[Federal Register Volume 81, Number 170 (Thursday, September 1, 2016)]
[Rules and Regulations]
[Pages 60274-60278]
[FR Doc No: 2016-21012]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R01-OAR-2015-0471; A-1-FRL-9943-06-Region 1]

Air Plan Approval; Connecticut; Open Burning and Portable Fuel
Containers

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving a State
Implementation Plan (SIP) revision submitted by the State of
Connecticut on November 19, 2012. We are approving Connecticut's
request to remove two regulations from its SIP that regulate ``open
burning'' and ``portable fuel container spillage control.'' In place of
the open burning regulation, we are approving into the Connecticut SIP
a Connecticut statute that controls open burning. We are also approving
a definition of ``brush,'' which was included in a December 14, 2015
SIP submittal by Connecticut to meet infrastructure requirements of the
Clean Air Act for the 2012 fine particle (PM2.5) National
Ambient Air Quality Standards (NAAQS). The requirements in the
Connecticut portable fuel container regulation have been superseded by
federal portable fuel container requirements. This action is being
taken in accordance with the Clean Air Act.

DATES: This direct final rule will be effective October 31, 2016,
unless EPA receives adverse comments by October 3, 2016. If adverse
comments are received, EPA will publish a timely withdrawal of the
direct final rule in the Federal Register informing the public that the
rule will not take effect.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R01-OAR-2015-0471 by one of the following methods:
    1. http://www.regulations.gov: Follow the on-line instructions for
submitting comments.
    2. Email<EMAIL_ADDRESS>    3. Fax:<PHONE_NUMBER>.
    4. Mail: ``Docket Identification Number EPA-R01-OAR-2015-0471,''
Anne Arnold, U.S. Environmental Protection Agency, EPA New England
Regional Office, Office of Ecosystem Protection, Air Quality Planning
Unit, 5 Post Office Square-Suite 100, (Mail code OEP05-2), Boston, MA
02109-3912.
    5. Hand Delivery or Courier. Deliver your comments to: Anne Arnold,
Manager, Air Quality Planning Unit, Office of Ecosystem Protection,
U.S. Environmental Protection Agency, EPA New England Regional Office,
5 Post Office Square-Suite 100, (Mail code OEP05-2), Boston, MA 02109-
3912. Such deliveries are only accepted during the Regional Office's
normal hours of operation. The Regional Office's official hours of
business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding
legal holidays.
    Instructions: Direct your comments to Docket ID No. EPA-R01-OAR-
2015-0471. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
http://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 through http://www.regulations.gov, or email, information that you consider to be CBI
or otherwise protected. The http://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 http://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
http://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 at http://www.regulations.gov or at U.S. Environmental
Protection Agency, EPA New England Regional Office, Office of Ecosystem
Protection, 5 Post Office Square-Suite 100, Boston, MA. EPA requests
that if at all possible, you contact the contact listed in the FOR
FURTHER INFORMATION CONTACT section to schedule your inspection. The
Regional Office's official hours of business are Monday through Friday,
8:30 a.m. to 4:30 p.m., excluding legal holidays.
    In addition, copies of the state submittal are also available for
public inspection during normal business hours, by appointment at the
State Air Agency: The Bureau of Air Management, Department of Energy
and Environmental Protection, State Office Building, 79 Elm Street,
Hartford, CT 06106-1630.

FOR FURTHER INFORMATION CONTACT: Alison C. Simcox, Air Quality Planning
Unit, U.S. Environmental Protection Agency, EPA New England Regional
Office, 5 Post Office Square-Suite 100, (Mail code OEP05-2), Boston, MA
02109-3912, telephone number<PHONE_NUMBER>, fax number<PHONE_NUMBER>,
email<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:
    Throughout this document whenever ``we,'' ``us,'' or ``our'' is
used, we mean EPA.
    Organization of this document. The following outline is provided to
aid in locating information in this preamble.

I. Background and Purpose
II. EPA's Evaluation of Connecticut's SIP Revisions
III. Final Action
IV. Incorporation by Reference
V. Statutory and Executive Order Reviews

I. Background and Purpose

    On November 19, 2012, the State of Connecticut submitted a formal
revision to its State Implementation Plan (SIP). The SIP revision
consists of a request to remove two regulations from its SIP that
regulate open burning (Regulations of Connecticut State Agencies (RCSA)
section 22a-174-17 (formerly section 19-508-17) and ``portable fuel
container spillage control'' (RCSA section 22a-174-43), and to add into
the SIP a statute, Connecticut General Statutes (CGS) section 22a-
174(f), that regulates open burning.

Open Burning

    Connecticut adopted regulations to control open burning in 1972. On
May 31, 1972, EPA approved RCSA section 19-508-17 ``Control of Open
Burning'' into the Connecticut SIP (37 FR 10842). In 1983, the state
re-codified section 19-508-17 as section 22a-174-17 and, subsequently,
adopted revisions to CGS section 22a-174(f) to control open burning,
effective March 30, 2000. Connecticut intended that the statute
supersede the regulation. Although CGS section 22a-174(f) authorizes
the Connecticut Department of Energy and Environmental Protection (CT
DEEP) to adopt regulations to control open burning, the agency did not
adopt a new regulation and, instead, enforces CGS section 22a-174(f) as
the state's sole authority for regulation of open burning.
    On September 27, 2011, CT DEEP proposed to repeal RCSA section 22a-
174-17 and held a public hearing on November 9, 2011. CT DEEP repealed
RCSA section 22a-174-17, effective on September 10, 2012. On November
19, 2012, CT DEEP submitted a SIP revision to EPA to remove RCSA
section 19-508-17 ``Control of Open Burning'' from the Connecticut SIP
and to replace it with a Connecticut statute, CGS section 22a-174(f).
Because implementation of this statute depends on having a definition
of ``brush,'' Connecticut included a definition of this term in its
December 14, 2015 SIP submittal to meet infrastructure requirements of
the Clean Air Act for the 2012 fine particle (PM2.5)
National Ambient Air Quality Standards (NAAQS).

Portable Fuel Container Spillage

    Connecticut adopted regulations to control portable fuel container
spillage in 2004. On August 31, 2006, EPA approved RCSA section 22a-
174-43 ``Portable Fuel Container Spillage Control'' into the
Connecticut SIP (71 FR 51761). In 2007, EPA issued a regulation
entitled ``Control of Hazardous Air Pollutants from Mobile Sources''
(72 FR 8428), which included new federal requirements for portable fuel
containers. See 40 CFR part 59, subpart F ``Control of Evaporative
Emissions from New and In-Use Portable Fuel Containers.''
    On September 27, 2011, the CT DEEP proposed to repeal RCSA section
22a-174-43 ``Portable Fuel Container Spillage Control'' and held a
public hearing on November 9, 2011. CT DEEP repealed RCSA section 22a-
174-43, effective on September 10, 2012. On November 19, 2012, CT DEEP
submitted a SIP revision to EPA to remove RCSA section 22a-174-43
``Portable Fuel Container Spillage Control'' from the Connecticut SIP.

II. EPA's Evaluation of Connecticut's SIP Revisions

Open Burning

    The open burning rule, RCSA section 19-508-17, which is currently
in the Connecticut SIP, identifies the types of open fires that are
allowed within state boundaries, and the types of fires that require a
written certificate from the Commissioner. Open fires that are allowed
include barbecues or other outdoor open fires for cooking food;
campfires, bonfires, and other fires for ceremonial or recreational
purposes; fires to abate a fire hazard as directed by a responsible
fire official; fires in devices used by construction or other workers
for heating purposes; and small fires needed for activities such as
street installation or paving activities and repairing utilities.
    Fires that require a written certificate from the Commissioner
include fires for fire-fighting training; fires for preventing or
controlling diseases or pests, including agricultural diseases and
pests; agricultural burning for vegetation management; fires for the
disposal of dangerous materials where no reasonable alternative
disposal method is available; and other fires which the Commissioner
determines are necessary for protection of public health.
    CGS section 22a-174(f) allows local open-burning officials to issue
permits for open burning on residential property and for fire training,
insect control, agricultural purposes, natural disaster clean-up,
wildlife habitat and vegetative management and ecological
sustainability. It also allows officials to issue permits for open
burning of brush in municipal landfills, transfer stations and
municipal recycling centers. Open burning of brush is not allowed when
national or state air quality standards may be exceeded, where it may
create a hazardous health condition, when forest fire danger is
extreme, where woodland or grass land is within 100 feet of the
proposed burn, or where prohibited by municipal ordinance. Burning of
leaves, demolition waste or other solid waste in municipal landfills is
also prohibited. The statute also establishes a process for certifying
local open burning officials.
    Based on a comparison of provisions in SIP-approved RCSA section
19-508-17 and CGS section 22a-174(f), EPA has determined that the
statute is at least as stringent as the regulation except in one
regard. CGS section 22a-174(f) includes the term ``brush,'' but does
not include a definition of this term. Instead of

including the definition of brush in the statute, Connecticut added
``brush'' to RCSA section 22a-174-1 (definitions), effective February
1, 2010: ``Brush'' means shrubs, vegetation or prunings, the diameter
of which is not greater than three inches at the widest point.''
Connecticut included this definition as contained in RCSA section 22a-
174-1(19) as part of the state's December 14, 2015 SIP submittal for
infrastructure requirements for the 2012 PM2.5 NAAQS.
Therefore, EPA has determined that removing RCSA section 19-508-17 from
the Connecticut SIP and replacing it with CGS section 22a-174(f) is
consistent with the Clean Air Act section 110(l) anti-backsliding
requirements. Accordingly, EPA is approving: (1) The removal of RSCA
section 19-508-17 from the Connecticut SIP; (2) the addition of CGS
section 22a-174(f), submitted on November 19, 2012, into the
Connecticut SIP; and (3) the addition of the definition of ``brush'' in
RSCA section 22a-174-1, submitted on December 14, 2015, into the
Connecticut SIP.

