[Federal Register Volume 80, Number 220 (Monday, November 16, 2015)]
[Notices]
[Pages 70874-70879]
[FR Doc No: 2015-28921]

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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

[Docket No. PHMSA-RSPA 2000-7486; PDs 8(R)-11(R)]

Hazardous Materials: California and Los Angeles County
Requirements Applicable to the On-Site Handling and Transportation of
Hazardous Materials

AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA),
DOT.

ACTION: Decision on petitions for reconsideration of administrative
determinations of preemption.

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    Petitioners: Hasa, Inc., National Propane Gas Association, National
Tank Truck Carriers, Inc., Pioneer Chlor Alkali Company, Inc., The
Society of the Plastics Industry, Inc.
    State and Local Laws Affected: California Health & Safety Code
(CHSC), Chapter 6.95, Los Angeles County Code (LACoC), Titles 2 and 32.
    Mode Affected: Rail.
SUMMARY: Federal hazardous material transportation law does not preempt
California and Los Angeles County requirements on (1) the unloading of
hazardous materials from rail tank cars by a consignee and (2) the
consignee's on-site storage of hazardous materials following delivery
of the hazardous materials to their destination and departure of the
carrier from the consignee's premises or private track adjacent to the
consignee's premises.

FOR FURTHER INFORMATION CONTACT: Vincent Lopez or Joseph Solomey,
Office of Chief Counsel (PHC-10), Pipeline and Hazardous Materials
Safety Administration, U.S. Department of Transportation, 1200 New
Jersey Avenue SE., Washington, DC 20590-0001 (Tel. No.<PHONE_NUMBER>).

SUPPLEMENTARY INFORMATION:

I. Background

    This is a decision on petitions for reconsideration of PHMSA's
determinations of preemption regarding certain of the State of
California and Los Angeles County requirements applicable to unloading
of hazardous materials from rail tank cars and the on-site storage of
hazardous materials in rail tank cars or after unloading. The filing of
these petitions for reconsideration rendered PHMSA's determinations of
preemption non-final. With this decision on the petitions for
reconsideration, the determinations of preemption that PHMSA was asked
to reconsider become final.

A. Preemption Determinations (PDs) Nos. 8(R)-11(R)

    In PDs Nos. 8(R)-11(R), published in the Federal Register on
February 15, 1995 (60 FR 8774), PHMSA \1\ considered certain
requirements of the State of California and Los Angeles County
applicable to unloading of hazardous materials from rail tank cars and
the on-site storage of hazardous materials in rail tank cars or after
unloading. In these determinations, PHMSA responded to applications by
the Swimming Pool Chemical Manufacturers Association (SPCMA) and one of
its members, Hasa, Inc. (Hasa), questioning whether Federal hazardous
material transportation law, 49 U.S.C. 5101 et seq., preempts the
definition or classification of compressed gases and cryogenic fluids
in the Uniform Fire Code (adopted in Title 32 of the Los Angeles County
Code [LACoC]) and requirements on:
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    \1\ Effective February 20, 2005, PHMSA was created to further
the ``highest degree of safety in pipeline transportation and
hazardous materials transportation,'' and the Secretary of
Transportation redelegated hazardous materials safety functions from
the Research and Special Programs Administration (RSPA) to PHMSA's
Administrator. 49 U.S.C 108, as amended by the Norman Y. Mineta
Research and Special Programs Improvement Act (Pub. L. 108-426,
Sec.  2, 118 Stat. 2423 (Nov. 30, 2004)), and 49 CFR 1.97(b), as
redesignated at 77 FR 49964, 4987 (Aug. 17, 2012). For convenience,
this decision refers to ``PHMSA'' in discussing actions taken by
RSPA before February 20, 2005.
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     Permits to store, transport, or handle these materials;
     unloading and storage of these materials, including the
design and construction of tanks and containers;
     markings on containers of cryogenic liquids;

 placards and equipment on vehicles used to transport cryogenic
liquids; and
     the fees in Title 2 of LACoC on ``handlers'' of hazardous
materials.
    SPCMA also challenged the definitions of ``handle'' and ``storage''
in Chapter 6.95 of the California Health and Safety Code (CHSC), which
make substantive requirements in Chapter 6.95 applicable to on-site
handling and storage of hazardous materials in rail tank cars at SPCMA
members' facilities.\2\
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    \2\ CHSC Chapter 6.95 requires plans for emergency response and/
or risk prevention, and these requirements are implemented at the
local level--in this case, by Los Angeles County in LACoC Titles 2
and 32.
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    In PDs 8(R)-11(R), PHMSA discussed its responsibility under 49
U.S.C. 5103(b) to ``prescribe regulations for the safe transportation
of hazardous material in intrastate, interstate and foreign
commerce,''\3\ and the definition of ``transportation'' in former 49
U.S.C. 5102(12) as ``the movement of property and any loading,
unloading, or storage incidental to the movement.''\4\ 60 FR at 8777.
PHMSA stated that ``Federal hazmat law and the HMR do not apply to the
movement of hazardous material exclusively at a consignee's facility.''
Id. However,
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    \3\ In 2002, Congress amended this mandate to direct DOT to
``prescribe regulations for the safe transportation, including
security, of hazardous material in intrastate, interstate, and
foreign commerce.'' Homeland Security Act of 2002, Public Law 107-
296 Sec.  1711(a), 116 Stat. 2319 (Nov. 25, 2002).
    \4\ In 2005, this paragraph was redesignated Sec.  5102(13).
Hazardous Materials Transportation Safety and Security
Reauthorization Act of 2005 (Title VII of the Safe, Accountable,
Flexible, Efficient Transportation Equity Act: A Legacy for Users),
Public Law 109-59 Sec.  7102(8), 119 Stat. 1893 (Aug. 10, 2005).
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     ``Unloading that is incidental to transportation includes
consignee unloading of tank cars containing hazardous materials,'' and
must be performed in accordance with 49 CFR 174.67. Id.
     ``Storage that is incidental to transportation includes
storage by a carrier that may occur between the time a hazardous
material is offered for transportation to a carrier and the time it
reaches its intended destination and is accepted by the consignee,''
and is governed by requirements in 49 CFR 174.204(a)(2), but
``consignor and consignee storage of hazardous materials is not
incidental to transportation in commerce.'' 60 FR at 8778.
     Other Federal agencies, including the Environmental
Protection Agency (EPA) and the Department of Labor's Occupational
Safety and Health Administration (OSHA) also regulate hazardous
materials ``to ensure that they are not unintentionally or unlawfully
released into the environment'' and ``to ensure worker safety'' in the
workplace. Id.
    PHMSA found there was insufficient information to make a
determination whether four specific requirements were preempted and
that Federal hazardous material transportation law preempts only the
following specific provisions challenged in the applications of SPCMA
and Hasa:
     The prohibition in Title 32 LACoC 79.809(c) against
allowing a tank car to remain on a siding at point of delivery for more
than 24 hours while connected for transfer operations, because tank car
unloading requirements in 49 CFR 174.67 did not limit the amount of
time a tank car may remain on a siding at a point of delivery while
connected for transfer operations. 60 FR at 8788.
     The requirement in Title 32 LACoC 79.809(f) for in-person
attendance of a tank car during unloading, because Los Angeles County
did not recognize the authority granted to Hasa in former DOT exemption
E 10552 for the use of electronic surveillance to monitor tank car
unloading, under certain conditions and restrictions. 60 FR at 8789.
     The fees imposed on ``handlers'' of hazardous materials
under Title 2 LACoC 2.20.140, 2.20.150, 2.20.160 and 2.20.170 to the
extent that these fees applied to tank car unloading activities,
because the fees collected were not being used for purposes related to
hazardous materials transportation. 60 FR at 8784.

B. Petitions for Reconsideration; Initiation of Rulemaking

    Within the 20-day time period provided in 49 CFR 107.211(a),
petitions for reconsideration of PHMSA's determinations in PDs 8(R)-
11(R) were submitted by Hasa, The Chlorine Institute and the American
Chemistry Council (ACC),\5\ National Propane Gas Association (NPGA),
National Tank Truck Carriers, Inc. (NTTC), Pioneer Chlor Alkali
Company, Inc., and The Society of the Plastics Industry, Inc. In
general, all of these petitioners disagreed with PHMSA's finding that
``Federal hazmat law and the HMR do not apply to a consignee's
transportation of hazardous materials solely within the gates of a
private manufacturing facility.'' 60 FR at 8785. Hasa asked ``who
regulates what and when?'' It stated that regulation of railroad tank
cars ``while loading, unloading, and incidental storage occurs, by the
State of California, the County of Los Angeles, and other local
governmental agencies as well as by Federal requirements . . . is
likely to be uneven, contradictory, confusing, and provide a lack of
uniformity.''
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    \5\ ACC was formerly known as the Chemical Manufacturers
Association. For consistency, this decision refers to ``ACC''
throughout.
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    In their jointly-filed petition, The Chlorine Institute and ACC
asserted that, because ``49 CFR parts 174 and 177 set forth detailed
regulations for the loading and unloading of hazardous materials on
private property, loading and unloading on private property are held to
be in commerce even though they clearly cannot be accomplished in
commerce as that term is being construed by [PHMSA].'' These
petitioners referred to other Federal statutes which apply to
transportation-related activities on private property; they stated that
the environmental statutes administered by EPA, which authorize State
and local requirements, ``do not regulate the on-site transportation,
handling or storage of hazardous materials.'' They also stated that
PHMSA should resolve any ambiguity in a State or local law ``against
the enforcing entity,'' and that a State or local requirement ``must be
held to be preempted'' whenever its enforcement could create a conflict
with a requirement in the HMR.
    The Society of the Plastics Industry stated that it concurred with
and supported the petition for reconsideration filed by The Chlorine
Institute and ACC. It asserted that the decisions in PDs 8(R)-11(R)
ignore ``the fact that the HMTA applies to loading and unloading,
activities which occur within plant gates'' and also ``the `stream of
commerce' decisions adopted under the Interstate Commerce Act.''
    NTTC expressed agreement with the position that the HMR do not
apply to a hazardous material which ``has been removed from
specification packaging . . . and not reloaded into another
specification container or package.'' NTTC stated that the definition
of ``commerce'' in Federal hazardous material transportation law
``embraces both `transportation' and [that] which affects . . .
transportation.'' NTTC also stated that the decisions in PDs 8(R)-11(R)
were in conflict with prior interpretations that the HMR apply to
representations that a packaging complies with a specification marking,
``regulations regarding the removal of placards from cargo tanks (prior
to such being cleaned, purged and/or laden with another product),'' and
enforcement actions against carriers who failed to report an
unintentional release of hazardous materials during loading or

