[Federal Register Volume 80, Number 10 (Thursday, January 15, 2015)]
[Rules and Regulations]
[Pages 1999-2001]
[FR Doc No: 2014-30919]

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 39

[Docket No. FAA-2014-0582; Directorate Identifier 2014-NM-065-AD;
Amendment 39-18060; AD 2014-26-09]
RIN 2120-AA64

Airworthiness Directives; Bombardier, Inc. Airplanes

AGENCY: Federal Aviation Administration (FAA), Department of
Transportation (DOT).

ACTION: Final rule.

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SUMMARY: We are superseding Airworthiness Directive (AD) 2014-03-05,
for certain Bombardier, Inc. Model BD-700-1A10 airplanes. AD 2014-03-05
required modification of the air data probes and sensors. This new AD
continues to require modification of the air data probes and sensors.
This new AD also adds airplanes to the applicability. This AD was
prompted by a report that the manufacturer has determined that some
completion centers used the heater current/brake temperature monitor
unit (HBMU) logic circuit to control the line voltage of the drain mast
heaters. We are issuing this AD to detect and correct an unannunciated
failure of two pitot static probe heaters, which could affect
controllability of the airplane in icing conditions.

DATES: This AD becomes effective February 19, 2015.
    The Director of the Federal Register approved the incorporation by
reference of a certain publication listed in this AD as of April 1,
2014 (79 FR 10331, February 25, 2014).

ADDRESSES: You may examine the AD docket on the Internet at http://www.regulations.gov/#!docketDetail;D=FAA-2014-0582; or in person at the
Docket Management Facility, U.S. Department of Transportation, Docket
Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New
Jersey Avenue SE., Washington, DC.
    For service information identified in this AD, contact Bombardier,
Inc., 400 C[ocirc]te-Vertu Road West, Dorval, Qu[eacute]bec H4S 1Y9,
Canada; telephone<PHONE_NUMBER>; fax<PHONE_NUMBER>; email
<EMAIL_ADDRESS>Internet http://www.bombardier.com. You
may view this referenced service information at the FAA, Transport
Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information
on the availability of this material at the FAA, call<PHONE_NUMBER>.

FOR FURTHER INFORMATION CONTACT: Assata Dessaline, Aerospace Engineer,
Avionics and Flight Test Branch, ANE-172, FAA, New York Aircraft
Certification Office, 1600 Stewart Avenue, Suite 410, Westbury, NY
11590; telephone<PHONE_NUMBER>; fax<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION:

Discussion

    We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR
part 39 to supersede AD 2014-03-05, Amendment 39-17742 (79 FR 10331,
February 25, 2014).
    AD 2014-03-05 applied to certain Bombardier, Inc. Model BD-700-1A10
airplanes. The NPRM published in the Federal Register on August 26,
2014 (79 FR 50880).
    Transport Canada Civil Aviation (TCCA), which is the aviation
authority for Canada, has issued Canadian Airworthiness Directive CF-
2012-32, dated December 13, 2012 (referred to after this as the
Mandatory Continuing Airworthiness Information, or ``the MCAI''), to
correct an unsafe condition for certain Bombardier, Inc. Model BD-700-
1A10 airplanes. The MCAI states:

    The aeroplane manufacturer has determined that some completion
centers used the Heater/Brake Monitoring Unit (HBMU) logic circuit
to control the line voltage of the drain mast heaters. This same
logic circuit is also used to control the line voltage of the number
2 pitot static (PS) probe heater. Since the drain mast heaters are
connected in parallel with the number 2 PS probe heater circuit, a
number 2 PS probe heater failure may not be detected by the fault
monitoring capabilities of the HBMU.
    The unannunciated failure of two PS probe heaters could
adversely affect the aeroplane's flight characteristics in icing
conditions.
    This [Canadian] AD mandates a modification to the existing drain
mast heater wiring to correct the fault-monitoring capabilities of
the HBMU and eliminate the potential dormant failure of the number 2
PS probe heater.

    You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov/#!documentDetail;D=FAA-2014-0582-0002.

Comments

    We gave the public the opportunity to participate in developing
this AD. We received no comments on the NPRM (79 FR 50880, August 26,
2014) or on the determination of the cost to the public.

Conclusion

    We reviewed the available data and determined that air safety and
the

public interest require adopting this AD as proposed, except for minor
editorial changes. We have determined that these minor changes:
     Are consistent with the intent that was proposed in the
NPRM (79 FR 50880, August 26, 2014) for correcting the unsafe
condition; and
     Do not add any additional burden upon the public than was
already proposed in the NPRM (79 FR 50880, August 26, 2014).

Costs of Compliance

    We estimate that this AD affects 79 airplanes of U.S. registry.
    The actions required by AD 2014-03-05, Amendment 39-17742 (79 FR
10331, February 25, 2014), and retained in this AD take about 35 work-
hours per product, at an average labor rate of $85 per work-hour.
Required parts cost about $0 per product. Based on these figures, the
estimated cost of the actions that were required by AD 2014-03-05 is
$2,975 per product.
    We also estimate that it will take about 35 work-hours per product
to comply with the new basic requirements of this AD. The average labor
rate is $85 per work-hour. Required parts will cost about $0 per
product. Based on these figures, we estimate the cost of this AD on
U.S. operators to be $235,025, or $2,975 per product.
    According to the manufacturer, some of the costs of this AD may be
covered under warranty, thereby reducing the cost impact on affected
individuals. We do not control warranty coverage for affected
individuals. As a result, we have included all costs in our cost
estimate.

Authority for This Rulemaking

    Title 49 of the United States Code specifies the FAA's authority to
issue rules on aviation safety. Subtitle I, section 106, describes the
authority of the FAA Administrator. ``Subtitle VII: Aviation
Programs,'' describes in more detail the scope of the Agency's
authority.
    We are issuing this rulemaking under the authority described in
``Subtitle VII, Part A, Subpart III, Section 44701: General
requirements.'' Under that section, Congress charges the FAA with
promoting safe flight of civil aircraft in air commerce by prescribing
regulations for practices, methods, and procedures the Administrator
finds necessary for safety in air commerce. This regulation is within
the scope of that authority because it addresses an unsafe condition
that is likely to exist or develop on products identified in this
rulemaking action.

Regulatory Findings

    We determined that this AD will not have federalism implications
under Executive Order 13132. This AD will not have a substantial direct
effect on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.
    For the reasons discussed above, I certify that this AD:
    1. Is not a ``significant regulatory action'' under Executive Order
12866;
    2. Is not a ``significant rule'' under the DOT Regulatory Policies
and Procedures (44 FR 11034, February 26, 1979);
    3. Will not affect intrastate aviation in Alaska; and
    4. Will not have a significant economic impact, positive or
negative, on a substantial number of small entities under the criteria
of the Regulatory Flexibility Act.

Examining the AD Docket

    You may examine the AD docket on the Internet at http://www.regulations.gov/#!docketDetail;D=FAA-2014-0582; or in person at the
Docket Management Facility between 9 a.m. and 5 p.m., Monday through
Friday, except Federal holidays. The AD docket contains this AD, the
regulatory evaluation, any comments received, and other information.
The street address for the Docket Operations office (telephone 800-647-
5527) is in the ADDRESSES section.

List of Subjects in 14 CFR Part 39

    Air transportation, Aircraft, Aviation safety, Incorporation by
reference, Safety.

Adoption of the Amendment

    Accordingly, under the authority delegated to me by the
Administrator, the FAA amends 14 CFR part 39 as follows:

PART 39--AIRWORTHINESS DIRECTIVES

0
1. The authority citation for part 39 continues to read as follows:

    Authority:  49 U.S.C. 106(g), 40113, 44701.

Sec.  39.13  [Amended]

0
2. The FAA amends Sec.  39.13 by removing Airworthiness Directive (AD)
2014-03-05, Amendment 39-17742 (79 FR 10331, February 25, 2014), and
adding the following new AD:

2014-26-09 Bombardier, Inc.: Amendment 39-18060. Docket No. FAA-
2014-0582; Directorate Identifier 2014-NM-065-AD.

(a) Effective Date

    This AD becomes effective February 19, 2015.

(b) Affected ADs

    This AD replaces AD 2014-03-05, Amendment 39-17742 (79 FR 10331,
February 25, 2014).

(c) Applicability

    (1) This AD applies to Bombardier, Inc. Model BD-700-1A10
airplanes, certificated in any category, equipped with any
electrical wiring heater current/brake temperature monitor unit
(HBMU) installed in accordance with any FAA supplemental type
certificate specified in table 1 and table 2 of paragraph 1.A.,
``Effectivity,'' of Bombardier Service Bulletin 700-30-021, Revision
01, dated November 21, 2012.
    (2) For airplanes on which the applicable service request for
product support action (SRPSA) specified in table 3 and table 4 of
paragraph 1.A., ``Effectivity,'' of Bombardier Service Bulletin 700-
30-021, Revision 01, dated November 21, 2012, has been incorporated,
the requirements of this AD have been met.

(d) Subject

    Air Transport Association (ATA) of America Code 30, Ice and Rain
Protection.

(e) Reason

    This AD was prompted by a report that the manufacturer has
determined that some completion centers used the heater current/
brake temperature monitor unit (HBMU) logic circuit to control the
line voltage of the drain mast heaters. We are issuing this AD to
detect and correct an unannunciated failure of two pitot static
probe heaters, which could affect controllability of the airplane in
icing conditions.

(f) Compliance

    Comply with this AD within the compliance times specified,
unless already done.

(g) Retained Modification

    This paragraph restates the requirements of paragraph (g) of AD
2014-03-05, Amendment 39-17742 (79 FR 10331, February 25, 2014). For
airplanes equipped with any electrical wiring HBMU installed in
accordance with any FAA supplemental type certificate specified in
table 1 of paragraph 1.A., ``Effectivity,'' of Bombardier Service
Bulletin 700-30-021, Revision 01, dated November 21, 2012: Within
800 flight hours or 15 months after April 1, 2014 (the effective
date of AD 2014-03-05), whichever occurs first, modify the air data
probes and sensors, in accordance with the Accomplishment
Instructions of Bombardier Service Bulletin 700-30-021, Revision 01,
dated November 21, 2012.

