Title: Specialty Crop Block Grant Program—Farm Bill.

OMB Number: 0581-0248.

Expiration Date of Approval: 3 years from date of OMB approval.

Type of Request: Extension and revision of a currently approved information collection.

Abstract: The information collection requirements in this request are applied only to those State departments of agriculture who voluntarily participate in the SCBGP-FB. The information collected is needed to certify that grant participants are complying with applicable program regulations. Data collected is the minimum information necessary to effectively carry out the requirements of the program, and to fulfill the intent of section 101 of the Competitiveness Act of 2004, as amended by section 10109 of the Food, Conservation, and Energy Act of 2008, (2008 Farm Bill) (Pub. L. 110-246).

State departments of agriculture who wish to participate in the SCBGP-FB would have to submit the following:

(a) SF-424, “Application for Federal Assistance,” (approved under OMB collection number 4040-0004) is required to apply for Federal assistance.

(b) SF-424A, “Budget Information-Non-Construction Programs,” (approved under OMB collection number 0348-0044) is required to show each project's budget breakdown.

(c) Form SF-424B, “Assurances-Non-Construction Programs,” (approved under OMB collection number 0348-0040) to assure the Federal government of the applicant's legal authority to apply for Federal assistance.

(d) State Plan Narrative. Completed applications must include a State Plan Narrative to show how grant funds will be utilized to enhance the competitiveness of specialty crops.

Estimate of Burden: Public reporting burden for this collection of information is estimated to average 10 hours per response.

Respondents: State departments of agriculture.

Estimated Number of Respondents: 56 (All 50 States, the District of Columbia, the Commonwealth of Puerto Rico, Guam, American Samoa, the U.S. Virgin Islands, and the Commonwealth of the Northern Mariana Islands).

Estimated Number of Responses: 56.

Estimated Number of Responses per Respondent: 1.

Estimated Total Annual Burden on Respondents: 560 hours.

Before funds are dispersed, State departments of agriculture must complete the following forms:

(a) Grant Agreement. The Grant Agreement sets forth the agreed upon responsibilities of AMS project work. It also indicates the agreed upon grant funding dollar amounts and the beginning date and ending date of the project work and the Grant Agreement. One copy of this Grant Agreement is required to be returned to AMS with the grantee's signatures and dated for each grant.

Estimate of Burden: Public reporting burden for this collection of information is estimated to average 2 hours per response.

Respondents: State departments of agriculture.

Estimated Number of Respondents: 56.

Estimated Number of Responses: 56.

Estimated Number of Responses per Respondent: 1.

Estimated Total Annual Burden on Respondents: 112 hours.

(b) Form SF-270, “Request for Advance and Reimbursement” (approved under OMB collection number 0348-0004) is required whenever the grantees request an advance or reimbursement of Federal grant funds. AMS expects that at least three (3) SF-270 forms will be submitted during the grant agreement period.

(c) Annual Performance Report. The Annual Performance Report is required if a grant period is more than one year in length. The Annual Performance Report is written documentation required to notify AMS about the work activities and progress towards completing the grantee's and subgrantee's established project activities, goals and outcomes. AMS expects that at least two (2) Annual Performance Reports will be submitted during the grant agreement period.

Estimate of Burden: Public reporting burden for this collection of information is estimated to average 3 hours per response.

Respondents: State departments of agriculture.

Estimated Number of Respondents: 56.

Estimated Number of Responses: 112.

Estimated Number of Responses per Respondent: 2.

Estimated Total Annual Burden on Respondents: 336 hours.

(d) Final Performance Report. The Final Performance Report is written information required by AMS within 90 days after the ending date of the Grant Agreement. This information is utilized as final documentation of completion of the project activities, goals and outcomes.

Estimate of Burden: Public reporting burden for this collection of information is estimated to average 6 hours per response.

Respondents: State departments of agriculture.

Estimated Number of Respondents: 56.

Estimated Number of Responses: 56.

Estimated Number of Responses per Respondent: 1.

Estimated Total Annual Burden on Respondents: 336 hours.

(e) Request for Grant Amendment. A State department of agriculture participating in the SCBGP-FB would have to submit a Request for Grant Amendment to AMS if there is a change in key personnel, scope or objectives of the grant, budget changes that exceed more than 20% of a project's total budget, and/or or an extension of the grant period not to exceed three calendar years.

Estimate of Burden: Public reporting burden for this collection of information is estimated to average 1 hour per response.

Respondents: State departments of agriculture.

Estimated Number of Respondents: 56.

Estimated Number of Responses: 56.

Estimated Number of Responses per Respondent: 2.

Estimated Total Annual Burden on Respondents: 112 hours.

(f) SF-425 “Federal Financial Report (approved under OMB collection number 0348-0061) is to be completed 90 days after the expiration date of the grant period to comply with various legal and regulatory requirements as described within the form.

(g) Audit Report. A State is required to conduct an audit of SCBGP-FB expenditures and an audit report is required to be submitted to AMS no later than 30 days after completion of the audit.

Estimate of Burden: Public reporting burden for this collection of information is estimated to average 3 hours per response.

Respondents: State departments of agriculture.

Estimated Number of Respondents: 56.

Estimated Number of Responses: 56.

Estimated Number of Responses per Respondent: 1.

Estimated Total Annual Burden on Respondents: 168 hours.

Finally, State departments of agriculture are required to retain records pertaining to the SCBGP-FB for 3 years after completion of the grant period or until final resolution of any audit findings or litigation claims relating to the SCBGP-FB. This is a part of normal business practice.

This program would not be maintained by any other agency, therefore, the requested information will not be available from any other existing records.

AMS is committed to compliance with the Government Paperwork Elimination Act (GPEA) (44 U.S.C. 3540 note), which requires Government agencies in general to provide the public the option of submitting information or transacting business electronically to the maximum extent possible. The SF-424, SF-424A, and SF-424B forms and State Plan (Narrative) can be completed electronically and are required to be submitted electronically through www.grants.gov.

The SF-425 and SF-270 forms can be filled out electronically and submitted electronically.

The Annual Performance Report, Final Performance Report, Audit Report, and Request for Grant Amendment can be submitted electronically. The Grant Agreement requires an original signature and can be submitted by mail.

Comments are invited on: (1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.

All responses to this document will be summarized and included in the request for OMB approval. All comments will become a matter of public record.

In accordance with the provisions set forth in the Emergency Food Assistance Act of 1983 (EFAA), 7 U.S.C. 7501, et seq., and the Food and Nutrition Act of 2008, 7 U.S.C. 2036, the Department makes foods available to States for use in providing nutrition assistance to those in need through TEFAP. In accordance with section 214 of the EFAA, 7 U.S.C. 7515, 60 percent of each State's share of TEFAP foods is based on the number of people with incomes below the poverty level within the State and 40 percent on the number of unemployed persons within the State. State officials are responsible for establishing the network through which the foods will be used by eligible recipient agencies (ERA) in providing nutrition assistance to those in need, and for allocating foods among those ERAs. States have full discretion in determining the amount of foods that will be made available to ERAs for use in preparing meals and/or for distribution to households for home consumption.

The types of foods the Department expects to make available to States for distribution through TEFAP in FY 2012 are described below.

Surplus foods donated for distribution under TEFAP are Commodity Credit Corporation (CCC) foods purchased under the authority of section 416 of the Agricultural Act of 1949, 7 U.S.C. 1431 (section 416) and foods purchased under the surplus removal authority of section 32 of the Act of August 24, 1935, 7 U.S.C. 612c (section 32). The types of foods typically purchased under section 416 include dairy, grains, oils, and peanut products. The types of foods purchased under section 32 include meat, poultry, fish, vegetables, dry beans, juices, and fruits.

Approximately $37.5 million in surplus foods acquired in FY 2011 are being delivered to States in FY 2012. These foods include carrots, chicken (leg quarters, thighs/drumsticks), corn, fig pieces, oranges, peaches, pears, pistachios, dried plums, potatoes, and tomato sauce. Other surplus foods may be made available to TEFAP throughout the year. The Department would like to point out that food acquisitions are based on changing agricultural market conditions; therefore, the availability of foods is subject to change.

In accordance with section 27 of the Food and Nutrition Act of 2008, 7 U.S.C. 2036, the Secretary is directed to purchase about $260.25 million worth of foods in FY 2012 for distribution through TEFAP. These foods are made available to States in addition to those surplus foods which otherwise might be provided to States for distribution under TEFAP.

For FY 2012, the Department anticipates purchasing the following foods for distribution through TEFAP: Dehydrated potatoes, dried plums, raisins, frozen ground beef, frozen whole chicken, frozen ham, frozen turkey roast, blackeye beans, garbanzo beans, great northern beans, light red kidney beans, lentils, lima beans, pinto beans, egg mix, shell eggs, lowfat bakery mix, egg noodles, white and yellow corn grits, spaghetti, macaroni, oats, peanut butter, roasted peanuts, rice, whole grain rotini, vegetable oil, ultra high temperature fluid 1 percent milk, bran flakes, corn flakes, oat cereal, rice cereal, corn cereal, and corn and rice cereal; the following canned items: Green beans, blackeye beans, kidney beans, refried beans, vegetarian beans, carrots, cream corn, whole kernel corn, peas, sliced potatoes, pumpkin, spaghetti sauce, spinach, sweet potatoes, tomatoes, diced tomatoes, tomato sauce, mixed vegetables, tomato soup, vegetable soup, apricots, applesauce, mixed fruit, peaches, pears, beef, beef stew, chicken, pork, and salmon; and the following bottled juices: Apple, cherry apple, cran-apple, grape, grapefruit, orange, and tomato. The amounts of each item purchased will depend on the prices the Department must pay, as well as the quantity of each item requested by the States. Changes in agricultural market conditions may result in the availability of additional types of foods or the non-availability of one or more types listed above.

Background

On November 17, 2011, pursuant to section 781(c) of the Tariff Act of 1930, as amended (the “Act”), and 19 CFR 351.225(i), Petitioner submitted a request for the Department to initiate an anti-circumvention inquiry of Gem-Year Industrial Co., Ltd. (“Gem-Year”) to determine whether double-arming bolts (“DA bolts”), a type of steel threaded rod produced in the PRC containing more than 1.25 percent chromium, are circumventing the Steel Threaded Rod Order. 2 In its request, Petitioner contends that Gem-Year's higher-chromium DA bolts are of the same class or kind as the merchandise covered by the Steel Threaded Rod Order, and the addition of small amounts of chromium above the 1.25 percent threshold in the scope of the order is a minor alteration that constitutes circumvention.

The merchandise covered by the order is steel threaded rod. Steel threaded rod is certain threaded rod, bar, or studs, of carbon quality steel, having a solid, circular cross section, of any diameter, in any straight length, that have been forged, turned, cold-drawn, cold-rolled, machine straightened, or otherwise cold-finished, and into which threaded grooves have been applied. In addition, the steel threaded rod, bar, or studs subject to the order are non-headed and threaded along greater than 25 percent of their total length. A variety of finishes or coatings, such as plain oil finish as a temporary rust protectant, zinc coating ( i.e., galvanized, whether by electroplating or hot-dipping), paint, and other similar finishes and coatings, may be applied to the merchandise.