unloading, ``which invariably occur on private property.''
    Pioneer Chlor Alkali Company addressed ``a loaded tank car on the
receiver's property'' which it stated, prior to PHMSA's decisions,
meant that ``the car is under Federal Jurisdiction from the time it is
loaded, while it is being transported, held/stored, and up to the time
it is unloaded.'' It stated that the ``change'' in PDs 8(R)-11(R) ``is
not in the best interest of the general public,'' because, instead of
``one set of uniformly applied rules/regulations,'' there would be
``one set of rules/regulations covering the car at the loading point,
another set (Federal) while it is in the so called `Commerce' area and
another third set at the unloading point.''
    SPCMA and NPGA submitted further comments in support of the
petitions for reconsideration. SPCMA stated that State and local
regulations are likely to vary from place to place, so that hazardous
materials ``will be subject to different--and without doubt
conflicting--requirements throughout the journey'' from one place to
another in commerce. NPGA stated that the decisions in PDs 8(R)-11(R)
open up the possibility of ``a plethora of local regulations governing
the loading and unloading operations that are already subject to DOT
regulation.''
    Additional comments on the petitions for reconsideration were
submitted by the California Office of Emergency Services (OES), the
Contra Costa County Health Services Department (Contra Costa County),
and the Association of Waste Hazardous Materials Transporters (AWHMT).
OES stated that the California regulatory scheme was aimed at
facilities, not transporters, and does not apply to transportation or
incidental activities regulated under Federal hazardous material
transportation law or the HMR. It stated that the California statutes
and implementing local regulations relate to emergency response
planning and do not prohibit storage of hazardous materials; rather
these provisions merely define ``storage'' and when compliance with the
State law is triggered. OES argued that there is no evidence of any
``obstacle'' to accomplishing and carrying out the Federal hazardous
material transportation law and the HMR, and that it is irrelevant how
other Federal laws and the Commerce Clause have been interpreted.
Contra Costa County indicated its concurrence with the OES comments and
referred to a July 1993 incident involving the release of sulfur
trioxide at Richmond, California, when the company allegedly failed to
train its personnel, report the quantity of materials present, or
implement a risk management and prevention program under CHSC Chapter
6.95.
    AWHMT recommended that PHMSA delay taking action on the petitions
for reconsideration and open a rulemaking docket with notice and
opportunity for public comment and participation by EPA and OSHA. AWHMT
stated that further clarification was needed ``on a number of points,
not necessarily relevant to the fact-specific situation presented in
PDs 8(R)-11(R),'' because ``there is no bright line that distinguishes
the moment materials are placed in or out of transportation at
consignee/consignor facilities.''
    On July 24, 1996, PHMSA published a notice in the Federal Register
announcing that it was deferring action on the petitions for
reconsideration ``until the agency can complete a rulemaking, RSPA
Docket HM-223, which focuses on numerous issues that are raised in the
petitions for rulemaking.'' 61 FR 38513.\6\ Over the next three years,
PHMSA issued an advance notice of proposed rulemaking (ANPRM) (61 FR
39522 [July 29, 1996]); held public meetings in Atlanta, Sacramento,
and Philadelphia; published further notices of the issues to be
discussed at the public meetings (61 FR 49723 [Sept. 23, 1996], 61 FR
53483 [Oct. 11, 1996]); and issued a supplemental ANPRM (64 FR 22718
[Apr. 27, 1999]).
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    \6\ This rulemaking was assigned Docket No. RSPA-1998-4952 on
the Federal eRulemaking Portal at http://www.regulations.gov.
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    On August 20, 1999, The Chlorine Institute and ACC submitted a
petition to ``supplement the record and for discharge'' of their March
1995 petition to PHMSA for reconsideration of the determinations in PDs
8(R)-11(R). They provided a recently-issued interpretation by EPA on
the applicability of the Clean Air Act, which these petitioners
contended ``is at odds'' with findings in PDs 8(R)-11(R), and stated
that ``there is every reason to discharge the Petition for
Reconsideration and finally decide this matter.'' In its October 19,
1999 letter, PHMSA advised these parties that it was granting their
request to supplement the record in this proceeding and it had placed
the August 20, 1999 petition in the docket of both the HM-223
rulemaking and the preemption proceeding. PHMSA also stated that it was
denying their request to ``discharge'' the March 1995 petition for
reconsideration ``pending completion of the HM-223 rulemaking,'' and
that, after completion of the HM-223 rulemaking, PHMSA would reopen the
docket in the preemption proceeding ``so that all participants in that
proceeding may supplement the record if they wish,'' before acting on
the petitions for reconsideration.
    In June 2000, The Chlorine Institute and ACC formally withdrew
their joint petition for reconsideration of PDs 8(R)-11(R) and filed a
complaint in the United States District Court for the District of
Columbia asking the court to ``reverse the holdings in the preemption
determinations'' and ``such other and further relief as may be
proper.'' The Chlorine Institute, et al. v. U.S. Department of
Transportation, C.A. No. 00-1312 (WBB) (DDC). That complaint was
dismissed on May 7, 2002, on the ground that these claims were not ripe
for judicial review. The court noted that PHMSA had published a notice
of proposed rulemaking (NPRM) in Docket HM-223 in the Federal Register
on June 14, 2001 (66 FR 32420), and that it was not clear that the 1995
determinations in PDs 8(R)-11(R) reflected PHMSA's ``current position.
Therefore, the Court would be in the unenviable position of having to
enter its judgment on an issue that has not yet been decided by the
Agency that has the expertise to make a more informed decision
regarding this important issue of national policy.''

C. PHMSA's HM-223 Final Rules

    After considering the extensive comments to the July 24, 1996
ANPRM, including the comments at the three public meetings, and the
comments submitted in response to the April 1999 supplemental ANPRM and
the June 2001 NPRM, PHMSA issued a final rule in its HM-223 rulemaking
on October 30, 2003 (68 FR 61906). On April 15, 2005, PHMSA published
in the Federal Register (70 FR 20018) amendments and corrections to its
October 30, 2003 final rule in response to administrative appeals filed
by fourteen companies and industry associations.\7\
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    \7\ Five additional industry associations submitted
administrative appeals of PHMSA's October 30, 2003 final rule in HM-
223, but withdrew those appeals and, with five other associations,
filed a petition for judicial review of the HM-223 final rules.
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    In those final rules, PHMSA amended the HMR to define several terms
including ``pre-transportation function,'' ``transportation,''
``loading incidental to movement,'' ``unloading incidental to
movement,'' ``storage incidental to movement,'' and ``transloading.''
68 FR at 61907, 61940-41; 70 FR at 20021, 20033-34. PHMSA made clear
that storage of hazardous materials ``at its final destination as shown
on a shipping document'' is not ``storage incidental to movement'' of
the materials, and

unloading of hazardous materials after the materials have been
delivered to the consignee and the carrier has departed from the
consignee's facility or premises is not ``incidental to movement'' of
the materials. 70 FR at 20033-34.
    PHMSA amended 49 CFR 171.1 to list examples of regulated and non-
regulated functions and to ``indicate that facilities at which
functions are performed in accordance with the HMR may be subject to
applicable standards and regulations of other Federal agencies or to
applicable state or local governmental laws and regulations (except to
the extent that such non-Federal requirements may be preempted under
Federal hazmat law).'' 68 FR at 61907; see also id. at 61937-39, and 70
FR at 20021, 20032-33. With respect to rail tank car unloading, PHMSA
added a new paragraph 49 CFR 173.31(g) to set forth requirements to
``assure that a tank car that is being loaded or unloaded does not
inadvertently enter transportation or endanger transportation personnel
(i.e., posting warning signs, setting brakes, blocking wheels) are
regulated under the HMR.'' 68 FR at 61931, 61941. PHMSA also revised 49
CFR 174.67 to set forth the requirements applicable to transloading
operations, and clarified that ``storage of hazardous materials at
transloading facilities is storage incidental to movement and subject
to regulations applicable to such storage under the HMR. 70 FR at
20020; see also id. at 20034; 68 FR at 61931, 61941-42. Otherwise
however, ``[u]nloading of rail tank cars by consignees after delivery
by the carrier is not regulated under the HMR,'' and ``unloading of
rail cars at a facility after delivery by and departure of the rail
carrier is subject to OSHA regulations applicable to worker protection
and safety.'' Id. at 61931.
    PHMSA also specifically noted that ``DOT specification packagings,
such as rail tank cars, cargo tank motor vehicles, and cylinders, are
subject to DOT regulation at all times that the packaging is marked to
indicate that it conforms to the applicable specification
requirements.'' 70 FR at 20024. Moreover, under the HM-223 final rules,
the HMR continue to apply ``to pre-transportation functions, such as
filling a rail tank car and preparing shipping papers.'' Id. at 20025.
However, Federal hazardous materials transportation law does not
preclude other Federal agencies or their state counterparts from
regulating workers at a facility where hazardous materials are prepared
for transportation or stored incidental to movement, so long as the
other Federal or non-Federal requirements governing transportation of
hazardous materials are not specifically displaced or preempted. See
id. at 20028-29. PHMSA noted that a non-Federal safety regulation
affecting the transportation of hazardous materials may be preempted
under the Commerce Clause of the Constitution or 49 U.S.C. 5125; 49
U.S.C. 20106 (regarding rail transportation); or 49 U.S.C. 31141
(regarding motor vehicle transportation). Id. at 20024, 20025.
    Ten industry associations petitioned the United States Court of
Appeals for the District of Columbia for review of PHMSA's October 30,
2003 and April 15, 2005 final rules. American Chemistry Council, et al.
v. Department of Transportation, Nos. 03-1456, 05-1191. Five additional
associations were permitted to intervene in support of the petitioners.
At oral argument on March 20, 2006, the Court questioned whether these
associations had ``standing'' to assert that PHMSA should be required
to apply the Federal hazardous material transportation law and the HMR
to unloading and storage of hazardous materials on a consignee's
private property, after delivery of the materials to their final
destination and departure of the carrier. Following the submission of
supplemental briefs, the Court found that neither the petitioners nor
intervenors had shown that PHMSA's failure to assert authority to
regulate consignee unloading and storage had caused a likely actual or
imminent injury to these associations. 468 F.3d 810 (D.C. Cir. 2006).
The Court found that the petitioners had not shown that:
     The costs of complying with local requirements are
``fairly traceable'' to the HM-223 final rules or that, if the HM-223
final rules had not been issued, the local requirements would likely be
preempted under 49 U.S.C. 5125. Id. at 817-18.
     They would suffer an actual or imminent injury because of
an alleged ``gap'' or ``void'' in Federal, State, or local safety
requirements governing the unloading of hazardous materials by a
consignee. Id.
    The Court also found that the intervenors had not provided evidence
to show that ``there are inconsistent state and local regulations which
a properly-issued Final Rule would have preempted'' or ``that they face
increased liability risks associated with gaps in federal oversight
over the safe and secure transportation of hazardous materials.'' Id.
at 821. On February 15, 2007, the Court denied rehearing en banc. Id.
at 810.

