the Federal eRulemaking Portal http://www.regulations.gov.
          Fax: 206-526-6736, Attn: Jamie Goen.
          Mail: Barry Thom, Acting Administrator, Northwest Region, NMFS, 7600 Sand Point Way NE, Seattle, WA 98115-0070, Attn: Jamie Goen.

          Instructions: All comments received are a part of the public record and will generally be posted to http://www.regulations.gov without change. All Personal Identifying Information (for example, name, address, etc.) voluntarily submitted by the commenter may be publicly accessible. Do not submit Confidential Business Information or otherwise sensitive or protected information.
          NMFS will accept anonymous comments (enter N/A in the required fields if you wish to remain anonymous). Attachments to electronic comments will be accepted in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only. Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this proposed rule may be submitted to NMFS, Northwest Region and by e-mail to David_Rostker@omb.eop.gov or fax to (202) 395-7285.

          FOR FURTHER INFORMATION CONTACT:

           Jamie Goen, phone: 206-526-4656, fax: 206-526-6736, and e-mail jamie.goen@noaa.gov.

        SUPPLEMENTARY INFORMATION:
        Electronic Access

        This proposed rule is accessible via the Internet at the Office of the Federal Register's Web site at http://www.gpoaccess.gov/fr/index.html. Background information and documents are available at the Pacific Fishery Management Council's website at http://www.pcouncil.org/.
        Background
        Since 2003, the Pacific Fishery Management Council (Council) has been developing a trawl rationalization program, which would affect the limited entry trawl fishery of the Pacific Coast groundfish fishery. The trawl rationalization program is intended to increase net economic benefits, create individual economic stability, provide full utilization of the trawl sector allocation, consider environmental impacts, and achieve individual accountability of catch and bycatch.

        The Council has developed the trawl rationalization program through two amendments to the Groundfish FMP: (1) Amendment 20, the trawl rationalization program; and (2) Amendment 21, intersector allocation. Amendment 20 would create the structure and management details of the trawl rationalization program, while Amendment 21 would allocate the groundfish stocks between trawl and non-trawl fisheries. The Council took final action on Amendment 20 at their November 2008 meeting, with trailing actions at its March 2009, April 2009, and June 2009 meetings. The Council took final action on Amendment 21 at its April 2009 meeting. When the Council formally transmits those amendments to NMFS, the agency will publish a notice of availability (NOA) of an FMP amendment and a proposed rule in the Federal Register to announce a public comment period. Following the public comment period on the NOA and proposed rule, NMFS will announce its decision on whether or not to approve the amendments in a final rule published in the Federal Register. The FMP approval process and implementation, if appropriate, are expected to occur in 2010.
        The trawl rationalization program would be a limited access privilege program (LAPP) under the Magnuson-Stevens Fishery Conservation and Management Act (MSA), 16 U.S.C.1851-1891d, as reauthorized in 2007. A LAPP is considered a grant of permission to the holder of the limited access privilege or QS to participate in the program and may be revoked, limited, or modified at any time. In other words, it is a conditional privilege, conveyed through QS or catch shares, to harvest a specified amount of fish. The MSA requires the Council or the Secretary of Commerce to ensure that limited access privilege holders do not acquire an excessive share of the total limited access privileges in the program and to establish a maximum share, expressed as a percentage that each limited access privilege holder may hold, acquire, or use. For the trawl rationalization program, the Council has adopted limits on the amount of pounds a vessel can hold, acquire, or use (i.e., vessel limits) and limits on the amount of QS that can be held, acquired, or used (i.e., control limits).
        Trawl Rationalization Program Structure
        The trawl rationalization program would consist of: (1) An individual fishing quota (IFQ) program for the shore-based trawl fleet; and (2) cooperative (co-op) programs for the at-sea trawl fleet. Under trawl rationalization, the shore-based trawl fleet would consist of IFQ participants who land groundfish to shore-based processors or first receivers. The at-sea trawl fleet would consist of fishery participants harvesting whiting with midwater trawl gear (i.e., whiting catcher/processor vessels, whiting motherships, and whiting catcher vessels associated with motherships). The co-op programs for the at-sea trawl fleet would be further divided as follows: (1) The whiting catcher/processor co-op; and (2) the whiting mothership co-ops. The mothership co-ops may consist of a single co-op or multiple co-ops where vessels pool their harvest together, or it may consist of vessels not associated with a particular mothership (i.e., “non-co-op” segment of the mothership fishery).
         The IFQ program for the shore-based fleet would require an initial allocation of harvest QS to individual participants based on historic participation in the fishery, specifically to limited entry trawl permit owners and shore-based whiting processors who meet the eligibility requirements. In order to comply with the MSA, NMFS would be required to determine and track ownership interest in QS to determine if individuals are within set limits, both at the initial allocation stage and during the operation of the program. In Amendment 20, the Council has adopted limits (by species group and area) on the amount of QS an individual can control (control limits).
        The Council has adopted different program structures for the whiting catcher/processor co-ops and whiting mothership co-ops, based on how these co-ops have operated in the past. The structure of the co-ops will be described in more detail in the proposed rule to implement Amendment 20, which is expected in 2010. The catcher/processor co-op would not require an initial allocation of QS to individual vessels, provided a co-op is established.
        QS for the at-sea mothership fleet (called “catch history assignments” in Council documents) would initially be allocated to the individual whiting catcher vessels associated with the mothership fishery, and would be non-transferable amounts associated with the vessel. The QS allocated to individual vessels would reflect that individual vessel's contribution to the total amount of fish its mothership co-op can harvest. However, an individual vessel in the co-op could harvest more than its at-sea quota, within the restrictions on individual vessel harvest and mothership co-op limits. Similar to the shore-based IFQ program, NMFS would be required to track ownership interest in QSs to determine if individuals are within set limits. In addition, ownership interest in the co-op programs (both the catcher/processor and mothership) and IFQ program would be tracked at the individual level to monitor crossover of participants and ownership interest among the programs.
        Collection of Ownership Information
        Pursuant to section 402(a)(2) of the MSA, if the Secretary of Commerce determines that additional information is necessary for developing or implementing an FMP, the Secretary may, by regulation, implement an information collection program requiring submission of additional information for the fishery. In this proposed rule, ownership information would be collected from the potential participants in the trawl rationalization program, including the at-sea fleet (whiting motherships, whiting mothership catcher vessels, and whiting catcher/processors), the shore-based fleet (whiting and non-whiting permit owners and holders) and the shore-based whiting processors. Ownership information would be collected to support and facilitate the timely implementation of the potential future trawl rationalization program under the Groundfish FMP.

        Similar to current NMFS requirements to collect ownership information from the limited entry fixed gear sablefish fleet, the primary purpose of collecting ownership interest information from the trawl fleet is to allow NMFS to monitor control of the groundfish resource in the trawl fishery to ensure participants remain within the accumulation limits, or control limits on QS, recommended by the Council in Amendment 20 to the FMP. Initially, NMFS would use the ownership information collected under this rule as the first step in the application process to determine which potential QS holders might be over their accumulation limits as individuals or as members of a business entity. By collecting ownership information from potential participants in advance of the FMP amendment approval process, NMFS would expedite the QS initial issuance process, which is expected to take place in the fall of 2010. After ownership interest forms from this rulemaking are completed early in 2010, NMFS intends to provide pre-filled ownership interest forms with the initial issuance application package in the fall of 2010, thereby reducing the burden on potential participants and shortening the application process. If the collection of the ownership information requested as part of this rulemaking is not completed at the time NMFS provides these forms, NMFS may delay implementation of the trawl rationalization program or the issuance of an eligible participant's QS due to the additional time needed to gather the ownership information and determine if an eligible participant is within the accumulation limits.
        In addition, the ownership information collected would create a baseline of ownership information to evaluate the trawl rationalization program during periodic reviews of the program, as required by the MSA. It would allow NMFS to better understand the relationship between processors, permit owners, and the entities owning the vessel registered to the permit (i.e., permit holders). In other words, it would allow NMFS to better understand who will control QS and which individuals will potentially use quota pounds (QP). Moreover, the ownership information would allow NMFS to better understand potential vessel accounts for QP and to better understand the ownership of vessels that crossover between different sectors in the trawl fishery. For example, it would allow NMFS to better understand the ownership of vessels that participate in both the whiting shore-based and the mothership fisheries.
        NMFS would send a Trawl Identification of Ownership Interest Form to potential participants in the trawl rationalization program requiring the following information to be filled out: Type of entity; qualifying permit number; name of company or name of individuals owning the limited entry permit, vessel or processing plant; tax identification number (TIN) for each entity; date of birth (DOB) for each individual; state in which each business entity is registered; business mailing address; physical address for processing plants; business phone number, fax number and email; authorized representative's name; name of each individual having ownership interest in the limited entry permit, vessel or processing plant; the individual's business addresses; percentage of ownership by each entity (if there are multiple entities given as an owner of the permit, vessel, or processing plant) and each individual shareholder in each entity; printed name of authorized representative, their signature, and the date. The percentage of ownership of all shareholders must equal 100 percent. The form would also allow owners to certify whether or not they are a small business according to Small Business Administration (SBA) and the Regulatory Flexibility Act (RFA) standards.
        For permits, the legal owner of the permit or authorized representative would be required to complete the form and provide all necessary information on the individual or entity owning each groundfish limited entry trawl permit. For vessels, the vessel owner would be required to complete the form and provide all necessary information on the individual or entity owning each vessel that is registered to a groundfish limited entry trawl permit (i.e., permit holder). For shore-based whiting processors or first receivers, the legal owner or authorized representative would be required to complete the form and provide all necessary information on the individual or entity owning each shore-based whiting processing or first receiver company. The individual signing the form would certify under penalty of perjury that the information provided is true and correct and the form would be required to be notarized by a notary public.
        The form would be required even if the owner of the permit or potential participant in the trawl rationalization program is a person and not an entity. This form does NOT prequalify these persons for QS nor guarantee that they will qualify for QS under the future trawl rationalization program.
        In addition to filling out the mandatory ownership interest form, potential trawl rationalization program participants may be required to submit additional documentation to NMFS. If the ownership interest in the permit, vessel, or potential QS includes a business entity, then additional documentation will be required. If there is an authorized representative for a business entity, then a corporate resolution would be required authorizing the person signing to do so on behalf of the entity. Business entities established under the laws of the United States or of any State would be required to provide proof of the establishment of their business and to verify that they are an active corporation. If an entity was not established under the laws of the United States or of any other State, this rule would not require the entity to become so established. However, an entity must be established under the laws of the United States or of any State in order to qualify for an initial allocation of QS, pursuant to section 303A(c)(1)(D) of the MSA. Providing the information at this stage will expedite the initial issuance process.
        Additional documentation that NMFS may request after review of the completed Trawl Identification of Ownership Interest Form includes articles of incorporation, a contract, or any other credible documentation that substantiates those with ownership interests in the entity and their percent ownership. NMFS may require a certified copy of the current vessel document (United States Coast Guard or state) as evidence of vessel ownership. NMFS may also request or consider any other relevant, credible evidence.