Included in the scope of the order are steel threaded rod, bar, or studs, in which: (1) Iron predominates, by weight, over each of the other contained elements; (2) the carbon content is 2 percent or less, by weight; and (3) none of the elements listed below exceeds the quantity, by weight, respectively indicated:

• 1.80 percent of manganese, or

• 1.50 percent of silicon, or

• 1.00 percent of copper, or

• 0.50 percent of aluminum, or

• 1.25 percent of chromium, or

• 0.30 percent of cobalt, or

• 0.40 percent of lead, or

• 1.25 percent of nickel, or

• 0.30 percent of tungsten, or

• 0.012 percent of boron, or

• 0.10 percent of molybdenum, or

• 0.10 percent of niobium, or

• 0.41 percent of titanium, or

• 0.15 percent of vanadium, or

• 0.15 percent of zirconium.

Steel threaded rod is currently classifiable under subheading 7318.15.5050, 7318.15.5090, and 7318.15.2095 of the United States Harmonized Tariff Schedule (“HTSUS”). Although the HTSUS subheading is provided for convenience and customs purposes, the written description of the merchandise is dispositive.

Excluded from the scope of the order are: (a) Threaded rod, bar, or studs which are threaded only on one or both ends and the threading covers 25 percent or less of the total length; and (b) threaded rod, bar, or studs made to American Society for Testing and Materials (“ASTM”) A193 Grade B7, ASTM A193 Grade B7M, ASTM A193 Grade B16, or ASTM A320 Grade L7.

Among previous scope rulings concerning the Steel Threaded Rod Order, the Department on September 10, 2010, responded to a request for a scope ruling by Hubbell Power Systems, Inc. and determined that DA bolts meeting the description of the scope are within the scope of the Steel Threaded Rod Order. 3

The merchandise subject to this antidumping circumvention inquiry consists of steel threaded rod from the PRC produced by Gem-Year containing greater than 1.25 percent chromium, by weight, and otherwise meeting the requirements of the scope of the Steel Threaded Rod Order as listed under the “Scope of the Order” section above.

Section 781(c)(1) of the Act provides that the Department may find circumvention of an antidumping duty order when products which are of the class or kind of merchandise subject to an antidumping duty order have been “altered in form or appearance in minor respects * * * whether or not included in the same tariff classification.” The Department notes that, while the statute is silent as to what factors to consider in determining whether alterations are properly considered “minor,” the legislative history of this provision indicates there are certain factors which should be considered before reaching a circumvention determination. In conducting a circumvention inquiry under section 781(c) of the Act, the Department has generally relied upon “such criteria as the overall physical characteristics of the merchandise, the expectations of the ultimate users, the use of the merchandise, the channels of marketing and the cost of any modification relative to the total value of the imported products.”  4

Petitioner maintains that steel threaded rod with the addition of chromium is produced in the same manner and to the same specifications as subject steel threaded rod. 5 Petitioner provides a declaration supporting these claims in its Circumvention Request. 6

Petitioner indicates that it is unaware of any instances where customers would expect or request steel threaded rod with small amounts of chromium added, other than to circumvent the order. 7 Petitioner argues that the applicable standard for DA bolts does not address the chemistry of the steel, focusing instead on basic dimensions, zinc coating, and tensile strength, none of which are affected by the additional amounts of chromium. 8

Petitioner states that the uses of DA bolts, i.e., fasteners in the utility industry, are typical applications of steel threaded rod. 9

Petitioner states that the channels of marketing for the chromium-added DA bolts and the subject steel threaded rod are the same, noting that both products are marketed through distributors. 10

Petitioner indicates that the addition of small amounts of chromium involves minimal additional cost compared to the overall costs of the merchandise in question. 11

Petitioner argues that entry summary information indicates that the additional chromium was added to deliberately avoid antidumping duties. Petitioner points to documents contained in the entry summary for Gem-Year's entries of higher-chromium DA bolts to support its claim that the chromium content of the DA bolts was manipulated in an attempt to circumvent the order. 12 Because Gem-Year's merchandise would be subject to the PRC-wide deposit rate of 206.00 percent, Petitioner asserts that Gem-Year and its customers have a strong financial incentive to avoid paying antidumping duties. 13

Petitioner asserts that the addition of chromium after the issuance of the Steel Threaded Rod Order and the Department's determination in the related scope request concerning DA bolts indicates that this addition of chromium is an attempt to circumvent the Steel Threaded Rod Order. 14

Based on the information provided by Petitioner, the Department finds there is sufficient basis to initiate an antidumping anti-circumvention inquiry, pursuant to section 781(c) of the Act, to determine whether the merchandise subject to the inquiry (identified in the “Merchandise Subject to the Minor Alterations Antidumping Circumvention Inquiry” section above) involves a minor alteration to subject merchandise that is so insignificant as to render the resulting merchandise subject to the Steel Threaded Rod Order.

The Department will not order the suspension of liquidation of entries of any additional merchandise at this time. However, in accordance with 19 CFR 351.225(l)(2), if the Department issues a preliminary affirmative determination, we will then instruct U.S. Customs and Border Protection to suspend liquidation and require a cash deposit of estimated duties, at the applicable rate, for each unliquidated entry of the merchandise at issue, entered or withdrawn from warehouse for consumption on or after the date of initiation of the inquiry.

The Department will, following consultation with interested parties, establish a schedule for questionnaires and comments on the issues. The Department intends to issue its final determination within 300 days of the date of publication of this initiation notice.

This notice is published in accordance with sections 781(c) of the Act and 19 CFR 351.225(i).

Information regarding the Sea Turtle Observer Requirement for Fisheries (72 FR 43176, August 3, 2007) may be obtained at www.nmfs.noaa.gov/pr/species/turtles/regulations.htm or from any NMFS Regional Office at the addresses listed below:

○ NMFS, Northeast Region, 55 Great Republic Drive, Gloucester, MA 01930-2298;

○ NMFS, Southeast Region, 263 13th Avenue South, St. Petersburg, FL 33701;

○ NMFS, Southwest Region, 501 W. Ocean Blvd., Suite 4200, Long Beach, CA 90802-4213; or

○ NMFS, Pacific Islands Region, Protected Resources, 1601 Kapiolani Boulevard, Suite 1100, Honolulu, HI 96814-4700.

Under the ESA, 16 U.S.C. 1531 et seq., NMFS has the responsibility to implement programs to conserve marine life listed as endangered or threatened. All sea turtles found in U.S. waters are listed as either endangered or threatened under the ESA. Kemp's ridley ( Lepidochelys kempii ), leatherback ( Dermochelys coriacea ), and hawksbill ( Eretmochelys imbricata ) sea turtles are listed as endangered. Loggerhead ( Caretta caretta ), green ( Chelonia mydas ), and olive ridley ( Lepidochelys olivacea ) sea turtles are listed as threatened, except for breeding colony populations of green turtles in Florida and on the Pacific coast of Mexico, and breeding colony populations of olive ridleys on the Pacific coast of Mexico, which are listed as endangered. Due to the inability to distinguish between populations of green and olive ridley turtles away from the nesting beach, NMFS considers these turtles endangered wherever they occur in U.S. waters. While some sea turtle populations have shown signs of recovery, many populations continue to decline.

Incidental take, or bycatch, in fishing gear is one of the main sources of sea turtle injury and mortality nationwide. Section 9 of the ESA prohibits the take (including harassing, harming, pursuing, hunting, shooting, wounding, killing, trapping, capturing, or collecting or attempting to engage in any such conduct), including incidental take, of endangered sea turtles. Pursuant to section 4(d) of the ESA, NMFS has issued regulations extending the prohibition of take, with exceptions, to threatened sea turtles (50 CFR 223.205 and 223.206). Sections 9 and 11 of the ESA authorize the issuance of regulations to enforce the take prohibitions. NMFS may grant exceptions to the take prohibitions with an incidental take statement or an incidental take permit issued pursuant to ESA section 7 or 10, respectively. To do so, NMFS must determine that the activity that will result in incidental take is not likely to jeopardize the continued existence of the affected listed species. For some Federal fisheries and most state fisheries, NMFS has not granted an exception primarily because we lack information about fishery-sea turtle interactions.

The most effective way for NMFS to learn more about sea turtle-fishery interactions in order to prevent or minimize take is to place observers aboard fishing vessels. In 2007, NMFS issued a regulation (50 CFR 222.402) to establish procedures through which each year NMFS will identify, pursuant to specified criteria and after notice and opportunity for comment, those fisheries in which the agency intends to place observers (72 FR 43176, August 3, 2007). These regulations specify that NMFS may place observers on U.S. fishing vessels, either recreational or commercial, operating in U.S. territorial waters, the U.S. exclusive economic zone (EEZ), or on the high seas, or on vessels that are otherwise subject to the jurisdiction of the U.S. Failure to comply with the requirements under this rule may result in civil or criminal penalties under the ESA.

NMFS and/or interested cooperating entities will pay the direct costs for vessels to carry observers. These include observer salary and insurance costs. NMFS may also evaluate other potential direct costs, should they arise. Once selected, a fishery will be eligible to be observed for 5 years without further action by NMFS. This will enable NMFS to develop an appropriate sampling protocol to investigate whether, how, when, where, and under what conditions incidental takes are occurring; to evaluate whether existing measures are minimizing or preventing takes; and to determine whether additional measures are needed to conserve and recover turtles.

NMFS is providing notification that the agency will not identify additional fisheries to observe for the 2012 AD, pursuant to its authority under the ESA. NMFS is not identifying additional fisheries at this time given lack of resources to implement new or expand existing observer programs to focus on sea turtles (50 CFR 222.402(a)(4)). Fisheries identified in the 2010 AD (see Table 1) remain on the AD and are therefore required to carry observers, upon NMFS' request, until 2014. NMFS did not identify additional fisheries to observe in the 2011 AD.

NMFS is charged with the recovery of Pacific salmon and steelhead species listed under the Endangered Species Act (ESA). Recovery means that listed species and their ecosystems are restored, and their future secured, so that the protections of the ESA are no longer necessary. The ESA specifies that recovery plans must include: (1) A description of management actions necessary to achieve the plan's goals for the conservation and survival of the species; (2) objective, measurable criteria which, when met, would result in the species being removed from the list; and (3) estimates of time and costs required to achieve the plan's goal and the intermediate steps towards that goal. Section 4(f) of the ESA, as amended in 1988, requires that public notice and an opportunity for public review and comment be provided during recovery plan development. NMFS is hereby soliciting relevant information on SONCC Coho Salmon ESU populations and their freshwater/marine habitats. In addition, NMFS is soliciting comment on the contents of the proposed recovery plan.

Persons wishing to review the Draft Plan can obtain an electronic copy (i.e., CD ROM) from Ms. Cynthia Anderson by calling (707) 825-5162 or by emailing a request to Cynthia.Anderson@noaa.gov with the subject line “CD ROM Request for SONCC Coho Salmon Draft Recovery Plan.” Electronic copies of the Draft Plan are also available on line on the following NMFS Web site: http://swr.nmfs.noaa.gov/recovery.