(h) New Modification

    For airplanes equipped with any electrical wiring HBMU installed
in accordance with any FAA supplemental type certificate specified
in table 2 of paragraph 1.A., ``Effectivity,'' of Bombardier Service
Bulletin 700-30-021, Revision 01, dated November 21, 2012: Within
800 flight hours or 15

months after the effective date of this AD, whichever occurs first,
modify the air data probes and sensors, in accordance with the
Accomplishment Instructions of Bombardier Service Bulletin 700-30-
021, Revision 01, dated November 21, 2012.

(i) Credit for Previous Actions

    This paragraph provides credit for actions required by paragraph
(g) or (h) of this AD, if those actions were performed before the
effective date of this AD using Bombardier Service Bulletin 700-30-
021, dated August 28, 2012, which is not incorporated by reference
in this AD.

(j) Other FAA AD Provisions

    The following provisions also apply to this AD:
    (1) Alternative Methods of Compliance (AMOCs): The Manager, New
York Aircraft Certification Office (ACO), ANE-170, FAA, has the
authority to approve AMOCs for this AD, if requested using the
procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19,
send your request to your principal inspector or local Flight
Standards District Office, as appropriate. If sending information
directly to the ACO, send it to ATTN: Program Manager, Continuing
Operational Safety, FAA, New York ACO, 1600 Stewart Avenue, Suite
410, Westbury, NY 11590; telephone<PHONE_NUMBER>; fax<PHONE_NUMBER>.
Before using any approved AMOC, notify your appropriate principal
inspector, or lacking a principal inspector, the manager of the
local flight standards district office/certificate holding district
office. The AMOC approval letter must specifically reference this
AD.
    (2) Contacting the Manufacturer: As of the effective date of
this AD, for any requirement in this AD to obtain corrective actions
from a manufacturer, the action must be accomplished using a method
approved by the Manager, New York ACO, ANE-170, Engine and Propeller
Directorate, FAA; or Transport Canada Civil Aviation (TCCA); or
Bombardier, Inc.'s TCCA Design Approval Organization (DAO). If
approved by the DAO, the approval must include the DAO-authorized
signature.

(k) Related Information

    (1) Refer to Mandatory Continuing Airworthiness Information
(MCAI) Canadian Airworthiness Directive CF-2012-32, dated December
13, 2012, for related information. You may examine the MCAI in the
AD docket on the Internet at http://www.regulations.gov/#!documentDetail;D=FAA-2014-0582-0002.
    (2) Service information identified in this AD that is not
incorporated by reference is available at the addresses specified in
paragraphs (l)(4) and (l)(5) of this AD.

(l) Material Incorporated by Reference

    (1) The Director of the Federal Register approved the
incorporation by reference (IBR) of the service information listed
in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
    (2) You must use this service information as applicable to do
the actions required by this AD, unless this AD specifies otherwise.
    (3) The following service information was approved for IBR on
April 1, 2014 (79 FR 10331, February 25, 2014).
    (i) Bombardier Service Bulletin 700-30-021, Revision 01, dated
November 21, 2012.
    (ii) Reserved.
    (4) For service information identified in this AD, contact
Bombardier, Inc., 400 C[ocirc]te-Vertu Road West, Dorval,
Qu[eacute]bec H4S 1Y9, Canada; telephone<PHONE_NUMBER>; fax 514-855-
7401; email<EMAIL_ADDRESS>Internet http://www.bombardier.com.
    (5) You may view this service information at the FAA, Transport
Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For
information on the availability of this material at the FAA, call
425-227-1221.
    (6) You may view this service information that is incorporated
by reference at the National Archives and Records Administration
(NARA). For information on the availability of this material at
NARA, call<PHONE_NUMBER>, or go to: http://www.archives.gov/federal-register/cfr/ibr-locations.html.

    Issued in Renton, Washington, on December 22, 2014.
Michael Kaszycki,
Acting Manager, Transport Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 2014-30919 Filed 1-14-15; 8:45 am]
BILLING CODE 4910-13-P


 Summary of Public Comments and Responses for Non-Hazardous Secondary Materials That Are Solid Waste

 Additions to List of Section 241.4 Categorical Non- Waste Fuels: Other Treated Railroad Ties

                                                                   January 2018

                   Summary of Public Comments and Responses for             Non-Hazardous Secondary Materials That Are Solid Waste                                            Additions to List of Section 241.4 Categorical Non-Waste Fuels:  Other Treated Railroad Ties

             U. S. Environmental Protection Agency Office of Resource Conservation and Recovery     Materials Recovery and Waste Management Division (MC 5304P) Washington, DC

This document presents public comment excerpts that provide additional detail to comments contained in the preamble to the final rule, or are unaddressed in the final rule. The last digits of the docket document identification number (DCN) are presented at the beginning of each excerpt. The full DCN is therefore EPA-HQ-RCRA-2013-0110-[number in bold type preceding the excerpt]. Where commenters provided similar comments on the same topic, one response is provided for multiple excerpts. Table 1 of this document provides a listing of commenters, and those comments and responses presented in the preamble by topic and preamble section.

General Support

Comment: (0020, 0022, 0023)

Several commenters expressed general support for EPA's proposed listing of OTRTs as categorical non‐waste fuels under section 241.4. The commenters affirmed that the determination was fully warranted, reiterating EPA's assertions in the proposal that OTRTs are managed as a valuable commodity, have a heating value exceeding the 5,000 Btu/lb. level that EPA considers "meaningful," and contain contaminants at concentrations comparable to or lower than those of traditional fuels. One commenter emphasized that treating railroad ties benefits the energy content of the biomass material, making the ties a desirable alternative fuel. The commenter stressed that the materials are not discarded, stating that they have clear value as fuel, are sold under long term agreements for use as a fuel and should be classified as a non-waste material.

One commenter observed that EPA correctly identifies cement manufacturing as a potential use for the three types of railroad ties that EPA proposes to list and noted that listing OTRTs as categorical non-waste would provide regulatory certainty that OTRTs can be used as a valued additional fuel source in cement kilns not burning "solid waste" without being subject to regulation under Clean Air Act Section 129 standards. The commenter explained that even though they were unaware of any cement kilns currently combusting OTRTs, this wasn't surprising because most U.S. cement kilns can't use OTRTs without triggering either regulation as commercial/industrial solid waste incinerator (CISWI) units or documentation requirements addressing the NHSM criteria on a site and material-specific basis.

Commenters stated that this categorization furthers public policy objectives in RCRA that encourage environmentally responsible recycling of a valuable renewable resource for energy recovery.

Response:

The Agency thanks the commenters for their feedback.

General Opposition

Comment: (0021)

One commenter opposed the proposed rule, claiming that railroad ties are discarded initially as well as after processing, making them solid waste under RCRA. The commenter argued that tie-processing and burning are part of waste disposal because railroads usually have to pay to have ties burned.

The commenter also expressed their concern regarding how ties deemed non-waste will be kept separate from waste ties. The commenter explained that, if ties are commingled and processed with many other ties, all of which have originated from numerous manufacturing locations in a multitude of states, then facilities burning railroad ties must still be presumed to be solid waste incinerators unless the ties at issue in this rule are kept separate from waste ties.

Response:

The commenter first stated that railroad ties continue to be solid wastes since they were discarded initially as well as after processing.  Previous NHSM rules (see 76 FR 15474-77) have discussed the rationale behind the standard that an NHSM is not considered discarded after processing (40 CFR Part 241.3(b)(4)).  That rationale has not been reopened for the current rulemaking.

The second statement indicated that comingled waste and non-waste ties from many locations should be considered to be solid wastes.  However, information from the regulated community indicates that contracts for the purchase and combustion of OTRTs generally include fuel specifications limiting contaminants such as metals and prohibiting comingling i.e. the receipt of wood treated with other preservatives such as pentachlorophenol (proposed OTRT rule 81 FR 75786).  Moreover, the rule itself only allows specific types of treated ties to qualify for this non-waste determination. Commingled ties treated with substances other than those that have received a non-waste determination would not be eligible under the OTRT rule.

Designed to Burn Limitation

Comment: (0020, 0022, 0023)

Commenters objected to some of the limitations set by the proposed rule (e.g. limiting units designed to burn CTRT to those designed to burn biomass and fuel oil), arguing that they would be inconsistent with EPA's goals. One commenter explained that the limitations would discourage resource conservation, energy recovery, and greenhouse gas emission reduction using environmentally preferable alternatives to fossil fuels. The commenter cited a life-cycle analysis of alternative uses of rail ties, reporting that for every tie used for energy generation, the saving is a net offset of approximately 249 pounds of carbon dioxide emissions, and that if all used rail ties were recycled for energy production, the reduction in greenhouse gas emissions and fossil fuel use would be equivalent to that of a city of nearly 100,000 people. Another commenter argued that EPA can't demonstrate that the limitations would provide any greater environmental protection. The commenter also argued that EPA is not adequately "weighing" the legitimacy criteria and that EPA has the legal authority to rely more broadly on "other relevant factors" when making the final non-waste determination in this rule.

Two commenters specifically opposed EPA's designed-to-burn requirement, which limits the use of OTRTs as fuel in certain units. Specifically, one commenter (TWC) stated that the designed-to-burn condition is unnecessary to achieve EPA's objectives for this rulemaking and frustrates important goals favoring use of renewable energy sources over combustion of fossil fuels. The commenter further contended that EPA's need to keep making adjustments, like the consideration of a de minimis exception or inclusion of coal for contaminant comparisons, is a direct result of the designed to burn limitation.

One commenter maintained that it is arbitrary, capricious, and counterproductive for creosote-borate treated ties to be considered waste in a biomass boiler, when it can be considered non-waste in another boiler, even in the same facility with the same emission controls, as long as that other boiler burns fuel oil in addition to biomass. The commenter pointed out that there are many units capable of effectively burning OTRTs for their energy value, but they would be precluded under the designed-to-burn criterion from combusting dual‐treated creosote‐borate OTRTs as non‐waste fuels. As an example, the commenter submitted a table summarizing existing and potential users of CTRTs and OTRTs by state, quantity, boiler type, and existing auxiliary fuel infrastructure, including boilers not equipped to burn fuel oil. The commenter claimed that preventing such a large universe of boiler systems from effectively combusting OTRT fuels in lieu of virgin fuels is at odds with RCRA's twin goals of resource conservation and energy recovery.

