[Federal Register Volume 66, Number 80 (Wednesday, April 25, 2001)]
[Proposed Rules]
[Pages 20781-20785]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-10237]


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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.

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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

[[Page 20782]]

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.
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    \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.
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    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\
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    \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.
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    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

[[Page 20783]]

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

[[Page 20784]]

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.
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    \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.
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    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

[[Page 20785]]

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