Public meetings are planned. Information on locations, dates, and times will be posted on the Web site listed above.

The Science Advisory Board (SAB) was established by a Decision Memorandum dated September 25, 1997, and is the only Federal Advisory Committee with responsibility to advise the Under Secretary of Commerce for Oceans and Atmosphere on strategies for research, education, and application of science to operations and information services. SAB activities and advice provide necessary input to ensure that National Oceanic and Atmospheric Administration (NOAA) science programs are of the highest quality and provide optimal support to resource management.

Matters To Be Considered: The meeting will include the following topics: (1) Review of new members for the Environmental Information Services Working Group (2) Review of renewal of membership terms for the Ecosystem Sciences and Management Working Group and (3) Update from the Research and Development Portfolio Review Task Force and discussion of next actions. For the latest agenda, please visit the SAB Web site at http://www.sab.noaa.gov.

Under the PRA, Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. “Collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA, 44 U.S.C. 3506(c)(2)(A), requires Federal agencies to provide a 60-day notice in the Federal Register concerning each proposed collection of information, including each proposed extension of an existing collection of information, before submitting the collection to OMB for approval. To comply with this requirement, the CFTC is publishing notice of the proposed collection of information listed below.

With respect to the following collection of information, the CFTC invites comments on:

• Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information will have a practical use;

• The accuracy of the Commission's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;

• Ways to enhance the quality, usefulness, and clarity of the information to be collected; and

• Ways to minimize the burden of collection of information on those who are to respond, including through the use of appropriate automated electronic, mechanical, or other technological collection techniques or other forms of information technology; e.g., permitting electronic submission of responses.

The rules require futures commission merchants and introducing brokers: (1) To provide their customers with standard risk disclosure statements concerning the risk of trading commodity interests; and (2) to retain all promotional material and the source of authority for information contained therein. The purpose of these rules is to ensure that customers are advised of the risks of trading commodity interests and to avoid fraud and misrepresentation. This information collection contains the recordkeeping and reporting requirements needed to ensure regulatory compliance with Commission rules relating to this issue.

The Commission estimates the burden of this collection of information as follows:

There are no capital costs or operating and maintenance costs associated with this collection.

Under section 101(a) of the CPSIA, consumer products designed or intended primarily for children 12 years old and younger that contain lead content in excess of 100 ppm manufactured after August 12, 2011, are considered to be banned hazardous substances under the Federal Hazardous Substances Act (“FHSA”).

Section 101(b)(1) of the CPSIA provides for a functional purpose exception from lead content limits under certain circumstances. The exception allows us, on our own initiative, or upon petition by an interested party, to exclude a specific product, class of product, material, or component part from the lead limits established for children's products under the CPSIA if, after notice and a hearing, we determine that: (i) The product, class of product, material, or component part requires the inclusion of lead because it is not practicable or not technologically feasible to manufacture such product, class of product, material, or component part, as the case may be, in accordance with section 101(a) of the CPSIA by removing the excessive lead or by making the lead inaccessible; (ii) the product, class of product, material, or component part is not likely to be placed in the mouth or ingested, taking into account normal and reasonably foreseeable use and abuse of such product, class of product, material, or component part by a child; and (iii) an exception for the product, class of product, material, or component part will have no measurable adverse effect on public health or safety, taking into account normal and reasonably foreseeable use and abuse. Under section 101(b)(1)(B) of the CPSIA, there is no measurable adverse effect on public health or safety if the exception will result in no measurable increase in blood lead levels of a child. Given the highly technical nature of the information sought, including data on the lead content of the product and test methods used to obtain those data, we believe that the notice and solicitation for written comments would provide the most efficient process for obtaining the necessary information, as well as provide adequate opportunity for all interested parties to participate in the proceedings. However, we would have the option to hold a public hearing or public meeting, if appropriate, to determine whether a petition for a functional purpose exception should be granted.

On September 29, 2011, Joseph L. Ertl, Inc., (“petitioner”), submitted a petition requesting an exception from the lead content limit of 100 ppm under section 101(b) of the CPSIA for its die-cast, ride-on pedal tractors, scaled for children ages 3-10 years old. The petitioner states that the components of its pedal tractors are made of aluminum metal die castings, which are the best alloy of choice for pedal tractor production, based on weight, cost, structural properties, surface finish and coatings, corrosion resistance, and bearing properties and wear resistance. The pedal tractor components are manufactured via the aluminum die-casting process. Although the petitioner states that it is able to meet the lead content requirements of 300 ppm for its pedal tractor components, it is unable to meet consistently the 100 ppm lead content limits, due to alloys used in the aluminum die-cast process. Accordingly, the petitioner requests an exception from the 100 ppm lead content limit to continue to manufacture its pedal tractors with components above the 100 ppm lead content limit.

In the Federal Register of November 16, 2011 (76 FR 70975) we invited comments on the issues raised by the petition. Interested parties could view a copy of the petition under supporting and related materials identified by Docket No. CPSC-2011-0087, through http://www.regulations.gov or on the CPSC Web site at: http://www.cpsc.gov/library/foia/foia12/brief/ertlpetition.pdf or obtain a copy of the petition by writing or calling the Office of the Secretary, Consumer Product Safety Commission, Bethesda, MD 20184; telephone (301) 504-7923.

Recently, however, we learned that part of the petition was omitted inadvertently from the public docket. Accordingly, to give interested parties a meaningful opportunity to comment, we have made the entire petition available for viewing through http://www.regulations.gov or on the CPSC Web site at: http://www.cpsc.gov/library/foia/foia12/brief/ertlpetition.pdf. Interested parties may also obtain a copy of the petition by writing or calling the Office of the Secretary, Consumer Product Safety Commission, Bethesda, MD 20184; telephone (301) 504-7923.

Through this notice, we are reopening the comment period to give all interested parties additional time to comment on the petition. Thus, the comment period is reopened until February 6, 2012.

Public participation in the hearing is invited. The Board is setting aside time at the end of each session of the hearing for presentations and comments from the public. Requests to speak may be submitted in writing or by telephone. The Board asks that commenters describe the nature and scope of their oral presentations. Those who contact the Board prior to close of business on March 16, 2012, will be scheduled to speak at the session of the hearing most relevant to their presentations. At the beginning of Session I, the Board will post a schedule for speakers at the entrance to the hearing room. Anyone who wishes to comment or provide technical information or data may do so in writing, either in lieu of, or in addition to, making an oral presentation. The Board Members may question presenters to the extent deemed appropriate. Documents will be accepted at the hearing or may be sent to the Board's Washington, DC, office. The Board will hold the record open until April 23, 2012, for the receipt of additional materials. The hearing will be presented live through Internet video streaming. A link to the presentation will be available on the Board's Web site ( www.dnfsb.gov ). A transcript of the hearing, along with a DVD video recording, will be made available by the Board for inspection and viewing by the public at the Board's Washington office and at DOE's public reading room at the DOE Federal Building, 1000 Independence Avenue SW., Washington, DC 20585. The Board specifically reserves its right to further schedule and otherwise regulate the course of the meeting and hearing, to recess, reconvene, postpone, or adjourn the meeting and hearing, conduct further reviews, and otherwise exercise its power under the Atomic Energy Act of 1954, as amended.

On January 23, 2012 from 9 a.m. to 4:30 p.m. Eastern Standard Time, the Equity and Excellence Commission will hold an open meeting in Washington, DC in the Barnard Auditorium at the U.S. Department of Education's main building at 400 Maryland Avenue SW., Washington, DC 20202.

The purpose of the Commission is to collect information, analyze issues, and obtain broad public input regarding how the Federal government can increase educational opportunity by improving school funding equity. The Commission will also make recommendations for restructuring school finance systems to achieve equity in the distribution of educational resources and further student performance, especially for the students at the lower end of the achievement gap. The Commission will examine the disparities in meaningful educational opportunities that give rise to the achievement gap, with a focus on systems of finance, and recommend appropriate ways in which Federal policies could address such disparities.

The agenda for the Commission's January 23, 2012 meeting will include discussion of particular language for certain portions of the report and reaching consensus on particular recommendations. The Commission may have breakout sessions, most likely during the second half of the meeting, to discuss particular issues. The Commission plans to discuss the establishment of two or more subcommittees to discuss recommendations the Commission may make regarding teachers and school leaders; what documents and information should be included in the materials that will supplement the main Commission report; and/or other subjects within the Commission's charter. If time permits, these subcommittees may meet in the afternoon to outline their specific tasks and timing for subsequent meetings. Due to time constraints, there will not be a public comment period, but, individuals wishing to provide comments may contact the Equity Commission via email at equitycommission@ed.gov . For comments related to the upcoming meeting, please submit comments no later than January 13, 2012.

Individuals interested in attending the meeting must register in advance because seating may be limited. Please contact Jim Eichner at (202) 453-5945 or by email at equitycommission@ed.gov . Individuals who will need accommodations for a disability in order to attend the meeting (e.g., interpreting services, assistive listening devices, or materials in alternative format) should notify Jim Eichner at (202) 245-5945 no later than January 13, 2012. We will attempt to meet requests for accommodations after this date but cannot guarantee their availability. The meeting site is accessible to individuals with disabilities.

Records are kept of all Commission proceedings and are available for public inspection at the Department of Education, 400 Maryland Avenue SW., Washington, DC 20202 from the hours of 9 a.m. to 5 p.m. Eastern Standard Time.

Purpose of the Meeting: To complete the charge given to the Committee in the letter from the Director, Office of Science, dated July 22, 2011, to respond to the following questions:

1. What areas of research on new international facilities provide compelling scientific opportunities for US researchers over the next 10-20 years?

2. What research modes would best facilitate international research collaborations in plasma and fusion sciences?

3. What areas of research in materials science and technology provide compelling opportunities for US researchers in the near term and in the ITER era?

• DOE/SC perspective and FY13 Congressional Budget Request.

• FES perspective and FY 2013 Congressional Budget Request for FES.

• Briefing on the Chinese Fusion Program.

• Basic Research Directions using the National Ignition Facility.

• Status of ITER Project.

• Report from the Subcommittee dealing with opportunities for collaborations on new tokamaks and stellarators overseas AND research modes that best facilitate international collaborations in plasma and fusion science.

• Report from the Subcommittee dealing with materials science and technology research opportunities.

• Public Comments.

Public Participation: The meeting is open to the public. If you would like to file a written statement with the Committee, you may do so either before or after the meeting. If you would like to make oral statements regarding any of the items on the agenda, you should contact Dr. Ed Synakowski at (301) 903-8584 (fax) or Ed.synakowski@science.doe.gov (email). Reasonable provision will be made to include the scheduled oral statements during the public comments time on the agenda. The Chairperson of the Committee will conduct the meeting to facilitate the orderly conduct of business. Public comment will follow the 10-minute rule.