Response:

The Agency recognizes the importance of OTRTs as a fuel to the biomass power industry and to boilers designed specifically for the use of biomass as a fuel. Indeed, there may be environmental benefits to allowing OTRT use. The statutory requirement under RCRA, however, is to determine whether the material is a waste when burned as a fuel. The environmental and efficiency benefits, moreover, would accrue regardless of whether the facilities were burning railroad ties under CAA 112 or 129 regulations. The policy arguments put forth by these commenters may be valid but not relevant to whether material is discarded.

EPA disagrees that the Agency is not adequately weighing the legitimacy criteria against other relevant factors. The Agency can list an NHSM categorically by balancing the legitimacy criteria against other relevant factors, but balancing does not mean the Agency can simply ignore any of the legitimacy criteria no matter the type or levels of contaminants because the material is a source of fuel with higher Btu value and low moisture. EPA's NHSM regulations expressly require a determination that the NHSM contain contaminants at levels comparable to or lower than those in traditional fuels that the unit is designed to burn. 40 CFR 241.3(d)(1)(iii). In the case of OTRTs containing creosote (i.e. creosote-borate treated railroad ties and railroad ties treated with mixtures of creosote, borate, and copper naphthenate) combusted in units that were never designed to burn fuel oil, the Agency would be allowing the combustion of highly toxic contaminants present in the OTRTs several orders of magnitude greater that found in biomass alone. In addition to major source biomass boilers, such material could also be burned in smaller area source biomass boilers which do not require emission controls.

Thus, while the Agency recognizes that other relevant factors, including purchase of the material as a commodity for its fuel value, may be considered when one of the legitimacy criteria are not met, we do not agree that consideration of such factors would allow the EPA to undermine the legitimacy criterion.

Comment: (0020, 0022, 0023)

One commenter stated that the designed to burn limitation is based on EPA's presumption that, if a facility combusts OTRTs containing contaminants at levels higher than those in traditional fuels the combustion unit is designed to burn, then the higher levels of contaminants are being discarded when combusted. The commenter argued, however, that no element of discard is occurring when OTRTs are combusted as a fuel in other units not specifically designed to burn biomass or fuel oil. The commenter explained that facility owners or operators combust OTRTs because they are a dry biomass fuel and thus they are integral to the production process, as their use as a component of the fuel input to the combustion unit is critical to ensuring a proper fuel mix for normal production operations. The commenter stressed that there is no intent on the part of the owner/operator to engage in discard when using OTRTs as an alternative fuel, irrespective of whether the combustion unit is designed to burn biomass and/or fuel oil. The commenter noted that EPA made this same point when explaining why combustion units that have been reconfigured to burn only gas can still qualify to burn OTRTs as a categorical non‐waste fuel. The commenter concluded that these points warrant EPA's removal of the designed-to-burn condition in the final rule, and classifying OTRTs as categorical non‐waste fuels by balancing the legitimacy criteria with other relevant factors.

Two commenters pointed to EPA's statement that its "legitimacy criteria" are factors to determine if sham recycling is taking place (citing 76 Fed. Reg. at 15471), arguing that, without evidence of adulteration, levels of contaminants found in an alternative fuel are not evidence of "sham recycling." One commenter cited American Petroleum Institute v. EPA, 216 F.3d 50, 58 (D.C. Cir. 2000), in which the D.C. Circuit noted that a recycler could show that the constituents in a secondary material "are not a product of adulteration, not discarded, and outside EPA's authority to regulate such material under RCRA." The commenter stated that the API II court found that a facility's motivation in recycling a secondary material is critical in determining whether sham recycling, and thus discard, is occurring. The commenter highlighted the court's finding that a facility's treatment of an oil‐bearing wastewater to recover relatively small amounts of oil could be driven more by a reclamation motivation -- which would not involve discard -- than by a compliance motivation. The commenter argued that facilities combust OTRTs because this fuel input is critical to ensuring a proper fuel fix for efficient and effective combustion operations (as EPA recognizes), and thus the motivation behind combusting OTRTs is driven primarily by operational interests to ensure a proper fuel mix in the combustion units, not to engage in discard for any component of the OTRT fuel.

The commenter also cited Safe Food and Fertilizer v. EPA, in which the D.C. Circuit upheld EPA's reasoning that secondary materials containing higher levels of hazardous constituents than in analogous commercial products that were recycled to make fertilizers are not automatically "discarded." The commenter contended, based on the court's reasoning in this case, that if market participants treat secondary materials more like valuable products than like negatively‐valued waste, the differences in the level of hazardous constituents in the recycled materials versus those in analogous commercial products "lose their significance when put in proper perspective". The commenter argued that any differences in the composition of OTRTs versus traditional fuels "lose their significance" when put in a perspective based on health and environmental risks, given that any emissions from any additional contaminants can be addressed in applicable CAA controls.

The commenter claimed that the rulemaking record makes clear that -- regardless of the type of combustion unit -- OTRTs are treated as valuable commodities and there is no evidence of intent to engage in discard by facility owners/operators combusting OTRTs for their energy value, because they serve as critical supplemental fuels integral to normal production operations and, as such, are "integrally tied to the industrial production process." The commenter concluded, therefore, that the designed-to-burn limitation is unnecessary to ensure that OTRT combustion in units not specifically designed to burn biomass and/or fuel oil does not involve discard.

The commenter noted that the same factors supporting the removal of the designed-to-burn limitation in this rulemaking also warrant EPA removing the designed-to-burn limitation from the existing categorical non‐waste listing for CTRTs and asked that EPA initiate a rulemaking to make this change.

Response:

Commenters arguments regarding case law relative to the intent to discard have been addressed in previous rulemakings.  See 76 FR 15462-64.  The Agency does not agree with the commenter's claim that the record before the Agency demonstrates that OTRTs are not discarded. As stated in section III. D. of the preamble, elevated levels of contaminants remaining in the material can indicate that the material does not meet legitimacy criteria and is being discarded. While the Agency recognizes that other relevant factors may be considered when one of the legitimacy criteria are not met, there is a limit to the levels of contamination allowed in balancing other relevant factors with the legitimacy criteria to determine whether discard occurs.

The commenter's request for EPA to initiate a rulemaking to remove the designed-to-burn limitation for the existing categorical non‐waste listing for CTRTs is beyond the scope of today's rulemaking.

Other Limitations

Comment: (0020, 0022)

Existing unit/40 % limitation

Commenters argued that the proposed requirements that OTRTs can be used only in existing (construction commenced prior to April 14, 2014) combustion units designed to burn specific fuels, and only in amounts limited to 40% of annual fuel input, are not compelled by the legitimacy criteria as written.   Limiting the ability to use OTRTs as fuel for boilers built before an artificially selected date in 2014 prevents the environmentally beneficial use of biomass materials in facilities constructed after that date. One commenter (TWC) contended that the use of these materials is governed by CAA emissions limits and facility permits, and should not be subject to arbitrary limits that would preempt the judgment of permitting authorities. Any percentage cap on use of OTRTs is arbitrary and has nothing to do with whether a material is discarded.   One commenter requested that EPA remove these two restrictions from the limiting conditions in the proposed new section 241.4(a)(8).

One commenter took an opposing viewpoint arguing that the exception goes against EPA's own recognition that such units are not designed to burn fuels with contaminant levels that are comparable to the railroad ties at issue here, and thus, under EPA's rules, combustion of those railroad ties constitutes disposal, making the ties solid waste. The commenter further argued that the units can no longer burn oil, and their past activities are entirely irrelevant because the railroad ties are unquestionably dirtier than any traditional fuel these boilers physically can burn. The commenter also added that the exception undermines one purpose of the boilers' modification, which is to encourage combustion of cleaner materials. Lastly, the commenter contended that the exception strains the meaning of "discarded" by making the "discard" status of a material hinge on whether the unit that burns the material at some point in the past used to be able to burn a comparable material, even though it no longer can burn it.

Response:

The regulations that establish EPA's process for making categorical non-waste determinations require consideration and balancing of numerous factors. Overall, non-waste determinations can result in the use of alternative fuels that reduce the use of scarce, virgin fuels; reduce the importation of fuel; reduce dumping; and lower methane gas generation from landfills (regarding use of alternative fuels see previous NHSM rules, e.g., 75 FR 31,844, 31,849 [Jun. 4, 2010] and 76 FR 15467 [March 21, 2011]).   With a categorical non-waste determination, persons combusting NHSMs do not need to evaluate them under the general case-by-case standards and procedures that would otherwise apply.   That purpose is reflected in the creation of the petition process ,40 CFR 261.4(b), and the allowance of consideration of other relevant factors, 40 CFR 261.3(c)(1)(v). Concurrently, categorical non-waste determinations occur within specifically enumerated parameters intended to ensure that use of NHSMs as fuel does not constitute discard. 40 CFR 261.3(c), (d).

In an effort to strike that balance, these regulations allow certain units that have switched from fuel oil to natural gas to combust OTRTs treated with creosote mixtures as non-wastes within certain limits. The Agency has determined that such units should not be penalized for switching to a cleaner fuel and that OTRTs do not become wastes solely because of the switch to natural gas. Information received by the Agency indicates that OTRT, like CTRTs, are an important part of the fuel mix because of the consistently lower moisture content and higher Btu value.  The Agency believes it appropriate to balance other relevant factors in this categorical non-waste determination and to decide that the switching to the cleaner natural gas would not render these materials a waste fuel.

The approach falls within the parameters of the non-waste determinations that ensure discard is not occurring. This approach is not, however, a general means to circumvent the contaminant legitimacy criterion by allowing combustion of any NHSM with elevated contaminant levels, i.e., levels not comparable to the traditional fuel the unit is currently designed to burn.  Data available to EPA based on the earlier CTRT categorical non-waste determination indicated that CTRTs comprised no more than 40 percent of the fuel used on an annual heat input basis. Considering that CTRTs have elevated contaminant levels compared to biomass and natural gas, allowing fuel usage percentage greater than the usage that industry had previously used could be indicative of discard. Thus, EPA concluded that the 40% level constituted a reasonable condition for the categorical non-waste determination. 81 Fed. Reg. 6733. For purposes of this rulemaking, EPA has also concluded that fuel usage of CTRTs and OTRTs, beyond the historical levels, could be indicative of discard. (Information from industry indicates that increased use of OTRTs will displace CTRTs. See letter from Treated Wood Council docket # EPA-HQ-RCRA-20`13-0110-0056) As a result, EPA is maintaining the 40 percent limit in this rulemaking. Similarly, the limitation on existing units whose construction commenced prior to April 14, 2014, i.e., the date of the CTRTs proposal, seeks to ensure the prevention of discard based on historical usage.