        NMFS would send out the Trawl Identification of Ownership Interest Form with instructions to the current address in NMFS records for potential participants in the trawl rationalization program. Completion of this form would be required only once in preparation for implementation of the trawl rationalization program. This form would be sent to the at-sea fleet (whiting motherships, whiting mothership catcher vessels, and whiting catcher/processors), the shore-based fleet (whiting and non-whiting permit owners and holders) and the shore-based whiting processors. Potential participants would have at least 60 days from the effective date of the Federal Register final rule for this action to return the completed form. The completed form must be returned to NMFS no later than May 1, 2010. In the future and if the trawl program is implemented under Amendment 20, the ownership interest form would likely be required during the permit or QS renewal process and during any permit or QS transfers.
        Databases to be Used for Initial Allocation of Quota Share
        Potential participants of the trawl rationalization program should be aware that the agency intends to use landings data from the Pacific States Marine Fisheries Commission's PacFIN database and NMFS' Northwest Fisheries Science Center's Pacific whiting observer data from NORPAC to determine initial allocations of QS for the trawl rationalization program. Landings data from state fish tickets, as provided by the states to the PacFIN database, would be used to determine initial allocation of IFQ QS for the shore-based whiting and nonwhiting harvesters and for the shore-based whiting processors. Landings data from the NORPAC database would be used to determine initial allocation of at-sea QS for the whiting mothership catcher vessels.

        NMFS intends to “freeze” the databases for the purposes of initial allocation on the date the proposed rule proposing to implement Amendment 20 to the FMP is published in the Federal Register. This should allow time for NMFS to compile the dataset and cross check the data for any errors. “Freezing” the databases means that NMFS will extract a snapshot of the databases as of the proposed rule publication date and will use those for initial allocation of QS. “Freezing” the databases is necessary to hold them constant for use during qualification and initial issuance of the trawl rationalization program and to form an administrative record of the database at a given point in time. Following the “freezing” of the databases, any corrections to the “frozen” database would be made with NMFS through the processes set forth in future trawl rationalization rules. After NMFS extracts a copy of the databases, the PacFIN and NORPAC databases will continue to exist and be updated through their normal processes, but such updates may not be used for initial allocations of QS.

        If potential participants in the trawl rationalization program have concerns over the accuracy of their data in the PacFIN database, they should contact the state in which they landed those fish to correct any errors. Any revisions to an entity's fish tickets would have to be approved by the state in order to be accepted. State contacts are as follows: (1) Washington - Carol Turcotte (360-902-2253, Carol.Turcotte@dfw.wa.gov); (2) Oregon - Michelle Grooms (503-947-6247, Michelle.L.Grooms@state.or.us); and (3) California - Gerry Kobylinski (916-323-1456, Gkobylin@dfg.ca.gov). For concerns over the accuracy of NORPAC data, contact Janell Majewski (206-860-3293, janell.majewski@noaa.gov). NMFS urges potential QS owners to go directly to the source where fisheries data is entered in the database to get it corrected before NMFS extracts the data for initial issuance of QS.
        Classification
        Pursuant to section 402(a)(2) of the MSA, the NMFS Assistant Administrator, acting on behalf of the Secretary of Commerce, has determined that information collected under this proposed rule is necessary for developing and implementing the trawl rationalization program. The NMFS Assistant Administrator has also determined that this proposed rule is consistent with other applicable law, subject to further consideration after public comment.
        This proposed rule has been determined to be not significant for purposes of Executive Order 12866.
        An initial regulatory flexibility analysis (IRFA) was prepared, as required by section 603 of the RFA. The IRFA describes the economic impact this proposed rule, if adopted, would have on small entities. A description of the action, why it is being considered, and the legal basis for this action are contained at the beginning of this section in the preamble and in the SUMMARY section of the preamble. A copy of the IRFA is available from the NMFS (see ADDRESSES). A summary of the analysis follows:
        The proposed rule would allow NMFS to collect data to support implementation of a future trawl rationalization program, Amendment 20, to the Groundfish FMP. A separate Regulatory Impact Review/IRFA will be prepared for the full trawl rationalization program as part of the rulemaking for Amendment 20. This proposed rule would also announce that NMFS intends to use landings data from the PacFIN and NORPAC databases to determine initial allocations of QS for the trawl rationalization program. Section 402(a)(2) of the MSA gives the legal authority for the action. If the Secretary determines that additional information is necessary for developing or implementing an FMP, the Secretary may, by regulation, implement an information collection requiring submission of such additional information for the fishery.
        The Council has recommended accumulation limits to comply with the MSA requirement to ensure that participants do not acquire an excessive share of the total limited access privileges in the trawl rationalization program. Initially, NMFS would use the ownership information collected as the first step in the application process to determine which potential QS holders might be over their accumulation limits as individuals or as members of a business entity. By collecting ownership information from potential participants in advance of the FMP amendment approval process, NMFS would expedite the initial issuance of QS, which is expected to take place in the fall of 2010. Also, NMFS could use the completed forms to troubleshoot any unforeseen data collection issues and to provide pre-filled ownership interest forms with the initial issuance package in the fall of 2010. Pre-filled forms would reduce the burden on potential participants and shorten the initial issuance and appeals process.
        The IRFA considers three alternatives: (1) No action; (2) a blank form to collect ownership interest information; and (3) a partially pre-filled form to collect ownership information. The no action alternative would delay collecting any ownership interest information until the initial issuance and appeals process for the trawl rationalization program, which is expected to take place in the fall of 2010. Under the second alternative, NMFS would mail a blank Trawl Identification of Ownership Interest Form to potential participants in the trawl rationalization program. Under the third and selected alternative, NMFS would mail out a partially pre-filled Trawl Identification of Ownership Interest Form to potential participants in the trawl rationalization program. NMFS would use its Permit Office's database to pre-fill the permit and/or vessel owner's name of record and address. NMFS would also use this information to begin to fill out the names of participants with ownership interest.
        Compared to the no action alternative, both alternatives would facilitate a timelier implementation of the trawl rationalization program. Additionally, the preferred alternative, partially pre-filled forms, would further expedite the trawl rationalization program implementation process and would be the most helpful to the person completing the form. This should aid the person completing the form by providing details on what information is needed and how NMFS database currently views the permit and/or vessel owner or owner of the whiting processor. While timely implementation of the trawl rationalization program benefits its participants, NMFS must also be aware that doing so is not too burdensome and costly to the potential trawl rationalization program participants. This proposed rule would establish a onetime mailing requesting ownership information. Filling out a Trawl Ownership Interest Form is expected to take approximately 30 minutes per response and cost approximately $19.15 per response (which includes the respondent's time ($8.51), mailing, photocopying, and notary fee). There is no fee for this form. There is an incentive to respond because this is the initial step by any business to gain ownership rights in the fishery that can, at a future time, be harvested, sold, leased, or combined with other businesses in fishing operations. The financial benefits of participating in the trawl rationalization program should far outweigh the minimal cost of time and effort to fill out a form. (Very preliminary Pacific Council estimates indicate that for the harvesting vessels, after taking into account the costs of having observer coverage, over time the fishery may increase annual profits (revenue minus costs) by $10 to $20 million.)