Minutes: The minutes of the meeting will be available for public review and copying within 30 days on the Fusion Energy Sciences Advisory Committee Web site at: http://www.science.doe.gov/ofes/fesac.shtml.

The purpose of the meeting is for DOE to obtain input on existing gaps and future opportunities in regards to complex flow modeling and experimental validation. Ultimately, research in this area may lead to significant improvements in wind plant efficiency and performance, leading to a reduced cost of energy for wind power. The meeting is an opportunity for participants to provide, based on their individual experience, information and facts regarding this topic. It is not the object of this session to obtain any group position or consensus. Rather, DOE is seeking as many recommendations as possible from all individuals at this meeting.

The public meeting will consist of an initial plenary session in which invited speakers will survey available information and needs for various applications related to complex flow modeling and validation testing. For the remainder of the meeting, breakout groups will be used to provide participants an opportunity to present to DOE information on specific areas regarding existing gaps in observations and computational products. These groups will be an opportunity to provide comment on information needs for the following topics:

Participants will examine inflow and outflow characteristics in the vicinity of a single wind turbine, as well as the implications for aerodynamic loading of the rotor and overall structure. Several temporal and spatial scales shall be considered.

Participants will examine complex aerodynamic phenomena in, around, and through wind plants, including turbine-wake interaction, wake-wake interaction, complex terrain, and turbulence effects. Several temporal and spatial scales shall be considered.

Participants will examine the meteorological effects at the regional, multi-wind plant scale. This exploration of atmospheric science topics shall include model nesting, long-term data collection requirements, and down-wind effects of wind plants.

Participants will examine the requirements for, as well as the feasibility and efficacy of, existing and future experimental techniques for cost effective, high fidelity data collection. Both field and laboratory experiments will be explored.

This meeting is intended to collect information from individuals involved in planning, deployment, operation, and regulation of wind energy projects, individuals involved in meteorological and oceanic disciplines relevant to offshore and onshore wind energy, and interested members of the public. However, the meeting will not focus on environmental impact or management issues, which are being addressed by separate efforts. While participation is open to all interested parties, the breakout structure of the meeting will limit its overall size to about 80 participants. When the meeting is fully subscribed, registration will be closed.

Please email Raphael Tisch at Raphael.Tisch@ee.doe.gov with registration inquiries.

A room-block for meeting participants has been established at the Boulderado, the Boulder Marriott, and Millennium Harvest House.

I. Background

EPA adopted new emission standards for light-duty vehicles on February 10, 2000. 1 At that time, EPA established an emission standard of 0.07 grams per mile for each manufacturer's average full life NO X emissions of its vehicles in each model year. For heavy-duty vehicles and engines, EPA published a rule setting stringent new requirements on January 18, 2001. 2 Among other requirements, the diesel engine NO X emission standard was set at 0.20 grams per brake horsepower-hour (g/bhp-hr), to be phased-in between the 2007 and 2010 model years.

Diesel vehicle and engine manufacturers began planning to meet those requirements by optimizing engine designs for low emissions and adding high-efficiency aftertreatment systems. Manufacturers examined the use of several different types of NO X reduction technologies, including NO X absorbers, exhaust gas recirculation, and selective catalytic reduction (SCR). SCR systems use a nitrogen-containing reducing agent that usually contains urea and is known as diesel exhaust fluid (DEF). The DEF is injected into the exhaust gas upstream of a catalyst. For continued functioning of the systems, the reducing agent needs to be replenished periodically by refilling the DEF tank.

Maintenance performed on vehicles, engines, subsystems, or components used to determine exhaust, evaporative, or refueling emission deterioration factors is classified as either emission-related or non-emission-related and scheduled or un-scheduled. Any emission-related scheduled maintenance must be technologically necessary to ensure in-use compliance with the emission standards. Manufacturers must demonstrate to EPA that all of the emission-related maintenance to be performed is technologically necessary and must be approved prior to being performed or being included in maintenance instructions provided to purchasers. 40 CFR 86.094-25(b)(3), 86.094-25(b)(4), 86.1834-01(b)(3) and 86.1834-01(b)(4) establish minimum allowable maintenance intervals for various emission-related technologies. EPA determined that emission-related maintenance for the specified technologies at intervals shorter than those listed in paragraphs (b)(3) and (b)(4) are not technologically necessary, except as provided for in paragraphs (b)(7). Paragraphs (b)(7) of those regulatory sections allows manufacturers to request new scheduled maintenance and maintenance intervals or a change to existing scheduled maintenance interval, including an interval shorter than that prescribed in paragraphs (b)(3) and (b)(4). For light-duty, medium-duty, and heavy-duty diesel-cycle engines, emission-related maintenance for certain emission-related components cannot occur before 100,000 miles of use. 3 Thereafter, emission-related maintenance cannot again occur before 100,000 mile intervals for light heavy-duty engines, or before 150,000 mile intervals for medium and heavy heavy-duty engines. 4

Pursuant to 40 CFR 86.1834-01(b)(7), a manufacturer must submit a request to EPA for approval of any new scheduled maintenance that it wishes to perform during durability determination and recommend to purchasers. New scheduled maintenance is maintenance that did not exist prior to the 1980 model year (such as DEF refills), including that which is the direct result of the implementation of new technology not found in production prior to the 1980 model year (such as SCR technology). In their approval requests to EPA, manufacturers are required to submit a variety of information, including a recommendation as to the maintenance category ( i.e., emission-related or non-emission-related, and critical or non-critical). If the suggested maintenance is emission-related, manufacturers must indicate the maximum feasible maintenance interval. Manufacturers must also provide detailed evidence, data, or other substantiation supporting the need for the new scheduled maintenance, the categorization of such maintenance, and the suggested interval, if the maintenance is emission-related.

If EPA approves a request for new scheduled maintenance, the Agency then designates that maintenance as emission-related or non-emission-related. For emission-related maintenance, EPA will further designate that maintenance as critical or non-critical. A designation of critical maintenance will be made if the component receiving the maintenance meets the regulatory definition of critical emission-related component in 40 CFR 86.1834-01(b)(6). Critical emission-related components include catalytic converters. 40 CFR 86.1834-01(b)(6) requires that critical emission-related maintenance must have a reasonable likelihood of being performed in use, as shown by the manufacturer. 5 Examples of demonstrations that maintenance will have a reasonable likelihood of being performed in use include: Data establishing that a vehicle's engine performance will deteriorate to an unacceptable point due to poor emissions performance, survey data demonstrating an eighty percent confidence level that maintenance is in fact performed in use, and installation of a clearly displayed signal system to alert drivers that maintenance is required. When approving a new scheduled maintenance request, EPA also establishes a technologically necessary maintenance interval, based on the evidence submitted by industry and any other information available to the Agency.

In 2007, EPA issued guidance indicating how the above-described regulatory requirements for allowable maintenance could impact EPA certification decisions regarding implementation of SCR technologies for light-duty and heavy-duty diesel vehicles and engines. 6 That guidance announced that EPA would consider service operations performed on SCR systems to be critical emission-related scheduled maintenance. We stated our belief that because catalysts are listed in the (b)(3) and (b)(4) provisions as critical emission-related components, and lack of replenishing agent renders SCR catalysts inoperative, SCR system maintenance would meet the definition of critical emission-related maintenance. Therefore, allowable maintenance requirements would apply to SCR systems, including SCR catalysts, reducing agent, reducing agent storage tanks, dosing valves, and all lines and hoses. Additionally, because manufacturers indicated that packaging constraints would prevent them from being able to equip their vehicles with reducing agent storage tanks of sufficient size to allow reducing agent replenishment to comply with the general maintenance intervals of 100,000 or 150,000 miles, EPA clarified that manufacturers would likely need to request a change to the scheduled maintenance interval pursuant to the (b)(7) provision.

In that same 2007 guidance, EPA also stated that an SCR system utilizing a reducing agent that needs to be periodically replenished could be an adjustable parameter as set forth in 40 CFR 86.094-22(e)(1) and 86.1833-01(a)(1). Those regulatory provisions establish the requirements for determining the physically adjustable ranges of parameters, and EPA's 2007 guidance addressed its determination under the regulations that operation without DEF is within the scope of such ranges. EPA's 2007 guidance also provided industry-wide notice that SCR system designs and information submitted by manufacturers during certification could be used to provide EPA with assurance that DEF levels will remain at proper ranges during the operation of their vehicles and engines while in use. 7

In 2009, EPA approved manufacturer-specific and industry-wide new scheduled maintenance interval requests for diesel-cycle motor vehicles and motor vehicle engines equipped with SCR systems. 8 At that time, EPA stated that:

Upon review of industry-wide and manufacturer-specific evidence and supporting data, EPA approved new scheduled maintenance intervals for DEF equal to the scheduled oil change interval for light-duty vehicles and trucks for the 2009 and 2010 model years. For heavy-duty vehicles and engines through the 2011 model year, EPA approved new scheduled maintenance intervals for DEF tanks based on ratios to a given vehicle's fuel capacity. Vocational heavy-duty vehicles ( e.g., dump trucks, concrete mixers, refuse trucks, and other centrally-fueled vehicles) were permitted a DEF tank maintenance interval no less than the vehicle's fuel capacity ( i.e., a 1:1 ratio of DEF refill to fuel refill). For other heavy-duty vehicles, a longer interval was approved depending upon whether the vehicle was equipped with a DEF level indicator that would be constantly viewable by the operator. For those heavy-duty vehicles with a DEF level indicator, EPA approved a DEF tank refill interval no less than twice the range of the vehicle's fuel capacity ( i.e., a 2:1 ratio). For those heavy-duty vehicles without a DEF level indicator, EPA approved a DEF tank refill interval no less than three times the range of the vehicle's fuel capacity ( i.e., a 3:1 ratio).

When evaluating the evidence, data, and justifications presented by manufacturers to support their requested intervals, EPA identified as significant the impact a larger sized DEF tank would have on vehicle design and vehicle weight. To merely accommodate the inclusion of a DEF tank into vehicle design, heavy-duty vehicle manufacturers had to redesign their configurations by taking such measures as reducing the number of batteries, designing space-saver configurations, lengthening frame rails, moving compressed air tanks inside the frame rails, and redesigning fuel tank configurations. Light-duty car and truck manufacturers had similar vehicle design issues related to their inherently space constrained vehicles: they had to choose whether to reduce interior vehicle space or find a place to accommodate a DEF tank in the engine compartment of vehicle's undercarriage. Aside from vehicle design issues, the addition of a large DEF tank onto any given vehicle represents a significant addition of weight to the vehicle. The addition of a significant amount of weight to a given vehicle, in turn, presents its own concerns: added vehicle weight more quickly deteriorates engine performance, and added vehicle weight decreases fuel economy. With those considerations in mind, EPA announced its approval of the requested maintenance intervals:

EPA's 2009 approval also noted that, “while not a specific criterion under paragraph (b)(7) of the regulations, because DEF refill maintenance is considered `critical emission-related maintenance,' paragraph (b)(6) requires that there be a reasonable likelihood that the DEF maintenance refill will be performed in use.”  10 EPA then noted the number of means available to make such a showing, including a clearly displayed visible signal system or the presentation of supporting data.