Finally, the Agency disagrees with the argument that the use of these materials is governed by CAA emissions limits and facility permits, and should not be subject to limits that would preempt the judgment of permitting authorities. The NHSM determinations regarding waste and non-waste under RCRA address materials prior to combustion and is not based on permit emission limits and requirements after combustion.

Comment: (0020)

Storage times

One commenter (TWC) stated that EPA should not impose the proposed one‐year storage limitation on OTRTs or other railroad ties, claiming that a prohibition on storage of railroad ties in a railroad right‐of‐way or other location for more than a year would have adverse impacts on long‐established, responsible materials management practices that are based on safety and proper railroad maintenance concerns.

The commenter explained that there are compelling reasons require allowance for a longer period of storage if necessary with respect to rail ties. Specifically, the commenter noted that, unlike other facilities from which valuable secondary materials are reclaimed, railroads extend over thousands of miles. The commenter explained that sections of track are replaced as needed, setting aside ties meant for reclamation, which are collected when crews and equipment can get to these locations. The commenter further explained that many locations where ties are removed are not readily accessible except by rail, and tie pickup must compete with higher‐priority needs, such as safety‐related operations like track maintenance and inspection. Additionally, the commenter pointed out that the gondolas used for tie pickup are also used for other railroad work, limiting the equipment that is available to pick up ties.

The commenter argued that it is not feasible to ensure that all ties that are taken up, bound, and stored can be date‐tracked and recovered within a year. The commenter contended that rail ties collected and processed for fuel recovery within a year are equally as valuable as fuels as those that may take longer to reclaim, emphasizing that in both cases the materials are not discarded.

The commenter requested that, should EPA decide to propose a time limit, it should afford railroads two years and provide for a three‐year phase‐in period to permit the industry to develop practices and procedures that would enable the railroads to comply.

Response:

The Agency recognizes that the reasonable timeframe for storage may vary by industry. We conclude, however, that OTRTs removed from service that may be stored in a railroad right of way or other location for long periods of time --  that is, a year or longer, without a determination regarding their final end use (e.g., landscaping, as a fuel or land filled) shows that the material has been discarded and is a solid waste (see the preamble discussion of discard 76 FR 15463 in the March 21, 2011 rule). The assertion that the OTRTs are a valuable commodity in a robust market does not change the fact that the OTRTs can be discarded at some point. NHSMs may have value in the marketplace and still be wastes.  The rule does not impose a specific storage time limit and is not intended to impact any ongoing materials management practices.   The fact that in a few cases OTRTs may be stored for less than a year   before a decision regarding their end use is made would not change the overall determination that the OTRTs have been discarded.      Table 1. Commenters, Comments Addressed in the Preamble            Commenters            Document ID Number      Commenter Affiliation      Commenter Name      EPA-HQ-OLEM-2016-0248-0020      Treated Wood Council, American Forest & Paper Association (AF&PA), American Wood Council (AWC), Biomass Power Association (BPA), Hardwood Federation, Railway Tie Association            Jeffrey Miller      EPA-HQ-OLEM-2016-0248-0021      Earthjustice      Seth Johnson      EPA-HQ-OLEM-2016-0248-0022      Council of Industrial Boiler Owners      Robert Bessette      EPA-HQ-OLEM-2016-0248-0023      Portland Cement Association      Michael Schon            Comments Addressed in the Preamble

       Document ID Number          Commenter Affiliation        Commenter Name De Minimis Levels of Creosote EPA-HQ-OLEM-2016-0248-0020 Treated Wood Council, American Forest & Paper Association (AF&PA), American Wood Council (AWC), Biomass Power Association (BPA), Hardwood Federation, Railway Tie Association

Jeffrey Miller Inclusion of Coal EPA-HQ-OLEM-2016-0248-0020 Treated Wood Council, American Forest & Paper Association (AF&PA), American Wood Council (AWC), Biomass Power Association (BPA), Hardwood Federation, Railway Tie Association

Jeffrey Miller

Sampling and Data Quality Concerns

EPA-HQ-OLEM-2016-0248-0020 Earthjustice Seth Johnson Additional Data for Copper and Borates Literature Review

EPA-HQ-OLEM-2016-0248-0020 Earthjustice Seth Johnson


[Federal Register: December 4, 2007 (Volume 72, Number 232)]
[Proposed Rules]
[Page 68116-68118]
[DOCID:fr04de07-25]

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 117

[Docket No. USCG-2007-0096]
RIN 1625-AA09

Drawbridge Operation Regulations; Pinellas Bayway Structure ``E''
(SR 679) Bridge, Gulf Intracoastal Waterway, mile 113, St. Petersburg
Beach, Pinellas County, FL

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard proposes to change the drawbridge regulation
of the Pinellas Bayway Structure ``E'' (SR 679) Bridge, Gulf
Intracoastal Waterway, mile 113, St. Petersburg Beach, Pinellas County,
Florida. This rule is needed to provide vehicular traffic relief during
heavy vehicular traffic periods flowing into a nearby county park while
still meeting the reasonable needs of mariners.

DATES: Comments and related material must reach the Coast Guard on or
before January 18, 2008.

ADDRESSES: You may submit comments identified by Coast Guard docket
number USCG-2007-0096 to the Docket Management Facility at the U.S.
Department of Transportation. To avoid duplication, please use only one
of the following methods:
    (1) Online: http://www.regulations.gov.

    (2) Mail: Docket Management Facility (M-30), U.S. Department of
Transportation, West Building, Ground Floor, Room W12-140, 1200 New
Jersey Avenue, SE., Washington, DC 20590-0001.
    (3) Hand delivery: Room W12-140 on the Ground Floor of the West
Building, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9
a.m. and 5 p.m., Monday through Friday, except Federal holidays. The
telephone number is<PHONE_NUMBER>.
    (4) Fax:<PHONE_NUMBER>.

FOR FURTHER INFORMATION CONTACT: If you have questions on this proposed
rule, call Michael Lieberum, Seventh Coast Guard District, Bridge
Branch, telephone number<PHONE_NUMBER>. If you have questions on viewing
or submitting material to the docket, call Renee V. Wright, Program
Manager, Docket Operations, telephone<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION:

Public Participation and Request for Comments

    We encourage you to participate in this rulemaking by submitting
comments and related materials. All comments received will be posted,
without change, to http://www.regulations.gov and will include any

personal information you have provided. We have an agreement with the
Department of Transportation (DOT) to use the Docket Management
Facility. Please see DOT's ``Privacy Act'' paragraph below.

Submitting Comments

    If you submit a comment, please include the docket number for this
rulemaking (USCG-2007-0096), indicate the specific section of this
document to which each comment applies, and give the reason for each
comment. We recommend that you include your name and a mailing address,
an e-mail address, or a phone number in the body of your document so
that we can contact you if we have questions regarding your submission.
You may submit your comments and material by electronic means, mail,
fax, or delivery to the Docket Management Facility at the address under
ADDRESSES; but please submit your comments and material by only one
means. If you submit them by mail or delivery, submit them in an
unbound format, no larger than 8\1/2\ by 11 inches, suitable for
copying and electronic filing. If you submit them by mail and would
like to know that they reached the Facility, please enclose a stamped,
self-addressed postcard or envelope. We will consider all comments and
material received during the comment period. We may change this
proposed rule in view of them.

Viewing Comments and Documents

    To view comments, as well as documents mentioned in this preamble
as being available in the docket, go to http://www.regulations.gov at

any time, click on ``Search for Dockets,'' and enter the docket number
for this rulemaking (USCG-2007-0096) in the Docket ID box, and click
enter. You may also visit the Docket Management Facility in Room W12-
140 on the ground floor of the DOT West Building, 1200 New Jersey
Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday
through Friday, except Federal holidays.

Privacy Act

    Anyone can search the electronic form of all comments received into
any of our dockets by the name of the individual submitting the comment
(or signing the comment, if submitted on behalf of an association,
business, labor union, etc.). You may review the Department of
Transportation's Privacy Act Statement in the Federal Register
published on April 11, 2000 (65 FR 19477), or you may visit http://DocketsInfo.dot.gov
.

Public Meeting

    We do not now plan to hold a public meeting. But you may submit a
request for a meeting by writing to the Bridge Branch, Seventh Coast
Guard District at the address under ADDRESSES explaining why one would
be beneficial. If we determine that one would aid this rulemaking, we
will hold one at a time and place announced by a later notice in the
Federal Register.

Background and Purpose

    The Pinellas Bayway Structure ``E'' (SR 679) Bridge, Gulf
Intracoastal Waterway, mile 113, St. Petersburg Beach, Pinellas County,
Florida, currently opens on signal; except that, from 9 a.m. to 7 p.m.
the draw need only open on the hour, 20 minutes after the hour, and 40
minutes after the hour. The bridge provides vehicular access into and
out of a popular county park.
    At the request of Florida State Representative Frishe's office, who
is acting on behalf of local citizens, the Coast Guard is proposing
this regulation that will require the Pinellas Bayway ``E'' Bridge to
open on signal, except that from 7 a.m. to 9 p.m. the bridge will open
on the hour and half-hour. Public vessels of the United States, tugs
with tows and vessels in distress shall be allowed to pass on signal.

Discussion of Proposed Rule

    Under this proposed rule, the draw of the Pinellas Bayway Structure
``E'' Bridge would be required to open on signal, except that from 7
a.m. to 9 p.m. the bridge would only need to open on the hour and half-
hour. The draw would be required to open, upon proper signal, for the
passage of tugs with tows, public vessels of the United States and
vessels in a situation where a delay would endanger life or property.
    This proposed rule is expected to provide vehicular traffic relief
during heavy traffic periods by allowing two openings an hour instead
of the current three openings an hour.