Portable Fuel Container Spillage

    The regulation that controls portable fuel container spillage
presently in the Connecticut SIP, RCSA section 22a-174-43, was adopted
by the state in 2004, and applies to any person who sells, supplies,
offers for sale, or manufactures a portable fuel container or spout for
use in Connecticut. In 2007, EPA promulgated national evaporative
emission standards for portable fuel containers. EPA's regulation
prohibits manufacturers or importers from selling, offering for sale,
introducing or delivering for introduction into commerce in the United
States, or importing, any new portable fuel container that is subject
to the emissions standards of the regulation and is manufactured after
December 31, 2008, unless it is covered by a valid certificate of
conformity, it is labeled as required, and it complies with all of the
applicable requirements of the regulation, including compliance with
the emissions standards for its useful life. After June 30, 2009, no
manufacturer or importer may sell, offer for sale, introduce or deliver
into commerce in the United States, or import any new portable fuel
container that was manufactured prior to January 1, 2009 unless it
meets the requirements of the regulation.
    EPA's regulation also prohibits wholesale distributors from
selling, offering for sale, or distributing any portable fuel container
in the United States that is subject to the emissions standards of the
regulation and is manufactured after December 31, 2008, unless it is
covered by a valid certificate of conformity and is labeled as
required. After December 31, 2009, no wholesale distributor may sell,
offer for sale, or distribute in the United States any portable fuel
container that was manufactured prior to January 1, 2009 unless it
meets all of the requirements of the regulation. After December 31,
2009, all new portable fuel containers shall be deemed to be
manufactured after December 31, 2008 unless they are in retail
inventory.
    Even though the applicability date for SIP-approved RCSA section
22a-174-43 is earlier, May 1, 2004, all fuel containers must now (in
the year 2016 and beyond) meet the federal regulation, which is as
stringent as RCSA section 22a-174-43. Therefore, EPA has determined
that removal of RCSA section 22a-174-43 from the Connecticut SIP is
consistent with the Clean Air Act section 110(l) anti-backsliding
requirements and is approvable.

IV. Final Action

    EPA is approving Connecticut's request, submitted to EPA on
November 19, 2012, to remove from the Connecticut SIP RCSA section 19-
508-17 ``Control of Open Burning'' and section 22a-174-43 ``Portable
Fuel Container Spillage Control.'' We are also incorporating into the
Connecticut SIP the following Connecticut statute which was included in
the November 19, 2012 submittal: Connecticut General Statute, Title
446c, Section 22a-174 (Formerly Sec. 19-508) ``Powers of the
commissioner. Regulations. Fees. Exemptions. General permits. Appeal of
commissioner's action re permit applications,'' (f) ``Open Burning,''
effective March 30, 2000. In addition, EPA is approving the definition
of ``brush'' as contained in RCSA section 22a-174-1, which was included
in Connecticut's December 14, 2015 submittal to meet infrastructure
requirements under sections 110(a)(1) and 110(a)(2) of the Clean Air
Act for the 2012 PM2.5 NAAQS.
    The EPA is publishing this action without prior proposal because
the Agency views this as a noncontroversial amendment and anticipates
no adverse comments. However, in the proposed rules section of this
Federal Register publication, EPA is publishing a separate document
that will serve as the proposal to approve the SIP revision should
relevant adverse comments be filed. This rule will be effective October
31, 2016 without further notice unless the Agency receives relevant
adverse comments by October 3, 2016.
    If the EPA receives such comments, then EPA will publish a notice
withdrawing the final rule and informing the public that the rule will
not take effect. All public comments received will then be addressed in
a subsequent final rule based on the proposed rule. The EPA will not
institute a second comment period on the proposed rule. All parties
interested in commenting on the proposed rule should do so at this
time. If no such comments are received, the public is advised that this
rule will be effective on October 31, 2016 and no further action will
be taken on the proposed rule. 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.

V. Incorporation by Reference

    In this rule, the EPA is finalizing regulatory text that includes
incorporation by reference. In accordance with requirements of 1 CFR
51.5, the EPA is finalizing the incorporation by reference of the
Connecticut General Statute, Title 446c, Section 22a-174 (Formerly Sec.
19-508) ``Powers of the commissioner. Regulations. Fees. Exemptions.
General permits. Appeal of commissioner's action re permit
applications,'' (f) ``Open burning,'' effective March 30, 2000, as
published in the General Statutes of Connecticut, revision of 1958,
revised to January 1, 2015, volume 8, described in the amendments to 40
CFR part 52 set forth below. EPA is also finalizing the incorporation
by reference of RCSA section 22a-174-1(19) ``brush,'' effective
February 1, 2010, as published in the State of Connecticut General
Statutes, revised to January 1, 2015, described in the amendments to 40
CFR part 52 set forth below. Note that the definition for paragraph
(19) in the statute that is incorporated by reference is the same as
the definition that became effective in Connecticut on February 1,
2010. The EPA has made, and will continue to make, these documents
generally available electronically through http://www.regulations.gov
and/or in hard copy at the appropriate EPA office (see the ADDRESSES
section of this preamble for more information).

VI. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a
SIP submission that complies with the

provisions of the Act and applicable Federal regulations. 42 U.S.C.
7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's
role is to approve state choices, provided that they meet the criteria
of the Clean Air Act. Accordingly, this action merely approves state
law as meeting Federal requirements and does not impose additional
requirements beyond those imposed by state law. For that reason, this
action:
     Is not a significant regulatory action subject to review
by the Office of Management and Budget under Executive Orders 12866 (58
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
     Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
     Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the Clean Air Act; and
     Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, the SIP is not approved to apply on any Indian reservation
land or in any other area where EPA or an Indian tribe has demonstrated
that a tribe has jurisdiction. In those areas of Indian country, the
rule does not have tribal implications and will not impose substantial
direct costs on tribal governments or preempt tribal law as specified
by Executive Order 13175 (65 FR 67249, November 9, 2000).
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by October 31, 2016. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this action for the purposes of
judicial review nor does it extend the time within which a petition for
judicial review may be filed, and shall not postpone the effectiveness
of such rule or action. Parties with objections to this direct final
rule are encouraged to file a comment in response to the parallel
notice of proposed rulemaking for this action published in the proposed
rules section of today's Federal Register, rather than file an
immediate petition for judicial review of this direct final rule, so
that EPA can withdraw this direct final rule and address the comment in
the proposed rulemaking. This action may not be challenged later in
proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide,
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen
dioxide, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile organic compounds.

    Dated: February 4, 2016.
H. Curtis Spalding,
Regional Administrator, EPA New England.

    Part 52 of chapter I, title 40 of the Code of Federal Regulations
is amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

    Authority:  42 U.S.C. 7401 et seq.

Subpart H--Connecticut

0
2. Section 52.370 is amended by:
0
a. Removing and reserving paragraph (c)(95)(i)(C); and
0
b. Adding paragraph (c)(113).
    The addition reads as follows:

Sec.  52.370  Identification of plan.

* * * * *
    (c) * * *
    (113) Revisions to the State Implementation Plan submitted by the
Connecticut Department of Energy and Environmental Protection on
November 19, 2012 and December 14, 2015.
    (i) Incorporation by reference.
    (A) Section 19-508-17, ``Control of Open Burning,'' which was
approved in the March 1972 plan (see paragraph (b)) is removed and
replaced with the following:
    (1) Connecticut General Statute, Title 22A ``Environmental
Protection,'' Chapter 446c ``Air Pollution Control,'' Section 22a-174
``(Formerly Sec. 19-508). Powers of the commissioner. Regulations.
Fees. Exemptions. General permits. Appeal of commissioner's action re
permit applications,'' paragraph (f), effective March 30, 2000, as
published in the General Statutes of Connecticut, revision of 1958,
revised to January 1, 2015, volume 8.
    (2) Regulations of Connecticut State Agencies (RCSA) section 22a-
174-1 entitled ``Definitions,'' revisions to Section 22a-174-1(19), as
published in the Connecticut Law Journal on July 1, 2014.
    (B) [Reserved]
    (ii) Additional materials. [Reserved]

0
3. In Sec.  52.385, Table 52.385 is amended by adding entries to
existing state citations for 22a-174-1, 22a-174-17, and 22a-174-43; and
adding an entry for CGS Section 22a-174(f) to read as follows:

Sec.  52.385  EPA-approved Connecticut regulations.

* * * * *

                                                         Table 52.385--EPA-Approved Regulations
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                                                                    Dates
                                                      --------------------------------    Federal  Register
   Connecticut state citation        Title/subject      Date  adopted  Date  approved         citation          Section 52.370    Comments/description
                                                          by  state        by  EPA
--------------------------------------------------------------------------------------------------------------------------------------------------------

                                                                      * * * * * * *
22a-174-1.......................  Definitions........          2/1/10          9/1/16  [Insert Federal                (c)(113)  Approved 22a-174-1(19)
                                                                                Register citation].                      definition of ``brush''
                                                                                for purposes of
                                                                                Connecticut General
                                                                                Statutes (CGS) Section
                                                                                22a-174(f); see
                                                                                paragraph (c)(113)(A)
                                                                                of this section.