EPA has received information from the Alliance of Automobile Manufacturers (the “Alliance”), that requested re-approval of new scheduled maintenance for DEF refilling at service intervals ( i.e., oil change intervals) for light-duty vehicles and light-duty trucks (and heavy-duty engines that are chassis-certified for NO X ) equipped with SCR systems. 11 The Alliance presented several reasons why the SCR maintenance interval should be equivalent to the service interval, including: “vehicles will be designed and equipped to ensure vehicle compliance with emission standards; DEF will be readily available and accessible to drivers; maintenance is likely to be performed; there are engineering constraints on packaging a large DEF tank on light duty vehicles; and there is a significant penalty on fuel economy and performance associated with carrying both a larger DEF tank and the weight of a large amount of DEF.”

With regard to the engineering constraints associated with packaging a large quantity of DEF on light duty vehicles, the Alliance notes that it is impractical to install a DEF tank of sufficient size to achieve a 100,000 mile scheduled maintenance interval. “Light duty vehicles are constrained in the amount of space that can be dedicated to a DEF tank. In addition to the DEF tank, SCR vehicles must package an SCR catalyst, SCR mixer and DEF dosing and heating mechanisms.” The Alliance cites an example of a current production vehicle that provides a 6.1 gallon DEF tank to achieve a 10,000 mile change interval ratio tied to the oil change interval. To accommodate a 100,000 mile maintenance requirement would require 60 gallons of DEF and would take approximately 8 cubic feet of space—and would also be almost equivalent to installing 4 extra fuel tanks. “To reduce the existing usable volume to such an extent would result in an uncompetitive vehicle in terms of usable passenger or cargo volume.”

With regard to the Alliance's concerns regarding the potential for a significant penalty on fuel economy and performance associated with carrying both a larger DEF tank and the weight of a large amount of DEF, they note the simple impracticability for light duty vehicles to carry the weight of a DEF tank sufficient in size to achieve a 100,000 mile maintenance interval. Noting that such a tank could weigh as much as 540 lbs it could affect fuel economy almost as much as 10% on a 3800 lb curb weight vehicle. The Alliance also notes similar handling performance (acceleration, braking, and turning) along with passenger space, cargo carrying and/or towing capacity.

EPA has received information from Ford (regarding its chassis-certified vehicles) that is similar to the concerns raised by the Alliance. In addition, Ford notes that by attempting to go to a longer service interval, for example a 16-20 gallon DEF tank to meet a two oil change interval, would not be feasible with the space limitations and performance requirements that are necessary for typical medium-duty vehicle (chassis-certified) design. In addition to the market concerns associated with a loss in fuel capacity, cargo or truck bed space due to a larger DEF tank not being acceptable to its customers, Ford also notes the “hard-point” packaging issues with attempting to place a large DEF tank in the engine compartment or in the vehicles undercarriage. 12

EPA also received information from Isuzu for its medium-duty vehicle (chassis-certified vehicles with GVW of 8,501 to 10,000 pounds) engine families. Isuzu requested a maintenance interval based on the rate of DEF consumption. Isuzu presented that the DEF consumption rate of 2% the rate of diesel fuel consumption renders it “impossible” to equip a vehicle with a DEF tank large enough to operate for the full 120,000 mile maintenance interval without DEF. Isuzu requested its interval based on reasons of technological necessity, including maintenance is likely to be performed on schedule, there is limited space available on vehicles for a large DEF tank, the physical properties of DEF present limitations, and DEF is publicly and readily available to drivers.

The Engine Manufacturers Association (“EMA”) renewed its previous request for maintenance intervals for DEF refill for heavy-duty on-highway diesel fueled engines and vehicles. 13 EMA presents that the determinations of technological necessity that EPA made in 2009 still apply today for DEF refill intervals. 14 Specifically, EMA believes that “while the SCR-related urea infrastructure has continued to develop, the space and weight constraints that are inherent to the design and operation of [heavy-duty on-highway] vehicles, and the underlying DEF consumption rate, have not changed. As a result, the need and justification for the previously-approved reduced DEF maintenance intervals also have not changed.” EMA requests that EPA's previously approved new scheduled maintenance intervals for DEF be extended for the 2012 and later model years. 15

By letter dated April 28, 2011, Volvo Powertrain North America and Volvo Powertrain Japan (collectively, “Volvo”) submitted a request that EPA extend its previous approval of alternative scheduled maintenance intervals for DEF tanks used in SCR systems. Volvo believes that the intervals EPA previously approved remain technologically necessary, “as nothing about the design, constraints or functionality of Volvo vehicles and engines has changed so as to permit the use of larger tanks.” Volvo further states that “The inherent nature of vehicle space and weight constraints makes significantly larger DEF tanks infeasible on a practical basis. That said, larger DEF tanks also are not necessary in light of systems Volvo has developed to ensure that vehicle operators refill DEF tanks.” Volvo states that to ensure efficient and practical operation its trucks are designed in such a way that they necessarily have space and weight constraints. Thus, there are inherent limits on the size of add-on components, such as DEF tanks, that can be installed on the vehicles and such limits are unavoidable. In this context Volvo states that its trucks are designed to operate using DEF at all times and that the size of the DEF tanks, like the vehicle's fuel tank, dictates the vehicle's range of operation. Volvo maintains that the 2:1 ratio remains technologically necessary for model year 2012 engines and vehicles as nothing about the design, constraints or functionality of Volvo vehicles and engines has changed (since the 2009 approval) so as to permit the use of larger tanks. Volvo also presents that it has implemented controls to assure that there is “more than a `reasonable likelihood' that the recommended DEF refill intervals will be complied with in-use. Volvo asserts that it has equipped its SCR-based systems with visible warning systems and driver inducements such that vehicle performance will deteriorate to an unacceptable point, in order to compel vehicle operators to refill the DEF tank. Volvo initially developed these strategies in consultation with EPA staff in order to ensure its engines met EPA certification requirements, and has since improved its strategies for current and future model year engines. In its request, Volvo further describes the specific steps it has taken to design its SCR systems to protect against operation of its vehicles without DEF and to prevent SCR system tampering. In addition, Volvo seeks the flexibility to utilize a 1:1 ratio in light of its 40% power reduction (see further clarification below in the SCR Engine Manufacturers request submitted after the Volvo request—EPA assumes this is the flexibility that Volvo is seeking).

EPA has also received requests for scheduled maintenance intervals for 2012 and later model years from a group of SCR engine manufacturers (collectively the “SCR Engine Manufacturers”  16 ) that specifically ask for EPA to approve the use of a 1:1 DEF to fuel ratio for vehicles with a DEF level indicator, in addition to vocational vehicles. The SCR Engine Manufacturers state that such approval is necessary and appropriate to reflect current and anticipated changes in vehicle designs, significant changes in inducement strategies, and the increased availability of DEF since EPA's last approval in 2009.

The SCR Engine Manufacturers note that much of the information required in a (b)(7) petition was confirmed by EPA in its 2009 notice and thus needs no further elaboration. EPA has already concluded that replenishment of DEF is “technologically necessary” critical emission-related maintenance, and that the 1:1, 2:1, and 3:1 ratios were “maximum feasible” maintenance intervals based on information available in 2009. There has been no change in the need for DEF replenishment or designation of the category of maintenance since 2009. The SCR Engine Manufacturers new petition for a 1:1 DEF interval reflects what is believed to be the “maximum feasible interval” based on reasonable tank sizes, given the latest information regarding SCR systems and DEF availability.

Included in the SCR Engine Manufacturers' petition is their position regarding the threshold criteria that EPA should follow for setting a “technologically necessary maintenance interval.” They claim that the general maintenance regulations, including the introductory paragraph of (b)(2) which helps frame the established intervals in (b)(3) and (b)(4), provides guidance on what “technologically necessary” means when it states that any emission-related maintenance “must be technologically necessary to assure in-use compliance with the emission standards.” Thus EPA must first determine whether an interval shorter than the regulatory default is necessary in order to assure in-use compliance. They note that in the 2009 notice EPA specifically addressed the unique nature of liquid DEF replenishment and the need to strike a reasonable balance between conflicting design goals.

Thus, the SCR Engine Manufacturers maintain that the words “technologically necessary” are used in two contexts. First, as noted above, (b)(2) requires all maintenance that meets the definition of “emission-related maintenance” “must be technologically necessary to assure in-use compliance with the emission standards.” Consistent with this provision is (b)(7)(ii) which requires that any alternative interval set by EPA be “ a technologically necessary maintenance interval” (emphasis added). Thus the term “technologically necessary” merely describes the category of maintenance that is allowable but not what the specific interval must be. Subsequently, the SCR Engine Manufacturers note that once EPA makes this threshold determination (as required in (b)(7)) then the Agency, with a level of discretion, examines the information submitted by the petitioner. Such information includes the petitioner's position on what is the “maximum feasible maintenance” including any supporting data or other substantiation for the interval suggested. Rather than looking at the “maximum level” that is technologically feasible, the term “feasible” requires EPA to look at the overall practicality and reasonableness of a particular proposed interval. The maximum feasible interval is used as a point of reference for EPA to evaluate the reasonableness of the manufacturers' recommended interval. According to the SCR Engine Manufacturers, “The maximum possible interval for DEF replenishment is established in each case by the total load capacity of the vehicle in question, the space available for a given DEF tank size, the fuel efficiency and greenhouse gas impact of various DEF dosing rates, the desired operating range of the vehicle between fuel and DEF refills, and the impact of extra weight on vehicle performance, safety, and compliance with U.S. Department of Transportation regulatory requirements. DEF tank size must also be balanced against the need to carry cargo, or to enable the vehicle to meet the purpose for which it was built, to determine what is feasible in the most economical way possible while achieving compliance.”

The SCR Engine Manufacturers suggest that as EPA performs its case-by-case analysis, the likelihood of the maintenance being performed in-use is the most important factor in establishing the precise maintenance interval. EPA explained that “minimum service intervals are established in part to ensure that the control of emissions is not compromised by a manufacturer's overly frequent scheduling of emission-related maintenance.”  17 They also state that EPA explained in its 2009 notice that while the likelihood of maintenance being performed in-use was a specific criteria under (b)(6), it was also a factor that was “important to note” with regard to EPA's (b)(7) findings. Further, EPA then concluded that it was reasonable to base the DEF refilling event on diesel refueling intervals due to DEF infrastructure developed at diesel refueling stations.