D. PHMSA's Further Examination of Loading and Unloading of Bulk
Shipments of Hazardous Materials

    PHMSA specifically recognized in PDs 8(R)-11(R) that OSHA and EPA
also regulate activities involving hazardous materials ``to ensure that
they are not unintentionally or intentionally released into the
environment'' and ``to ensure worker safety'' in the workplace. 60 FR
at 8778. In HM-223, PHMSA provided in 49 CFR 171.1(e) that: ``Each
facility at which pre-transportation or transportation functions are
performed in accordance with the HMR may be subject to applicable
standards and regulations of other Federal agencies.'' 68 FR at 61938.
PHMSA explained in the preamble to its October 30, 2003 final rule that
``unloading of rail cars at a facility after delivery by and departure
of the rail carrier is subject to OSHA regulations applicable to worker
protection and safety.'' Id. at 61931.
    Nonetheless, concerns continued to be raised as to whether further
Federal requirements or guidance are necessary to address the loading
and unloading of shipments of hazardous materials in bulk packagings,
such as rail tank cars and cargo tank motor vehicles. In
recommendations I-02-1 & I-02-2, the National Transportation Safety
Board had urged DOT, together with OSHA and EPA, to develop regulations
``that apply to the [certain aspects of] loading and unloading of
railroad tank cars, highway cargo tanks, and other bulk containers''
and, separately in recommendation R-04-10, ``require safe operating
procedures to be established before hazardous materials are heated in a
railroad tank car for unloading.'' \8\ In 2006, the U.S. Chemical and
Safety Hazard Investigation Board (CSB) issued recommendation 2005-06
I-LA-R1 to ``Expand the scope of DOT regulatory coverage to include
chlorine rail car unloading operations'' and provide specific
requirements for ``remotely operated emergency isolation devices'' as
part of a ``shutdown system . . . capable of stopping a chlorine
release from both the rail car and the facility chlorine receiving
equipment.'' \9\
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    \8\ On November 29, 2013, the NTSB closed these three
recommendations as ``Acceptable Alternative Action'' based upon the
safety precautions and recommended guidance for persons responsible
for unloding or transloading hazardous materials from rail tank
cars, as set forth in PHMSA's July 12, 2013 safety advisory
guidance. 78 FR 41853.
    \9\ On June 1, 2015, the CSB voted to designate this
recommendation as ``Closed--No Longer Applicable'' because the board
determined that the recommendation no longer applies to DOT.
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    During late 2006 and early 2007, PHMSA reviewed incident reports
submitted during the prior decade in

accordance with the reporting requirements in 49 CFR 171.16 and
concluded that ``roughly one quarter to one half of overall hazardous
materials transportation incidents may be attributable to loading and
unloading operations, particularly bulk packages.'' Notice of public
workshop on loading/unloading practices, 72 FR 26864 (May 11, 2007). As
later summarized in its notice requesting comments on ``Proposed
Recommended Practices for Bulk Loading and Unloading of Hazardous
Materials in Transportation,'' 73 FR 916, 917 (Jan. 4, 2008):
     During 2004-06, ``hazardous materials shipments
transported by highway and rail in bulk packagings were involved in
approximately 9 out of 10 high consequence events.'' Id.
     ``Many of the identified causes of both en route and
storage incidents can be attributed to loading and unloading operations
(i.e., overfilled, overpressurized, loose closure, component, or
device, etc.).'' Id.
    In the January 4, 2008 notice, PHMSA also discussed the public
workshop which had been held on June 14, 2007, to discuss ``the risks
associated with loading and unloading bulk materials and the range of
actions that could be taken by the government and industry to address
those risks.'' Id. at 919. The participants included
``[r]epresentatives from industry, federal agencies, state and local
government, standards organizations, the emergency response community,
employee groups, environmental and public interest organizations, and
the public.'' Id. At this workshop, the Interested Parties Working
Group, representing thirteen industry associations including ACC, The
Chlorine Institute, and NTTC, presented ``a draft operating procedures
document for the loading, unloading, and storage of hazardous materials
in bulk packagings having a capacity of greater than 3,000 pounds.''
Id. Following the workshop, PHMSA received further comments and a
petition from the Dangerous Goods Advisory Group to initiate a
rulemaking to adopt ``operational procedures in the HMR applicable to
loading, unloading and incidental storage of hazardous materials in
bulk packagings.'' Id.
    Thereafter, PHMSA proposed to amend the HMR to require each person
who engages in loading or unloading cargo tanks to perform a risk
assessment of the loading and unloading operations and develop and
implement safe operating procedures based upon the results of a risk
assessment. NPRM, ``Cargo Tank Motor Vehicle Loading and Unloading
Operations,'' 76 FR 13313 (Mar. 11, 2011); extension of comment period,
76 FR 27300 (May 11, 2011).\10\ In response, however, a number of
commenters ``noted confusion about the applicability of the proposed
rule,'' ``expressed concern over the possibility of duplication of
efforts by facilities and carriers,'' ``questioned the intent of
provisions for the maintenance and testing of transfer equipment,'' and
``strongly opposed'' the proposal of an ``annual evaluation of hazmat
employees performing CTMV loading and unloading operations.'' PHMSA's
``Withdrawal of notice of proposed rulemaking,'' 79 FR 10461, 10463-64
(Feb. 25, 2014). After conducting a supplementary policy analysis,
PHMSA ``concluded that adopting the regulations proposed under the NPRM
is not the best course of action at this time.'' Id. at 10465. But
instead would:
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    \10\ In the preamble to this NPRM, PHMSA stated that it was
separately ``evaluating the safety issues associated with rail tank
car loading and unloading operations and may propose regulatory
changes if our safety analysis concludes that such action is
warranted.'' Id. at 13314.
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     Issue ``a guidance document for CTMV loading and unloading
operations;''
     Implement ``an outreach campaign to educate the regulated
community on current regulatory requirements and best safety practices;
and''
     Conduct ``human factors research to examine human
involvement in release of hazmat and to potentially use this to support
further consideration of rulemaking to address CTMV loading and
unloading operations.''
    During the meantime, Congress considered but failed to adopt
proposals to apply the HMR to the unloading of certain packagings
containing hazardous materials after delivery to the consignee. See S.
1813 Sec.  34007 (as passed by the Senate on March 14, 2012), and H.R.
7 Sec.  9005 (as reported by the Transportation and Infrastructure
Committee on February 13, 2012).

II. Discussion

    In its February 15, 1995 decisions in PDs 8(R)-11(R), PHMSA
considered and addressed the applicability of the HMR to unloading and
storage of hazardous materials in rail tank cars at a consignee's
facility after a tank car has been delivered by the rail carrier and
the carrier has departed. At the conclusion of its ten-year HM-223
rulemaking, after considering the many comments submitted in that
rulemaking by the parties petitioning for reconsideration of PDs 8(R)-
11(R), PHMSA amended the ``applicability'' provisions in the HMR to
clarify that the following activities or functions are not subject to
the requirements of the HMR:
     ``Unloading of a hazardous material from a transport
vehicle or bulk packaging performed by a person employed by or working
under contract to the consignee following delivery of the hazardous
material by the carrier to its destination and departure from the
consignee's premises of the carrier's personnel or, in the case of a
private carrier, departure of the driver from the unloading area.'' 49
CFR 171.1(d)(2).
     Storage of a freight container, transport vehicle, or
package containing a hazardous material after its delivery to the
destination indicated on a shipping document, package marking, or other
medium, or, in the case of a rail car, storage of a rail car on private
track.'' 49 CFR 171.1(d)(3).
    Since issuance of PDs 8(R)-11(R), the issues relating to post-
delivery unloading and storage have been exhaustively presented and
considered in rulemaking proceedings and federal court litigation.
Affirmance of the fundamental holdings in the initial preemption
determinations is consistent with the clarifications in the HM-223
rulemaking with regard to the scope of the definition of
``transportation'' in Federal hazardous material transportation law and
the applicability of the HMR. Moreover, it is unlikely that any further
submissions on the petitions for reconsideration will contain any new
information or arguments. Reopening the docket on those petitions for
reconsideration, as PHMSA offered to do in 1999, is no longer
warranted. The time has come to close the preemption proceeding and
devote future efforts to actions to reduce the safety risks in
activities involved in the loading and unloading of shipments of
hazardous materials, as outlined in PHMSA's February 25, 2014
withdrawal of notice of proposed rulemaking. 79 FR at 10465.

III. Ruling

    For all the reasons set forth above, PHMSA finds that that Federal
hazardous material transportation law does not preempt California and
Los Angeles County requirements on (1) the unloading of hazardous
materials from rail tank cars by a consignee and (2) the consignee's
on-site storage of hazardous materials following delivery of the
hazardous materials to their destination and departure of the carrier
from the consignee's premises or private track adjacent to the
consignee's premises.