        This proposed rule would collect ownership information from approximately 250 potential participants who may receive initial allocation of QS, including the at-sea fleet (whiting motherships, whiting mothership catcher vessels, and whiting catcher/processors), the shore-based fleet (whiting and non-whiting permit owners and holders) and the shore-based whiting processors. Using SBA standards, most of the estimated 250 entities are considered small businesses, except for some catcher vessels that also fish off Alaska, some shoreside processors and all catcher-processors and motherships (fewer than 30) that are affiliated with larger processing companies or large international seafood companies. One of the purposes of this data collection is to have these entities certify that they are “small” or “large” entities based on SBA size and affiliation criteria.
        This information collection would be requested of all potential participants in the trawl rationalization program, regardless of size, and would not have a disproportionate effect on small versus large entities. Nor would this information collection have any effect on profitability for small entities.
        These changes will not duplicate, overlap or conflict with other laws or regulations. This proposed action is not expected to meet any of the RFA tests of having a “significant” economic impact on a “substantial number” of small entities. Nonetheless, NMFS has prepared an IRFA for this action. NMFS is requesting comments on this conclusion.
        This proposed rule contains a collection-of-information requirement subject to review and approval by OMB under the Paperwork Reduction Act (PRA). This requirement has been submitted to OMB for approval. The public reporting burden for the Trawl Identification of Ownership Interest Form is estimated to average 30 minutes per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection information. This form is estimated to cost approximately $19.15 per response (which includes the respondent's time ($8.51), mailing, photocopying, and notary fee). There is no fee for this form.

        Public comment is sought regarding: Whether this proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; the accuracy of the burden estimate; ways to enhance the quality, utility, and clarity of the information to be collected; and ways to minimize the burden of the collection of information, including through the use of automated collection techniques or other forms of information technology. Send comments on these or any other aspects of the collection of information to NMFS, Northwest Region (see ADDRESSES section), and by e-mail to David_Rostker@omb.eop.gov or fax to (202) 395-7285.
        Notwithstanding any other provision of the law, no person is required to respond to, and no person shall be subject to penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB control number.

          List of Subjects in 50 CFR Part 660
          Fishing, Fisheries, and Indian Fisheries.

          Dated: September 11, 2009.
          Samuel D. Rauch III,
          Deputy Assistant Administrator For Regulatory Programs, National Marine Fisheries Service.

        For the reasons set out in the preamble, 50 CFR Part 660 is proposed to be amended as follows:

          PART 660—FISHERIES OFF WEST COAST STATES

        1. The authority citation for part 660 continues to read as follows:

          Authority:
          16 U.S.C. 1801 et seq.

        2. A new § 660.337 is added to read as follows:

          § 660.337
          Trawl rationalization program - data collection requirements.
          (a) Ownership reporting requirements - (1) In 2010, NMFS will send a Trawl Identification of Ownership Interest Form to the current address on record requesting information from participants in the trawl fishery. Receipt of this form does NOT prequalify these persons for quota share nor does it guarantee that they will qualify for quota share under a future trawl rationalization program. The following participants in the trawl fishery must complete and return the form to NMFS:
          (i) Owners of each limited entry permit endorsed for trawl gear;
          (ii) Owners of each vessel registered to a limited entry permit endorsed for trawl gear (i.e., permit holder) if not identical to the permit owner covered by paragraph (a)(1)(i) of this section;
          (iii) Owners of each vessel registered to a Pacific whiting vessel license that are not covered by paragraphs (a)(1)(i) and (ii) above; and
           (iv) First receivers issued current Pacific whiting first receiver exempted fishing permits.
          (2) Supporting documentation.
          (i) Business entities completing the Trawl Identification of Ownership Interest Form are required to submit the following:
          (A) A corporate resolution or any other credible documentation as proof of the authorized representative selected to act on behalf of the entity; and
          (B) Proof that the business entity was established and is currently recognized as active under the laws of the United States or any State, if indeed they were.
          (ii) After review of the Trawl Identification of Ownership Interest Form, NMFS may require the following additional documentation:
          (A) Articles of incorporation, a notarized contract, or any other credible documentation that identifies each person who owns an interest in the entity and their percentage of ownership;
          (B) A certified copy of the current vessel document (United States Coast Guard or state) as evidence of vessel ownership; or
          (C) Such other relevant, credible evidence as the applicant may submit, or as the SFD or the Regional Administrator request or acquire.
          (3) Deadline. Persons listed in paragraph (a)(1) will be provided at least 60 calendar days to submit completed forms. All forms must be completed and returned to NMFS with a postmark no later than the deadline date of May 1, 2010.
          (b) [Reserved]

      [FR Doc. E9-22325 Filed 9-15-09; 8:45 am]
      BILLING CODE 3510-22-S


        ENVIRONMENTAL PROTECTION AGENCY
        40 CFR Part 52
        [EPA-R03-OAR-2014-0629; FRL-9917-68-Region-3]
        Approval and Promulgation of Air Quality Implementation Plans; Pennsylvania; State Boards Requirements

          AGENCY:
          Environmental Protection Agency.

          ACTION:
          Proposed rule.

          SUMMARY:

          The Environmental Protection Agency (EPA) proposes to approve the State Implementation Plan (SIP) revision submitted by the Commonwealth of Pennsylvania for the purpose of addressing the State Boards' requirements for all criteria pollutants of the National Ambient Air Quality Standards (NAAQS). In the Final Rules section of this Federal Register, EPA is approving the Commonwealth's SIP submittal as a direct final rule without prior proposal because the Agency views this as a noncontroversial submittal and anticipates no adverse comments. A detailed rationale for the approval is set forth in the direct final rule. If no adverse comments are received in response to this action, no further activity is contemplated. If EPA receives adverse comments, the direct final rule will be withdrawn and all public comments received will be addressed in a subsequent final rule based on this proposed rule. EPA will not institute a second comment period. Any parties interested in commenting on this action should do so at this time.

          DATES:
          Comments must be received in writing by November 17, 2014.

          ADDRESSES:

          Submit your comments, identified by Docket ID Number EPA-R03-OAR-2014-0629 by one of the following methods:

          A. www.regulations.gov. Follow the on-line instructions for submitting comments.
          B. Email: fernandez.cristina@epa.gov.

          C. Mail: EPA-R03-OAR-2014-0629, Cristina Fernandez, Associate Director, Office of Air Program Planning, Air Protection Division, Mailcode 3AP30, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103.
          D. Hand Delivery: At the previously listed EPA Region III address. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information.

            Instructions: Direct your comments to Docket ID No. EPA-R03-OAR-2014-0629. EPA's policy is that all comments received will be included in the public docket without change, and may be made available online at www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through www.regulations.gov or email. The www.regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to EPA without going through www.regulations.gov, your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses.

            Docket: All documents in the electronic docket are listed in the www.regulations.gov index. Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in www.regulations.gov or in hard copy during normal business hours at the Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the Commonwealth's submittal are available at the Pennsylvania Department of Environmental Protection, Bureau of Air Quality Control, P.O. Box 8468, 400 Market Street, Harrisburg, Pennsylvania 17105.

          FOR FURTHER INFORMATION CONTACT:
          Ruth Knapp, (215) 814-2191, or by email at knapp.ruth@epa.gov.

        SUPPLEMENTARY INFORMATION:

        For further information, please see the information provided in the direct final action, with the same title, that is located in the “Rules and Regulations” section of this Federal Register publication. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

          Dated: September 23, 2014.
          William C. Early,
          Acting Regional Administrator, Region III.

      [FR Doc. 2014-24346 Filed 10-15-14; 8:45 am]
      BILLING CODE 6560-50-P


        DEPARTMENT OF HEALTH AND HUMAN SERVICES
        Administration for Children and Families
        45 CFR Parts 1355 and 1356
        Request for Public Comment Concerning Regulations for Transferring Children From the Placement and Care Responsibility of a State Title IV-E Agency to a Tribal Title IV-E Agency and Tribal Share of Title IV-E Administration and Training Expenditures

          AGENCY:
          Department of Health and Human Services, Administration for Children and Families, Administration on Children, Youth and Families.

          ACTION:
          Proposed rule; notice of request for public comment and Tribal consultation meetings; withdrawal.

          SUMMARY:

          The Administration on Children, Youth and Families (ACF) intended to publish a request for public comment and Tribal consultation meetings in the Federal Register. The action line of the document published in the Federal Register on January 26, 2009, labeled the document a proposed rule. This document withdraws the January 26, 2009, proposed rule.

          DATES:
          The January 26th, 2009 document is withdrawn as of February 9, 2009.

          FOR FURTHER INFORMATION CONTACT:

          Miranda Lynch, Children's Bureau, 1250 Maryland Ave., SW., 8th Floor, Washington, DC 20024, (202) 205-8138. miranda.lynch@acf.hhs.gov.

        SUPPLEMENTARY INFORMATION:

        ACF is withdrawing a request for public comment and Tribal consultation meetings that appeared in the Federal Register on January 26, 2009. The document provided a written opportunity for comment to all interested persons and notified Tribal leaders of in-person opportunities to consult with the Children's Bureau on the development of interim final rules on the implementation of the tribal plan requirements in section 479B of the Act and other amendments made by the Tribal provisions in section 301 of Public Law 110-351. While the January 26th, 2009 notice is being withdrawn in its entirety at this time, information on future opportunities for Tribal consultation and solicitation of comments regarding the implementation of these provisions will be forthcoming.

          Dated: January 29, 2009.
          Maiso L. Bryant,
          Acting Commissioner, Administration on Children, Youth and Families.