Regulatory Evaluation

    This proposed rule is not a ``significant regulatory action'' under
section 3(f) of Executive Order 12866, Regulatory Planning and Review,
and does not require an assessment of potential costs and benefits
under section 6(a)(3) of that Order. The Office of Management and
Budget has not reviewed it under that Order. It is not ``significant''
under the regulatory policies and procedures of the Department of
Homeland Security.
    We expect the economic impact of this proposed rule to be so
minimal that a full Regulatory Evaluation is unnecessary, because the
rule would allow for scheduled bridge openings of this drawbridge and
all waterway restrictions or closure times would be published with
adequate time for mariners to plan accordingly.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have
considered whether this proposed rule would have a significant economic
impact on a substantial number of small entities. The term ``small
entities'' comprises small businesses, not-for-profit organizations
that are independently owned and operated and are not dominant in their
fields, and governmental jurisdictions with populations of less than
50,000.
    The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed
rule would not have a significant economic impact on a substantial
number of small entities, as the rule will allow for scheduled bridge
openings.
    This proposed rule would affect the following entities, some of
which may be small entities: The owners or operators of vessels needing
to transit the Gulf Intracoastal Waterway in the vicinity of the
Pinellas Bayway Structure ``E'' Bridge, persons intending to drive over
the bridge, and nearby business owners. The revision to the opening
schedule would not have a significant impact on a substantial number of
small entities. Vehicle traffic and small business owners in the area
may benefit from the improved traffic flow that regularly scheduled
openings will offer this area. Although bridge openings would be less
frequent, vessel traffic would still be able to transit the Gulf
Intracoastal Waterway on the hour and half-hour between 7 a.m. until 9
p.m.
    If you think that your business, organization, or governmental
jurisdiction qualifies as a small entity and that this rule would have
a significant economic impact on it, please submit a comment (see
ADDRESSES) explaining why you think it qualifies and how and to what
degree this rule would economically affect it.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement

Fairness Act of 1996 (Pub. L. 104-121), we want to assist small
entities in understanding this proposed rule so that they can better
evaluate its effects on them and participate in the rulemaking. If the
rule would affect your small business, organization, or governmental
jurisdiction and you have questions concerning its provisions or
options for compliance please contact the Seventh Coast Guard District
Bridge Branch at the address under ADDRESSES. The Coast Guard will not
retaliate against small entities that question or complain about this
rule or any policy or action of the Coast Guard.

Collection of Information

    This proposed rule would call for no new collection of information
under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

Federalism

    A rule has implications for federalism under Executive Order 13132,
Federalism, if it has a substantial direct effect on State or local
governments and would either preempt State law or impose a substantial
direct cost of compliance on them. We have analyzed this proposed rule
under that Order and have determined that it does not have implications
for federalism.

Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538)
requires Federal agencies to assess the effects of their discretionary
regulatory actions. In particular, the Act addresses actions that may
result in the expenditure by a State, local, or tribal government, in
the aggregate, or by the private sector of $100,000,000 or more in any
one year. Though this proposed rule would not result in such an
expenditure, we do discuss the effects of this rule elsewhere in this
preamble.

Taking of Private Property

    This proposed rule would not affect a taking of private property or
otherwise have taking implications under Executive Order 12630,
Governmental Actions and Interference with Constitutionally Protected
Property Rights.

Civil Justice Reform

    This proposed rule meets applicable standards in sections 3(a) and
3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize
litigation, eliminate ambiguity, and reduce burden.

Protection of Children

    We have analyzed this proposed rule under Executive Order 13045,
Protection of Children from Environmental Health Risks and Safety
Risks. This rule is not an economically significant rule and would not
create an environmental risk to health or risk to safety that might
disproportionately affect children.

Indian Tribal Governments

    This proposed rule does not have tribal implications under
Executive Order 13175, Consultation and Coordination with Indian Tribal
Governments, because it would not have a substantial direct effect on
one or more Indian tribes, on the relationship between the Federal
Government and Indian tribes, or on the distribution of power and
responsibilities between the Federal Government and Indian tribes.

Energy Effects

    We have analyzed this proposed rule under Executive Order 13211,
Actions Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use. We have determined that it is not a ``significant
energy action'' under that order because it is not a ``significant
regulatory action'' under Executive Order 12866 and is not likely to
have a significant adverse effect on the supply, distribution, or use
of energy. The Administrator of the Office of Information and
Regulatory Affairs has not designated it as a significant energy
action. Therefore, it does not require a Statement of Energy Effects
under Executive Order 13211.

Technical Standards

    The National Technology Transfer and Advancement Act (NTTAA) (15
U.S.C. 272 note) directs agencies to use voluntary consensus standards
in their regulatory activities unless the agency provides Congress,
through the Office of Management and Budget, with an explanation of why
using these standards would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., specifications of materials, performance, design, or
operation; test methods; sampling procedures; and related management
systems practices) that are developed or adopted by voluntary consensus
standards bodies.
    This proposed rule does not use technical standards. Therefore, we
did not consider the use of voluntary consensus standards.

Environment

    We have analyzed this proposed rule under Commandant Instruction
M16475.lD which guides the Coast Guard in complying with the National
Environmental Policy Act of 1969 (NEPA)(42 U.S.C. 4321-4370f), and have
made a preliminary determination that this action is not likely to have
a significant effect on the human environment because it simply
promulgates the operating regulations or procedures for drawbridges. We
seek any comments or information that may lead to the discovery of a
significant environmental impact from this proposed rule.

List of Subjects in 33 CFR Part 117

    Bridges.
    For the reasons discussed in the preamble, the Coast Guard proposes
to amend 33 CFR part 117 as follows:

PART 117--DRAWBRIDGE OPERATION REGULATIONS

    1. The authority citation for part 117 continues to read as
follows:

    Authority: 33 U.S.C. 499; 33 CFR 1.05-1(g); Department of
Homeland Security Delegation No. 0170.1.

    2. Revise Sec.  117.287(d)(4) to read as follows:
* * * * *

Sec.  117.287  Gulf Intracoastal Waterway.

    (d)(4) Pinellas Bayway Structure ``E'' (SR 679) bridge, mile 113.0
at St. Petersburg Beach. The draw shall open on signal, except that
from 9 a.m. to 7 p.m. the draw need open only on the hour and 30
minutes past the hour.
* * * * *

    Dated: November 21, 2007.
William Lee,
CAPT, USCG, Acting D7 District Commander.
[FR Doc. E7-23412 Filed 12-3-07; 8:45 am]

BILLING CODE 4910-15-P


[Federal Register Volume 86, Number 165 (Monday, August 30, 2021)]
[Notices]
[Pages 48471-48476]
[FR Doc No: 2021-18634]

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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

[Docket No. NHTSA-2021-0063]

Polaris Industries Inc. and Goupil Industrie SA; Receipt of
Petition for Temporary Exemption

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

ACTION: Notice of receipt of petition for temporary exemption; request
for comment.

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SUMMARY: In accordance with statutory and regulatory requirements,
Polaris Industries Inc. and Goupil Industrie SA (collectively,
``petitioners''), have petitioned NHTSA for an exemption of the
``Picnic-G6,'' an all-electric truck that the petitioners state will be
used as part of a grocery delivery service. The petitioners seek
exemption from nine Federal motor vehicle safety standards (FMVSS) on
the basis that an exemption would make the development or field
evaluation of a low-emission vehicle easier and would not unreasonably
lower the safety or impact protection level of that vehicle. NHTSA is
publishing this document in accordance with statutory and
administrative provisions, and requests comments on the petition. NHTSA
has made no judgment at this time on the merits of the petition.

DATES: Comments on this petition must be submitted by October 29, 2021.

FOR FURTHER INFORMATION CONTACT: Daniel Koblenz, NHTSA Office of Chief
Counsel, telephone:<PHONE_NUMBER>, facsimile:<PHONE_NUMBER>, address:
National Highway Traffic Safety Administration, 1200 New Jersey Avenue
SE, Washington, DC 20590.

ADDRESSES: You may submit your comment, identified by the docket number
in the heading of this document, by any of the following methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting
comments.
     Mail: Docket Management Facility, M-30, U.S. Department of
Transportation, West Building, Ground Floor, Rm. W12-140, 1200 New
Jersey Avenue, SE, Washington, DC 20590.
     Hand Delivery or Courier: West Building, Ground Floor,
Room W12-140, 1200 New Jersey Avenue, SE, between 9 a.m. and 5 p.m.
Eastern Time, Monday through Friday, except Federal holidays. To be
sure someone is there to help you, please call<PHONE_NUMBER> before
coming.
     Fax:<PHONE_NUMBER>.
    Instructions: For detailed instructions on submitting comments and
additional information on the rulemaking process, see the Public
Participation heading of the Supplementary Information section of this
document. Note that all comments received will be posted without change
to http://www.regulations.gov, including any personal information
provided.
    Privacy Act: In accordance with 5 U.S.C. 553(c), DOT solicits
comments from the public to better inform its decision-making process.
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 www.transportation.gov/privacy. In order to facilitate
comment tracking and response, the agency encourages commenters to
provide their name, or the name of their organization; however,
submission of names is completely optional. Whether or not commenters
identify themselves, all timely comments will be fully considered.
    Docket: For access to the docket to read background documents or
comments received, go to www.regulations.gov at any time, or to 1200
New Jersey Avenue SE, West Building Ground Floor, Room W12-140,
Washington, DC 20590, between 9 a.m. and 5 p.m. Monday through Friday,
except Federal Holidays. To be sure someone is there to help you,
please call<PHONE_NUMBER> before coming.