IV. Final Agency Action

    In accordance with 49 CFR 107.211(d), this decision constitutes
PHMSA's final agency action on the applications by SPCMA and Hasa for

administrative determinations of preemption as to certain requirements
in Chapter 6.95 of the California Health and Safety Code and Titles 2
and 32 of the Los Angeles County Code relating to unloading and storage
of hazardous materials.
    A person who is adversely affected or aggrieved by a preemption
determination may file a petition for judicial review of that
determination in the United States Court of Appeals for the District of
Columbia or in the Court of Appeals for the United States for the
circuit in which the petitioner resides or has its principal place of
business, within 60 days after the determination becomes final. 49
U.S.C. 5127(a).

    Issued in Washington, DC, on November 10, 2015.
Joseph Solomey,
Senior Assistant Chief Counsel.
[FR Doc. 2015-28921 Filed 11-13-15; 8:45 am]
BILLING CODE 4910-60-P


[Federal Register: December 10, 2008 (Volume 73, Number 238)]
[Rules and Regulations]
[Page 74972-74977]
[DOCID:fr10de08-10]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 180

[EPA-HQ-OPP-2007-0672; FRL-8390-8]

Mefenpyr-diethyl and Metabolites; Pesticide Tolerance

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: This regulation establishes tolerances for residues of the
herbicide safener, mefenpyr-diethyl (CAS Reg. No. 135590-91-9), also
known as 1-(2,4-dichlorophenyl)-4,5-dihydro-5-methyl-1H-pyrazole-3,5-
dicarboxylic acid, diethyl ester and its 2,4-dichlorophenyl-pyrazoline
metabolites, applied at a rate no greater than 0.053 pounds safener per
acre per growing season, in or on the rotational crop commodities
soybean seed, soybean hay, soybean forage and canola seed. Bayer
CropScience requested these tolerances under the Federal Food, Drug,
and Cosmetic Act (FFDCA).

DATES: This regulation is effective December 10, 2008. Objections and
requests for hearings must be received on or before February 9, 2009,
and must be filed in accordance with the instructions provided in 40
CFR part 178 (see also Unit I.C. of the SUPPLEMENTARY INFORMATION).

ADDRESSES: EPA has established a docket for this action under docket
identification (ID) number EPA-HQ-OPP-2007- 0672. All documents in the
docket are listed in the docket index available at http://
www.regulations.gov. Although listed in the index, some information is
not publicly available, e.g., Confidential Business Information (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 in the electronic
docket at http://www.regulations.gov, or, if only available in hard
copy, at the OPP Regulatory Public Docket in Rm. S-4400, One Potomac
Yard (South Bldg.), 2777 S. Crystal Dr., Arlington, VA. The Docket
Facility is open from 8:30 a.m. to 4 p.m., Monday through Friday,
excluding legal holidays. The Docket Facility telephone number is (703)
305-5805.

FOR FURTHER INFORMATION CONTACT: Karen Samek, Registration Division
(7505P), Office of Pesticide Programs, Environmental Protection Agency,
1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone
number:<PHONE_NUMBER>; e-mail address<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this Action Apply to Me?

    You may be potentially affected by this action if you are an
agricultural producer, food manufacturer, or pesticide manufacturer.
Potentially affected entities may include, but are not limited to:
     Crop production (NAICS code 111).
     Animal production (NAICS code 112).
     Food manufacturing (NAICS code 311).
     Pesticide manufacturing (NAICS code 32532).
    This listing is not intended to be exhaustive, but rather provides
a guide for readers regarding entities likely to be affected by this
action. Other types of entities not listed in this unit could also be
affected. The North American Industrial Classification System (NAICS)
codes have been provided to assist you and others in determining
whether this action might apply to certain entities. If you have any
questions regarding the applicability of this action to a particular
entity, consult the person listed under FOR FURTHER INFORMATION
CONTACT.

B. How Can I Access Electronic Copies of this Document?

    In addition to accessing electronically available documents at
http://www.regulations.gov, you may access this Federal Register
document electronically through the EPA Internet under the ``Federal
Register'' listings at http://www.epa.gov/fedrgstr. You may also access
a frequently updated electronic version of 40 CFR part 180 through the
Government Printing Office's e-CFR site at http://www.gpoaccess.gov/
ecfr. To access the OPPTS Harmonized Guidelines referenced in this
document, go directly to the guidelines at http://www.epa.gpo/opptsfrs/
home/guidelin.htm.

C. Can I File an Objection or Hearing Request?

    Under section 408(g) of FFDCA, 21 U.S.C. 346a, any person may file
an objection to any aspect of this regulation and may also request a
hearing on those objections. The EPA procedural regulations which
govern the submission of objections and requests for hearings appear in
40 CFR part 178. You must file your objection or request a hearing on
this regulation in accordance with the instructions provided in 40 CFR
part 178. To ensure proper receipt by EPA, you must identify docket ID
number EPA-HQ-OPP-2007-0672 in the subject line on the first page of
your submission. All requests must be in writing, and must be mailed or
delivered to the Hearing Clerk on or before February 9, 2009.
    In addition to filing an objection or hearing request with the
Hearing Clerk as described in 40 CFR part 178, please submit a copy of
the filing that does not contain any CBI for inclusion in the public
docket that is described in ADDRESSES. Information not marked
confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA
without prior notice. Submit your copies, identified by docket ID
number EPA-HQ-OPP-2007-0672, by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov.
Follow the on-line instructions for submitting comments.
     Mail: Office of Pesticide Programs (OPP) Regulatory Public
Docket (7502P), Environmental Protection Agency, 1200 Pennsylvania
Ave., NW., Washington, DC 20460-0001.
     Delivery: OPP Regulatory Public Docket (7502P),
Environmental Protection Agency, Rm. S-4400, One Potomac Yard (South
Bldg.), 2777 S. Crystal Dr., Arlington, VA. Deliveries are only
accepted during the Docket Facility's normal hours of operation (8:30
a.m. to 4 p.m., Monday through Friday, excluding legal holidays).
Special arrangements should be made for deliveries of boxed
information. The Docket Facility telephone number is<PHONE_NUMBER>.

II. Petition for Tolerance

    In the Federal Register of August 22, 2007 (72 FR 47008) (FRL-8145-
1), EPA issued a notice pursuant to section 408 of FFDCA, 21 U.S.C.
346a, as amended by FQPA (Public Law 104-170), announcing the filing of
a pesticide petition (PP 7E7224) by Bayer CropScience, 2 T.W.,
Alexander Drive, P.O. Box 12014, Research Triangle Park, NC 27709. The
petition requested that 40 CFR 180.509 be amended for the herbicide
safener, mefenpyr-diethyl, 1-(2,4-dichlorophenyl)-4,5-dihydro-5-methyl-
1H-pyrazole-3,5-dicarboxylic acid, diethyl ester and its 2,4-
dichlorophenyl-pyrazoline metabolites by increasing the maximum
allowable seasonal use rate to 0.053 lb safener/acre(A), as well as,
establishing rotation crop tolerances on soybean seed at 0.02 parts per
million (ppm); soybean forage at 0.1ppm; soybean hay at 0.1 ppm; and
canola seed at 0.02 ppm. That notice referenced a summary of the
petition prepared by Bayer CropScience, the registrant, which is
available to the public in the docket, http://www.regulations.gov.
There were no comments received in response to the Notice of Filing.

III. Aggregate Risk assessment and Determination of Safety

    Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a
tolerance (the legal limit for a pesticide chemical residue in or on a
food) only if EPA

determines that the tolerance is ``safe.'' Section 408(b)(2)(A)(ii) of
FFDCA defines ``safe'' to mean that ``there is a reasonable certainty
that no harm will result from aggregate exposure to the pesticide
chemical residue, including all anticipated dietary exposures and all
other exposures for which there is reliable information.'' This
includes exposure through drinking water and in residential settings,
but does not include occupational exposure. Section 408(b)(2)(C) of
FFDCA requires EPA to give special consideration to exposure of infants
and children to the pesticide chemical residue in establishing a
tolerance and to ``ensure that there is a reasonable certainty that no
harm will result to infants and children from aggregate exposure to the
pesticide chemical residue....''
    Consistent with section 408(b)(2)(D) of FFDCA, and the factors
specified in section 408(b)(2)(D) of FFDCA, EPA has reviewed the
available scientific data and other relevant information in support of
this action. EPA has sufficient data to assess the hazards of and to
make a determination on aggregate exposure for the petitioned-for
tolerances for residues of the herbicide safener, mefenpyr-diethyl, in
or on soybean seed at 0.02 ppm, soybean forage at 0.1 ppm, soybean hay
at 0.1 ppm, and canola seed at 0.02 ppm; as well as the petitioned-for
request to increase the maxium allowable seasonal use rate from 0.026
lb safener/A to 0.053 lb safener/A. EPA's assessment of exposures and
risks associated with establishing tolerances follows.

A. Toxicological Profile

    EPA has evaluated the available toxicity data and considered its
validity, completeness, and reliability as well as the relationship of
the results of the studies to human risk. EPA has also considered
available information concerning the variability of the sensitivities
of major identifiable subgroups of consumers, including infants and
children.
    Mefenpyr-diethyl has low acute toxicity by the oral, dermal, and
inhalation routes of exposure. It is not a dermal irritant but is a
slight dermal sensitizer and ocular irritant. Metabolism studies
indicate that mefenpyr-diethyl is rapidly metabolized, widely
distributed, and primarily excreted via the urine. Repeat exposure via
the dermal route did not induce any treatment-related effects at dose
levels up to and including the limit dose. Repeated exposure studies
via the oral route demonstrated that the target organs are the liver
and hematopoietic system in dogs, mice, and rats. Mefenpyr-diethyl was
negative for carcinogenicity in rats and mice, and classified as ``not
likely to be carcinogenic to humans.'' Mefenpyr-diethyl did not show
any genotoxic potential. Developmental toxicity was not observed in the
rat at the limit dose (1,000 milligrams/kilogram/day (mg/kg/day)) but
was observed in the rabbit (abortions) at the same dose level producing
maternal toxicity. Mefenpyr-diethyl did not induce any signs of
reproductive toxicity or neurotoxic potential. The developmental
toxicity studies in rats and rabbits, as well as the reproductive
toxicity study in rats, did not demonstrate any prenatal or postnatal
sensitivity. There is a lack of evidence of neurotoxicity in any study
on mefenpyr-diethyl and therefore there is no concern for neurotoxicity
resulting from exposure to mefenpyr-diethyl.