EPA has also received information from the SCR Engine Manufacturers indicating that EPA should set the minimum required DEF refill interval at an interval equal to the vehicle's fuel capacity (i.e., a 1:1 ratio) for all heavy duty engines. 18 They claim that this shorter maintenance interval is “necessary and appropriate to reflect current and anticipated changes in vehicle designs, significant changes in inducement strategies, and the increased availability of DEF.” They note that certification practices of the EPA regarding inducement practices for SCR-equipped engines make it “essentially impossible for an SCR vehicle to operate without regular DEF replenishment.” They state that the severity of inducements related to DEF levels (e.g. severe reduction in engine power and/or vehicle speed) is “extraordinary and must be taken into account” when EPA is determining appropriate maintenance intervals. They state that “in light of these severe inducements, it is reasonable to expect that a driver with a 1:1 tank ratio will operate under a firm discipline that the DEF tank must be refilled every time the fuel tanks are filled, as opposed to a driver with a 2:1 or greater tank ratio who may become accustomed to filling the DEF tank only when necessary, and is therefore more likely to rely on gauge levels, warnings, and inducements to trigger refills.”

The SCR Engine Manufacturers also state that EPA's promulgation of new standards regulating greenhouse gases increase the size and weight restraints associated with DEF tank size.

They state that another consequence of the greenhouse gas regulations is more attention to improved aerodynamics and weight reduction, which are harmed by the need for a 2:1 DEF tank size requirement. They claim that EPA should allow manufacturers to use all available options to increase fuel economy and meet greenhouse gas standards. They state the possible harm of allowing shorter maintenance intervals is minimal, given the severe negative inducements associated with failure to replenish the DEF tank.

EPA has received information from Navistar expressing its opposition to any extension of EPA's previously approved DEF refill intervals. Navistar maintains that the touchstone of allowable maintenance is whether it is reasonably likely that the maintenance will be performed. To this point, it states that EPA's own certification guidance ensures that maintenance will not occur, or at least not for lengthy periods of time. It also states that EPA's inducements to cause drivers to replenish DEF do not work and, and by definition, ensure that maintenance will not occur. 19 Separately, Navistar contends that the previously approved intervals are not “technologically necessary” under EPA's regulations. The purpose of EPA's maintenance regulations is to reduce the amount of driver attention emissions systems require in order to ensure that certified engines comply with emission standards on the road. Navistar claims that the Clean Air Act (CAA) and EPA's regulations require that SCR engine manufacturers make efforts to improve the durability of their driver-dependent emission control systems after MY 2009. Navistar points to EPA's statement from the 2009 approval (“expectation that SCR-related technologies and the urea infrastructure will continue to develop and mature.”), as evidence that EPA must require continuous improvement. 20 Navistar states that “other SCR technology is now available that offers exponentially longer maintenance ranges, weighs less and conserves fuel more.” Navistar maintains that EPA's approved maintenance for liquid, urea-based SCR is not about “technological necessity”. SCR engine manufacturers can easily quadruple the refill interval with little or no effort. They also suggest that EPA cannot legally accept SCR engine manufacturers' lack of effort and extend the same illegal DEF-replacement maintenance intervals for future model years. “Because other SCR technology is proven to be available with a maintenance interval in the range of 35,000 to 45,000 miles, EPA's own allowable maintenance regulations require that liquid, urea-based SCR meet that same benchmark.”

Navistar also chooses to contrast liquid, urea-based SCR systems with other emission control technologies to suggest that the maintenance interval tied with DEF refills is unnecessarily short They note EPA's approval of new scheduled maintenance for exhaust recirculation valves at 67,500 miles. 21 Navistar states that EPA's basis for defining “technologically necessary” has always been “the longest interval that any manufacturer recommend(s).”  22 Lastly, Navistar notes that EPA is well aware that they have developed for production and introduced other SCR technology (i.e. EGNR) that provides a maintenance interval in the range of 35,000 to upwards of 45,000 miles.

As set forth above, EPA in its 2007 guidance states that SCR system maintenance meets the regulatory definition of critical emission-related maintenance. EPA has further clarified that allowable maintenance requirements apply to SCR systems, including SCR catalysts, reducing agent, reducing agent storage tanks, dosing valves, and all lines and hoses. Additionally, because manufacturers indicated that packaging constraints would prevent them from being able to equip their vehicles with reducing agent storage tanks of sufficient size to allow reducing agent replenishment to comply with required maintenance intervals of 100,000 or 150,000 miles, EPA clarified that manufacturers would likely need to request a change to the scheduled maintenance interval pursuant to the (b)(7) provision.

Also set forth above, manufacturers have in fact requested such changes for more frequent scheduled maintenance to accommodate DEF refilling events for previous, current, and future model years. When EPA reviewed those manufacturer requests in 2009, it determined that maintenance associated with refill of DEF tanks was new scheduled maintenance and that the manufacturer-requested maintenance request and scheduled maintenance intervals were appropriate and announced that determination in the Federal Register . 23 The broad-level considerations EPA evaluated when considering the maintenance interval requests were the space and weight constraints presented by incorporating a DEF tank into vehicle design, as well as the impact a DEF tank's inclusion could have on engine performance. In our 2009 Federal Register notice, we concluded that the requested intervals were appropriate because we determined that manufacturer-recommended DEF refill intervals approximated the maximum feasible maintenance intervals associated with reasonable DEF tank sizes. We also concluded that the maintenance intervals recommended ensure that the functions and operational efficiency of such vehicles are not overly compromised.

As EPA explained in its 2009 notice, automobile manufacturers have stated it takes approximately an 8 gallon DEF tank to ensure that DEF will last for the length of a typical oil change interval. Assuming an oil change interval of 10,000 miles, a DEF tank size of approximately 80 gallons would be required to meet a 100,000 mile DEF refill maintenance interval. Even a 16-20 gallon DEF tank (to meet a 2 oil change interval) would interfere with the space that is necessary for typical light-duty vehicle design and transportation needs of the consumer. Interior cabin volume and cargo space are highly valued attributes in light-duty vehicles and trucks. Manufacturers have historically strived to optimize these attributes, even to the point of switching a vehicle from rear-wheel drive to front-wheel drive to gain the extra interior cabin space taken up by where the drive shaft tunnel existed, or switching the size of the spare tire from a conventional sized tire to a small temporary tire to gain additional trunk space. Thus any significant interior, cargo or trunk space used to store a DEF tank would be unacceptable to customers. There are also packaging concerns with placing a large DEF tank in the engine compartment or in the vehicles undercarriage. Most vehicle undercarriages are already crowded with the engine, exhaust system, including catalytic converters and mufflers, fuel tank, etc. limiting any available space for a DEF tank.

In addition to the inherently space constrained areas on the vehicle to place both fuel tanks and DEF tanks (an additional 8 gallon tank represents a very significant demand for space) the addition of the weight associated with the DEF represents significant concerns ( e.g. performance and efficient operation) on the operation of the vehicle. For example, assuming a density of 9 lb/gallon, an 8 gallon DEF tank represents an additional 72 lbs on a vehicle already looking to optimize performance. Adding additional DEF tank size to even accommodate a two-oil change interval is not feasible or practical given these weight constraints. A requirement for a larger DEF tank may also have an adverse effect on the ability of a manufacturer to meet greenhouse gas emission standards and fuel economy standards.

Presently, no manufacturer has presented any indication that things have changed in any material fashion that would allow for the installation of larger DEF tanks and/or less frequent DEF refilling intervals on light duty vehicles and trucks. More importantly, EPA is aware of no technological advances in this area and believes that none are likely to occur in the near future. The space and weight constraints presented by inclusion of a DEF tank into vehicle design are inherent. Forcing manufacturers to install larger DEF tanks would not only be impractical for manufacturers, it would also present utility constraints for consumers, drivers, and operators. Therefore, alternative maintenance intervals remain technologically necessary for refilling DEF tanks used on SCR systems.

EPA notes that the DEF refill maintenance interval being equivalent to and occurring with the oil change interval is a fairly long interval (e.g. 7,500 to 12,500 miles) for light-duty vehicles and trucks and is not likely to result in overly frequent maintenance under typical vehicle driving. EPA also believes that an adequate DEF supply will be available to perform the DEF refills at the stated intervals. EPA believes it important to also consider when, where and how often vehicle owners or operators are most likely to perform the DEF refill maintenance. For light-duty vehicles and light-duty trucks, EPA believes the requested DEF refill interval's association with the oil change interval is appropriate given the likelihood of DEF availability at service stations and the likelihood that DEF refill would occur during such service.

Recognizing that alternative maintenance intervals for DEF refilling remain technologically necessary due to space and weight constraints, EPA believes that the above-described alternative maintenance intervals requested by light-duty vehicle manufacturers are appropriate.

EPA continues to believe it is reasonable to base the DEF refilling event on diesel refueling intervals given that it is likely that the DEF refill maintenance would be undertaken at the time of fuel refill due to DEF infrastructure developed at diesel refueling stations. EPA agrees with manufacturers that the DEF refilling intervals requested by EMA, as a threshold matter, are “technologically necessary.” EPA knows of no SCR technology that is currently available that is yet capable of attaining higher mileage without a DEF refill. Although Navistar maintains that EPA is aware of its “EGNR” technology that it has “developed for production and introduced” that provides a maintenance interval in the range of 35,000 to upwards of 45,000 miles, Navistar presents no further evidence regarding this technology. Navistar has presented no evidence that such technology is currently available in the marketplace and can meet all requirements of the Clean Air Act and the regulations promulgated thereunder. EPA knows of no application for certification of engines using such technology; nor have any engines using such technology on heavy-duty engines been introduced within the United States. In any case, such technology would be different technology than the DEF-based SCR technology being used by current SCR manufacturers. If engine families using such EGNR technology become established in the marketplace and can meet all of the requirements in EPA's regulations, then it might be appropriate to revisit this issue, although the fact that such technology is substantially different from DEF-based SCR would be relevant for determining whether the establishment of this technology is relevant to the establishment of maintenance intervals for DEF-based SCR.