                                                                      * * * * * * *
22a-174-17 (formerly 19-508-17).  Control of Open              4/4/72          9/1/16  [Insert Federal                  (b)(2)  DEEP regulation to
                                   Burning.                                             Register citation].                      control open burning.
                                                                                Paragraph (b) was
                                                                                revised 9/1/16 by
                                                                                redesignating paragraph
                                                                                (b) as (b)(1) and
                                                                                adding paragraph (b)(2)
                                                                                to read as follows:
                                                                                This rule, formerly
                                                                                known as Section 19-508-
                                                                                17, which was approved
                                                                                in paragraph (b)(1), is
                                                                                removed from the SIP
                                                                                and replaced by
                                                                                Connecticut General
                                                                                Statute (CGS) section
                                                                                22a-174(f) and RCSA
                                                                                section 22a-174-1(19);
                                                                                see paragraph
                                                                                (c)(113)(A) of this
                                                                                section.

                                                                      * * * * * * *
22a-174-43......................  Portable Fuel               5/10/04          9/1/16  [Insert Federal                 (c)(95)  DEEP regulation to
                                   Container Spillage                                   Register citation].                      control portable fuel
                                   Control.                                                                                container spillage.
                                                                                Paragraph (c)(95) was
                                                                                revised 9/1/16 by
                                                                                removing and reserving
                                                                                paragraph
                                                                                (c)(95)(i)(C).

                                                                      * * * * * * *
Connecticut General Statute,      Powers of the               3/30/00          9/1/16  [Insert Federal                (c)(113)  Control of open burning;
 Title 446c, Section 22a-174(f).   commissioner. Open                                   Register citation].                      see paragraph
                                   Burning.                                                                                (c)(113)(A) of this
                                                                                section.
--------------------------------------------------------------------------------------------------------------------------------------------------------

[FR Doc. 2016-21012 Filed 8-31-16; 8:45 am]
 BILLING CODE 6560-50-P


[Federal Register Volume 76, Number 229 (Tuesday, November 29, 2011)]
[Notices]
[Pages 73620-73622]
[FR Doc No: 2011-30782]

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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OECA-2011-0824; FRL-9498-1]

Agency Information Collection Activities; Proposed Collection;
Comment Request; Application for Registration of Pesticide-Producing
and Device-Producing Establishments (EPA Form 3540-8) and Pesticide
Report for Pesticide-Producing and Device-Producing Establishments (EPA
Form 3540-16)

AGENCY: Environmental Protection Agency.

ACTION: Notice.

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SUMMARY: In compliance with the Paperwork Reduction Act (PRA) (44
U.S.C. 3501 et seq.), this document announces that EPA is planning to
submit a request to renew an existing approved Information Collection
Request (ICR) to the Office of Management and Budget (OMB). This ICR is
scheduled to expire on May 31, 2012. Before submitting the ICR to OMB
for review and approval, EPA is soliciting comments on specific aspects
of the proposed information collection as described below.

DATES: Comments must be submitted on or before January 30, 2012.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OECA-2011-0824, by one of the following methods:
     http://www.regulations.gov: Follow the on-line
instructions for submitting comments.
     Email<EMAIL_ADDRESS>     Fax:<PHONE_NUMBER>.
     Mail: Enforcement and Compliance Docket and Information
Center (ECDIC), Environmental Protection Agency, EPA Docket Center
(EPA/DC), Mailcode: 2201T, 1200 Pennsylvania Ave. NW., Washington, DC
20460.
     Hand Delivery: Enforcement and Compliance Docket and
Information Center (ECDIC), Environmental Protection Agency, EPA Docket
Center (EPA/DC), EPA West, Room 3334, 1301 Constitution Avenue NW.,
Washington, DC. The EPA Docket Center is open from 8:30 a.m. to 4:30
p.m., Monday through Friday, excluding legal holidays. Such deliveries
are only accepted during the Docket Center'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-HQ-OECA-
2011-0824. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
http://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 http://www.regulations.gov or email. The http://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 http://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. For additional information about EPA's public
docket, visit the EPA Docket Center homepage at http://www.epa.goy/epahome/dockets.htm.

FOR FURTHER INFORMATION CONTACT: Michelle Stevenson, Office of
Compliance, Monitoring, Assistance, and Media Programs Division,
Pesticides, Waste & Toxics Branch (2225A), Environmental Protection
Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460; telephone
number:<PHONE_NUMBER>; fax number:<PHONE_NUMBER>; email:
<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

How can I access the docket and/or submit comments?

    EPA has established a public docket for this ICR under Docket ID
No. EPA-HQ-OECA2011-0824, which is available for online viewing at
http://www.regulations.gov, or in person viewing at the Enforcement and
Compliance Docket and Information Center (ECDIC), in the EPA Docket
Center (EPA/DC), EPA West, Room 3334, 1301 Constitution Ave. NW.,
Washington, DC. The EPA/DC Public Reading Room is open from 8 a.m. to
4:30 p.m., Monday through Friday, excluding legal holidays. The
telephone

number for the Reading Room is<PHONE_NUMBER>, and the telephone number
for the Enforcement and Compliance Docket and Information Center Docket
is<PHONE_NUMBER>.
    Use http://www.regulations.gov to obtain a copy of the draft
co1lection of information, submit or view public comments, access the
index listing of the contents of the docket, and to access those
documents in the public docket that are available electronically. Once
in the system, select ``search,'' then key in the docket ID number
identified in this document.

What information is EPA particularly interested in?

    Pursuant to section 3506(c)(2)(A) of the Paperwork Reduction Act
(PRA), EPA is soliciting comments and information to enable it to:
    (1) Evaluate whether the proposed collection of information is
necessary for the proper performance of the functions of the Agency,
including whether the information wi1l have practical utility;
    (2) Evaluate the accuracy of the Agency's estimate of the burden of
the proposed collection of information, including the validity of the
methodology and assumptions used;
    (3) Enhance the quality, utility, and clarity of the information to
be collected; and
    (4) Minimize the burden of the collection of information on those
who are to respond, including through the use of appropriate automated
electronic, mechanical, or other technological collection techniques or
other forms of information technology, e.g., permitting electronic
submission of responses. In particular, EPA is requesting comments from
very small businesses (those that employ less than 25) on examples of
specific additional efforts that EPA could make to reduce the paperwork
burden for very small businesses affected by this collection.

What should I consider when I prepare my comments for EPA?

    You may find the following suggestions helpful for preparing your
comments:
    1. Explain your views as clearly as possible and provide specific
examples.
    2. Describe any assumptions that you used.
    3. Provide copies of any technical information and/or data you used
that support your views.
    4. If you estimate potential burden or costs, explain how you
arrived at the estimate that you provide.
    5. Offer alternative ways to improve the collection activity.
    6. Make sure to submit your comments by the deadline identified
under DATES.
    7. To ensure proper receipt by EPA, be sure to identify the Docket
ID number assigned to this action in the subject line on the first page
of your response. You may also provide the name, date, and Federal
Register citation.

What information collection activity or ICR does this apply to?

    Affected entities: Entities potentially affected by this action are
those which produce pesticides, active ingredients or devices.
    Title: Agency Information Collection Activities; Proposed
Collection; Comment Request; Application for Registration of Pesticide-
Producing and Device-Producing Establishments (EPA Form 3540-8) and
Pesticide Report for Pesticide-Producing and Device-Producing
Establishments (EPA Form 3540-16).
    ICR numbers: EPA ICR No. 0160.10, OMB Control No. 2070-0078.
    ICR status: This ICR is currently scheduled to expire on May 31,
2012. An Agency may not conduct or sponsor, and a person is not
required to respond to, a collection of information, unless it displays
a currently valid OMB control number. The OMB control numbers for EPA's
regulations in title 40 of the CFR, after appearing in the Federal
Register when approved, are listed in 40 CFR Part 9, are displayed
either by publication in the Federal Register or by other appropriate
means, such as on the related collection instrument or form, if
applicable. The display of OMB control numbers in certain EPA
regulations is consolidated in 40 CFR part 9.
    Abstract: The Federal Insecticide, Fungicide, and Rodenticide Act
(FIFRA) Section 7(a) requires that any person who produces pesticides,
active ingredients or devices subject to the Act must register with the
Administrator of EPA the establishment in which the pesticide, active
ingredient or device is produced. This section further requires that
application for registration of any establishment shall include the
name and address of the establishment and of the producer who operates
such an establishment. EPA Form 3540-8, Application for Registration of
Pesticide-Producing and Device-Producing Establishments, is used to
collect the establishment registration information required by this
section.
    FIFRA Section 7(c) requires that any producer operating an
establishment registered under Section 7 report to the Administrator
within 30 days after it is registered, and annually thereafter by March
1st for certain pesticide or device production and sales or
distribution information. The producers must report which types and
amounts of pesticides, active ingredients, or devices are currently
being produced, were produced during the past year, sold or distributed
in the past year. The supporting regulations at 40 CFR Part 167 provide
the requirements and time schedules for submitting production
information. EPA Form 3540-16, Pesticide Report for Pesticide-Producing
and Device-Producing Establishments, is used to collect the pesticide
production information required by Section 7(c) of FIFRA.
    Establishment registration information, collected on EPA Form 3540-
8, is a one-time requirement for all pesticide-producing and device-
producing establishments. Pesticide and device production information,
reported on EPA Form 3540-16, is required to be submitted within 30
days after the company is notified of their pesticide-producing or
device-producing establishment number, and annually thereafter on or
before March 1st.
    Burden Statement: The average annual burden to the industry over
the next three years is estimated to be 2 person hours per response.
    Respondents/Affected Entities: 13,830.
    Estimated Number of Respondents: 13,830.
    Frequency of Response: Annually.
    Estimated Total Annual Hour Burden: 27,660.
    There are no capital/startup costs or operating and maintenance
costs associated with this ICR since all equipment associated with this
ICR is present as part of ordinary business practices.
    Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a Federal agency. This includes the time
needed to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements
which have subsequently changed; train personnel to be able to respond
to a collection of information; search data sources; complete and
review the collection of information; and transmit or otherwise
disclose the information.
    EPA will consider the comments received and amend the ICR as

appropriate. The final ICR package will then be submitted to OMB for
review and approval pursuant to 5 CFR 1320.12. At that time, EPA will
issue another Federal Register notice pursuant to 5 CFR
1320.5(a)(1)(iv) to announce the submission of the ICR to OMB and the
opportunity to submit additional comments to OMB. If you have any
questions about this ICR or the approval process, please contact the
technical person listed under FOR FURTHER INFORMATION CONTACT.