      [FR Doc. E9-2236 Filed 2-6-09; 8:45 am]
      BILLING CODE 4184-01-P


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 635
        [Docket No. 210419-0083]
        RIN 0648-BK35
        Atlantic Highly Migratory Species; Federal Atlantic Tunas Regulations in Maine State Waters

          AGENCY:
          National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

          ACTION:
          Proposed rule; request for comments.

          SUMMARY:

          NMFS proposes adding Maine to the list of states for which NMFS has determined that Federal Atlantic tunas regulations are applicable within state waters. NMFS is proposing the addition after considering a request from the Maine Department of Marine Resources (MEDMR) and reviewing the state's relevant laws and regulations. Most states and territories bordering the Atlantic and Gulf of Mexico are currently included in the list, with the exception of Maine, Connecticut, and Mississippi. This proposed addition of Maine to the list would make Federal Atlantic tunas regulations—including but not limited to open and closed seasons, retention limits, size limits, authorized gears and gear restrictions, and permitting and reporting requirements—applicable in Maine state waters. This action would be consistent with section 9(d) of the Atlantic Tunas Convention Act (ATCA) and implementing regulations.

          DATES:

          Written comments must be received by June 10, 2021. NMFS will hold a public hearing via conference call and webinar for this proposed rule on May 14, 2021, from 1 p.m. to 3 p.m. For webinar registration information, see the SUPPLEMENTARY INFORMATION section of this document.

          ADDRESSES:

          You may submit comments on this document, identified by NOAA-NMFS-2021-0013, by electronic submission. Submit all electronic public comments via the Federal e-Rulemaking Portal. Go to https://www.regulations.gov and enter “NOAA-NMFS-2021-0013” in the Search box. Click on the “Comment” icon, complete the required fields, and enter or attach your comments.

          Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered by NMFS. All comments received are a part of the public record and will generally be posted for public viewing on www.regulations.gov without change. All personal identifying information (e.g., name, address, etc.), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible. NMFS will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous).

          NMFS will hold a public hearing via conference call/webinar on this proposed rule. For specific location, date and time, see the SUPPLEMENTARY INFORMATION section of this document.

          Copies of this proposed rule and supporting documents are available from the HMS Management Division website at https://www.fisheries.noaa.gov/topic/atlantic-highly-migratory-species or by contacting Carrie Soltanoff at carrie.soltanoff@noaa.gov or 301-427-8503.

          NMFS invites the general public and other Federal agencies to comment on continuing information collections, which helps us assess the impact of our information collection requirements and minimize the public's reporting burden. Written comments and recommendations for this information collection should be submitted at the following website www.reginfo.gov/public/do/PRAMain. Find this particular information collection by using the search function and entering either the title of the collection or the OMB Control Number: 0648-0327 Atlantic HMS Permit Family of Forms, 0648-0328 Atlantic HMS Recreational Landings Reports, and 0648-0371 HMS Vessel Logbooks and Cost-Earnings Reports.

          FOR FURTHER INFORMATION CONTACT:
          Carrie Soltanoff (carrie.soltanoff@noaa.gov) or Larry Redd, Jr. (larry.redd@noaa.gov) at 301-427-8503, or Sarah McLaughlin (sarah.mclaughlin@noaa.gov) at 978-281-9260.

        SUPPLEMENTARY INFORMATION:

        Atlantic tunas fisheries are managed under the authority of ATCA (16 U.S.C. 971 et seq.) and the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act; 16 U.S.C. 1801 et seq.). The 2006 Consolidated Atlantic Highly Migratory Species (HMS) Fishery Management Plan (FMP) and its amendments are implemented by regulations at 50 CFR part 635. Section 9(d) of ATCA, 16 U.S.C. 971g(d)(2), states that regulations promulgated to implement recommendations of the International Commission for the Conservation of Atlantic Tunas (ICCAT) shall apply within the boundaries of any state bordering the Convention area (the Atlantic Ocean and adjacent seas) if the Secretary of Commerce, after notice and an opportunity for the State to request a formal hearing, determines that such state does not implement regulations consistent with ICCAT recommendations or if state regulations are less restrictive than the Federal regulations or are not effectively enforced. For Atlantic tunas, section 9(d) of ATCA is implemented in the Atlantic HMS regulations at 50 CFR 635.1(b). Atlantic tunas regulations in part 635 include open and closed seasons, retention limits, size limits, authorized gears and gear restrictions, and permitting and reporting requirements, among others. Atlantic tunas managed under the regulations in part 635 are bluefin, bigeye, albacore, yellowfin, and skipjack tunas.
        Background
        NMFS made initial determinations regarding the applicability of Federal regulations in state waters under section 9(d) of ATCA in 1976. NMFS determined that, while the State of Maine had enacted laws and/or promulgated regulations for the conservation and management of Atlantic bluefin tuna, those laws and/or regulations were less restrictive than Federal laws or regulations, and that certain portions of the Federal regulations would, therefore, become effective in the territorial sea adjacent to the State of Maine (41 FR 32603, August 4, 1976). This included all applicable Federal bluefin tuna regulations (then codified at 50 CFR part 285), with the exception of some purse seine regulations and retention limits.
        In 1985, the scope of this provision was expanded from bluefin tuna to all ICCAT-managed Atlantic tunas (50 FR 43396, October 25, 1985). In 1999, NMFS published a proposed rule to implement the FMP for Atlantic Tunas, Swordfish, and Sharks, and Amendment 1 to the Atlantic Billfish FMP (64 FR 3154, January 20, 1999). This action discussed continued implementation and review under section 9(d) of ATCA and stated that NMFS contacted the relevant states along with Puerto Rico and the U.S. Virgin Islands to review relevant state regulations. After considering the public comment and responses from various states, the final rule for this action (64 FR 29090, May 28, 1999) codified and further implemented ATCA section 9(d) provisions at 50 CFR 635.1(b), and that language remains the same to the present day. That rulemaking did not include Maine on the list of states at § 635.1(b), either in whole or in part.
        ATCA requires a continuing review of state laws and regulations and their enforcement, and § 635.1(b) accordingly states that “NMFS will undertake a continuing review of State regulations to determine if regulations applicable to Atlantic tunas, swordfish or billfish are at least as restrictive as regulations contained in this part and if such regulations are effectively enforced. In such case, NMFS will file with the Office of the Federal Register for publication notification of the basis for the determination and of the specific regulations that shall or shall not apply” in state waters. NMFS publishes relevant state regulations annually in the HMS Stock Assessment and Fisheries Evaluation (SAFE) Report.

        On October 5, 2020, NMFS received a letter from the MEDMR requesting that NMFS “consider a regulatory change to 50 CFR 635.1(b) that would incorporate Maine into the list of states where Federal tuna regulations are applied in state territorial waters, and that this change apply to regulations for all tuna species managed under [ATCA].” The letter further stated that “given the dynamic nature of Federal tuna management, MEDMR does not currently have sufficient resources to adjust state regulations with the frequency needed to remain consistent with Federal regulations.” MEDMR stated that it has recently seen increased commercial tuna fishing activity in Maine state waters.
        This proposed rule provides a review of Maine's regulations; provides notice of NMFS' initial determination that Maine state regulations are not at least as restrictive as Federal regulations, taking into consideration the State of Maine's statement that it can no longer ensure that those regulations maintain consistency with Federal regulations; and proposes adding Maine to the list of states at § 635.1(b) for which NMFS has determined that Federal Atlantic tunas regulations under 50 CFR part 635 are applicable within state waters. The State of Maine has not requested a formal hearing for this action. Most states and territories bordering the Atlantic and Gulf of Mexico are currently included in the list at § 635.1(b), with the exception of Maine, Connecticut, and Mississippi. This proposed addition to § 635.1(b) would make Federal Atlantic tunas regulations applicable in Maine state waters.
        NMFS has conducted a preliminary review of Maine marine resource laws and regulations regarding tuna fishing in state waters and determined that proposed application of Federal regulations in state waters is warranted, consistent with the State's request and the ATCA criteria, particularly given the State's communication that it can no longer ensure that state regulations are consistent with the Federal regulations on an ongoing basis. Federal tunas regulations at 50 CFR part 635 include, but are not limited to, open and closed seasons, retention limits, size limits, authorized gears and gear restrictions, and permitting and reporting requirements. The current Maine regulations do not address tuna fishing in state waters in detail, other than restricting permitted gears to harpoon and hook and line (12 Maine Revised Statutes Annotated (MSRA) § 6551) and implementing a nonresident special tuna permit for participation in certain tuna tournaments (§ 6502). Under Maine law, anyone who wants to fish commercially for tunas in state waters needs a commercial fishing license (§ 6501). MEDMR policy, although not codified, is that recreational tuna fishermen in state waters need to obtain Federal permits and follow Federal regulations. Thus, the Maine regulations appear to be less restrictive than the relevant Federal regulations.
        Federal HMS Angling and Charter/Headboat category permit holders already must adhere to Federal HMS regulations as a condition of their permit (see 50 CFR 635.4(a)(10)). Based on available data on commercial catch of tunas within Maine's boundaries and surrounding waters, it appears that tuna catch within the boundaries of the state comes from fishermen who already possess Federal permits and are adhering to Federal reporting requirements for all catch as well as other Federal tuna regulations, whether they are in Federal or state waters. Furthermore, the large majority of tunas landed in Maine have historically been caught in Federal waters, with bluefin tuna being the primary species. Essential fish habitat for adult Atlantic tunas, as described in Amendment 10 to the 2006 Consolidated Atlantic HMS FMP, supports the observation that typically only bluefin tuna are found as far north as Maine. The northern extent of essential fish habitat for adult bluefin tuna is described as offshore and coastal regions of the Gulf of Maine, the mid-coast of Maine to Massachusetts, and on Georges Bank. Although bluefin tuna can occasionally be found in coastal waters, they are most abundant in pelagic habitat.
        These factors indicate that this action would not result in a substantial change in fishing location, timing, effort, authorized gear types, or harvest levels. NMFS does not anticipate a substantial change to the ecological or socioeconomic impacts on Atlantic tunas fisheries, or a significant economic impact on a substantial number of small entities.
        The rule would, however, require adherence to Federal tunas regulations in Maine state waters. If finalized, this rule would provide regulatory consistency; enhance enforcement of season closures, retention limits, size limits, and other Federal regulations in Maine state waters; and address the State of Maine's observation of increased commercial tuna fishing activity in state waters. This change also would more directly ensure that any tunas landed in state waters are reported in compliance with regulations implementing ICCAT requirements.
        In the future, consistent with the continuing review required by ATCA, NMFS may more formally review Connecticut and Mississippi state tunas regulations to determine if these states should also be included under § 635.1(b). NMFS may also review regulations for other HMS promulgated to implement ICCAT recommendations for all Atlantic, Gulf of Mexico, and Caribbean states and territories to determine if their regulations are at least as restrictive as the Federal regulations. NMFS requests public comment on possible initiation of these future reviews. Currently, Federal HMS regulations concerning swordfish, billfish, and sharks do not apply in state waters as a condition of Federal HMS Atlantic Tunas permits.
        Request for Comments
        Comments on this proposed rule may be submitted via www.regulations.gov or at a public conference call/webinar. NMFS solicits comments on this proposed rule by June 10, 2021 (see DATES and ADDRESSES).