B. Toxicological Endpoints

    For hazards that have a threshold below which there is no
appreciable risk, a toxicological point of departure (POD) is
identified as the basis for derivation of reference values for risk
assessment. The POD may be defined as the highest dose at which no
adverse effects are observed (the NOAEL) in the toxicology study
identified as appropriate for use in risk assessment. However, if a
NOAEL cannot be determined, the lowest dose at which adverse effects of
concern are identified (the LOAEL) or a Benchmark Dose (BMD) approach
is sometimes used for risk assessment. Uncertainty/safety factors (UFs)
are used in conjunction with the POD to take into account uncertainties
inherent in the extrapolation from laboratory animal data to humans and
in the variations in sensitivity among members of the human population
as well as other unknowns. Safety is assessed for acute and chronic
dietary risks by comparing aggregate food and water exposure to the
pesticide to the acute population adjusted dose (aPAD) and chronic
population adjusted dose (cPAD). The aPAD and cPAD are calculated by
dividing the POD by all applicable UFs. Aggregate short-, intermediate-
, and chronic-term risks are evaluated by comparing food, water, and
residential exposure to the POD to ensure that the margin of exposure
(MOE) called for by the product of all applicable UFs is not exceeded.
This latter value is referred to as the Level of Concern (LOC).
    For non-threshold risks, the Agency assumes that any amount of
exposure will lead to some degree of risk. Thus, the Agency estimates
risk in terms of the probability of an occurrence of the adverse effect
greater than that expected in a lifetime. For more information on the
general principles EPA uses in risk characterization and a complete
description of the risk assessment process, see http://www.epa.gov/
pesticides/factsheets/riskassess.htm.
    A summary of the toxicological endpoints for mefenpyr-diethyl for
human risk assessment is shown in Table 1 of this unit.

     Table 1.--Summary of Toxicological Doses and Endpoints for Mefenpyr-diethyl for Use in Dietary and Non-
                                   Occupational Human Health risk Assessments
----------------------------------------------------------------------------------------------------------------
                                                                   RfD, PAD, Level of
          Exposure/Scenario             Point of Departure and      Concern for Risk     Study and Toxicological
                                         Uncertainty Factors           Assessment                Effects
----------------------------------------------------------------------------------------------------------------
Acute Dietary (General population,        No hazard was identified in any toxicity study for this duration of
 including infants and children)                                        exposure.
----------------------------------------------------------------------------------------------------------------
Acute Dietary (Females 13-49 years of     No hazard was identified in any toxicity study for this duration of
 age)                                                                   exposure.
----------------------------------------------------------------------------------------------------------------
Chronic Dietary (All populations)      NOAEL = 51 mg/kg/day     Chronic RfD = 0.51 mg/   Chronic oral toxicity
                                       UFA = 10x..............   kg/day                   study (dog).
                                       UFH = 10x..............  cPAD = 0.51 mg/kg/day..  LOAEL = 260 mg/kg/day,
                                       FQPA SF = 1x...........                            based on increased
                                                                                liver weight in both
                                                                                sexes, cholestasis,
                                                                                and increased alkaline
                                                                                phosphates.
----------------------------------------------------------------------------------------------------------------

Cancer                                          Classification: Not likely to be carcinogenic to humans.
----------------------------------------------------------------------------------------------------------------
 Point of Departure = A data point or an estimated point that is derived from observed dose-response data and
  used to mark the beginning of extrapolation to determine risk associated with lower environmentally relevant
  human exposures. NOAEL = no observed adverse effect level. LOAEL = lowest observed adverse effect level.
  UF=uncertainty factor. UFA = extrapolated from animal to human (interspecies). UFH = potential variation in
  sensitivity among members of the human population (intraspecies). PAD = population adjusted dose (a = acute, c
  = chronic). RfD = reference dose.

C. Exposure Assessment

    1. Dietary exposure from food and feed uses. In evaluating dietary
exposure to mefenpyr-diethyl, EPA considered exposure under the
petitioned-for tolerances, as well as all existing mefenpyr-diethyl
tolerances in 40 CFR 180.509. The residue of concern for both risk
assessment and tolerance setting purposes in plants and animals is the
parent compound, mefenpyr-diethyl, and its 2,4-dichlorophenyl-
pyrazoline metabolites. EPA assessed dietary exposures from mefenpyr-
diethyl in food as follows:
    i. Acute exposure. Quantitative acute dietary exposure and risk
assessments are performed for a food-use pesticide if a toxicological
study has indicated the possibility of an effect of concern occurring
as a result of a 1-day or single exposure. No such effects were
identified in the toxicological studies for mefenpyr-diethyl;
therefore, a quantitative acute dietary exposure assessment is
unnecessary.
    ii. Chronic exposure. A highly conservative chronic dietary risk
assessment was conducted for food and drinking water for mefenpyr-
diethyl. In conducting the chronic dietary exposure assessment EPA used
the food consumption data from the USDA 1994-1996 and 1998 Continuing
Survey of Food Intake by Individuals. As to residue levels in food, EPA
assumed that 100% of crops with requested uses of mefenpyr-diethyl are
treated and that all treated crops contain residues at the tolerance
level.
    No new magnitude of the residue data, reflecting the new proposed
seasonal rate of 0.053 lb safener/A, were submitted for the primary
crop commodities. It is, however, noted that the field trial data that
were previously submitted in support of the petition to establish
tolerances for primary crops were conducted at an exaggerated rate of
0.089 lb/safener/A. Therefore, the Agency has determine that the
established tolerances for primary crop commodities remain adequate to
support the proposed higher application rate.
    iii. Cancer. Based on the results of carcinogenicity studies in
rats and mice, EPA classified mefenpyr-diethyl as a ``Not likely to be
carcinogenic to humans;'' therefore, an exposure assessment for
assessing cancer risk is unnecessary for this chemical.
    iv. Anticipated residue and percent crop treated (PCT) information.
EPA did not use anticipated residue or PCT information in the dietary
assessment for mefenpyr-diethyl. Tolerance level residues and 100 PCT
were assumed for all food commodities.
    2. Dietary exposure from drinking water. The Agency used screening
level water exposure models in the dietary exposure analysis and risk
assessment for mefenpyr-diethyl in drinking water. These simulation
models take into account data on the physical, chemical, and fate/
transport characteristics of mefenpyr-diethyl. Further information
regarding EPA drinking water models used in pesticide exposure
assessment can be found at http://www.epa.gov/oppefed1/models/water/
index.htm.
    Based on the First Index Reservoir Screening Tool (FIRST) and
Screening Concentration in Ground Water (SCI-GROW) models, the
estimated drinking water concentrations (EDWCs) of mefenpyr-diethyl and
its transformation products for chronic exposures for non-cancer
assessments are estimated to be 3 parts per billion (ppb) for surface
water and 4 ppb for ground water.
    Modeled estimates of drinking water concentrations were directly
entered into the dietary exposure model. For chronic dietary risk
assessment, the water concentration of value 4 ppb was used to assess
the contribution to drinking water.
    3. From non-dietary exposure. The term ``residential exposure'' is
used in this document to refer to non-occupational, non-dietary
exposure (e.g., for lawn and garden pest control, indoor pest control,
termiticides, and flea and tick control on pets). No products
containing mefenpyr-diethyl are available for sale in the residential
market because of the crops specified on the applicable labels. As
such, a residential risk assessment was not conducted.
    4. Cumulative effects. Unlike other pesticides for which EPA has
followed a cumulative risk approach based on a common mechanism of
toxicity, EPA has not made a common mechanism of toxicity finding as to
mefenpyr-diethyl and any other substances and mefenpyr-diethyl does not
appear to produce a toxic metabolite produced by other substances. For
the purposes of this tolerance action, therefore, EPA has not assumed
that mefenpyr-diethyl has a common mechanism of toxicity with other
substances. For information regarding EPA's efforts to determine which
chemicals have a common mechanism of toxicity and to evaluate the
cumulative effects of such chemicals, see the policy statements
released by EPA's Office of Pesticide Programs concerning common
mechanism determinations and procedures for cumulating effects from
substances found to have a common mechanism on EPA's website at http://
www.epa.gov/pesticides/cumulative/.