    Dated: November 16, 2011.
Lisa C. Lund,
Director, Office of Compliance.
[FR Doc. 2011-30782 Filed 11-28-11; 8:45 am]
BILLING CODE 6560-50-P


[Federal Register: September 21, 2007 (Volume 72, Number 183)]
[Notices]
[Page 54039-54041]
[DOCID:fr21se07-91]

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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OPP-2007-0949; FRL-8149-4]

Pesticide Registration; Clarification for Ion-Generating
Equipment

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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SUMMARY: With this notice, the Agency clarifies its position on the
distinction between devices and pesticides with regard to ion-
generating equipment and explains why such equipment is regulated as a
pesticide. The notice also invites all interested parties to
collaborate with the Agency in identifying data and other information
that would be needed to support registration of these products. Through
this notice, the Agency is establishing a process and a timeline for
any parties affected by this notice to come into compliance with the
clarified requirements of Federal Insecticide, Fungicide, and
Rodenticide Act (FIFRA).

FOR FURTHER INFORMATION CONTACT: Melba S. Morrow, Antimicrobials

Division (7510P), Office of Pesticide Programs, Environmental
Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-
0001; telephone number:<PHONE_NUMBER>; fax number:<PHONE_NUMBER>; e-
mail address<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this Action Apply to Me?

    You may be affected by this action if you sell or distribute ion-
generating equipment that uses electrodes to emit chemical substances
for pesticidal purposes. Potentially affected equipment include but are
not limited to, washing machines containing electrodes that emit
silver, copper, or zinc ions and ion generators used in swimming pools
to kill algae and as an adjunct to the chlorination process.
    This listing is not exhaustive, but rather provides a guide for
readers regarding entities likely to be affected by this action. Other
types of technology not listed in this notice could also be affected.
The Agency requests information on any other type of equipment that
generates ions from electrodes for pesticidal purposes that could be
covered under this notice.

B. How Can I Get Copies of this Document and Other Related Information?

    1. Docket. EPA has established a docket for this action under
docket identification (ID) number EPA-HQ-OPP-2007-0949. Publicly
available docket materials are available either in the electronic
docket at http://www.regulations.gov, or, if only available in hard

copy, at the Office of Pesticide Programs (OPP) Regulatory Public
Docket in Rm. S-4400, One Potomac Yard (South Bldg.), 2777 S. Crystal
Dr., Arlington, VA. The hours of operation of this Docket Facility are
from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal
holidays. The Docket Facility telephone number is<PHONE_NUMBER>.
    2. Electronic access. You may access this Federal Register document
electronically through the EPA Internet under the ``Federal Register''
listings at http://www./epa.gov/fedrgstr.

II. Background

A. What Action is the Agency Taking?

    In a Federal Register notice published on November 19, 1976 (41 FR
51065), EPA consolidated and clarified the requirements applicable to
pest control devices and device producers. In that notice, the Agency
listed the types of products that would be affected by the notice and
further provided a distinction between devices and pesticides. The
notice clearly stated that if an article uses physical or mechanical
means to trap, destroy, repel, or mitigate any pest, it is considered
to be a device. In contrast, if the article incorporates a substance or
mixture of substances to prevent, destroy, repel, or mitigate any pest,
it is considered to be a pesticide.
    In September 2005, Agency staff advised a manufacturer that washing
machines utilizing silver electrodes to produce silver ions for the
pesticidal purpose of killing germs are considered devices rather than
pesticides, and do not require registration. However, the Agency has
since determined that under the statutory interpretation set out in the
1976 policy statement, such ion-generating equipment would require
registration as a pesticide under FIFRA. This notice provides
additional clarification of the Agency's longstanding position, and
gives the regulated community time to come into compliance with the
requirements of FIFRA.

B. What is the Agency's Authority for Taking this Action?

    Under FIFRA, it is unlawful to sell or distribute any ``pesticide''
unless it is registered by EPA pursuant to FIFRA section 3. EPA has
authority to register pesticides under FIFRA section 3, and therefore
to interpret the terms ``pesticide'' and ``device'' for purposes of
determining what is and what is not subject to the registration
requirements of FIFRA.

C. EPA's Interpretations of ``Pesticide'' and ``Device'' Under FIFRA

    In the 1976 Federal Register notice that consolidated and clarified
requirements for pest control devices and device producers, EPA stated
its interpretation of the statutory terms ``pesticide'' and ``device''
for the purpose of distinguishing between items that were subject to
the registration requirements of FIFRA (i.e., pesticides) and those
that were not (i.e., devices).
    Section 2(h) of FIFRA defines ``device'' as ``any instrument or
contrivance (other than a firearm) which is intended for trapping,
destroying, repelling or mitigating any pest.'' Section 2(u) of FIFRA
defines ``pesticide'' as ``any substance or mixture of substances
intended for preventing, destroying, repelling, or mitigating any
pest.'' In the 1976 Federal Register notice, EPA stated its statutory
interpretation that the primary distinction between pesticides and
devices was the means by which they achieved their pesticidal purpose.
``If an article uses physical or mechanical means to trap, destroy,
repeal [sic], or mitigate any [pest], it is considered to be a device.
If the article incorporates a substance or mixture of substances
intended to prevent, destroy, repeal [sic], or mitigate any pest, it is
considered to be a pesticide.'' (41 FR 51065).
    Therefore, the key distinction between pesticides and devices is
whether the pesticidal activity of the article is due to physical or
mechanical actions or due to a substance or mixture of substances. Some
of the types of products that were specifically identified as devices
in the notice included, but were not limited to, ultra violet light
systems, ozone generators, water and air filters (except those
containing substances or mixtures of substances), and ultrasonic
devices making claims to inactivate, entrap, or suppress the growth of
fungi, bacteria, or viruses in various sites. At the time of the 1976
Federal Register notice, EPA was not aware of equipment such as the ion
generating washing machine that was presented to EPA in 2005. In
addition to the washing machine, EPA is also aware of other ion-
generating equipment that is subject to this clarification.
    The articles covered by this notice are ion generators that
incorporate a substance (e.g., silver or copper) in the form of an
electrode, and pass a current through the electrode to release ions of
that substance for the purpose of preventing, destroying, repelling, or
mitigating a pest (e.g., bacteria or algae). Because these items
incorporate a substance or substances that accomplish their pesticidal
function, such items are considered pesticides for purposes of FIFRA,
and must be registered prior to sale or distribution.

D. Implementation

    EPA is aware that there may be some confusion in the regulated
community regarding EPA's interpretation of the distinction between
pesticides and devices. EPA will work with producers of ion generators
to identify what data and other information are required to support an
application for registration and to obtain registrations to bring such
equipment into compliance for equipment being distributed or sold in
the United States on the date of publication of this notice. Any person
distributing or selling such equipment on or prior to the date of
publication of this notice may continue the distribution or sale of
such equipment for 6 months from the date of publication of this
notice, March 21, 2008.

    Any producer or importer of such equipment distributing or selling
the equipment on or prior to the date of publication of this notice who
wishes to continue that distribution or sale after 6 months from the
date of publication of this notice, March 21, 2008, may do so only if a
prospective registrant has commenced the registration process for the
equipment by submitting, at a minimum, an Application for Pesticide
Registration Form (EPA Form No. 8570-1) for the equipment. This form
should be submitted to EPA on or before March 21, 2008. On the form,
only the following information must be provided: Section I, Item 4:
Company and Product Name; Section I, Item 5: Name and Address of
Applicant; Section II, check ``other'' and place in explanation ``Ion
Generator FR Notice;'' and all of Section IV. Persons distributing or
selling such equipment on or prior to the date of publication of this
notice other than the producer or importer may continue to distribute
or sell such equipment until their inventories are exhausted. An
electronic version of this form is available at http://www.epa.gov/opprd001/forms
.