        During the comment period, NMFS will hold a conference call/webinar for this proposed rule. Requests for sign language interpretation or other auxiliary aids should be directed to Carrie Soltanoff at carrie.soltanoff@noaa.gov or 301-427-8503, at least 7 days prior to the meeting.

        The webinar/conference call will take place on May 14, 2021. Information for registering and accessing the webinars can be found at https://www.fisheries.noaa.gov/action/proposed-rule-implement-federal-atlantic-tunas-regulations-maine-state-waters.

        The public is reminded that NMFS expects participants at the public hearings to conduct themselves appropriately. At the beginning of the conference call, the moderator will explain how the conference call will be conducted and how and when attendees can provide comments. The NMFS representative will attempt to structure the meeting so that all the attending members of the public will be able to comment, if they so choose, regardless of the controversial nature of the subject(s). Attendees are expected to respect the ground rules, and, if they do they may not be allowed to speak during the conference call.
        Classification
        The NMFS Assistant Administrator has determined that the proposed rule is consistent with the 2006 Consolidated Atlantic HMS FMP and its amendments, the Magnuson-Stevens Act, and other applicable laws, subject to further consideration after public comment.
        This proposed rule has been determined to be not significant for purposes of Executive Order 12866.
        This proposed rule does not contain a change to a collection of information requirement for purposes of the Paperwork Reduction Act of 1995. The existing collection of information requirements would continue to apply under the following OMB Control Number(s): 0648-0327 Atlantic HMS Permit Family of Forms, 0648-0328 Atlantic HMS Recreational Landings Reports, and 0648-0371 HMS Vessel Logbooks and Cost-Earnings Reports.

        The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. The proposed rule would add Maine to the list of states at 50 CFR 635.1(b) for which NMFS has determined that Federal Atlantic tunas regulations under 50 CFR part 635 are applicable within state waters. Federal Atlantic tunas regulations, which include open and closed seasons, retention limits, size limits, authorized gears and gear restrictions, and permitting and reporting requirements, among others, currently apply in all but three states bordering the Atlantic Ocean (including the Gulf of Mexico). This addition to the list of states was requested by the MEDMR and further evaluated. ATCA requires the Secretary of Commerce to undertake a continuing review of state laws and regulations pertaining to species managed under ATCA, of all states bordering the Atlantic Ocean and the extent to which such laws and regulations are enforced, as implemented in the Atlantic HMS regulations at § 635.1(b).
        Of the managed Atlantic tunas (bluefin, bigeye, albacore, yellowfin, and skipjack), typically only bluefin tuna is found as far north as Maine state waters. Therefore, the economic analyses for this action focus on the bluefin tuna fisheries. However, all Federal tunas regulations would apply in Maine state waters following implementation of this rule.
        The Small Business Administration has established size criteria for all major industry sectors in the United States, including fish harvesters. A business involved in finfish harvesting is classified as a small business if it is independently owned and operated, is not dominant in its field of operation (including its affiliates), and has combined annual receipts not in excess of $19.0 million (NAICS code 114111, finfish fishing) for all its affiliated operations worldwide. The Small Business Administration issued a final interim rule that adjusted the size standard for inflation from $7.5 million to $8 million for business classified under NAICS 487210 scenic and sightseeing transportation in water, including the for-hire fishing industry, which went into effect on August 19, 2019.
        The most recent ex-vessel average price per pound information is used to estimate potential ex-vessel gross revenues for the Atlantic bluefin tuna fishery. The 2019 average ex-vessel price per pound for bluefin tuna in the North Atlantic was $5.61, while the highest regional bluefin tuna ex-vessel price per pound (in the mid-Atlantic) was $5.94. Current total commercial bluefin tuna quotas (including the Reserve category) are 2,238,706 pounds (1,015 metric tons). Therefore, the highest total potential revenue for the entire commercial Atlantic bluefin tuna fishery is $13.3 million. The 2019 total ex-vessel annual revenue for the bluefin tuna fishery was $9.8 million, while total Atlantic tunas ex-vessel annual revenue was $22.9 million. Since a small business is defined as having annual receipts not in excess of $19.0 million, and total potential bluefin tuna revenue for the entire fishery is $13.3 million, each individual bluefin tuna fishing entity would fall within the small business definition.
        The numbers of relevant, annual Atlantic Tunas or Atlantic HMS vessel permits based in Maine, as of October 2020, are as follows: 565 Atlantic Tunas General category permits; 12 Atlantic Tunas Harpoon category permits; two Atlantic Tunas Trap category permits; four Atlantic Tunas Longline category permits; zero Atlantic Tunas Purse Seine category permits; and 127 HMS Charter/Headboat category permits. For this action, NMFS regards all HMS for-hire vessels (those vessels that have an HMS Charter/Headboat category permit) as small businesses, while Atlantic HMS Angling vessels fish recreationally only and are therefore not considered small entities for purposes of the Regulatory Flexibility Act (RFA).
        This proposed rule would expand Federal Atlantic tunas regulations into Maine state waters. Federal HMS Charter/Headboat category permit holders already must adhere to Federal HMS regulations as a condition of their permit (see 50 CFR 635.4(a)(10)). Based on available data on commercial catch of tunas in Maine and surrounding waters, it appears that tuna catch in the state comes from fishermen who already possess Federal permits and are adhering to Federal reporting requirements for all catch as well as other Federal tuna regulations, whether they are in Federal or state waters. In addition, available catch and dealer data, bluefin tuna habitat, and typical tuna fishing practices indicate that the majority of tunas landed in Maine have historically been caught in Federal waters. Given these factors, this action practically would not have an effect on the regulations that tuna fishermen based in Maine currently follow. Furthermore, this action is not expected to affect the amount of bluefin tuna caught and sold or result in any change in the ex-vessel revenues those fishermen could expect. As a result, an initial regulatory flexibility analysis is not required and none has been prepared. NMFS invites comment from the public on the information in this certification and the determination that the impact on entities affected by the proposed rule will not be significant.

          List of Subjects in 50 CFR Part 635
          Fisheries, Fishing, Fishing vessels, Foreign relations, Imports, Penalties, Reporting and recordkeeping requirements, Statistics, Treaties.

          Dated: April 20, 2021.
          Samuel D. Rauch III,
          Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

        For the reasons set out in the preamble, 50 CFR part 635 is proposed to be amended as follows:

          PART 635—ATLANTIC HIGHLY MIGRATORY SPECIES

        1. The authority citation for part 635 continues to read as follows:

          Authority:
          16 U.S.C. 971 et seq.; 16 U.S.C. 1801 et seq.

        2. In § 635.1, revise paragraph (b) to read as follows:

          § 635.1
           Purpose and scope.

          (b) Under section 9(d) of ATCA, NMFS has determined that the regulations contained in this part with respect to Atlantic tunas are applicable within the territorial sea of the United States adjacent to, and within the boundaries of, the States of Maine, New Hampshire, Massachusetts, Rhode Island, New York, New Jersey, Delaware, Maryland, Virginia, North Carolina, South Carolina, Georgia, Florida, Alabama, Louisiana, and Texas, and the Commonwealths of Puerto Rico and the Virgin Islands. NMFS will undertake a continuing review of State regulations to determine if regulations applicable to Atlantic tunas, swordfish, or billfish are at least as restrictive as regulations contained in this part and if such regulations are effectively enforced. In such case, NMFS will file with the Office of the Federal Register for publication notification of the basis for the determination and of the specific regulations that shall or shall not apply in the territorial sea of the identified State.