For vocational vehicles such as dump trucks, concrete mixers, refuse trucks and similar typically centrally-fueled applications, EPA believes the DEF tank refill interval should equal the range (in miles or hours) of the vehicle operation that is no less that the vehicle's fuel capacity ( i.e., a 1:1 ratio). For all other vehicles, EPA believes the DEF tank refill interval must provide a range of vehicle operation that is no less than twice the range of vehicle's fuel capacity ( i.e., a 2:1 ratio). 24 As EPA has noted previously, assuming that 25,000 gallons of diesel fuel were consumed to reach a 150,000 mile interval (the interval applicable to catalyst maintenance for heavy-duty engines), and assuming a 3% DEF consumption rate, 750 gallons of DEF weighing approximately 6,750 pounds would be required to meet a 150,000 mile maintenance interval for DEF refill. A line-haul truck is allowed a maximum gross vehicle weight of 85,000 pounds of which approximately 45,000 pounds is for cargo carrying. A DEF tank of this size would reduce the cargo-carrying capacity by 15%. Another example from the line-haul industry suggests that a DEF tank size of over 900 gallons would be needed to reach the 150,000 mile interval for a common highway vehicle with a diesel fuel capacity of 200 gallons and achieving 6.5 miles per gallon fuel efficiency. Similarly, a medium heavy-duty engine would require 375 gallons of DEF weighing 3,275 lbs to meet a 150,000 mile interval. EPA believes that such tank sizes are clearly not reasonably feasible in light of the weight and space demands and constraints on heavy-duty trucks and the consumer demand for as much cargo-carrying capacity as possible. 25

The Agency also believes that intervals that are not as long as 150,000 miles but are longer than 2:1 would require DEF tanks that are too large or too heavy to be feasibly incorporated into vehicles. Available data show that heavy-duty engines equipped with SCR-based systems will consume DEF at a rate that is approximately 2%-4% of the rate of diesel fuel consumption. Because of inherent space and weight constraints in the configuration and efficient operation of heavy-duty vehicles, there are size limits on the DEF tanks. Currently, there are truck weight limits that manufacturers must address when making adding or modifying truck designs. EPA expects and believes that manufacturers are taking significant and appropriate steps in order to install reasonably sized DEF tanks to achieve the DEF refills intervals noted. For example, manufacturers are taking such steps as reducing the number of batteries on vehicles despite customer demands or designing space saver configurations, in some instances extending an already very limited frame rail distance to incorporate the DEF tanks and SCR systems, moving compressed air tanks inside the frame rails, redesigning fuel tank configurations at significant costs, and otherwise working with significant size and weight constraints to incorporate DEF tanks. EPA was provided with examples of the consequences of requiring heavy-duty vehicles to accommodate a DEF refill interval of 5:1, and the information provided to the Agency strongly suggested that great compromises would be required in cost, weight and utility of vehicles. Increased tank sizes and weights on the magnitude of 150 to 325 lbs. would be required and in some cases diesel fuel volumes would need to be reduced. The extra weight associated with the DEF required to meet the 2:1 refill intervals represents a significant challenge to manufacturers seeking to meet both weight and size requirements for their vehicle designs. In addition, requiring a longer DEF refill interval may result in increased greenhouse gases and decreased fuel economy. EPA believes that in light of the existing tight space constraints and the overall desire to maximize cargo-carrying capacity to minimize emissions and meet consumer operational demands, and the built-in DEF tank size buffer to ensure DEF refills, that the proposed DEF tank sizes are technologically necessary and are also reasonable and appropriate. EPA believes that requiring tank sizes above these ratios will cause increases in space constraints and weight that would not be appropriate for these vehicles. Similarly, EMA notes that under its request, manufacturers would employ the 1:1 refilling ratio for only a small number of vocational applications and those vehicle applications have very limited vehicle space available to house surplus DEF. Such applications (e.g., a garbage truck, concrete mixer, beverage truck, or airport refueler) will also be refueled daily at central locations. At approximately 0.134 ft 3 per gallon, any extra DEF would displace significant space available to vehicle components and subsystems on both the vocational trucks at the 1:1 refill interval as well as the 2:1 vehicles.

In its comments, Navistar suggests that a longer DEF refill maintenance interval in the range of 35,000 to 45,000 miles should be approved. As noted above, one of Navistar's justifications for this longer interval is the claim that other technology is available that would need a maintenance interval no shorter than this. However, as discussed, EPA has no evidence that such technology is actually available at this time, nor does EPA believe that the availability of this other technology would necessarily impact the maintenance interval needed for DEF-based SCR.

Navistar also argues that engine manufacturers using SCR should have made efforts to increase DEF-refill intervals since 2009 and that it is “certainly feasible” for SCR systems to meet such a range. Although Navistar maintains that SCR engine makers can easily quadruple the refill interval with little or no effort, Navistar suggests one way to reach this interval is to double DEF tank size, and Navistar makes no effort to present evidence depicting where such enlarged DEF tanks can reasonably be located or the effects on such tanks on operational efficiency. In addition, in determining the minimum maintenance interval for DEF, Navistar suggests that manufacturers can double maintenance intervals by lowering engine-out emissions, which would reduce the DEF dosing frequency and in turn extend the refill interval for a fixed DEF tank size. The Agency reviewed the potential for engine manufacturers to lower engine-out NOx through in-cylinder control techniques such as injection timing retard and exhaust gas recirculation (EGR). It is clear that lowering engine-out NOx will directly lower the quantity of DEF that is needed to meet the NOx standard and hence conceptually might extend the DEF refill interval. However, as documented in the EPA rulemaking that set a Nonconformance Penalty (NCP) for the 2004 NOx standards, for the relevant range of NOx control (around 2 g/bhp-hr NOx engine out) and these specific in-cylinder NOx control technologies, each one gram of NOx reduction is expected to result in a 5 percent increase in fuel consumption. 26 It can also be estimated that the DEF consumption rate is approximately one percent of fuel consumption per one gram of NOx reduction. Since the increase in fuel consumption to reduce NOx by one gram is approximately five times higher than the increase in DEF consumption to treat that same one gram of NOx, it is clear that reducing engine-out NOx in order to extend the DEF refill interval would require an increase in the fuel tank size five times that of the volume savings in the DEF tank size in order to keep the same refueling interval. In other words, reducing engine-out NOx in order to extend the DEF refill interval while keeping the same diesel refueling interval would cause the fuel tank to grow larger necessitating a reduction in the DEF tank volume at a ratio of 5:1. Since that increased fuel tank size would then necessitate a smaller DEF tank, the resulting service interval would be shortened not lengthened.

It could be argued that there's no need to increase fuel tank size in response to higher fuel consumption rates because operators can simply refuel at greater frequencies. To this point, it is important to note that the effective operating range of a vehicle on a single tank of fuel is a key design parameter that determines the mission capability of a vehicle. For example, refuse trucks are designed with appropriate fuel capacity to operate over residential and commercial customer routes and have enough reserve driving range to then allow delivery of payload to a landfill often in remote locations. If a manufacturer maintained fuel tank size and increased the frequency at which the trucks must refuel, these trucks may not be able to accomplish their intended mission without making additional stops for fuel. Fueling stations may not be directly located along the remote route to some landfills, necessitating unplanned trip deviations. At the very least, these trucks would be impaired in the ability to accomplish their mission. Similarly, line-haul trucks are designed with necessary fuel capacity to deliver freight over significant interstate distances while minimizing the need for refueling stops. Increasing the frequency at which the trucks must refuel compromises the ability to accomplish their mission. Increasing the frequency of refueling stops poses a serious negative consequence to the end user of these trucks given their use in commercial applications where the time to accomplish a mission is business critical. EPA does not believe its allowable maintenance provisions are intended to drive this type of impact.

Navistar also suggests that SCR engine makers are legally required to make efforts to improve the time between maintenance for their SCR systems. However, the regulations do not require this, and EPA must review the technological necessity of maintenance intervals based on the existing factual circumstances. Current circumstances do not indicate that a larger maintenance interval is appropriate. While EPA's statement made in the 2009 notice indicates that EPA will continue to monitor the evolution of SCR systems along with urea infrastructure to determine whether the frequency of DEF refills can be adjusted, this does not imply that adjustment is necessary or appropriate, or in which direction such adjustment would go. In addition, regarding Navistar's reference to a 1980 EPA rulemaking regarding EPA's consideration of the longest interval that any manufacturer recommends, while EPA does look at such information, that interval does not necessarily become the interval determined under (b)(7). In some instances EPA may set an even more frequent interval and in others the Agency may set a less frequent interval; EPA's determination of what is a feasible interval for an engine family or an industry is based on a number of factors including manufacturer(s) recommended intervals, any physical or technological constraints, burdens that may be placed on the operator and what are reasonable expectations of durability from an operator's perspective, among other factors.

After reviewing this data and information, EPA believes that longer refill intervals than those noted above would require larger and heavier DEF tanks, and the design and engineering work performed by manufacturers thus far indicate that the recommended DEF refill intervals noted above approximates the maximum feasible maintenance intervals associated with reasonable DEF tank sizes, given the substantial negative consequences of longer DEF refill interval requirements. The maintenance intervals recommended ensure that the functions and operational efficiency of such vehicles are not overly compromised. Based on this information we believe the intervals noted above are warranted.

EPA is not approving a 1:1 DEF maintenance interval across the heavy-duty engine class at this time. EPA notes that manufacturers have been meeting a 2:1 ratio for DEF tank size for the past two years and the commenters have not yet provided sufficient evidence that this ratio will be infeasible in the future. Moreover, the information EPA has received to date has not shown that any change in the maintenance interval is necessary or appropriate throughout the heavy-duty engine category, rather than for particular applications, or that a refill interval as low as 1:1, rather than 1.8:1 or 1.5:1, is necessary or appropriate. EPA recognizes that the implementation of the future standards for greenhouse gases, beginning as early as the 2013 model year, may have some implications for this issue, but the SCR Engine Manufacturers have not shown that these standards, which are phased in and are not applicable in the 2012 model year, will cause the 2:1 refill interval to be infeasible across the industry, and certainly not in the 2012 model year. While EPA agrees that the warnings and inducements in place for failure to replenish DEF will restrict the ability of operators to run without DEF, and have made operation without DEF virtually unheard of, a DEF tank ratio of 1:1 will increase the likelihood that operators will need to make more frequent stops to replenish DEF, and possibly may need to stop solely to replenish DEF, which may place a greater burden on the operator in terms of the frequency of DEF refills.

EPA also notes that the regulations allow any manufacturer to petition EPA under the “paragraph (b)(7) process” for a shorter maintenance interval for a particular engine family or application than that approved for the industry if the manufacturer can show that a shorter interval is the maximum feasible interval necessary for the particular engine or vehicle configuration being certified.

Navistar and the SCR Engine Manufacturers suggest, respectively, that the “likelihood of the maintenance being performed in-use” is the touchstone of allowable maintenance, or is the most important factor in establishing the precise maintenance interval. At the outset, EPA believes it is important to note the context of the term “reasonable likelihood of being performed in-use” within paragraph (b)(6)(ii). For critical emission-related maintenance (including critical emission-related maintenance under paragraph (b)(6)(i), as well as such maintenance as determined by EPA under (b)(7)), manufacturers are required to show such likelihood prior to performance of such maintenance on durability test vehicles. Manufacturers can satisfy this requirement by meeting one of the specified conditions in paragraphs (b)(6)(ii) (A) through (F). Paragraph (b)(7) does not specify any additional showing required of the manufacturer should an alternative maintenance interval for emission-related critical maintenance be approved. Thus, if a manufacturer can show compliance with one of the specified conditions in (b)(6)(ii), the manufacturer has met the regulatory requirement to show a “reasonable likelihood of [the maintenance] being performed in-use” as required under paragraph (b)(7). As noted in the 2009 notice, SCR engine manufacturers (or vehicle manufacturers) are using a clearly displayed visible signal system approved by EPA, meeting the requirements of (b)(6)(ii)(C). In addition, SCR engine manufacturers are going beyond the minimum requirements of (b)(6)(ii) and are designing, and are expected by EPA to design (under the adjustable parameter regulatory provisions) their systems to include inducements that will adequately trigger the operators to refill the DEF tanks by reducing vehicle performance to a point unacceptable for typical driving, which would meet the requirements of (b)(6)(ii)(A). 27 Section (b)(7) does not include an affirmative requirement on the petitioner to demonstrate nor on EPA to find a likelihood of maintenance being performed beyond that which is clearly and specifically prescribe at (b)(6). Indeed, although EPA “noted” the likelihood of performance in its 2009 notice, EPA did so in order to provide the regulated community with a complete picture of how the allowable maintenance provisions should be read together and how they complement each other. In addition, EPA notes that the determination of what is maximally feasible under (b)(7) does not require, or in fact include, a consideration of the inducements (as described above). EPA nevertheless believes that such inducements clearly and sufficiently provide the necessary demonstration of likelihood of maintenance.