    Further, any producer or importer of such equipment who is
distributing or selling the equipment on or prior to the date of
publication of this notice who wishes to continue that distribution or
sale after 18 months from the date of publication of this notice, March
23, 2009, may do so only if a prospective registrant has submitted to
EPA a completed registration package for the equipment on or before
March 23, 2009. Producers or importers of such equipment may continue
to distribute or sell such equipment pursuant to this paragraph only
until such time as EPA acts upon the application or the application is
withdrawn. Again, persons distributing or selling such equipment on or
prior to the date of publication of this notice other than the producer
or importer may continue to distribute or sell such equipment until
their inventories are exhausted.
    The completed one page application, EPA Form No. 8570-1, may be
submitted to EPA by mail or by courier:
    1. Mail (U.S. Postal Service):
Document Processing Desk (AD ION)
Office of Pesticide Programs (7504P)
Environmental Protection Agency
1200 Pennsylvania Ave., NW.
Washington, DC 20460-0001.
    2. Courier:
Document Processing Desk (AD ION)
Office of Pesticide Programs (7504P)
Environmental Protection Agency
Room S-4900, One Potomac Yard
2777 S. Crystal Dr.
Arlington, VA 22202-4501.

List of Subjects

    Environmental protection, Copper ions, Ion-generating equipment,
Pesticide devices, Pesticides and pests, Silver ions, Zinc ions.

    Dated: September 13, 2007.
Anne E. Lindsay,
Acting Director, Office of Pesticide Programs.
[FR Doc. E7-18591 Filed 9-20-07; 8:45 am]

BILLING CODE 6560-50-S


[Federal Register: March 31, 2008 (Volume 73, Number 62)]
[Notices]
[Page 16922-16923]
[DOCID:fr31mr08-124]

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

Agency Information Collection Activity Seeking OMB Approval

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Notice.

-----------------------------------------------------------------------

SUMMARY: The FAA invites public comments about our intention to request
the Office of Management and Budget's (OMB) revision of a current
information collection. The Federal Register Notice with a 60-day
comment period soliciting comments on the following collection of
information was published on December 6, 2007, vol. 72, no. 234, page
68949. This rule revised the airport certification regulations and
establishes certification requirements for airports serving scheduled
air carrier operations in aircraft with 10-30 seats.

DATES: Please submit comments by April 30, 2008

FOR FURTHER INFORMATION CONTACT: Carla Mauney at<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

Federal Aviation Administration (FAA)

    Title: Certification of Airports, 14 CFR part 139.
    Type of Request: Extension without change of a currently approved
collection.
    OMB Control Number: 2120-0675.
    Form(s): 5280-1.
    Affected Public: An estimated 600 Respondents.
    Frequency: This information is collected on occasion.
    Estimated Average Burden per Response: Approximately 22 hours per
response.
    Estimated Annual Burden Hours: An estimated 52,993 hours annually.
    Abstract: This rule revised the airport certification regulations
and establishes certification requirements for airports serving
scheduled air carrier operations in aircraft with 10-30 seats. The
changes to 14 CFR Part 139 result in additional information collections
from respondents.

ADDRESSES: Interested persons are invited to submit written comments on
the proposed information collection to the Office of Information and
Regulatory Affairs, Office of Management and Budget. Comments should be
addressed to Nathan Lesser, Desk Officer, Department of Transportation/
FAA, and sent via electronic mail to<EMAIL_ADDRESS>or
faxed to<PHONE_NUMBER>.
    Comments are invited on: Whether the proposed collection of
information is necessary for the proper performance of the functions of
the Department, including whether the information will have practical
utility; the accuracy of the Department's estimates of the burden of
the proposed information collection; 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 on respondents,
including the use of automated collection techniques or other forms of
information technology.

    Issued in Washington, DC, on March 21, 2008.
Carla Mauney,
FAA Information Collection Clearance Officer, IT Enterprises Business
Services Division, AES-200.
 [FR Doc. E8-6339 Filed 3-28-08; 8:45 am]

BILLING CODE 4910-13-M


Request for Exemption from the Requirements of a Tolerance

AF36 on Pistachios

EPA BIOPESTICIDES AND POLLUTION PREVENTION DIVISION COMPANY NOTICE OF
FILING FOR PESTICIDE PETITIONS PUBLISHED IN THE FEDERAL REGISTER

EPA has received a pesticide petition  from [Interregional Research
Project Number 4 (IR-4), Rutgers University, 500 College Road East,
Suite 201W, Princeton, NJ 08540 on behalf of the Arizona Cotton Research
and Protection Council], [3721 East Wier Avenue Phoenix, Arizona
85040-2933]  proposing pursuant to section 408(d) of the Federal  Food,
Drug, and Cosmetic Act (FFDCA),  21 U.S.C. 346a(d), to amend 40 CFR part
180.1206 to establish a tolerance exemption for the microbial pesticide
[Aspergillus flavus AF36] in or on Pistachios.

Pursuant to section 408(d)(2)(A)(i) of the FFDCA, as amended,
[Interregional Research Project Number 4 (IR-4), Rutgers University, 500
College Road East, Suite 201W, Princeton, NJ 08540 on behalf of the
Arizona Cotton Research and Protection Council] has submitted the
following summary of information, data, and arguments in support of the
pesticide petition.  This summary was prepared by [Interregional
Research Project Number 4 (IR-4) Rutgers University, 500 College Road
East, Suite 201W, Princeton, NJ 08540 on behalf of the Arizona Cotton
Research and Protection Council 3721 East Wier Avenue Phoenix, Arizona
85040-2933] and EPA has not fully evaluated the merits of the pesticide
petition.  The summary may have been edited by EPA if the terminology
used was unclear, the summary contained extraneous material, or the
summary unintentionally made the reader conclude that the findings
reflected EPA’s position and not the position of the petitioner.

I.   [Interregional Research Project Number 4 (IR-4), Rutgers
University, 500 College Road East, Suite 201W, Princeton, NJ 08540 on
behalf of the Arizona Cotton Research and Protection Council 3721 East
Wier Avenue Phoenix, Arizona 85040-2933]  Petition Summary

A.  Product name and Proposed Use Practices

	Aspergillus flavus AF36, a non-aflatoxin-producing strain of A. flavus,
 is proposed for application to pistachios to reduce the incidence of
aflatoxin producing strains of A. flavus and thereby reduce aflatoxin
contamination of pistachios.  Aspergillus flavus AF36 which does not
produce aflatoxin, competitively excludes aflatoxin producing A. flavus
strains without increasing A. flavus in the environment in the long
term.  Sterile wheat seed colonized with Aspergillus flavus AF36 is
applied at 10 pounds of end-use product (total amount of active
ingredient less than 0.01 lb/acre) per acre.  The pesticide is currently
being used in certain counties in California and the States of Arizona
and Texas in cotton. The current submission proposes to establish a
temporary exemption from tolerance for residues of A. flavus AF36 on
pistachios.

B.  Product Identity/Chemistry

	1. Identity of the pesticide and corresponding residues.    [The
pesticide and corresponding residues are identified as Aspergillus
flavus AF36. ]

	2. Magnitude of residue at the time of harvest and method used to
determine the residue.   [Aspergillus flavus AF36 is a naturally
occurring fungus that was originally isolated from cottonseed produced
in the Yuma Valley of Arizona.  Aspergillus flavus AF36 has been shown
to be naturally and consistently associated with pistachios grown in
California.  A. flavus is a widespread fungus.  It is particularly well
adapted to the hot regions of California where it is widespread in the
environment.  The communities of A. flavus in the desert and in
agricultural fields are naturally composed of both aflatoxin producing
(toxigenic) and aflatoxin non-producing (atoxigenic) strains.  Both
atoxigenic and toxigenic strains have been found on essentially all
plant material and soils in California.  The goal of applications is to
increase the percent of the Aspergillus flavus community composed of the
strain AF36 and to decrease the percent of A. flavus that produces
aflatoxins on the crop and the field.

	3. A statement of why an analytical method for detecting and measuring
the levels of the pesticide residue are not needed.   An exemption from
the requirement of a

tolerance for residues of the microbial pesticide A. flavus AF36 in/on
pistachios is being proposed for pistachios in California.   All lots of
the active ingredient (A. flavus isolate AF36) and the formulated
product are monitored as part of a rigorous quality control program.
Starter cultures of A. flavus isolate AF36 used in the production of the
end-use product are always screened for aflatoxin production using TLC
and appropriate standards. Quality control standards are zero tolerance
in the starter cultures and in the formulated product for aflatoxin
production, and for A. flavus not identified as A. flavus isolate AF36.
A. flavus AF36 has never been found to produce aflatoxin. Starter
cultures of A. flavus AF36 as well as end-use products containing this
active ingredient are also identified to isolate by vegetative
compatibility analysis.]

C.  Mammalian Toxicological Profile

An acute oral toxicity test was performed whereby a single oral dose of
5,000 milligrams/kilogram (mg/kg) per animal of Aspergillus flavus AF36
colonized wheat seed was administered by gavage to five male and five
female Sprague Dawley rats.  The oral LD50 of Aspergillus flavus AF36
was determined to be greater than 5,000 mg/kg rat body weight.  No
clinical signs were observed during the 14 day study and no
abnormalities or adverse effects were observed in any of the rats upon
necropsy.