      [FR Doc. 2021-08481 Filed 4-23-21; 8:45 am]
      BILLING CODE 3510-22-P


        DEPARTMENT OF TRANSPORTATION
        National Highway Traffic Safety Administration
        49 CFR Part 538
        [Docket No. NHTSA-98-3429]
        [RIN 2127-AF37]
        Minimum Driving Range for Dual Fueled Electric Passenger Automobiles

          AGENCY:
          National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).

          ACTION:
          Denial of petition for reconsideration.

          SUMMARY:
          This notice announces the denial of a petition for reconsideration of the agency's decision to set the minimum driving range for dual fueled electric passenger vehicles at 7.5 miles when operating in the EPA urban cycle and 10.2 miles on the EPA highway cycle.

          FOR FURTHER INFORMATION CONTACT:
          For non-legal issues: Mr. P.L. Moore, Motor Vehicle Requirements Division, Office of Market Incentives, National Highway Traffic Safety Administration, 400 Seventh Street SW., Washington, DC 20590, (202) 366-5222.
          For legal issues: Otto Matheke, Office of the Chief Counsel, NCC-20, telephone (202) 366-5253, facsimile (202) 366-3820.

        SUPPLEMENTARY INFORMATION:
        I. Establishment of a Minimum Driving Range for Dual Fueled Electric Passenger Vehicles
        On December 1, 1998, NHTSA published a final rule in the Federal Register (63 FR 66064), which established a minimum driving range for dual fueled electric passenger vehicles.

        The agency promulgated this rule in response to amendments in the Energy Policy Act of 1992 (EPACT) (Pub. L. 102-486) which expanded the scope of the alternative fuels promoted by section 513 of the Motor Vehicle Information and Cost Savings Act (Cost Savings Act), now codified as 49 U.S.C. 32905. Section 32901(c), the replacement section for section 513(h)(2), requires dual fueled passenger automobiles to meet specified criteria, including meeting a minimum driving range, in order to qualify for special treatment in the calculation of their fuel economy for purposes of the corporate average fuel economy (CAFE) standards promulgated under Chapter 329 of Title 49 of the United States Code (49 U.S.C. 32901 et seq.).

        The EPACT amendments, which expanded the scope of alternative fuel vehicles eligible for special CAFE treatment, established and modified minimum driving range requirements for these vehicles. These new or modified minimum driving range requirements necessitated amendments to the driving range requirements found in 49 CFR part 538, Manufacturing Incentives for Alternative Fuel Vehicles. NHTSA established a minimum driving range for all dual fueled vehicles except electric vehicles in a final rule issued on March 21, 1996 (61 FR 14507). As noted above, a final rule establishing a minimum driving range for dual fueled electric passenger vehicles was published on December 1, 1998. This final rule set the minimum driving range for dual fueled electric passenger vehicles at 7.5 miles on the EPA urban cycle and 10.2 miles on the EPA highway cycle when operating on electricity alone. The rule further specified that a dual fueled electric passenger vehicle must attain these minimum driving ranges while operating on its nominal electric storage capacity.
        The final rule represents the agency's best effort to reconcile the characteristics of contemporary vehicles with Chapter 329's alternative fuel incentive program. The statutory framework of this incentive program, which was drafted well before the advent of the technologies now used in some Hybrid Electric Vehicles (HEVs), does not accommodate the most common HEV designs now in use or under development. Contemporary HEV's have both a conventional internal combustion petroleum fueled engine and an electric motor/generator in their drivetrain. The vehicle uses the petroleum fueled engine either to assist the electric motor or to recharge the batteries used to power the electric motor. Depending on the conditions encountered by the vehicle, it may be powered solely by the electric motor or may be propelled by both the petroleum fueled engine and the electric motor at the same time. In certain modes of operation, the vehicle may be propelled by the electric motor but the gasoline engine may be operating to recharge the batteries. In these HEV's, the modes of operation must switch rapidly and seamlessly—the vehicle may be powered exclusively by the electrical energy stored in the batteries at one moment and may be deriving a substantial amount of its propulsion from the internal combustion engine the next.
        As the agency noted in both the Notice of Proposed Rulemaking (NPRM) (62 FR 375, January 3, 1997) and the preamble accompanying the final rule establishing the minimum driving range, Congress established specific definitions for what vehicles may be considered to be dual fueled vehicles for CAFE purposes. Section 32901(a)(2) defines an alternative fuel vehicle as either a dedicated vehicle or a dual fueled vehicle. Dedicated vehicles are defined in section 32901(a)(7) as automobiles that operate only on an alternative fuel. Dual fueled vehicles are defined in section 32901(a)(8) as follows:

          (8) “dual fueled automobile” means an automobile that—
          (A) is capable of operating on alternative fuel and on gasoline or diesel fuel;
          (B) provides equal or superior energy efficiency, as calculated for the applicable model year during fuel economy testing for the United States Government, when operating on alternative fuel as when operating on gasoline or diesel fuel;
          (C) for model years 1993-1995 for an automobile capable of operating on a mixture of an alternative fuel and gasoline or diesel fuel and if the Administrator of the Environmental Protection Agency decides to extend the application of this subclause, for an additional period ending not later than the end of the last model year to which section 32905(b) and (d) of this title applies, provides equal or superior energy efficiency, as calculated for the applicable model year during fuel economy testing for the Government, when operating on a mixture of alternative fuel and gasoline or diesel fuel containing exactly 50 percent gasoline or diesel fuel as when operating on gasoline or diesel fuel; and
          (D) for a passenger automobile, meets or exceeds the minimum driving range prescribed under subsection (c) of this section.

        Examination of this section compels the conclusion that Congress intended that for the purposes of Chapter 329's incentive program that dual fueled vehicles are, with one limited exception, vehicles operating either on an alternative fuel or a petroleum fuel but not on a mixture of the two. Subsection (A) describes a vehicle that operates on a petroleum or alternative fuel but not a mixture of both. Subsection (B) limits dual fuel vehicles to those vehicles that offer equal or superior energy efficiency when operating on an alternative fuel, thereby indicating that the two modes of operation are exclusive. Subsection (C) indicates that vehicles operating on a mixture of alternative fuel and gasoline or diesel fuel may only be considered as dual fueled automobiles for the 1993-1995 model years (unless extended by the Administrator of the Environmental Protection Agency to the 2004 model year) when such vehicles offer equal or superior energy efficiency when operating on a 50/50 mix of alternative fuel and diesel fuel or gasoline. Therefore, the statutory text of section 32901(a)(8) indicates that Congress did not intend to make incentives available for dual fueled vehicles operating on a mix of fuels except under the limited circumstances enunciated in 32901(a)(8)(C). As the period set by Congress in which such vehicles could be considered as dual fueled vehicles has expired and the EPA has not extended this period by regulation, a dual fueled vehicle is one that is capable of operating on either an alternative fuel or gasoline or diesel fuel but not a mixture of both simultaneously.
        In order to qualify for the incentives offered for dual fueled alternative fuel vehicles, a vehicle must meet the criteria of section 32901(a)(8) and be capable of attaining a minimum driving range while operating on alternative fuel. In setting the minimum driving range for dual fueled vehicles, NHTSA considered several principal factors: (1) In requiring a minimum driving range when operating on alternative fuel, Congress did not intend that range to be so low so that vehicles would have little or no utility when operating on conventional fuel, (2) Alternative fuel vehicle technology, particularly in the case of dual fueled electric vehicles and hybrids, is far from mature and, (3) In order to evaluate the fuel efficiency of the vehicle when operating on an alternative fuel, the vehicle must have sufficient range while operating on that fuel to allow the fuel economy to be measured using existing or accepted test methods. Considering these factors, and others, NHTSA initially proposed to set the minimum driving range for dual fueled electric vehicles at 17.7 miles—the range required to complete one EPA urban/highway cycle under the current Federal Test Procedure (FTP)—while operating on electricity alone (62 FR 375, January 3, 1997). Following consideration of the comments submitted in response to that proposal, NHTSA modified the proposal to set the minimum driving range at the same level as the EPA urban/highway cycle when that cycle is split into two components—7.5 miles when operating on the urban cycle and 10.2 miles on the highway cycle. As the agency explained in the preamble to the final rule, this driving range was sufficient to establish that dual fueled vehicles had enough range to have some utility to consumers when operating on electricity, allowed the fuel economy of the vehicles to be measured when operating in this mode, and was not so high as to preclude further development of dual fueled electric vehicles.
        As the agency recognized that most contemporary HEV designs derive all of their power, whether operating on electricity alone, gasoline alone, or both gasoline and electricity together, from the combustion of petroleum fuel by a conventional engine, care was taken to determine if these HEVs were, for the purposes of Chapter 329, dual fueled electric vehicles. As the agency explained when issuing the final rule, Chapter 329 indicates that a dual fueled alternative fuel vehicle is one that can operate on an alternative fuel and a conventional fuel but not both simultaneously. However, when the fuel economy of the vehicle is measured under section 32905(b) and when the vehicle attains the minimum driving range required under section 32901(c), it must be operated on the alternative fuel .1
           Therefore, the definition of an alternative fuel dual fueled vehicle, the command that there be some minimum driving range for that vehicle, the procedures specified for measuring its fuel economy, and the method calculating the incentive all indicate that the vehicle must be capable of operating some distance while powered only by the alternative fuel.