SUPPLEMENTARY INFORMATION:

I. Statutory and Regulatory Requirements

    The National Traffic and Motor Vehicle Safety Act (Safety Act),
codified at 49 U.S.C. 30113, authorizes the Secretary of Transportation
(NHTSA by delegation), to exempt motor vehicles from an FMVSS or bumper
standard on a temporary basis, under specified circumstances and on
terms the agency deems appropriate. The Secretary has delegated the
authority for implementing this section to NHTSA.\1\
---------------------------------------------------------------------------

    \1\ 49 CFR 1.95.
---------------------------------------------------------------------------

    The Safety Act authorizes NHTSA (by delegation) to grant, in whole
or in part, a temporary exemption to a vehicle manufacturer if certain
specified findings are made. The agency must find that the exemption is
consistent with the public interest and with the objectives of the
Safety Act.\2\ In addition, exemptions under Sec.  30113 must meet one
of the following bases:
---------------------------------------------------------------------------

    \2\ 49 U.S.C. 30113(b)(3)(A).
---------------------------------------------------------------------------

    (i) Compliance with the standard[s] [from which exemption is
sought] would cause substantial economic hardship to a manufacturer
that has tried to comply with the standard[s] in good faith;
    (ii) the exemption would make easier the development or field
evaluation of a new motor vehicle safety feature providing a safety
level at least equal to the safety level of the standard;
    (iii) the exemption would make the development or field evaluation
of a low-emission motor vehicle easier and would not unreasonably lower
the safety level of that vehicle; or
    (iv) compliance with the standard would prevent the manufacturer
from selling a motor vehicle with an overall safety level at least
equal to the overall safety level of nonexempt vehicles.\3\
---------------------------------------------------------------------------

    \3\ 49 U.S.C. 30113(b)(3)(B).
---------------------------------------------------------------------------

    The petitioners have submitted a petition under the third of these
bases. The petitioners request that NHTSA grant their petition based on
a finding that the exemption is consistent with the public interest and
the Safety Act, and that the exemption would facilitate the development
or field evaluation of a low-emission motor vehicle and would not
unreasonably reduce the safety level of that vehicle.\4\ Under the
Safety Act, entities applying for exemptions under this subsection must
include, among other things, ``a record of the research, development,
and testing establishing that the motor vehicle is a low-emission motor
vehicle and that the safety level of the vehicle is not lowered
unreasonably by exemption from the standard.''
---------------------------------------------------------------------------

    \4\ 49 U.S.C. 30113(b)(3)(B)(iii).
---------------------------------------------------------------------------

    NHTSA established 49 CFR part 555, ``Temporary Exemption from Motor
Vehicle Safety and Bumper Standards,'' to implement the statutory
provisions concerning Sec.  30113 temporary exemptions. The
requirements in 49 CFR 555.5 state that the petitioner must set forth
the basis of the petition by providing the information required under
49 CFR 555.6, and the reasons why the exemption would be in the public
interest and consistent with the objectives of the Safety Act.

    A petition submitted on the low-emission vehicle (LEV) exemption
basis must include the following information specified in 49 CFR
555.6(c):
    (1) Substantiation that the vehicle is a low-emission vehicle;
    (2) Research, development, and testing documentation establishing
that a temporary exemption would not unreasonably degrade the safety or
impact protection of the vehicle;
    (i) A detailed description of how the motor vehicle equipped with
the low-emission engine would, if exempted, differ from one that
complies with the standard;
    (ii) If the petitioner is presently manufacturing a vehicle
conforming to the standard, the results of tests conducted to
substantiate certification to the standard;
    (iii) The results of any tests conducted on the vehicle that
demonstrate its failure to meet the standard, expressed as comparative
performance levels; and
    (iv) Reasons why the failure to meet the standard does not
unreasonably degrade the safety or impact protection of the vehicle.
    (3) Substantiation that a temporary exemption would facilitate the
development or field evaluation of the vehicle; and
    (4) A statement of whether the petitioner intends to conform to the
standard at the end of the exemption period; and
    (5) A statement that not more than 2,500 exempted vehicles will be
sold in the U.S. in any 12-month period for which an exemption may be
granted.

II. Summary of Petition

    On September 16, 2020, in accordance with NHTSA's statutes and
regulations, petitioners Polaris Industries Inc. and Goupil Industrie
SA petitioned NHTSA for a temporary exemption from the requirements of
ten FMVSS on the basis that an exemption would make the development or
field evaluation of a low-emission motor vehicle easier and would not
unreasonably lower the safety level of that vehicle. On December 2,
2020, the petitioners submitted a supplemental petition that revised
their original petition by withdrawing their request for an exemption
from FMVSS No. 203 (reducing the total number of standards in the
exemption request to nine), and by revising their analysis concerning
their request from an exemption from FMVSS No. 226. Public versions of
the petitioners' submissions can be found on regulations.gov in the
docket stated in the header of this notice.

a. Description of the Picnic-G6

    The petitioners have requested an exemption to produce up to 100
specialized vehicles, which they intend to sell to Picnic, a grocery
delivery company, which will use them to operate a grocery delivery
service. The petitioners refer to the potentially exempted vehicles as
``Picnic-G6'' vehicles. According to the petitioners, the Picnic-G6 is
a modified version of the ``G6,'' an electric utility truck that they
produce for the European market.\5\ Based on the information the
petitioners provided, it appears that the G6 is a light truck with a
GVWR of 2,600 kilograms (approximately 5,732 pounds).\6\ According to
the petitioners, a standard G6 vehicle has a maximum speed of 80 km/h
(49.7 mph), and ``provides multiple other safety elements, including an
acoustic alerting system to alert pedestrians to its presence,
automatic headlamp and wiper activation, a robust steel chassis design,
advanced crumple zone, and front-wheel drive.'' \7\
---------------------------------------------------------------------------

    \5\ The petitioners have provided the G6's type approval
certificate as Exhibit 1.
    \6\ The full specifications of a baseline G6 can be found in
Exhibit 2.
    \7\ We note that the petitioners do not specify whether the
acoustic alert system complies with FMVSS No. 141, Minimum Sound
Requirements for Hybrid and Electric Vehicles. FMVSS No. 141's
requirements are more stringent than its European counterpart, UNECE
Regulation 138, Uniform Provisions Concerning the Approval of Quiet
Road Transport Vehicles with Regard to their Reduced Audibility.
---------------------------------------------------------------------------

    The petitioners state that, unlike the a standard G6, the Picnic-G6
would be modified to have a maximum speed of 50 km/h (31 mph). In
addition, all but 10 of the Picnic-G6 vehicles would have a single
designated seating position, for the driver. The petitioners state that
the 10 Picnic-G6 that also have a front passenger seat would be used to
train drivers. None of the vehicles would have more than two seating
positions. The petitioners state that the Picnic-G6 would have a range
of about 90 miles. According to the petitioners, the vehicles will be
modified to include a ``specialized grocery carrying box'' on the
vehicle's chassis after being sold to Picnic for use in its grocery
delivery pilot.
    In terms of how the vehicles will be operated, the petitioners
state repeatedly throughout the petition that Picnic would operate the
Picnic-G6 vehicles on lower-speed streets in dense urban and suburban
areas. The petitioners also state that the vehicles would travel at low
speeds due to the need to make frequent delivery stops. The petitioners
state that Picnic will train its employees to operate the Picnic-G6
vehicles, and that the company will forbid private use of the vehicles
and require that all occupants be age 16 or older. The petitioners also
state that these restrictions will be stated in warning labels placed
on the vehicles.
    A more detailed explanation of the Picnic grocery delivery service,
as well as illustrations of what the Picnic-G6 may look like, can be
found in the petition.

b. Petitioners' Explanation for Why the Picnic-G6 Would Be a Low-
Emission Vehicle

    To be eligible for an exemption under the LEV basis, the Picnic-G6
must be considered an LEV under section 202 of the Clean Air Act (42
U.S.C. 7521) at the time the vehicle is manufactured, and must emit a
level of regulated air pollutants that is in an amount significantly
below one of those standards.\8\
---------------------------------------------------------------------------

    \8\ 49 U.S.C. 30113(a).
---------------------------------------------------------------------------

    According to the petitioners, the Picnic-G6 would be an all-
electric vehicle that emits zero emissions, and therefore would be
eligible for an exemption under the LEV basis.

c. Petitioners' Explanation for Why Granting an Exemption Would Not
Unreasonably Lower the Safety of the Picnic-G6

FMVSS No. 101, Controls and Displays & FMVSS No. 135, Light Vehicle
Brake Systems
    To ensure that the driver is informed of brake system malfunctions,
FMVSS No. 101 and FMVSS No. 135 require that all light vehicles are
required to have a telltale that informs the driver of various
different types of issues with the vehicle's braking system.
    According to the petitioners, rather than displaying the word
``Brake'' to indicate brake system malfunctions, low brake fluid
conditions, and the application of the parking brake, as required under
S5.5.5 of FMVSS No. 135, the Picnic-G6 will display the ISO brake
symbol.\9\ The petitioners argue that this will not unreasonably lower
safety because the Picnic-G6 will only be operated by trained Picnic
employees who will understand the meaning of the ISO brake symbol. The
petitioners further argue that NHTSA has, in the past, found that, in
some instances, noncompliance with the brake system

telltale requirement is not consequential to safety due to driver
familiarity with the ISO brake symbol.
---------------------------------------------------------------------------

    \9\ It is not clear from the petition which ISO brake symbol
would be used, or if the indicators would be combined. The various
ISO brake symbols can be found through a search of ISO's Online
Browsing Platform, https://www.iso.org/obp/ui#home. In addition,
Exhibit 5 to the petition includes excerpts from the vehicle manual
detailing the symbol.
---------------------------------------------------------------------------

FMVSS No. 118, Power-Operated Window, Partition, and Roof Panel Systems
    The purpose of FMVSS No. 118 is to reduce the likelihood of death
or injury due to accidental operation of a vehicle's power-operated
window, partition, and roof paneled systems. NHTSA established the
standard primarily to address the particular safety concern of child
strangulation due to accidental operation of powered windows. The
petitioners have requested an exemption from S6(c) of the standard,
which specifies that the actuation device for closing a power-operated
window must operate by pulling away from the surface on which it is
mounted.
    The petitioners provide several reasons that an exemption from
FMVSS No. 118 would not unreasonably lower the safety of the Picnic-G6.
First, the petitioners explain that Picnic intends to prohibit children
below the age of 16 from riding in the Picnic-G6. The petitioners also
argue that most of the exempted vehicles would be used for Picnic's
delivery service, and so would be unlikely to be occupied be people
other than Picnic employees. The petitioners also state that the power
window controls are located on the center console, away from the
windows, which makes accidental activation of the controls unlikely.
Finally, the petitioners note that only 10 of the Picnic-G6 vehicles
would have a front passenger seat, and those are used for training
purposes, so it is unlikely that an adult or child would be present to
accidentally activate the power window controls.
FMVSS No. 126, Electronic Stability Control Systems
    To reduce the risk of deaths due to rollover crashes, FMVSS No. 126
requires that all vehicles with a gross vehicle weight rating of 4,536
kilograms (kg) (10,000 pounds) or less be equipped with an electronic
stability control (ESC) system. ESC systems use automatic computer-
controlled braking of individual wheels to address critical situations
in which a driver may lose control of the vehicle. Preventing single-
vehicle loss-of-control crashes is the most effective way to reduce
deaths resulting from rollover crashes because most loss-of-control
crashes culminate in the vehicle leaving the roadway, which
dramatically increases the probability of a rollover. NHTSA's crash
data study of existing vehicles equipped with ESC demonstrated that
these systems reduce fatal single-vehicle crashes of passenger cars by
55 percent and fatal single-vehicle crashes of light trucks and vans
(LTVs) by 50 percent.\10\ NHTSA estimates that ESC has the potential to
prevent 56 percent of the fatal passenger car rollovers and 74 percent
of the fatal LTV first-event rollovers that would otherwise occur in
single-vehicle crashes.
---------------------------------------------------------------------------