               An initial pulmonary rat study which  resulted in
lethality in a significant number of animals treated with either the
live Aspergillus flavus AF36 in Tween 80 or heat killed Aspergillus
flavus AF36 in Tween 80.  Onset of symptoms was rapid after dosing with
all deaths occurring by day four of the study.  All rats surviving to
day four of the study recovered and all rats sacrificed (as scheduled)
on day 8 or day 15 of the study had totally eliminated viable
Aspergillus flavus AF36 from the lungs, caecal contents, and faeces.
There was no evidence of infectivity.  The aetiology of deaths was
unclear.  It appeared that Aspergillus flavus AF36 prepared using Tween
80 caused a severe acute inflammatory response.  Retrospective
literature review and consultation with a toxicologist supported the
theory that the responses were a result of a synergism with Tween 80
and/or of Tween 80 breakdown products formed during preparation of the
spore suspension.

              A second rat study was therefore undertaken.  In the
second study the conidia were both washed from the wheat and suspended
in sterile physiological saline instead of Tween 80.  Animals (2 male
and 2 female for each treatment level) were dosed at 0, 105, 106, 107,
and 108 colony forming units per rat.  There were no clinical signs in
any of the treatment groups considered to be associated with the test
substance.  Rats were sacrificed at day 8 without treatment associated
mortality.  No abnormalities were observed in any of the animals at the
macroscopic examination at termination.

Based on these two mammalian studies, it was concluded that Aspergillus
flavus AF36 does not present either a toxicological or an infectious
risk to mammals.

Data waivers were requested for the toxicology studies listed below on
the following basis:(1) researchers and other workers have worked with
Aspergillus flavus AF36 at the Southern Regional Research Center for
over 10 years and in commercial fields (1996 to 1998) and in hand picked
field plots (1989 to 1994) without report of any adverse health effects;
(2) Aspergillus flavus AF36 is widely distributed in the environment and
its occurrence is natural; and 3) the label will require applicators and
other handlers to wear Personal Protective Equipment (PPE) such as
waterproof gloves, a dust/mist filtering respirator with the appropriate
NIOSH approval prefix N-95, P-95, or R-95, coveralls, long sleeved shirt
and long pants, and shoes plus socks, and goggles, so exposure should be
limited.  Applications will involve aerial application by
mixers/handlers who are licensed and trained to even handle restricted
materials. At the 10 lb/acre application rate of the formulated
material, the total amount of active ingredient is less than 0.01
lb/acre. Applications of AF36 do not significantly impact the total
amount of Aspergillus flavus in the soil or crop, but only change the
proportion of the AF36 strain in relation to the overall soil or crop
population. Since the product is applied as a granular formulation on
wheat, exposure from drift is minimal.

1. Acute dermal toxicity. This study was waived based upon the lack of
toxicity in animals dosed orally. While Aspergillus flavus has been
reported to be a dermal sensitizer, this testing is not warranted, since
the PPE required on the label will provide adequate protection from
dermal exposure to workers and pesticide handlers.

 2. Primary dermal irritation. This study was waived based upon the lack
of toxicity in animals dosed orally.  Aerial applications will be made
by mixers/handlers and applicators, who are required to wear appropriate
PPE, and are licensed and trained to even handle restricted materials.
At the 10 lb/acre application rate of the formulated material, the total
amount of active ingredient is less than 0.01 lb/acre. Applications of
AF-36 do not significantly impact the total amount of Aspergillus flavus
in the soil or crop, but only change the proportion of the AF-36 strain
in relation to the overall population. Since the product is applied as a
granular formulation on wheat,  exposure from drift is minimal.

3 Primary eye irritation.  This study was waived based upon the use of
appropriate PPE, including goggles, and other factors listed above.
Since the product is applied aerially as a granular formulation on
wheat, exposure from drift is expected to be minimal.

4. Acute  Intraperitoneal.  This study was waived based upon the lack of
toxicity in animals dosed orally and by intratracheal instillation.  In
addition, the factors listed above will mitigate exposure, which is
expected to be minimal.

5.  Genotoxicity, reproductive and developmental toxicity, subchronic
toxicity and chronic toxicity testing were not performed, since no
adverse effects were observed in the acute toxicology study Tier 1
studies.   Tier II (885.3550) , subchronic toxicology study (USEPA OPPTS
885.3600) and chronic feeding studies (guideline 152-50) are only
required if triggered by adverse effects observed in Tier I studies.

D.  Aggregate Exposure

	1. Dietary exposure.

	i. Food.   Aspergillus flavus AF36 is a naturally occurring organism,
which does not produce aflatoxin and is thus safer than the
aflatoxin-producing A. flavus isolates that produce aflatoxin.  Proposed
uses and application rates will not result in increases in the total
population of A. flavus on the mature crop beyond naturally occurring
background levels.

Aspergillus flavus AF36, when applied to the soil just prior to bloom,
has been shown to significantly reduce the levels of aflatoxin in
pistachios at harvest without changing the quantity of A. flavus on the
crop.  Furthermore, the proposed use and application rate will not
increase exposure of humans to A. flavus by dietary means.
Applications of Aspergillus flavus AF36 do not increase the indigenous
populations of A. flavus associated with the harvested crop.  The
applications merely alter the composition of the fungal community
associated with the mature crop so that aflatoxin producing strains are
far less frequent.  The result is a much lower incidence of aflatoxins
in the crop and in the environment associated with the developing and
mature crop.

	ii. Drinking water Aspergillus flavus AF36 is a naturally occurring
organism that is already widespread in the environment and is not
considered to be a risk to drinking water.  Both percolation through
soil and municipal treatment of drinking water would reduce the
possibility of exposure of A. flavus through the drinking water.
Applications of Aspergillus flavus AF36 do not increase the long-term
populations of A. flavus in the environment, and thus are not expected
to influence the relationship of A. flavus to water sources.
Applications merely change the composition of the A. flavus community so
that aflatoxins are less common in the environment.

	2. Non-dietary exposure.   The potential for non-occupational,
non-dietary exposure to the general population is not expected to be
significant and is not expected to present any risk of adverse health
effects.]

E.  Cumulative Exposure

	There are no other registered products containing Aspergillus flavus
AF36 or any other isolates (strains) of the microbial active ingredient.
 Data submitted show that the fungal metabolite of concern which is
aflatoxin is not produced by Aspergillus flavus AF36 in the crop or in
artificial media in the lab.   Aspergillus flavus AF36 has been shown to
exclude aflatoxin producing fungi competitively from the developing crop
and to reduce aflatoxin contamination of pistachio.  Data show that the
proposed use will not result in appreciable increases in the long-term
population of A. flavus on the crop beyond naturally occurring levels.
Furthermore, there is no expectation of cumulative effects with other
pesticides.

F.  Safety Determination

	1. U.S. population. Aspergillus flavus AF36 is a naturally occurring
organism. This isolate has low toxicity as demonstrated by the acute
oral toxicity study in rats.  A. flavus is ubiquitous throughout the hot
desert valleys in Arizona.  Studies have shown that treatment of cotton
fields just prior to flowering with sterile wheat seed colonized by
Aspergillus flavus AF36 at 10 lbs. per acre does not increase the
long-term populations of A. flavus either on the crop at maturity or in
the soil 1 year after application.  Based on this information, IR-4 is
of the opinion that the aggregate exposure to A. flavus over a lifetime
should not change with application of Aspergillus flavus AF36, and
exposure to both aflatoxin producing A. flavus strains and aflatoxin
should decrease.  This should be beneficial to human health.  Thus,
there is a reasonable certainty that no harm will result from aggregate
exposure to Aspergillus flavus AF36.

	2. Infants and children.   Based on the lack of toxicity and natural
occurrence, there is reasonable certainty that no harm to infants,
children, or adults will result from aggregate exposure to Aspergillus
flavus AF36.  Exempting Aspergillus flavus AF36 from the requirement of
a tolerance should pose no significant risk to humans or the
environment.

G.  Effects on the Immune and Endocrine Systems

	Aspergillus flavus AF36 is a naturally occurring organism, which does
not produce aflatoxin, and is thus safer than the A. flavus isolates
that produce aflatoxin.  To date there is no evidence to suggest that
Aspergillus flavus AF36 functions in a manner similar to any known
hormone, or that it acts as an endocrine disrupter.

H.  Existing Tolerances

	The registrant is not aware of any existing tolerances or tolerance
exemptions for Aspergillus flavus AF36, other than the tolerance
exemption on cotton (40 CFR 180.1206). There is a current temporary
exemption from tolerance on pistachio and corn

I. Efficacy Data

The atoxigenic Aspergillus flavus strain AF36 (the same product that is
widely used in Arizona cotton fields to substantially reduce aflatoxin
contamination of cottonseed) was applied as a biocontrol agent in
commercial pistachio orchards in California in 2008 and 2009. The AF36
strain was applied as a wheat-AF36 product (the same product and same
application rate as used in commercial cotton fields) as a single annual
application to the soil surface of the orchards in late June or early
July. The level of the atoxigenic strain AF36 in the soil increased
substantially in the treated orchards after applying the wheat-AF36
product. Prior to applying the AF36 product, only 2% of the A. flavus
isolates from the soil of these orchards belonged to the AF36 strain.
But three months after the single application, 43% of the A. flavus
isolates in the soil belonged to the AF36 strain. In 2009 an additional
application of the AF36 product was made in these orchards, and three
months after this application 89% of the isolates were AF36. This
demonstrates that the application of the wheat-AF36 product was
successful in substantially increasing the level of AF36 in the
orchards. Nonetheless, application of the wheat-AF36 product did not
result in increased levels of kernel decay, and no cyclopiazonic acid
was detected in nuts from treated orchards. Furthermore, nuts from the
orchards treated with the AF36 product were less likely to be
contaminated with aflatoxin than those from nearby untreated orchards in
2008 and in 2009.