            1 Section 32905(b) sets forth the method for calculating the fuel economy of qualified dual fuel vehicles. The section provides, in pertinent part, that:
          The Administrator of the Environmental Protection Agency shall measure the fuel economy for that model by dividing 1.0 by the sum of—
          (1) .5 divided by the fuel economy measured under section 32904(c) of this title when operating the model on gasoline or diesel fuel; and
          (2) .5 divided by the fuel economy measured under subsection (a) of this section when operating the model on alternative fuel.

        As outlined above, the definition of a dual fueled alternative vehicle contemplates that the vehicle will derive its motive power either from a petroleum based fuel or from an alternative fuel. In the case of dual fueled electric vehicles, the alternative fuel is electricity. This electricity can be derived from a number of sources—from batteries charged from an external source, from solar cells, or by using the vehicle's own petroleum fueled engine to produce electricity to be stored or used according to the demand. In the agency's view, electricity that is generated solely from burning petroleum in a vehicle's internal combustion engine is not an alternative fuel for the purposes of Chapter 329.
        II. Petition for Reconsideration of the Minimum Driving Range
        On January 13, 1999, the agency received a petition from Toyota Motor Corporation (Toyota) requesting reconsideration of NHTSA's decision to set a minimum driving range of 7.5 miles when operating in EPA urban cycle and 10.2 miles on the EPA highway cycle for all dual fueled electric passenger automobiles.
        Toyota's petition argues that the requirement that dual fueled electric vehicles must meet the minimum driving range requirements while operating on electricity alone is inconsistent with the Alternative Motor Fuels Act of 1988 (AMFA) (Pub. L. 100-494). In the company's view, requiring HEV's to meet a minimum driving range while operating on electricity alone is contrary to the EPACT amendments goal of encouraging the development of new alternative fuel technologies. Toyota disagrees with the agency's view that vehicles that are not capable of operating on electricity alone are not dual fuel vehicles and its view that HEVs that charge their batteries using only energy derived from the combustion of petroleum fuel in a conventional engine are not, for CAFE purposes, dual fueled vehicles. The company contends that the agency's conclusion that qualifying dual fuel vehicles must be capable of operating alternately on an alternative fuel and a conventional petroleum fuel is contrary to the express language and the legislative history of AMFA.2

            2 The Alternative Motor Fuels Act of 1988 created the incentive system for alternative fueled vehicles now found in Chapter 329. The  EPACT amendments leading to the establishment of the final rule at issue here, modified the provisions created by AMFA.

        Toyota first relies on the definition of dual fueled vehicle found in section 32901(a)(8)(A). The company emphasizes that the section states that a dual fueled automobile is on that “is capable of operating on alternative fuel and on gasoline or diesel fuel.” (emphasis added). Toyota contends that Congress could have drafted the section to indicate that a dual fueled vehicle is one that is capable of operating on alternative fuel or on gasoline and diesel fuel and chose not to. The company submits that the agency's interpretation, which requires a vehicle to operate solely on an alternative fuel, is more consistent with the latter definition rather than the one actually adopted by Congress. The petitioner also argued that the legislative history of the EPACT amendments was consistent with its view. This legislative history indicated that EPACT would provide an incentive for dual fueled vehicles even though the vehicles might not be operated on an alternative fuel. Due to concerns that manufacturers might take advantage of the special calculations for dual fueled vehicles even though the vehicles might actually operate on petroleum fuels regardless of their capability to do otherwise, the compromise version of the amendments contained a cap, or limit, on the benefits that manufacturers could gain by producing dual fuel vehicles. The existence of this cap, according to Toyota, indicates that Congress did not intend to exclude manufacturers of vehicles operating on a combination of fuels from qualifying for an incentive—it simply sought to limit the amount of that incentive. Toyota contended that the agency's interpretation, which it construed as a “flat exclusion” of an entire class of HEV technology, is contrary to overall intent of the EPACT amendments, the definition of dual fueled vehicles as set forth in section 32901(a)(8)(A), and the choice to limit the extent of the incentive available rather than exclude a promising technology.
        Toyota also contends that in setting the minimum driving range at the level selected and requiring that vehicles attain this range while operating on electricity alone, NHTSA has interfered with the HEV market and provided a disincentive to the development of HEV's. The company urges the agency to reconsider its decision to set the minimum driving range for electric vehicles at 7.5 miles when operating in the EPA urban cycle and 10.2 miles on the EPA highway cycle and suggested that this range be set at zero. Finally, Toyota requests that in the event the agency does not reconsider its position that mixed fuel vehicles are not, for CAFE purposes, dual fueled vehicles, that NHTSA should consider a vehicle that operates on electricity and gasoline simultaneously as a dual fueled vehicle under section 32901(a)(8)(c)—which allows, under certain circumstances, qualifying dual fueled vehicles to operate on an alternative fuel and petroleum fuel simultaneously.
        III. Response To Petition for Reconsideration
        In response to the petition, the agency has reviewed its decision to set the minimum driving range for dual fueled electric vehicles at 7.5 miles when operating in the EPA urban cycle and 10.2 miles on the EPA highway cycle. As explained below, the agency is reaffirming that decision.
        A. Statutory Interpretation
        In regard to the meaning and intent of Chapter 329's treatment of dual fueled vehicles, Toyota argues, first, that NHTSA erred in adopting the position that Congress did not intend to make alternative fuel incentives available to vehicles capable of operating on gasoline alone. Second, Toyota argues that by denying CAFE incentives for technologies that use a combination of alternative and conventional fuels, NHTSA “disincentivizes” the development of an entire class of potential HEV designs. Toyota contends that the agency's interpretation of AMFA places a regulatory limitation on the future development of HEV's. The company stresses that Congress expressly rejected such an approach and strongly favored letting the marketplace, rather than the government, determine the future course of alternative fuel vehicle development.
        Despite Toyota's characterization of NHTSA's views, the agency agrees with Toyota that the alternative fuel incentives contained in Chapter 329 are available for vehicles that operate on gasoline alone—provided they can also operate on an alternative fuel alone. The agency also agrees that Congress did not intend to strictly direct and control the development of alternative fuel vehicles. We disagree, however, with the notion, implicit in the petitioner's argument that these principles lead to the conclusion that vehicles that are incapable of operation unless they burn petroleum fuel, and only petroleum fuel, are alternative fueled vehicles eligible for special treatment under CAFE.

        Chapter 329 allows vehicles that operate on gasoline alone to qualify as alternative fuel vehicles. As Toyota asserts, section 32901(a)(8)(A) defines “dual fueled automobile” as an automobile that “is capable of operating on alternative fuel and on gasoline or diesel fuel * * *” In Toyota's view, NHTSA's position that a qualifying dual fueled vehicle must be capable of operating while powered solely by an alternative fuel and not just by a conventional fuel alone, would require that section 32901(a)(8)(A) be read as requiring a dual fueled vehicle to be “capable of operating on alternative fuel or on gasoline or diesel fuel * * *”.
        Examination of the remainder of Section 32901(a)(8) as a whole leads us to conclude that for a dual fueled vehicle to be accorded special CAFE treatment, it must have the capability to be propelled solely by an alternative fuel. Section 32901(8) defines a “dual fueled automobile” as follows:

          (8) “dual fueled automobile” means an automobile that—
          (A) is capable of operating on alternative fuel and on gasoline or diesel fuel;
          (B) provides equal or superior energy efficiency, as calculated for the applicable model year during fuel economy testing for the United States Government, when operating on alternative fuel as when operating on gasoline or diesel fuel;
          (C) for model years 1993-1995 for an automobile capable of operating on a mixture of an alternative fuel and gasoline or diesel fuel and if the Administrator of the Environmental Protection Agency decides to extend the application of this subclause, for an additional period ending not later than the end of the last model year to which section 32905(b) and (d) of this title applies, provides equal or superior energy efficiency, as calculated for the applicable model year during fuel economy testing for the Government, when operating on a mixture of alternative fuel and gasoline or diesel fuel containing exactly 50 percent gasoline or diesel fuel as when operating on gasoline or diesel fuel; and
          (D) for a passenger automobile, meets or exceeds the minimum driving range prescribed under subsection (c) of this section.

        To qualify as a dual fueled automobile, a vehicle must meet each criteria of the definition—it must operate on an alternative fuel and gasoline or diesel fuel, provide equal or superior energy efficiency when using the alternative fuel, meet a minimum driving range while using the alternative fuel, and, if the vehicle operates on a mixture of alternative fuel and gasoline or diesel fuel, be a 1993 through 1995 model year vehicle.3

           In addition, section 32905(b), which sets forth the method for calculating the fuel economy of qualified dual fuel vehicles, explicitly requires that the fuel economy of a dual fueled vehicle be measured while it is operating only on an alternative fuel. These provisions indicate that qualifying dual fueled passenger automobiles must, with the exception of model year 1993-1995 vehicles using a mixture of alternative fuel and conventional fuel, be able to operate for some minimum distance while being powered by an alternative fuel providing equal or superior energy efficiency to gasoline or diesel fuel. It is also evident that, but for the provision in section 32901(a)(8)(C) allowing certain dual fueled automobiles to operate on a mixture of alternative fuel and gasoline or diesel fuel, Congress may very well have chosen to define a dual fueled automobile as one that operates on alternative fuel or gasoline and diesel fuel rather than one that operates on alternative fuel and gasoline or diesel fuel.