D. Safety Factor for Infants and Children

    1. In general. Section 408(b)(2)(C) of FFDCA provides that EPA
shall apply an additional tenfold (10X) margin of safety for infants
and children in the case of threshold effects to account for prenatal
and postnatal toxicity and the completeness of the database on toxicity
and exposure unless EPA determines based on reliable data that a
different margin of safety will be safe for infants and children. This
additional margin of safety is commonly referred to as the FQPA safety
factor (SF). In applying this provision, EPA either retains the default
value of 10X, or uses a different additional safety factor when
reliable data available to EPA support the choice of a different
factor.
    2. Prenatal and postnatal sensitivity. The prenatal and postnatal
toxicity database for mefenpyr-diethyl includes rat and rabbit
developmental toxicity studies and a two-generation reproduction
toxicity study in rats. There was no evidence of increased

susceptibility of in utero rats or rabbits in the prenatal
developmental studies or of young rats in the two-generation
reproduction study.
     Developmental toxicity was not observed in the rat at the limit
dose (1,000 mg/kg/day). The only effects observed in the rat
developmental toxicity study were decreased body-weight gain and food
efficiency during the first week of dosing and increased spleen weights
in the maternal animal and a marginal decrease in fetal body weight/
body-weight gain during lactation (postnatal study). In the rabbit
developmental toxicity study, developmental toxicity (abortion) was
observed at the same dose level producing maternal toxicity (250 mg/kg/
day).
    In the reproduction study, parental toxicity consisted of decreased
body weight and body-weight gain, and an increase in spleen weight and
in the severity (not incidence) of splenic extramedullary hematopoiesis
in females. In the pups, decreased body weight and body-weight gains
were observed at the same dose levels as the parental animals. The
NOAEL is 82 mg/kg/day (1,000 ppm) for both the parental animal and
offspring.
    3. Conclusion. EPA has determined that reliable data show the
safety of infants and children would be adequately protected if the
FQPA SF were reduced to 1X. That decision is based on the following
findings:
    i. The toxicity database for mefenpyr-diethyl is complete, with the
exception of immunotoxicity studies which are new data requirements
under the revised Part 158 Toxicology Data Requirements (40 CFR part
158). In the absence of these studies, EPA has evaluated the available
toxicity data for mefenpyr-diethyl and determined that an additional
database uncertainty factor is not needed, based on the following
conclusions:
    No acute and subchronic Neurotoxcity studies are available, however
there is no evidence of neurotoxicity in the toxicology database on
mefenpyr-diethyl, which includes subchronic, chronic, developmental
toxicity, and reproduction studies performed at dose of 250 mg/kg/day
and above. Therefore, based on the above considerations, the Agency
does not believe that conducting acute and subchronic neurotoxicity
studies will result in a NOAEL less than the NOAEL of 51 mg/kg/day
already set for mefenpyr-diethyl; therefore additional neurotoxicity
studies are not necessary and the 10x safety factor can be reduced to
1x.
    Considering that the application of mefenpyr-diethyl will be by
either aerial application or spray boom equipment, the 28-day
inhalation study is required as confirmatory data. However, the
additional uncertainty factor for database uncertainties does not need
to be applied since the MOE is >1,000 and significant inhalation
exposures of concern are not anticipated.
    EPA considered the entire toxicity database for mefenpyr-diethyl
for potential adverse effects on the thymus and spleen as indications
of potential immunotoxicity and noted enlarged spleens; more severe
hematopoiesis and hemosiderin deposits and increased spleen weights
were observed in mice at doses greater than the limit dose. However,
these were determined to be non-specific changes not indicative of
immunotoxicity. Therefore, based on the above considerations, EPA does
not believe that conducting a special series (Harmonized Guideline
870.7800), immunotoxicity study will result in a NOAEL less than the
NOAEL of 51 mg/kg/day already set for mefenpyr-diethyl and an
additional uncertainty factor for database uncertainties does not need
to be applied.
    ii. There is no indication that mefenpyr-diethyl is a neurotoxic
chemical and there is no need for a developmental neurotoxicity study
or additional UFs to account for neurotoxicity.
    iii. There is no evidence that mefenpyr-diethyl results in
increased susceptibility in in utero rats or rabbits in the prenatal
developmental studies or in young rats in the two-generation
reproduction study.
    iv. There are no residual uncertainties identified in the exposure
databases. The dietary food exposure assessments were performed
assuming 100 PCT and tolerance-level residues. EPA made conservative
(protective) assumptions in the ground and surface water modeling used
to assess exposure to mefenpyr-diethyl in drinking water. These
assessments will not underestimate the exposure and risks posed by
mefenpyr-diethyl.

E. Aggregate Risks and Determination of Safety

    EPA determines whether acute and chronic pesticide exposures are
safe by comparing aggregate exposure estimates to the aPAD and cPAD.
The aPAD and cPAD represent the highest safe exposures, taking into
account all appropriate SFs. EPA calculates the aPAD and cPAD by
dividing the POD by all applicable UFs. For linear cancer risks, EPA
calculates the probability of additional cancer cases given the
estimated aggregate exposure. Short-, intermediate-, and chronic-term
risks are evaluated by comparing the estimated aggregate food, water,
and residential exposure to the POD to ensure that the MOE called for
by the product of all applicable UFs is not exceeded.
    1. Acute risk. An acute aggregate risk assessment takes into
account exposure estimates from acute dietary consumption of food and
drinking water. No adverse effect resulting from a single oral exposure
was identified in the toxicology studies for mefenpyr-diethyl and no
acute dietary endpoint was selected. Therefore, mefenpyr-diethyl is not
expected to pose an acute risk.
    2. Chronic risk. Exposure to mefenpyr-diethyl food and drinking
water results in an estimated risk equivalent to <1% of the cPAD for
the general population and all regulated subpopulations, including
infants and children as well.
    There are no residential uses for mefenpyr-diethyl, therefore the
aggregate risk assessments include the contribution of risk from
dietary (food and water) sources only.
    3. Aggregate cancer risk for U.S. population. Mefenpyr-diethyl was
negative for carcinogenicity in rats and mice and thus is not expected
to pose a cancer risk to humans.
    4. Determination of safety. Based on these risk assessments, EPA
concludes that there is a reasonable certainty that no harm will result
to the general population, or to infants and children from aggregate
exposure to mefenpyr-diethyl residues.

IV. Other Considerations

A. Analytical Enforcement Methodology

    An enforcement method for plants entitled ``An Analytical Method
for Determination of Residues of AE F107892 (mefenpyr-diethyl) and its
Metabolites in Wheat and Barley by Gas Chromatography using Mass
Selective Detection (Report Supplement to EPA MRID 45457401)'' is
available. Radiovalidation and independent laboratory validation (ILV)
data have been submitted for the plant method. The Agency analytical
lab has concluded that this method is suitable for food tolerance
enforcement of mefenpyr-diethyl and its 2,4-dichlorophenyl-pyrazoline
metabolites. The method may be requested from: Chief, Analytical
Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft.
Meade, MD 20755-5350; telephone number:<PHONE_NUMBER>; e-mail address:
<EMAIL_ADDRESS>

B. International Tolerances

    No Codex, Canadian, or Mexican maximum residue limits are
established for residues of mefenpyr-diethyl and its metabolites in
crop or livestock commodities; therefore, there are no issues with
international harmonization raised by this action.

V. Conclusions

    Therefore, 40 CFR 180.509 is amended for the herbicide safener,
mefenpyr-diethyl, 1-(2,4-dichlorophenyl)-4,5-dihydro-5-methyl-1H-
pyrazole-3,5-dicarboxylic acid, diethyl ester and its 2,4-
dichlorophenyl-pyrazoline metabolites by increasing the maximum
allowable seasonal use rate to 0.053 lb safener/A, as well as rotation
crop tolerances are established for residues of the herbicide safener,
mefenpyr-diethyl, 1-(2,4-dichlorophenyl)-4,5-dihydro-5-methyl-1H-
pyrazole-3,5-dicarboxylic acid, diethyl ester and its 2,4-
dichlorophenyl-pyrazoline metabolites in or on soybean seed at 0.02
ppm; soybean forage at 0.1 ppm; soybean hay at 0.1 ppm; and canola seed
at 0.02 ppm.
    It should be noted that no new magnitude of the residue data,
reflecting the new proposed seasonal rate of 0.053 lb safener/A, were
submitted for the primary crop commodities. However, field trail data
that were previously submitted in support of the petition to establish
tolerances for primary crops were conducted at an exaggerated rate of
0.089 lb safener/A. Therefore, the Agency determined that the
established tolerances for primary crop commodities remain adequate to
support the proposed higher application rate.

VI. Statutory and Executive Order Reviews

    This final rule establishes tolerances under section 408(d) of
FFDCA in response to a petition submitted to the Agency. The Office of
Management and Budget (OMB) has exempted these types of actions from
review under Executive Order 12866, entitled Regulatory Planning and
Review (58 FR 51735, October 4, 1993). Because this final rule has been
exempted from review under Executive Order 12866, this final rule is
not subject to Executive Order 13211, Actions Concerning Regulations
That Significantly Affect Energy Supply, Distribution, or Use (66 FR
28355, May 22, 2001) or Executive Order 13045, entitled Protection of
Children from Environmental Health Risks and Safety Risks (62 FR 19885,
April 23, 1997). This final rule does not contain any information
collections subject to OMB approval under the Paperwork Reduction Act
(PRA), 44 U.S.C. 3501 et seq., nor does it require any special
considerations under Executive Order 12898, entitled Federal Actions to
Address Environmental Justice in Minority Populations and Low-Income
Populations (59 FR 7629, February 16, 1994).
    Since tolerances and exemptions that are established on the basis
of a petition under section 408(d) of FFDCA, such as the tolerance in
this final rule, do not require the issuance of a proposed rule, the
requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et
seq.) do not apply.
    This final rule directly regulates growers, food processors, food
handlers, and food retailers, not States or tribes, nor does this
action alter the relationships or distribution of power and
responsibilities established by Congress in the preemption provisions
of section 408(n)(4) of FFDCA. As such, the Agency has determined that
this action will not have a substantial direct effect on States or
tribal governments, on the relationship between the national government
and the States or tribal governments, or on the distribution of power
and responsibilities among the various levels of government or between
the Federal Government and Indian tribes. Thus, the Agency has
determined that Executive Order 13132, entitled Federalism (64 FR
43255, August 10, 1999) and Executive Order 13175, entitled
Consultation and Coordination with Indian Tribal Governments (65 FR
67249, November 9, 2000) do not apply to this final rule. In addition,
this final rule does not impose any enforceable duty or contain any
unfunded mandate as described under Title II of the Unfunded Mandates
Reform Act of 1995 (UMRA) (Public Law 104-4).
    This action does not involve any technical standards that would
require Agency consideration of voluntary consensus standards pursuant
to section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272
note).

VII. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report to each House of the Congress and to
the Comptroller General of the United States. EPA will submit a report
containing this rule 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 this final rule in the Federal
Register. This final rule is not a ``major rule'' as defined by 5
U.S.C. 804(2).

List of Subjects in 40 CFR Part 180

    Environmental protection, Administrative practice and procedure,
Agricultural commodities, Pesticides and pests, Reporting and
recordkeeping requirements.

    Dated: December 2, 2008.
Donald R. Stubbs,
Acting Director, Registration Division, Office of Pesticide Programs.

0
Therefore, 40 CFR chapter I is amended as follows:

PART 180--[AMENDED]

0
1. The authority citation for part 180 continues to read as follows:

    Authority: 21 U.S.C. 321(q), 346a and 371.