Nut samples from the orchards treated with the AF36 product were less
likely to be contaminated with aflatoxin than those from untreated
orchards for both 2008 and 2009 harvests . Although sometimes pistachio
orchards will have only a single harvest, in some cases there will be a
second harvest or reshake. In 2009 the reshakes from the treated
orchards had less aflatoxin contamination than those from untreated
orchards . Although about 30% more samples collected from untreated
orchards in 2009 were analyzed for aflatoxins, these samples had twice
as high an incidence as those collected from AF36 treated orchards ,
suggesting that the AF36 treatment contributed to this reduction of
aflatoxin contamination of pistachios. It is expected that with a
further increase of AF36 in the orchards there will be a further
decrease in aflatoxin contamination as has been shown in other crops
(i.e. cottonseed, corn, etc.).

	Application of the AF36 product did not increase the amount of
cyclopiazonic acid (CPA) in the nuts. No CPA was detected in any of the
nut samples from the treated orchards or from untreated orchards.
Because application of AF36 did not increase CPA in the nuts nor
increase nut decay, it is expected that treatment with AF36 will
decrease aflatoxin contamination without any adverse effects to the
nuts.

J.  International Tolerances

There are no Codex maximum residue levels established for residues of
Aspergillus flavus AF36.  Aspergillus flavus AF36 containing products
are presently not registered for pest control outside of the United
States.

 PAGE  2


[Federal Register Volume 84, Number 87 (Monday, May 6, 2019)]
[Notices]
[Pages 19794-19795]
[FR Doc No: 2019-09167]

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DEPARTMENT OF HOMELAND SECURITY

Federal Emergency Management Agency

[Internal Agency Docket No. FEMA-4425-DR; Docket ID FEMA-2019-0001]

Soboba Band of Luise[ntilde]o Indians; Major Disaster and Related
Determinations

AGENCY: Federal Emergency Management Agency, DHS.

ACTION: Notice.

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SUMMARY: This is a notice of the Presidential declaration of a major
disaster for the Soboba Band of Luise[ntilde]o Indians (FEMA-4425-DR),
dated April 8, 2019, and related determinations.

DATES: The declaration was issued April 8, 2019.

FOR FURTHER INFORMATION CONTACT: Dean Webster, Office of Response and
Recovery, Federal Emergency Management Agency, 500 C Street SW,
Washington, DC 20472,<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION: Notice is hereby given that, in a letter
dated April 8, 2019, the President issued a major disaster declaration
under the authority of the Robert T. Stafford Disaster Relief and
Emergency Assistance Act, 42 U.S.C. 5121 et seq. (the ``Stafford
Act''), as follows:

    I have determined that the damage to the lands associated with
the Soboba Band of Luise[ntilde]o Indians resulting from severe
storms and flooding during the period of February 14 to February 15,
2019, is of sufficient severity and magnitude to warrant a major
disaster declaration under the Robert T. Stafford Disaster Relief
and Emergency Assistance Act, 42 U.S.C. 5121 et seq. (the ``Stafford
Act''). Therefore, I declare that such a major disaster exists for
the Soboba Band of Luise[ntilde]o Indians.
    In order to provide Federal assistance, you are hereby
authorized to allocate from funds available for these purposes such
amounts as you find necessary for Federal disaster assistance and
administrative expenses.
    You are authorized to provide Public Assistance and Hazard
Mitigation for the Soboba Band of Luise[ntilde]o Indians. Consistent
with the requirement that Federal assistance be supplemental, any
Federal funds provided under the Stafford Act for Hazard Mitigation
will be limited to 75 percent of the total eligible costs. Federal
funds provided under the Stafford Act for Public Assistance also
will be limited to 75 percent of the total eligible costs, with the
exception of projects that meet the eligibility criteria for a
higher Federal cost-sharing percentage under the Public Assistance
Alternative Procedures Pilot Program for Debris Removal implemented
pursuant to Section 428 of the Stafford Act.
    Further, you are authorized to make changes to this declaration
for the approved assistance to the extent allowable under the
Stafford Act.

    The Federal Emergency Management Agency (FEMA) hereby gives notice
that pursuant to the authority vested in the Administrator, under
Executive Order 12148, as amended, Mark Wingate, of FEMA is appointed
to act as the Federal Coordinating Officer for this major disaster.
    The following areas have been designated as adversely affected by
this major disaster:

    The Soboba Band of Luise[ntilde]o Indians for Public Assistance.
    The Soboba Band of Luise[ntilde]o Indians is eligible to apply
for assistance under the Hazard Mitigation Grant Program.

The following Catalog of Federal Domestic Assistance Numbers (CFDA)
are to be used for reporting and drawing funds: 97.030, Community
Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis Counseling;
97.033, Disaster Legal Services; 97.034, Disaster Unemployment
Assistance (DUA); 97.046, Fire Management Assistance Grant; 97.048,
Disaster Housing Assistance to Individuals and Households In
Presidentially Declared Disaster Areas; 97.049, Presidentially
Declared Disaster Assistance--Disaster Housing Operations for
Individuals

and Households; 97.050, Presidentially Declared Disaster Assistance
to Individuals and Households--Other Needs; 97.036, Disaster
Grants--Public Assistance (Presidentially Declared Disasters);
97.039, Hazard Mitigation Grant.

Pete Gaynor,
Acting Administrator, Federal Emergency Management Agency.
[FR Doc. 2019-09167 Filed 5-3-19; 8:45 am]
BILLING CODE 9111-23-P


[Federal Register: October 15, 2008 (Volume 73, Number 200)]
[Rules and Regulations]
[Page 60953-60954]
[DOCID:fr15oc08-15]

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 117

[USCG-2008-0974]

Drawbridge Operation Regulation; Harlem River, New York City, NY,
Maintenance

AGENCY: Coast Guard, DHS.

ACTION: Notice of temporary deviation from regulations.

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SUMMARY: The Commander, First Coast Guard District, has issued a
temporary deviation from the regulation governing the operation of the
145 Street Bridge across the Harlem River, mile 2.8, at New York City,
New York. Under this temporary deviation the bridge may remain in the
closed position for five days to facilitate bridge maintenance.

DATES: This deviation is effective from October 13, 2008 through
October 18, 2008.

ADDRESSES: Documents indicated in this preamble as being available in
the docket are part of docket USCG-2008-0974 and are available online
at http://www.regulations.gov. They are also available for inspection
or copying at two locations: the Docket Management Facility (M-30),
U.S. Department of Transportation, West Building Ground Floor, Room
W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9
a.m. and 5 p.m., Monday through Friday, except Federal holidays, and
the First Coast Guard District, Bridge Branch Office, 408 Atlantic
Avenue, Boston, Massachusetts 02110, between 7 a.m. and 3 p.m., Monday
through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: If you have questions about this rule,
call Joe Arca, Project Officer, First Coast Guard District, at (212)
668-7165. If you have questions on viewing the docket, call Renee V.
Wright, Program Manager,

Docket Operations, telephone<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION: The 145 Street Bridge, across the Harlem
River at mile 2.8, has a vertical clearance in the closed position of
25 feet at mean high water and 30 feet at mean low water. The existing
regulations are listed at 33 CFR 117.789(c)(1).
    The owner of the bridge, the New York City Department of
Transportation (NYCDOT), requested this temporary deviation to
facilitate mechanical bridge maintenance.
    Habitual users of the waterway normally can transit under the 145
Street Bridge without requesting a bridge opening due to the size of
the vessel traffic that frequently transits this waterway and the ample
vertical clearance provided by the bridge in the closed position.
    Under this temporary deviation the 145 Street Bridge may remain in
the closed position from October 13, 2008 through October 18, 2008.
    In accordance with 33 CFR 117.35(e), the bridge must return to its
regular operating schedule immediately at the end of the designated
time period. This deviation from the operating regulations is
authorized under 33 CFR 117.35.

    Dated: October 2, 2008.
Gary Kassof,
Bridge Program Manager, First Coast Guard District.
 [FR Doc. E8-24518 Filed 10-14-08; 8:45 am]

BILLING CODE 4910-15-P


[Federal Register Volume 87, Number 115 (Wednesday, June 15, 2022)]
[Notices]
[Pages 36204-36206]
[FR Doc No: 2022-12875]

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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2016-0180]

Commercial Driver's License (CDL) Testing; Application for
Exemption: State of Minnesota

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION: Notice of final disposition: Denial of reconsideration of
request for exemption.

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SUMMARY: FMCSA announces its decision to deny the State of Minnesota's
request for reconsideration of the Agency's 2017 denial of an
application for exemption from the regulations governing the commercial
driver's license (CDL) skills testing procedures and practices.
Specifically, the Agency denies Minnesota's request to perform the CDL
skills test in the order specified in the CDL regulations. The Agency
denies Minnesota's requested relief from the requirement to use the
American Association of Motor Vehicle Administrators' (AAMVA) 2005 Test
Model Score Sheet and from the requirement that skills tests be
conducted in three parts.

DATES: This decision is effective June 15, 2022.
    Docket: For access to the docket to read background documents or
comments, go to www.regulations.gov at any time or visit Room W12-140
on the ground level of the West Building, 1200 New Jersey Avenue SE,
Washington, DC, between 9 a.m. and 5 p.m., ET, Monday through Friday,
except Federal holidays. To be sure someone is there to help you,
please call<PHONE_NUMBER> or<PHONE_NUMBER> before visiting Dockets
operations.