            3 Section 32901(a)(8)(C) provides that after the 1995 model year, vehicles using a mix of alternative fuel and petroleum fuel may be qualified dual fuel vehicles if the EPA issues a regulation extending their eligibility. EPA has not done so.

        The petitioner stresses that the legislative history and references within that history to sections 32905 and 32906 indicate that Congress was aware that dual fueled vehicles might operate on gasoline alone and intended that such operation be permitted. While examination of the legislative history is not warranted here due to the clarity of the statute itself, we recognize that Chapter 329 envisions that dual fueled vehicles would and could operate on gasoline or diesel fuel alone. Sections 32905(b) and (d) set forth fuel economy measurement procedures for dual fueled vehicles when operating on gasoline or diesel fuel and when operating on alternative fuel. Sections 32906(a)(1)(A) and (a)(1)(B) place restrictions on the maximum fuel economy increases available to manufacturers producing dual fueled automobiles to prevent those manufacturers from obtaining a large fuel economy gain from the production of vehicles that may very well be operated on gasoline alone.
        The fact remains, however, that the recognition that dual fueled vehicles would be capable of operating on gasoline alone, or might well be operated on gasoline alone, does not in any way conflict with the requirement that a dual fueled vehicle also be capable of operation while being powered by an alternative fuel alone.
        Toyota's second argument is that in indicating that dual fueled electric vehicles must be capable of operating on electricity alone and that this electricity may not be generated by the vehicle's own gasoline or diesel powered motor, NHTSA has, in defiance of Congress, erected an unreasonable bar to marketplace-driven development of alternative fuel technologies. The petitioner contends that this requirement interferes with the free development of alternative fuel technologies by forcing dual fueled electric vehicles to have large storage batteries and high-powered electric motors. In support of its position, Toyota has submitted segments of the legislative history of AMFA indicating that Congress did not intend to favor one technology over another and the market should determine which technologies will prevail.
        The agency does not take issue with the petitioner's claim that AMFA's legislative history demonstrates an intent to treat all qualifying technologies equally. However, the matter at issue is not, as Toyota argues, favoring one technology over another. Instead the question is whether a technology that depends entirely on the consumption of petroleum is eligible for treatment as an alternative fuel technology. Section 3 of the EPACT amendments to AMFA contained this declaration of purpose:

          (1) To encourage the development and widespread use of methanol, ethanol, natural gas, other gaseous fuels, and electricity as transportation fuels by consumers; and
          (2) To promote the production of alternatively fueled motor vehicles.

        While Congress certainly intended to encourage innovation, increased efficiency, and the use of new technologies for all vehicles, the AMFA and EPACT amendments were specifically dedicated to encourage the production of vehicles that did not use gasoline and the development of technologies and infrastructure supporting the increased use of alternative fuels. As we observed when establishing the minimum driving range for dual fueled electric vehicles, a dual fueled electric passenger automobile that is incapable of obtaining electrical energy from any source other than the onboard combustion of gasoline or diesel fuel, is not a dual fueled or an alternative fueled vehicle. Such a vehicle, regardless of the technology employed or the form of energy used in converting fuel to work, is powered only by the fuel it consumes. It is our position that this interpretation is consistent with the Chapter 329 and the alternative fuel incentive program.
        B. Minimum Driving Range
        The petitioner also urges NHTSA to reconsider its decision to set the minimum driving ranges for dual fueled electric vehicles at 7.5 miles when operating on the EPA urban cycle and at 10.2 miles on the EPA highway cycle. In the petitioner's view, these minimum driving ranges are so high that they eliminate CAFE incentives for certain promising hybrid electric vehicle technologies and interfere with the natural market forces that Congress intended should shape the development of dual fueled vehicles. Instead of the ranges selected by the agency, Toyota argues that NHTSA should set the minimum driving range for dual fueled electric vehicles at zero miles. Doing so, in Toyota's view, would encourage the development of vehicles that run on a combination of fuels.
        The petitioner's arguments are similar to those in comments to the agency's original minimum driving range proposal. One commenter in particular, Mercedes Benz of North America, contended that the minimum driving range for dual fueled electric vehicles should be set at zero. As we explained in the notice issuing the final rule, the agency gave extensive consideration to this matter. It was, and is, the agency's view that a minimum driving range of zero miles would be inconsistent with the Congressional command that a minimum driving range be established. Setting a minimum driving range of zero miles would result in a range requirement of no range at all. Furthermore, section 32901(c)(3) directs that in setting a minimum driving range the agency must specifically consider consumer acceptability, economic practicability, technology, environmental impact, safety, drivability, performance, and other factors the Secretary considers relevant. An alternative fuel vehicle that has no range while operating on that alternative fuel would not appear to be acceptable to consumers or particularly practicable. Most significantly, a dual fueled electric vehicle must be capable of some meaningful operation in the electric-only mode to allow measurement of its fuel economy when operating on that alternative fuel. In setting the minimum driving range as it did, NHTSA established minimum ranges that were the shortest ranges that could be used to measure the fuel economy of dual fueled electric vehicles under the EPA test procedure. While a test procedure comparable to the existing EPA urban/highway test might be used, the lack of an alternative test procedure mandated the use of the existing EPA test.
        Other than urging the agency to adopt a zero mile driving range, the petitioner did not submit a suggested test procedure or offer any other information indicating that a zero mile driving range would be useful either to consumers or that it would facilitate testing of vehicles in the electric only mode. NHTSA does not believe that Congress, in specifying a minimum driving range, intended that this range be set at zero. Furthermore, in order to actually test the fuel efficiency of a dual fuel electric vehicle when operating on an alternative fuel, the vehicle must be capable of some operation in that mode. A minimum driving range of zero miles would not serve either the intent of Congress or the need to actually measure energy efficiency.
        C. Mixed Fuel Vehicles

        The petitioner's alternative request is that NHTSA clarify that vehicles using a combination of electricity and conventional fuels are dual fueled vehicles under the conditions set forth in section 32901(a)(8)(C). Section 32901(a)(8)(C) provides that for the 1993-1995 model years (and subsequent model years if extended by the Administrator of the Environmental Protection Agency), vehicles operating on a 50/50 mixture of alternative fuel and gasoline or diesel fuel may be considered to be dual fueled vehicles if they provide superior energy efficiency in comparison to operating on pure gasoline or diesel and meet the remaining conditions of the section. Therefore, for the 1993, 1994, and 1995 model years, vehicles operating on such a mix of alternative fuel and conventional fuel could be considered dual fuel alternative fuel vehicles. For model years after 1995, vehicles operating on a 50/50 mixture of alternative and conventional fuel vehicles may not be dual fueled alternative fuel vehicles, as the Administrator of the EPA has declined to extend that provision of section 32901(a)(8)(c).
        Toyota observes that when issuing the final rule, NHTSA cited section 32901(a)(8)(c) as the one instance where a vehicle operating on a mixture of an alternative fuel and gasoline or diesel fuel might have been considered to be a dual fueled vehicle. The petitioner submits that it is not clear from the final rule whether the agency would consider vehicles operating on electricity and gasoline to fall within section 32901(a)(8)(c) and further argues that it would be contrary to the meaning and intent of Chapter 329 if NHTSA were to determine that such vehicles did not.
        In support of the latter contention, Toyota contends that as Section 32901(a)(1)(J) includes electricity as an alternative fuel and Section 32901(a)(8)(C) expressly states that if certain other conditions are met, a vehicle operating on a mixture of electricity and gasoline or diesel fuel is a dual fueled vehicle, a vehicle operating on a mixture of electricity and petroleum fuel must be a dual fueled vehicle.
        NHTSA agrees that a vehicle operating on a mixture of electricity and gasoline or diesel fuel would meet the definition of a dual fueled vehicle provided that all the conditions of Sections 32901(a)(8) and (a)(8)(C) are met, including the minimum driving range requirement. The agency notes, however, that as the EPA has declined to extend the availability of dual fuel status to vehicles operating on a 50/50 mix of petroleum and alternative fuel, this classification is no longer available. Accordingly, NHTSA is not in a position to grant the relief Toyota seeks even if it were inclined to do so.
        Toyota's request also implies that a vehicle that derives all of its energy from the combustion of petroleum fuel, would qualify as such an alternative fuel vehicle. We note that under Section 32901(a)(8)(C), a qualifying vehicle must operate on a mixture of alternative and conventional fuel. We decline, however, to embrace the notion that a mixture of conventional and alternative fuel is created when a petroleum fuel is burned by the vehicle to produce both kinetic and electrical energy that may be used or stored depending on the work to be done. NHTSA believes that any interpretation under which electricity that is generated due to the operation of a vehicle on conventional fuel, could be classified as an alternative fuel would be overly broad and inconsistent with the meaning and intent of Chapter 329.
        IV. Conclusion
        For the reasons stated above, the agency is denying the petition.

          Issued on: April 18, 2001.
          Stephen R. Kratzke,
          Associate Administrator for Safety Performance Standards.

      [FR Doc. 01-10237 Filed 4-24-01; 8:45 am]
      BILLING CODE 4910-59-P