    \10\ Sivinski, R., Crash Prevention Effectiveness of Light-
Vehicle Electronic Stability Control: An Update of the 2007 NHTSA
Evaluation; DOT HS 811 486 (June 2011).
---------------------------------------------------------------------------

    The petitioners have requested an exemption from FMVSS No. 126 in
its entirety. According to the petitioners, an exemption would not
unreasonably lower the safety of the Picnic-G6 because the vehicle has
similar handling and stability as comparable vehicles equipped with
ESC, and there are mitigating factors that reduce the likelihood that
the Picnic-G6 would be involved in a loss-of-control crash.
    To demonstrate that the Picnic-G6 would have similar handling and
stability to a comparable vehicle that is equipped with ESC, the
petitioners have provided a dynamic test report (Exhibit 6 to the
petition) comparing the performance of the Picnic-G6, which is not
equipped with anti-lock brakes or ESC, with a Nissan e-NV200, which the
petitioners state is a comparable vehicle that is equipped with these
features. The petitioners state that the report found that there were
small differences in performance between the two vehicles that could be
explained by the absence of anti-lock brake and ESC systems on the
Picnic-G6. However, the petitioners state that ``both vehicles had
`same behavior with understeer chassis balance, non-surprising behavior
during weight transfer maneuvers and [were] easy to control at the
limit.' '' In addition, the petitioners provided a static stability
test report (Exhibit 7) that the petitioners claim shows that the
Picnic-G6 has a static stability that is comparable to pickup trucks
and passenger vans. (NHTSA notes that the petitioners have requested
that the entirety of both of these reports be withheld from public view
because they contain confidential business information.)
    The petitioners also state that the Picnic-G6's limited speed and
range reduce the risk of loss-of-control events, which, petitioners
argue, were relevant factors to NHTSA in the past in making the
findings needed to grant an exemption from FMVSS No. 126 under the LEV
basis. The petitioners also argue that, unlike other light trucks and
delivery vehicles, the Picnic-G6 would not be operated at high speeds
or over moderate and long distance, so the risk of a loss-of-control
crash would be relatively lower, and should such a crash occur, the
risk of injury would also be lower. Finally, the petitioners state that
drivers would be trained to operate the exempted vehicle without ESC.
FMVSS No. 208, Occupant Crash Protection
    To reduce the number of fatalities due to crashes, FMVSS No. 208
sets minimum performance requirements relating to protection of
occupants inside the vehicle, which includes the requirements that most
vehicles be equipped with seat belts and advanced air bags. Per FMVSS
No. 208, passenger cars and light trucks are required to provide
protection using air bags for both belted and unbelted front outboard
seated occupants of all sizes, including protections for out-of-
position children in the front outboard passenger seat. The petitioners
request an exemption from the entire standard, because the Picnic-G6 is
not equipped with air bags of any type.\11\
---------------------------------------------------------------------------

    \11\ We note that the petitioners have requested an exemption
from the entire standard, not just the requirement that the vehicle
be equipped with air bags. However, it appears from the petition
that the Picnic-G6 would be equipped with some occupant protection
features, including seat belts. The petitioner has not sought
exemptions from FMVSS No. 209, Seat belt assemblies, or FMVSS No.
210, Seat belt assembly anchorages.
---------------------------------------------------------------------------

    The petitioners provide the following rationale for their request.
First, according to the petitioners, the Picnic-G6 is compliant with
the United Nations Economic Commission for Europe (UNECE) regulation 12
for the protection of the driver against the steering mechanism in the
event of impact, and UNECE regulation 29 for the protection of the
occupants of the cab of a commercial vehicle.\12\ Moreover, the
petitioners state that, despite the Picnic-G6's lack of air bags, an
exemption would not lower the safety risk of the vehicle for several
reasons. First, they argue that the Picnic-G6 would be able to meet the
S6

injury criteria requirements (aside from chest compression) for the
Hybrid III (50th percentile male) test dummy. The petitioners have
provided simulation data to support this claim as Exhibit 8.
---------------------------------------------------------------------------

    \12\ UNECE standards established under the 1958 UN ECE Agreement
Concerning the Adoption of Uniform Conditions of Approval and
Reciprocal Recognition of Approval for Motor Vehicle Equipment and
Parts (the ``1958 Agreement'') are type approval standards. The 1958
Agreement is an international agreement that provides procedures for
establishing uniform regulations regarding new motor vehicles and
motor vehicle equipment and for reciprocal acceptance of type-
approvals issued under these regulations by contracting countries.
While the United States is a member of the UN ECE, it is not a
contracting party to the 1958 Agreement, and thus is not bound by
standards established under the 1958 Agreement.
---------------------------------------------------------------------------

    The petitioners also argue that the absence of air bags would have
``little impact'' on the level of safety of the Picnic-G6 because of
the vehicle's use profile. Specifically, the petitioners argue that the
Picnic-G6's maximum speed of 31 mph, its limited ~90-mile range, and
its likely use on exclusively urban and ``dense-suburban'' local roads,
mean that the Picnic-G6 has a low probability of being involved in a
crash, and that any crashes that do occur will be lower speed and thus
have a reduced risk of injury. The petitioners also argue that the low
number of vehicles they intend to produce pursuant to this exemption
will limit risk, and support a finding that safety would not be
unreasonably lowered.
    In addition, the petitioners argue that an exemption for the
Picnic-G6 would be consistent with the standard's carve-outs for
``walk-in'' vans and U.S. Postal Service vans that are equipped with
type-2 (lap and shoulder) seat belt assemblies. The petitioners argue
that the reasoning behind these carve-outs is that these vehicles are
at a low risk of being involved in a serious crash because they are
used to make deliveries in urban and suburban areas where the driver
makes frequent stops. Moreover, the petitioners note that NHTSA
declined to require air bags for U.S. Postal Service vehicles because
the agency believed that they would provide a marginal safety benefit
to postal workers given their use profile and the fact that the U.S.
Postal Service requires employees to wear seat belts while working. The
petitioners state that, like the U.S. Postal Service, Picnic intends to
require all Picnic-G6 occupants to wear seat belts.
    Finally, the petitioners argue that the lack of occupant protection
requirements that are intended to protect children would not reduce
safety because all but 10 of the exempted Picnic-G6 vehicles would not
have a passenger seat. Moreover, for the 10 training vehicles that do
have passenger seats, the petitioners state that Picnic would prohibit
passengers under the age of 16, would forbid private use of the
exempted vehicles, and would place warning stickers to inform occupants
of these restrictions.
FMVSS No. 214, Side Impact Protection
    To reduce the risk of injuries to vehicle occupants in side impact
crashes, FMVSS No. 214 sets out requirements for door crush resistance
and side-impact crash performance, including a moving deformable
barrier and vehicle-to-pole crash tests. The petitioners seek an
exemption from this standard in its entirety.
    According to the petitioners, an exemption would not unreasonably
lower the safety of the Picnic-G6 because, while the vehicle would not
be certified to FMVSS No. 214, simulated testing shows it would meet
door crush and moving deformable barrier tests, and the vehicle would
meet the vehicle-to-pole test requirements using the 50th percentile
male dummy for all injury criteria except head injury and lower-rib
deflection (the petitioners specify that lower-rib deflection is 0.3 mm
outside the standard's limit).\13\ In addition, the petitioners claim
the Picnic-G6 would comply with the UNECE regulation 135 with regard to
their Pole Side Impact performance.
---------------------------------------------------------------------------

    \13\ A report of the results of this simulation testing was
attached as Exhibit 9.
---------------------------------------------------------------------------

    The petitioners also argue that the Picnic-G6 is similar to ``walk-
in'' vans, which are excluded from the standard.\14\ The petitioners
argue that the non-training Picnic-G6 vehicles would only have a
driver's seat, and while they would not have room for a person to enter
the cargo area of the vehicle, the ``use profile'' of the Picnic-G6
would be similar to that of walk-in vans. That is, petitioners state,
both vehicle types are designed to make deliveries in urban and
suburban areas where the driver makes frequent stops and operates the
vehicle at low speeds that reduce crash risk.\15\
---------------------------------------------------------------------------

    \14\ Standard No. 214 defines a ``walk-in van'' as ``a special
cargo/mail delivery vehicle that has only one designated seating
position. That designated seating position must be forward facing
and for use only by the driver. The vehicle usually has a thin and
light sliding (or folding) side door for easy operation and a high
roof clearance that a person of medium stature can enter the
passenger compartment area in an up-right position.''
    \15\ NHTSA notes that, in the final rule adopting FMVSS No. 214,
the agency stated that it excluded walk-in vans from the standard
not because walk-in vans would be used for deliveries, but because
``it is impracticable for such vehicles to meet the side door
strength requirements because of their special design features.'' 56
FR 27427, 27431.
---------------------------------------------------------------------------

    Finally, the petitioners argue that the low volume of vehicles
permitted under the exemption will limit safety risk, and point out
that NHTSA has cited this as a consideration in prior exemption grants.
FMVSS No. 225, Child Restraint Anchorage Systems
    FMVSS No. 225 requires, and specifies standards for, child
restraint anchorage systems to reduce the risk of anchorage system
failure, increase the likelihood that child restraints are properly
secured, and more fully achieve the potential effectiveness of child
restraint systems in motor vehicles. This standard requires the front
outboard passenger seat in a vehicle that has no rear seats to have a
tether anchorage, and requires a full child restraint anchorage system
in the front outboard seating position in a vehicle that has no air bag
at that position due to a grant of a part 555 exemption.\16\ The
petitioners have requested an exemption from the entire standard for
the 10 training vehicles.
---------------------------------------------------------------------------