FOR FURTHER INFORMATION CONTACT: Ms. Pearlie Robinson, FMCSA Driver and
Carrier Operations Division; Office of Carrier, Driver and Vehicle
Safety Standards;<PHONE_NUMBER> or [email protected]. If you have questions
on viewing or submitting material to the docket, contact Docket
Services, telephone<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION:

I. Public Participation

Viewing Comments and Documents

    To view comments, go to www.regulations.gov, insert the docket
number ``FMCSA-2016-0180'' in the keyword box, and click ``Search.''
Next, sort the results by ``Posted (Newer-Older),'' choose the first
notice listed, click ``Browse Comments.''
    To view documents mentioned in this notice as being available in
the docket, go to www.regulations.gov, insert the docket number
``FMCSA-2016-0180'' in the keyword box, click ``Search,'' and chose the
document to view.
    If you do not have access to the internet, you may view the docket
online by visiting Dockets Operations in Room W12-140 on the ground
floor of the DOT West Building, 1200 New Jersey Avenue SE, Washington,
DC 20590, between 9 a.m. and 5 p.m., ET, Monday through Friday, except
Federal holidays. To be sure someone is there to help you, please call
(202) 366-9317 or<PHONE_NUMBER> before visiting Dockets Operations.

II. Legal Basis

    FMCSA has authority under 49 U.S.C. 31136(e) and 31315 to grant
exemptions from certain portions of the Federal Motor Carrier Safety
Regulations (FMCSRs). FMCSA must publish a notice of each exemption
request in the Federal Register (49 CFR 381.315(a)). The Agency must
provide the public an opportunity to inspect the information relevant
to the application, including any safety analyses that have been
conducted. The Agency must also provide an opportunity for public
comment on the request.
    The Agency reviews the safety analyses and the public comments
submitted, and determines whether granting the exemption would likely
achieve a level of safety equivalent to, or greater than, the level
that would be achieved by compliance with the current regulation (49
CFR 381.305). The decision of the Agency must be published in the
Federal Register (49

CFR 381.315(b)) with the reason for the grant or denial, and, if
granted, the specific person or class of persons receiving the
exemption, and the regulatory provision or provisions from which
exemption is granted. The notice must also specify the effective period
of the exemption (up to 5 years) and explain the terms and conditions
of the exemption. The exemption may be renewed (49 CFR 381.300(b)).

III. Current Regulatory Requirements

    The Commercial Motor Vehicle Safety Act of 1986 (CMVSA) [49 U.S.C.
chapter 313, implemented by 49 CFR part 383] was designed to improve
highway safety by ensuring that truck and bus drivers are qualified to
drive a commercial motor vehicle (CMV). States issue CDLs to CMV
operators, but the Federal government sets minimum requirements for the
issuance of a CDL. Subpart H of part 383 sets forth the principal
requirements governing State testing of applicants for a CDL.

IV. Background

    On August 1, 2016, FMCSA published Minnesota's application for
exemption from certain testing requirements in 49 CFR part 383 and
requested public comment (81 FR 50592). Under Sec.  383.133(c)(6) the
CDL skills tests must be conducted in the following order: pre-trip
inspection, vehicle control skills, and on-road skills. Minnesota asked
that it be allowed to combine the second and third parts (vehicle
control skills and on-road skills) and thus reduce the skills tests to
two parts. The State also asked to be exempted from using the AAMVA
2005 Test Model Score Sheet. Finally, the State asked to be exempted
from the requirement that applicants must pass the pre-trip inspection
portion of the exam before proceeding to the balance of the test.
    The Agency received 12 comments. Many opposed the request for
relief from using the AAMVA Score Sheet during testing. Most also
opposed allowing the State to shorten the testing to two parts and
allowing applicants for a Minnesota CDL who fail the initial portion of
the test to proceed to the on-road testing. Generally, those opposed
felt that granting the exemptions would compromise the standardization
of testing among the various States ensured by the existing
regulations. On May 9, 2017, FMCSA denied Minnesota's application for
exemption for the following reasons:
     FMCSA opposed allowing a State to amend the AAMVA Test
Model Score Sheet, which has been validated for use by all States in
testing prospective CDL holders. When a CDL driver moves to a new State
and seeks to transfer his or her CDL to that State, universal use of
the Score Sheet assures the new State that the driver met a baseline
standard for safety when his or her CDL was first issued.
     FMCSA opposed combining the various elements of the skills
tests. Under the proposed exemption, an individual could pass
Minnesota's combined test even though he or she has exceeded the
maximum point deduction allowed when the two portions of the skills
tests (basic controls or on-road) are given separately.
     FMCSA opposed allowing CDL applicants to operate CMVs at
highway speeds when they have not demonstrated the proper handling of
the vehicle at lower speeds during the basic controls test.

V. Applicant's Request

    In 2018, Minnesota requested reconsideration of FMCSA's denial of
the exemption application. The State asked to be allowed to use its own
scoresheet to score applicant drivers during the skills tests.
Minnesota also requested to be allowed to combine vehicle control
skills and on-road skills segments and thus have only two parts to its
skills tests. Minnesota believes that FMCSA's denial letter does not
accurately describe how its scoring is applied. Finally, Minnesota
asked to be exempted from the requirement that applicants pass the pre-
trip inspection portion of the exam before proceeding to the balance of
the test. The State argued that the order in which the elements of the
CDL skills tests are conducted does not result in unsafe conditions or
the operation of a CMV at highway speeds. FMCSA's May 9, 2017, denial
letter and the State's request for reconsideration are in the docket
listed at the beginning of this notice.

VI. Equivalent Level of Safety

    To ensure an equivalent level of safety, Minnesota asserts that its
score sheet evaluates the same driving skills and contains the same
inspection elements as the AAMVA score sheet. Regarding administering
the skills tests out of order, Minnesota explained that exam stations
are in residential and downtown areas across the State where traffic
speeds are low. Once the vehicle inspection is completed, drivers
travel at low speeds per traffic signs to the location where backing
exercises are conducted. The basic controls segment consists of backing
maneuvers with potential pull ups and is performed at very low speed.
Consequently, drivers do not proceed to highway speeds prior to
completing the basic control skills test.

VII. Public Comments

    On November 30, 2020, FMCSA published a notice seeking public
comment on the request for reconsideration (85 FR 76657). The Agency
received five comments. The Minnesota School Bus Operators Association
supported the exemption request, writing:

If Minnesota Driver and Vehicle Services believes that the
accommodations outlined in Doc FMSCA-2016-0180 will allow them to
deliver CDL skills testing more efficiently and will allow for more
CDL tests scheduled, we fully support those efforts. Additionally,
in reviewing the request, we see no evidence that it would
compromise the test or the safety of those applicant drivers. These
requests appear to be minor in nature and will allow the testing
sites more flexibility to conduct tests.

    The remaining four respondents opposed the exemption: The
Brotherhood of Locomotive Engineers and Trainmen (BLET); Commercial
Vehicle Training Association (CVTA); Interstate Truck Driving School of
MN, LLC (ITDS); and Mr. Michael Millard. The BLET wrote:

Our concern with this exemption is the Minnesota equivalent to the
road test for CDL applicants does not require drivers to be tested
on crossing railroad tracks, therefore new CDL drivers are not
required to display proper skills and awareness to safely cross
railroad tracks with commercial vehicles. Many of the new drivers
going through CDL training are immigrants from other countries and
may not have experience crossing railroad tracks in this country.

    The CVTA said, ``Granting the exemption would be problematic as it
would be a formal approval of Minnesota's practice, and permit
activities out of uniformity and congruence with the national system of
CDL testing. Minnesota has offered no data as required by 49 CFR
381.310 to substantiate the claim that a two-part test is safer.''
    The ITDS stated:

The contradiction created by the Minnesota testing methods
undermines the successfulness of proper training to comply with
regulations. I respectfully request that the FMCSA deny the waiver
request from the State of Minnesota. I suggest the state be required
to implement the AAMVA testing model within 12 months to give the
state adequate time to comply. This requirement would make it easier
for the State of Minnesota to make any changes that might be
required by proposed AAMVA modifications in 2022.

    Mr. Millard commented:

The trucking industry has had an increase in CMV crashes, and I
suspect the largest

contributor is poorly trained drivers who are issued CDLs. I oppose
Minnesota's request and struggle to understand why the state hasn't
adopted the standardized testing to make it work. I believe it's
haphazard to approve a plan without a written summary outlining the
supposed better way. If Minnesota's way is better, then perhaps the
FMCSR should be revised to follow suit. I see a slippery slope in
non-standardized testing expanding by allowing Minnesota to deviate
from standardized practices.

VIII. FMCSA Response to Comments and Decision

    FMCSA carefully reviewed Minnesota's petition for reconsideration
and the public comments. The Agency has concluded that Minnesota
provided no additional information that would affect FMCSA's 2017
denial of the request for relief from use of the AAMVA testing model
and no additional information to persuade the Agency to allow the State
to conduct a two-part skills test. Therefore, the Agency denies the
application for exemption from the CDL regulations and reaffirms its
previous denial.
    FMCSA believes that conducting the elements of the CDL skills test
in order (i.e., pre-trip, vehicle control skills test, on-road skills
test) is the best practice for the safety and efficiency of the tester.

Robin Hutcheson,
Deputy Administrator.
[FR Doc. 2022-12875 Filed 6-14-22; 8:45 am]
BILLING CODE 4910-EX-P