0
2. Section 180.509 is revised to read as follows:

Sec.  180.509  Mefenpyr-diethyl; tolerance for residues.

    (a) General. Tolerances are established for residues of the
herbicide safener, mefenpyr-diethyl, 1-(2,4-dichlorophenyl)-4,5-
dihydro-5-methyl-1H-pyrazole-3,5-dicarboxylic acid, diethyl ester and
its 2,4-dichlorophenyl-pyrazoline metabolites, when applied at a rate
no greater than 0.053 pound safener per acre per growing season in or
on the following raw agricultural commodities:

------------------------------------------------------------------------
                                                             Parts per
                        Commodity                             million
------------------------------------------------------------------------
Barley, grain...........................................            0.05
Barley, hay.............................................             0.2
Barley, straw...........................................             0.5
Canola, seed............................................            0.02
Cattle, meat byproducts.................................             0.1
Goat, meat byproducts...................................             0.1
Hog, meat byproducts....................................             0.1
Horse, meat byproducts..................................             0.1
Sheep, meat byproducts..................................             0.1
Wheat, forage...........................................             0.2
Wheat, grain............................................            0.05
Wheat, hay..............................................             0.2
Wheat, straw............................................             0.5
Soybean forage..........................................             0.1
Soybean, hay............................................             0.1
Soybean, seed...........................................            0.02
------------------------------------------------------------------------

    (b) Section 18 emergency exemptions. [Reserved]
    (c) Tolerances with regional registrations. [Reserved]
    (d) Indirect or inadvertant residues. [Reserved]

[FR Doc. E8-29112 Filed 12-9-08; 8:45 am]

BILLING CODE 6560-50-S


[Federal Register Volume 88, Number 221 (Friday, November 17, 2023)]
[Notices]
[Pages 80378-80379]
[FR Doc No: 2023-25445]

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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

[Docket Number FRA-2023-0083]

Petition for Waiver of Compliance

    Under part 211 of title 49 Code of Federal Regulations (CFR), this
document provides the public notice that on September 22, 2023, Alabama
Gulf Coast Railroad Company with the International Association of Sheet
Metal, Air, Rail and Transportation Workers (collectively,
``Petitioners''), petitioned the Federal Railroad Administration (FRA)
for a waiver of compliance from certain provisions of the Federal
railroad safety regulations contained at 49 CFR part 240 (Qualification
and Certification of Locomotive Engineers) and part 242 (Qualification
and Certification of Conductors). FRA assigned the petition Docket
Number FRA-2023-0083.
    Specifically, Petitioners request relief required to participate in
FRA's Confidential Close Call Reporting System (C\3\RS) Program.
Petitioners seek to shield reporting employees from mandatory punitive
sanctions that would otherwise arise as provided in Sec. Sec.
240.117(e)(1)-(4); 240.305(a)(1)-(4) and (a)(6); 240.307; 242.403(b),
(c), (e)(1)-(4), (e)(6)-(11), (f)(1)-(2); and 242.407. The C\3\RS
Program encourages certified operating crew members to report close
calls and protects the employees and the railroad from discipline or
sanctions arising from the incidents reported per the C\3\RS
Implementing Memorandum of Understanding.
    A copy of the petition, as well as any written communications
concerning the petition, is available for review online at
www.regulations.gov.
    Interested parties are invited to participate in these proceedings
by submitting written views, data, or comments. FRA does not anticipate
scheduling a public hearing in connection with these proceedings since
the facts do not appear to warrant a hearing. If any interested parties
desire an opportunity for oral comment and a public hearing, they
should notify FRA, in writing, before the end of the comment period and
specify the basis for their request.
    All communications concerning these proceedings should identify the
appropriate docket number and may be submitted at www.regulations.gov.
Follow the online instructions for submitting comments.
    Communications received by January 16, 2024 will be considered by
FRA before final action is taken. Comments

received after that date will be considered if practicable.
    Anyone can search the electronic form of any written communications
and comments received into any of our dockets by the name of the
individual submitting the comment (or signing the document, if
submitted on behalf of an association, business, labor union, etc.).
Under 5 U.S.C. 553(c), DOT solicits comments from the public to better
inform its processes. DOT posts these comments, without edit, including
any personal information the commenter provides, to
www.regulations.gov, as described in the system of records notice (DOT/
ALL-14 FDMS), which can be reviewed at https://www.transportation.gov/privacy. See also https://www.regulations.gov/privacy-notice for the
privacy notice of regulations.gov.

    Issued in Washington, DC.
John Karl Alexy,
Associate Administrator for Railroad Safety, Chief Safety Officer.
[FR Doc. 2023-25445 Filed 11-16-23; 8:45 am]
BILLING CODE 4910-06-P


MEMORANDUM

TO:		Mr. Brian D’Amico, USEPA/OW/OST/EAD

FROM:	Ms. Mary Willett, ERG

DATE:	October 31, 2006

SUBJECT:	Meeting with DOW Deicer Product Representatives on October 19,
2006

On October 19th, EPA and ERG met with DOW deicer product representatives
to discuss the status of current Agency efforts on the airport deicing
operations effluent guideline development and to obtain information from
DOW concerning their deicer products.  Attendees at the meeting
included:

Mr. Brian D’Amico, EPA

Mr. James Covington, EPA

Mr. Jesse Pritts, EPA

Mr. Eric Strassler, EPA

Ms. Ashly Allen, EPA

Mr. Lemuel Walker, EPA

Ms. Mary Willett, ERG

Ms. Cheryl Wizda, DOW, R&D, Deicers/Peformance Fluids

Mr. Jim Williams, DOW, EH&S Expertise Center

Ms. Connie Deford, DOW, EH&S Global Product Leader, Specialty Chemicals
(via phone)

Mr. Kendall Justiniano, DOW, Marketing Manager (via phone)

Mr. Rich Tarantino, EH&S Product Steward Specialist, Specialty Chemicals
(via phone)

Mr. Keith Belton, DOW, Director DOW Washington Office

The following topics were discussed:

Status of EPA Efforts

Mr. Eric Strassler provided an overview of current EPA efforts.  Work on
the current guideline effort started in late 2004 and EPA/ERG have been
conducting data collection efforts to date.  These efforts include
characterization sampling at the Minneapolis/St. Paul and Detroit
airports in the winter of 2005 and sampling of treatment performance at
the Albany, Pittsburgh, Denver, and Rockford airports during the winter
of 2006.  During 2005, EPA/ERG also worked on questionnaires to solicit
information from both the airports and the airlines.  The airport
detailed questionnaires and the airline screener questionnaires were
sent out in April of 2006.  The airline detailed questionnaire will be
sent to a statistically derived sample set of airlines which is
currently being developed.  EPA anticipates sending out the airline
detailed questionnaires in November of 2006.

Also during this timeframe, EPA has conducted about 20 airport site
visits and has been collecting information on the technologies and
practices that are common to the airport deicing operations industry.

Currently, EPA has published a schedule to propose in December 2007.
Due to the timeframe for getting out the airline detailed
questionnaires, this schedule may slip back by a few months.

The various stakeholders that EPA has been working with to date include;
the airports, airlines, industry trade associations, vendors (including
the recycle/recovery vendors), and environmental entities (NRDC).

Overview of Deicer Products by DOW

Ms. Cheryl Wizda then provided a presentation on DOW deicer products.
The presentation slides are included here as Appendix A.  Some of the
main topics/points made during the presentation included the following:

There are not that many deicing fluid manufacturers around the world.
DOW is a major supplier in North America (including U.S. and Canada).
Currently DOW only provides wing (aircraft) deicing products and the
company exited the airfield deicing chemical business in 2003.
Previously Union Carbide was a supplier of deicing chemicals and the two
units have merged into one (under the DOW name).

DOW is the only integrated supplier of both ethylene and propylene
glycol based fluid systems which means they manufacture their deicer
products starting from glycol to the final product all in-house.

DOW has a continual reformulation effort directed at improving product
performance.  This includes communication with the product users during
the deicing season.  DOW provides analysis assistance at various points
in the utilization process to ensure that performance requirements are
and can be met.  In general, minimal support is needed for Type I fluids
which are fairly simple to use and more support is needed for the Type
IV fluids which are sensitive to sheer forces or contamination that can
compromise performance.

DOW conducts “Product Stewardship” covering all stages of their
product’s life including R&D, manufacturing, quality assurance
monitoring, distribution, and marketing.  Part of this effort includes
safety and use information for product users, monitoring of the use and
disposal of their products, incorporation of stringent distributor
requirements, an internal Business Risk Review, and manufacturing and
quality assurance programs and procedures.

Ms. Wizda then provided an overview of the current DOW deicing products,
both ethylene glycol and propylene glycol –based.  DOW started making
propylene glycol-based fluids in 2002.  In 2004, they reformulated the
fluids to make them triazole-free.  They have since moved to a
triazole-free formulation for the ethylene glycol-based fluids as well.

See the slides in Appendix A for information on the glycol content for
each product and information on the biodegradation and aquatic toxicity
for the products.  Some items of note from this part of the presentation
included:

Type IV fluids require more additives to provide the appropriate
performance level.  As such, the Type IV products have greater toxicity
than the Type I products.

DOW’s propylene glycol Type IV fluid formulation is very similar to
that of the other propylene glycol formulations currently on the market
by other manufacturers.

DOW’s Type IV UCAR Ultra+ fluid is manufactured using a patented
technology that makes the fluid shear-resistant so that pumping of the
fluid will not degrade the product performance.

Ms. Wizda then provided an overview of the SAE AMS specifications that
apply to deicer chemicals.  All products must be certified and currently
there are two labs that perform 3rd party certifications; Amiel Lab in
Canada and the SMI lab in Miami, Florida.  The slide on this topic
includes information on the range of costs associated with the required
certifications.

SAE does not currently have an environmental subcommittee for the deicer
products.  When asked why not, Ms. Wizda indicated that the committee
members qualified for such a committee are not currently available and
are busy with other needs.

The group discussed the ingredients in DOW’s deicer products by
category.  Ms. Wizda  commented on the following specific additives:

In general the industry uses one particular class of thickeners, though
performance levels among the various individual chemicals within that
general class vary widely.  There are a few special thickeners being
developed.