    \16\ See FMVSS No. 225, S5(c)(1)(i) & (iii).
---------------------------------------------------------------------------

    The petitioners argue that an exemption would not unreasonably
lower the safety of the training Picnic-G6 vehicles because Picnic
would implement a company policy that would forbid the use of the
vehicle with passengers under age 16, forbid private use of the
vehicle, and place stickers in the vehicle warning of these
restrictions. The petitioners further argue that the use of the Picnic-
G6 as a delivery makes it unlikely that children will ride in it, and
that an exemption would be consistent with the FMVSS No. 226's carve-
out for funeral coaches. Finally, the petitioners argue the small
number of training Picnic-G6 vehicle makes it unlikely that children
would be passengers.
FMVSS No. 226, Ejection Mitigation
    FMVSS No. 226 relates to ejection mitigation in the event of a
rollover. The purpose of this standard is to reduce the likelihood of
ejections of vehicle occupants through side windows during rollovers or
side impact crashes. The petitioners seek an exemption from this
standard in its entirety.
    The petitioners make three arguments for why an exemption from
FMVSS No. 226 would not unreasonably lower the safety of the Picnic-G6.
First, they argue that the Picnic-G6 would be able to meet the
displacement requirements under S4.2.1 of the standard using laminated-
glazing side windows as the sole means of achieving displacement
performance.17 18 The petitioners argue that the glazing
will mitigate the risk of

ejection, especially when the window is in the closed position. The
petitioners have provided documentation of computer-simulated testing
demonstrating that the Picnic-G6 will meet the displacement
requirements of FMVSS No. 226 when the windows are closed.\19\
---------------------------------------------------------------------------

    \17\ Note that FMVSS No. 226 prohibits the use of ``movable
glazing'' as the sole means of meeting the displacement
requirements. S<IP_ADDRESS>. That is, laminated glazing alone cannot be
used to meet FMVSS No. 226 if the window with the glazing can be
rolled down. The glazing on the petitioners' vehicles is movable,
and thus the laminated glazing countermeasure is not sufficient to
meet FMVSS No. 226.
    \18\ Per FMVSS No. 226, the vehicle must meet the requirements
of S4.2.1 after the window glazing has undergone the ``pre-
breaking'' procedure described in S5.4.1. It is not clear from the
petition whether the Picnic-G6 would be able to meet the
requirements of S4.2.1 using window glazing alone if the glazing is
pre-broken.
    \19\ See Exhibit 14.
---------------------------------------------------------------------------

    Second, the petitioners argue that the Picnic-G6's limited speed
(maximum 31 mph), its limited range (~90 miles), and the types of roads
on which Picnic intends to operate it (urban and dense suburban local
roads) make the risk of a crash low, and any crash that does occur
would likely occur at a lower speed. Lastly, the petitioners argue that
the Picnic-G6 is similar to ``walk-in'' vans, which are excluded from
the standard.20 21 The petitioners argue the non-training
versions of the vehicles would only have a driver's seat, and while
they would not have room for a person to walk into the cargo area of
the vehicle, the ``use profile'' of the Picnic-G6 (making deliveries in
urban and dens suburban areas) would be similar to that of walk-in
vans.
---------------------------------------------------------------------------

    \20\ The standard defines a walk-in van as ``special cargo/mail
delivery vehicle that only has a driver designated seating position.
The vehicle has a sliding (or folding) side door and a roof
clearance that enables a person of medium stature to enter the
passenger compartment area in an up-right position.'' FMVSS No. 226,
S3.
    \21\ In the final rule establishing FMVSS No. 226, the agency
justified excluding walk-in vans solely ``on practicability
grounds.'' 76 FR 3211, 3291.
---------------------------------------------------------------------------

FMVSS No. 305, Electric-Powered Vehicles; Electrolyte Spillage and
Shock Protection
    FMVSS No. 305 establishes requirements to reduce deaths and
injuries during and after a crash that occur because of electrolyte
spillage from electric energy storage devices, intrusion of electric
energy storage/conversion devices into the occupant compartment, and
electric shock. The petitioners have requested an exemption from
several requirements relating to shock protection.
    According to the petitioners, an exemption would not unreasonably
lower the safety of the Picnic-G6 because, while the vehicle is not
certified to FMVSS No. 305, it does meet the analogous European
regulations for electrical safety in UNECE regulation 100. A side-by-
side comparison of the two standards can be found in the petition, as
well as documentation relating to type approval for UNECE regulation
100.

d. Petitioners' Explanation for How an Exemption Would Facilitate the
Development and Field Evaluation of the Vehicle

    The petitioners state that an exemption would facilitate the
development and the field evaluation of the Picnic-G6 in several ways.
First, the petitioners state that an exemption would enable the
collection and analysis of information from real-world use to assist
with the development of current or future low-emission vehicles.
Second, an exemption would facilitate production of future FMVSS-
compliant low-emission vehicle models while the petitioners work to
achieve FMVSS compliance. Third, it would enable further evaluation of
the market for low-emission vehicles by allowing the petitioners to
assess the Picnic-G6's viability in the U.S. market, and the viability
of the Picnic grocery delivery pilot. Fourth, the petitioners argue
that an exemption would demonstrate to the public the capabilities of
electric vehicles, which could further encourage consumers to acquire
goods through ecommerce options that rely on infrastructure that has a
low-carbon footprint and on delivery models that reduce road
congestion. Finally, an exemption would provide consumers with a
``safe, all-electric option'' as the petitioners develop modifications
to the Picnic-G6 to make it FMVSS-compliant, thereby accelerating the
entry of a small-sized, speed-limited, all-electric utility vehicle
option among a field that typically consists of larger, gasoline-
powered vehicles or LSVs.

e. Petitioners' Explanation for Why an Exemption Would Be in the Public
Interest

    The petitioners argue that an exemption would be in the public
interest because it would increase consumer choice and improve access
to goods deliveries by zero-emission vehicles. The petitioners also
argue that an exemption would demonstrate to the public the viability
of all-electric utility vehicles through the Picnic pilot. The
petitioners further state that the exemption would allow for the
petitioners to evaluate both the viability of delivery models like the
Picnic pilot, as well as the performance of its all-electric utility
vehicles generally. In addition, the petitioners argue an exemption
would allow for the collection of information that would assist with
the further development of all-electric utility vehicles. The
petitioners also argue that the Picnic pilot would provide employment
opportunities to an estimated 600 people relating to its delivery
service. Further, the petitioners state that, if the Picnic pilot is
successful, the exemption could pave the way for additional jobs
relating to the development of an FMVSS-compliant version of the
Picnic-G6, which the petitioners expect would be manufactured at one of
its U.S. factories.

III. Request for Comment

    The agency seeks comment from the public on the merits of Polaris/
Goupil's application for a temporary exemption. In addition, we seek
comment on what restrictions, if any, the agency should place on an
exemption should the agency determine an exemption is appropriate
(e.g., operational restrictions, limits on transfer of ownership,
etc.). After considering public comments and other available
information, we will publish a notice of final action on the
application in the Federal Register.
    NHTSA has made no judgment at this time on the merits of the
petition.

IV. Public Participation

How long do I have to submit comments?

    Please see DATES section at the beginning of this document.

How do I prepare and submit comments?

     Your comments must be written in English.
     To ensure that your comments are correctly filed in the
Docket, please include the Docket Number shown at the beginning of this
document in your comments.
     If you are submitting comments electronically as a PDF
(Adobe) File, NHTSA asks that the documents be submitted using the
Optical Character Recognition (OCR) process, thus allowing NHTSA to
search and copy certain portions of your submissions. Comments may be
submitted to the docket electronically by logging onto the Docket
Management System website at http://www.regulations.gov. Follow the
online instructions for submitting comments.
     You may also submit two copies of your comments, including
the attachments, to Docket Management at the address given above under
ADDRESSES.
    Please note that pursuant to the Data Quality Act, in order for
substantive data to be relied upon and used by the agency, it must meet
the information quality standards set forth in the OMB and DOT Data
Quality Act guidelines. Accordingly, we encourage you to

consult the guidelines in preparing your comments. OMB's guidelines may
be accessed at http://www.whitehouse.gov/omb/fedreg/reproducible.html.
DOT's guidelines may be accessed at http://www.bts.gov/programs/statistical_policy_and_research/data_quality_guidelines.

How can I be sure that my comments were received?

    If you wish Docket Management to notify you upon its receipt of
your comments, enclose a self-addressed, stamped postcard in the
envelope containing your comments. Upon receiving your comments, Docket
Management will return the postcard by mail.

How do I submit confidential business information?

    If you wish to submit any information under a claim of
confidentiality, you should submit three copies of your complete
submission, including the information you claim to be confidential
business information, to the Chief Counsel, NHTSA, at the address given
above under FOR FURTHER INFORMATION CONTACT. In addition, you should
submit two copies, from which you have deleted the claimed confidential
business information, to Docket Management at the address given above
under ADDRESSES. When you send a comment containing information claimed
to be confidential business information, you should include a cover
letter setting forth the information specified in our confidential
business information regulation. (49 CFR part 512). To facilitate
social distancing during COVID-19, NHTSA is temporarily accepting
confidential business information electronically. Please see https://www.nhtsa.gov/coronavirus/submission-confidential-business-information
for details.

Will the Agency consider late comments?

    We will consider all comments that Docket Management receives
before the close of business on the comment closing date indicated
above under DATES. To the extent possible, we will also consider
comments that Docket Management receives after that date. If Docket
Management receives a comment too late for us to consider for this
rulemaking, we will consider that comment as an informal suggestion for
future rulemaking action.

How can I read the comments submitted by other people?

    You may see the comments on the internet. To read the comments on
the internet, go to http://www.regulations.gov. Follow the online
instructions for accessing the dockets.
    Please note that, even after the comment closing date, we will
continue to file relevant information in the Docket as it becomes
available. Further, some people may submit late comments. Accordingly,
we recommend that you periodically check the Docket for new material.
    Issued under authority delegated in 49 CFR 1.95 and 501.4.

Steven S. Cliff,
Acting Administrator.
[FR Doc. 2021-18634 Filed 8-27-21; 8:45 am]
BILLING CODE 4910-59-P