Surfactants are needed to get a good wetting effect with the fluid.
Some surfactant ingredients may also act as a thickening agent as well.

Additives for pH control are used to produce products with a neutral pH
(7 - 8.5 or 9.5 pH is typical).  In addition, ingredients may be added
to the fluids to provide hard water stability.

Triazoles became a component of the deicer products as part of flame
retardant requirements.  Several years ago, there was concern about
electrical circuit fires and the need for inflammabilty of the deicing
fluids.  SAE considered requiring fluid manufacturers to include 0.5%
toly triazoles in the fluids.  DOW pointed out that because of the
potential environmental impacts and a better understanding of the
flammability risk, triazole use is not required.  Ms. Wizda also noted
that there are only a few flame retardants available for use in deicing
fluids.

While most deicer products have dyes in them (orange for Type I and
green for Type IV products), the manufacturers can produce and get
certification for undyed products.

The group discussed trends related to deicing operations.  Ms. Wizda
noted that FBOs commonly perform deicing operations at the airports in
Canada and their use is expanding here in the U.S.  However, DOW does
not see the deicing operation sector as becoming controlled by a few
large FBO companies.  EPA noted that our airline screener responses
showed a large variety in the entities providing deicing operations.

One issue that is under review is residue issues on planes operating in
Europe.  There have been 88 incidents of a loss or impairment of flight
control for European flights due to what is believed to be thickened
deicing fluid residues.  There is an investigation underway to try to
determine the cause(s).  So far, the best guesses for the source of the
problem are:

Europeans tend to use diluted Type IV fluids for deicing (and not just
for anti-icing) as opposed to Type I use.  Thus, there is not the same
level of rinsing that you get with Type I fluid use in the U.S.  This
activity may be leaving behind residue buildup.

In general, European deicing operators do not have as much experience as
their counterparts in the U.S.  This is due in part to the fact that
European airports have fewer deicing events per season and staff
turnover.  Staff sometimes have to go through re-training because it has
been more than six weeks since they have deiced.

There is also the possibility that there may be interaction occurring
between the aircraft deicing fluids and the airfield deicers.

DOW noted that one of the main concerns for their customers is product
availability during the winter season.  To help ensure consistent
supplies, DOW manufactures fluid at a minimum of two locations for each
fluid.  Multiple location manufacturing will also help with fluid
distribution.  The products will go from the manufacturing centers to
various distribution centers.

Appendix A

Memorandum

31 October 2006

Page   PAGE  2


PAPERWORK REDUCTION ACT SUBMISSION Please read the instructions before completing this form. For additional forms or assistance in completing this form, contact your agency's Paperwork Clearance Officer. Send two copies of this form, the collection instrument to be reviewed, the Supporting Statement and any additional documentation to: Office of Information and Regulatory Affairs, Office of Management and Budget, Docket Library, Room 10102, 725 17th Street NW Washington, DC 20503.

1. Agency/ Subagency originating request EPA, Office of Prevention, Pesticides & Toxic Substances 2. OMB control number b. G None a. 2 0 7 0  0 1 5 6 3. Type of information collection ( check one) a. G New collection b. G Revision of a currently approved collection c. O Extension of a currently approved collection d. G Reinstatement, without change, of a previously approved collection for which approval has expired e. G Reinstatement, with change, of a previously approved collection for which approval has expired f. G Existing collection in use without an OMB control number 4. Type of review requested ( check one) a. O Regular b. G Emergency  Approval requested by: / / c. G Delegated 5. Small entities Will this information collection have a significant economic impact on a substantial number of small entities? G Yes O No For b f, note item A2 of Supporting Statement Instructions 6. Requested expiration date a. O Three years from approval date b. G Other Specify: / /___

7. Title Voluntary Cover Sheet for TSCA Submissions 8. Agency form number( s) ( If applicable) EPA ICR # 1780.03; EPA Form No. 7710 58 9. Keywords Environmental Protection; Hazardous Substances; Reporting and Recordkeeping Requirements 10. Abstract Several industry trade associations and EPA have jointly developed a standardized cover sheet for voluntary use by industry as a first step to an electronic future and to help familiarize companies with standard requirements and concepts of electronic transfer. This cover sheet is designed for voluntary use in the submission of information under TSCA Sections 4, 8( d), and 8( e). The cover sheet facilitates submission of information, permits EPA more easily to identify, log, track, distribute, review and index submissions, and makes information publicly available more rapidly and at reduced costs, to the mutual benefit of the respondents and EPA.

11. Affected public ( Mark primary with " P" and all others that apply with " X") a. Individuals or households d. Farms b. P Business or other for profit e. Federal Government c. Not for profit institutions f. State, Local or Tribal Government 12. Obligation to respond ( Mark primary with " P" and all others that apply with " X")

a. P Voluntary b. G Required to obtain or retain benefits c. G Mandatory 13. Annual reporting and recordkeeping hour burden a. Number of respondents 964 b. Total annual responses 18,271 1. Percentage of these responses collected electronically Unknown % c. Total hours requested 9,136 d. Current OMB inventory 915 e. Difference 8,221 f. Explanation of difference 1. Program Change 2. Adjustment 8,221 14. Annual reporting and recordkeeping cost burden ( in thousands of dollars)

a. Total annualized capital/ startup costs 0 b. Total annual costs ( O& M) 0 c. Total annualized cost requested 0 d. Current OMB inventory 0 e. Difference 0 f. Explanation of difference 1. Program change 2. Adjustment 15. Purpose of information collection ( Mark Primary With " P" and all others that apply with " X") a. __ Application for benefits e. __ Program planning or management b. __ Program evaluation f. __ Research c. __ General purpose statistics g. P Regulatory or compliance d. __ Audit 16. Frequency of recordkeeping or reporting ( check all that apply) a. G Recordkeeping b. G Third party disclosure c. O Reporting 1. O On occasion 2. G Weekly 3. G Monthly 4. G Quarterly 5. G Semi annually 6. G Annually 7. G Biannually 8. G Other ( describe)

17. Statistical methods Does this information collection employ statistical methods?

G Yes O No 18. Agency contact ( person who can best answer questions regarding the content of this submission) Name: Angela F. Hofmann, Director, Regulatory Coordination Staff Phone: 202 564 0258 OMB 83 I 10/ 95 19. Certification for Paperwork Reduction Act Submissions On behalf of this Federal agency, I certify that the collection of information encompassed by this request complies with 5 CFR 1320.9.

NOTE: The text of 5 CFR 1320.9, and the related provisions of 5 CFR 1320.8( b)( 3), appear at the end of the instructions. The certification is to be made with reference to those regulatory provisions as set forth in the instructions.

The following is a summary of the topics, regarding the proposed collection of information, that the certification covers:

( a) It is necessary for the proper performance of agency functions;

( b) It avoids unnecessary duplication;

( c) It reduces burden on small entities;

( d) It uses plain, coherent, and unambiguous terminology that is understandable to respondents;

( e) Its implementation will be consistent and compatible with current reporting and recordkeeping practices;

( f) It indicates the retention periods for recordkeeping requirements;

( g) It informs respondents of the information called for under 5 CFR 1320.8( b)( 3): ( i) Why the information is being collected; ( ii) Use of information; ( iii) Burden estimate; ( iv) Nature of response ( voluntary, required for a benefit, or mandatory); ( v) Nature and extent of confidentiality; and ( vi) Need to display currently valid OMB control number;

( h) It was developed by an office that has planned and allocated resources for the efficient and effective management and use of the information to be collected ( see note in Item 19 of the instructions);

( i) It uses effective and efficient statistical survey methodology; and ( j) It makes appropriate use of information technology.

If you are unable to certify compliance with any of these provisions, identify the item below and explain the reason in Item 18 of the Supporting Statement.

Signature of Program Official Angela F. Hofmann, Director Regulatory Coordination Staff ( OPPTS) Date Signature of Senior Official or designee Doreen Sterling, Acting Director Collection Strategies Division Office of Environmental Information ( OEI) Date OMB 83 I 10/ 95


[Federal Register: October 17, 2005 (Volume 70, Number 199)]
[Notices]
[Page 60317]
[DOCID:fr17oc05-57]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Docket No. RP06-7-000]

National Fuel Gas Supply Corporation; Notice of Tariff Filing

October 6, 2005.
    Take notice that on October 3, 2005, National Fuel Gas Supply
Corporation (National) tendered for filing as part of its FERC Gas
Tariff, Fourth Revised Volume No. 1, Eighty First Revised Sheet No. 9,
to become effective October 1, 2005.
    Any person desiring to intervene or to protest this filing must
file in accordance with Rules 211 and 214 of the Commission's Rules of
Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be
considered by the Commission in determining the appropriate action to
be taken, but will not serve to make protestants parties to the
proceeding. Any person wishing to become a party must file a notice of
intervention or motion to intervene, as appropriate. Such notices,
motions, or protests must be filed in accordance with the provisions of
Section 154.210 of the Commission's regulations (18 CFR 154.210).
Anyone filing an intervention or protest must serve a copy of that
document on the Applicant. Anyone filing an intervention or protest on
or before the intervention or protest date need not serve motions to
intervene or protests on persons other than the Applicant.
    The Commission encourages electronic submission of protests and
interventions in lieu of paper using the ``eFiling'' link at http://www.ferc.gov.
 Persons unable to file electronically should submit an

original and 14 copies of the protest or intervention to the Federal
Energy Regulatory Commission, 888 First Street, NE., Washington, DC
20426.
    This filing is accessible on-line at http://www.ferc.gov, using the

``eLibrary'' link and is available for review in the Commission's
Public Reference Room in Washington, DC. There is an ``eSubscription''
link on the Web site that enables subscribers to receive e-mail
notification when a document is added to a subscribed docket(s). For
assistance with any FERC Online service, please e-mail
<EMAIL_ADDRESS>or call<PHONE_NUMBER> (toll free). For

TTY, call<PHONE_NUMBER>.

Magalie R. Salas,
Secretary.
 [FR Doc. E5-5682 Filed 10-14-05; 8:45 am]

BILLING CODE 6717-01-P