Conversely, with respect to the arguments from the SCR Engine Manufacturers, the fact that maintenance is likely to occur does not affect the determination of what is the appropriate “technologically necessary maintenance interval.” While the likelihood of maintenance and the technological necessity of regular maintenance are both required elements under (b)(7), and the desire to increase the likelihood of maintenance may inform the particular form of the maintenance interval (i.e. having DEF refill maintenance be at the same time as oil change), the two requirements are separate and distinct. The “technologically necessary maintenance interval” requirement is motivated by a desire to minimize the amount of emission-related maintenance, which is distinct from the need to make sure that such maintenance is likely to occur. As noted, the SCR Engine Manufacturers have not shown that the 1:1 maintenance interval is “technologically necessary.” Therefore, while EPA agrees that the DEF refill maintenance is likely to occur in use, the 1:1 interval does not meet the requirements of (b)(7).

For the reasons set forth above, EPA finds it appropriate to approve new scheduled maintenance intervals for DEF refill equal to the scheduled oil change interval for all light-duty vehicles and light-duty trucks, medium duty vehicles and other chassis certified vehicles up to 14,000 pounds for 2011 and later model years.

For the reasons set forth above, EPA again approves new scheduled maintenance intervals for DEF based on ratios to a given vehicle's fuel capacity for engine certified heavy-duty engines and vehicles for 2012 and later model years. Vocational heavy-duty vehicles ( e.g., dump trucks, concrete mixers, refuse trucks, and other centrally-fueled vehicles) are permitted a DEF tank maintenance interval no less than the vehicle's fuel capacity ( i.e., a 1:1 ratio of DEF refill to fuel refill). For all other heavy-duty vehicles, EPA approves a DEF tank refill interval no less than twice the range of the vehicle's fuel capacity ( i.e., a 2:1 ratio).

As stated above, because DEF refills are considered “critical emission-related maintenance,” manufacturers must “show the reasonable likelihood of such maintenance being performed in use.” 40 CFR 86.094-25(b)(6)(ii) and 86.1834(b)(6)(ii) provide a number of means by which manufacturers may demonstrate such a reasonable likelihood. Among those means of demonstration are visible signal systems to alert drivers and operators that maintenance is needed, or data demonstrating that drivers or operators are induced to perform maintenance. EPA intends to review specific manufacturer certification applications in order to review whether these regulatory requirements are met.

The Agency, as stated above, has approved alternative maintenance requests to ensure the proper functioning of SCR systems by allowing an appropriately frequent refilling of DEF tanks. We approve these requests for all future model years. EPA expressly reserves its ability to review this approval at any time in the future, should any technological advances be made that would allow for more or less frequent DEF refilling or otherwise call this approval into question.

Any manufacturer may request a hearing on this determination. The request must be in writing and include a statement specifying the manufacturer's objections to this determination, and data in support of such objections. If, after review of the manufacturer's objections and supporting data, we find that the request raises a substantial factual issue, we shall provide the manufacturer with a hearing in accordance with 40 CFR 86.1853-01 with respect to such issue.

EPA adopted new emission standards for NRCI engines on June 29, 2004. 1 We expect that many manufacturers will use SCR systems to meet the final Tier IV NO X reduction requirements for their diesel engines. SCR systems use a nitrogen-containing reducing agent that usually contains urea and is known as diesel exhaust fluid (DEF). The DEF is injected into the exhaust gas upstream of a catalyst and requires periodic replenishment (maintenance) by refilling the DEF tank.

NRCI engine manufacturers are required to provide written instructions for properly maintaining and using the engine, including the emission control system, to purchasers of new engines. These maintenance instructions, including the hours associated with the maintenance intervals, also apply to the engine during its service accumulation for emission testing purposes.

Maintenance performed on NRCI engines is classified as critical emission-related maintenance if it includes any adjustment, cleaning, repair, or replacement of critical emission-related components. As set forth at 40 CFR 1039.125(a)(1), 1039.125(a)(2), and 1039.125(a)(3), a manufacturer may schedule critical emission-related maintenance on these types of components if certain conditions are met, including a demonstration that the maintenance is reasonably likely to be done at the recommended intervals, and depending upon the size of the engine and the type of emission-related component, an EPA-prescribed minimum hour maintenance interval. For example, a manufacturer of engines below 130 kW may not schedule maintenance more frequently than 3,000 hours for catalytic converters and if the engines are at or above 130 kW then a manufacturer may not schedule the catalytic converter maintenance more frequently than 4,500 hours.

In addition, should a manufacturer desire a new or shorter scheduled maintenance interval (that it wishes to recommend to purchasers and perform during service accumulation on emission-data engines) not found under § 1039.125(a)(2) and 1039.125(a)(3), and instead utilize § 1039.125(a)(5), then the manufacturer must submit a request to EPA for approval. A request for a shorter maintenance interval includes new scheduled maintenance on emission-related components that were not in widespread use with NRCI engines before 2011. Requests from manufacturers for new scheduled maintenance intervals must include: (1) A description of the proposed maintenance step, (2) the recommended maximum feasible interval for this maintenance, (3) the rationale with supporting evidence to support the need for the maintenance at the recommended interval, and (4) a demonstration that the maintenance will be done at the recommended interval on in-use engines.

In considering requests for new scheduled maintenance EPA will evaluate the information provided to EPA and any other available information to establish alternate specifications for maintenance intervals as deemed appropriate.

EPA believes the existing allowable scheduled maintenance hour intervals applicable to catalytic converters are generally applicable to SCR systems which contain a catalyst, but that SCR systems are a new type of technology and that DEF refills are a new type of maintenance uniquely associated with SCR systems. Therefore, the 3,000 hour (engines below 130 kW) and 4,500 hour (engines at or above 130 kW) intervals are generally applicable to SCR systems, but are not controlling in determining the appropriate DEF refill interval. As noted, the SCR systems are a new type of technology designed to meet the newest emission standards and the DEF refill intervals represent a new type of scheduled maintenance; therefore, EPA believes that manufacturers may request from EPA the ability to perform the new scheduled maintenance of DEF refills.

EPA has received information from the Engine Manufacturers Association, 2 as well as AGCO, Caterpillar, and IVECO supporting their requests for new recommended scheduled maintenance intervals for their SCR systems.

Several of the requests noted that the DEF is essential for the proper functioning of the SCR system, and thereby constitutes a “critical” maintenance component. 3

The requests primarily seek EPA's approval of a DEF tank that provides a range of operation that is equal to the engine or equipment's fuel capacity—this is known as a 1:1 ratio—for 2011 and later model year nonroad engines. 4 In determining the recommended DEF refill intervals, several of the requestors applied “good engineering judgment” as described in the March 27, 2007 SCR certification guidance for on-highway engines. 5 Some noted that since SCR systems may consume DEF at a rate of approximately 2% to 4% of the rate of diesel fuel consumption (consumption rates could be even higher as one requestor noted), it would be technically infeasible to equip a nonroad engine or piece of equipment with a DEF tank large enough to operate for the standard 3,000- or 4,500-hour maintenance interval without DEF refill. For example, considering a representative range of construction and agricultural equipment, to meet the 3,000- to 4,500-hour maintenance requirements:

• A skid steer loader with a 50 kilowatt (kW) engine, that normally carries a maximum of 25 gallons of fuel, would require a DEF capacity of approximately 150 gallons, weighing over 1,400 pounds and requiring more than 20 cubic feet (ft 3 ) of space.

• A bulldozer with a 150 kW engine, that normally carries a maximum of 110 gallons of fuel, would require a DEF capacity of approximately 900 gallons, weighing over 8,000 pounds and requiring more than 120 ft 3 of space.

• A combine harvester with a 250 kW engine, that normally carries a maximum of 250 gallons of fuel, would require a DEF capacity of approximately 900 gallons, weighing over 8,000 pounds—almost half as much as the combine's grain tank capacity—and requiring more than 120 ft 3 of space.

• A large off-highway mining truck with a 900 kW engine, that normally carries a maximum of 500 gallons of fuel, would require a DEF capacity of approximately 5,500 gallons, weighing over 50,000 pounds and requiring more than 735 ft 3 of space.

Several of the requests suggested that in order to apply good engineering judgment EPA must strike the proper balance between the dictates of operating nonroad equipment (which requires DEF tanks of small enough weight and size so as not to hinder the engine's or equipment's function while also not causing too frequent stops or downtime) and what the requestors suggest is EPA's need to ensure emission compliance in use. The requestors suggest that mobile nonroad engines and equipment are directly analogous to “vocational” on-highway vehicles, in that they typically are refueled on a daily basis from a central location and so are well-suited to the refilling of their DEF tanks on the same daily basis. 6

The requestors also suggest that their recommended DEF refill intervals are the maximum intervals since longer intervals would require larger and heavier tanks, which may jeopardize the engine or equipment's mission or functionality. One of the requestors noted, by way of example, that its average engines used in modern agriculture and construction machines would consume as much as 1,000 to 2,200 gallons of DEF in order to meet the 4,500-hour regulated interval. Such tanks (weighing 9,000/20,000 pounds) would be essentially impossible to install given the limitations in available space and visibility for operators on machines, with impacts on safety, along with massive increases of machine weight which would pose serious problems in operability in agricultural lands along with worsening machine fuel consumption resulting in higher CO 2 emissions. Such constraints include the need to work and pass in very narrow openings in orchards, safety and visibility concerns, and the operability of other components on the equipment (including clearance between the DEF tank on tires). This requestor also asks EPA to consider the shelf-life of DEF at normal ambient temperatures as 18 months, much less than the 3- to 5-year period which roughly corresponds to the interval of 4,500 hours.

A separate request noted the important relationship between DEF and fuel volume, packaging and serviceability concerns, along with tilt capability and weight concerns in support of its recommended 1:1 DEF refill ratio. A 1:1 ratio develops the correct machine operating habit to fill the DEF at each fuel fill interval, and from a vehicle design standpoint many of its applications are taking away fuel tank volume to create space for the DEF tank and provide instances where the DEF tank is nestled in the fuel tank area. In terms of serviceability, the optimal placement of the DEF tank is close to the fuel tank so both can be refueled conveniently at the same time. As the filler neck on the fuel tank is already accessible from ground level, placing the DEF tank nearby ensures that it is also accessible. Providing such accessibility increases the limitations on the design and placement of the DEF tank. Tanks sized for a 1:1 ratio are much more likely to fit within the allowable space on a piece of equipment than a larger tank. Examples were provided by the requestor noting where 2:1 tanks would not fit. This requestor also noted that a 2:1 DEF tank would add 65 to 220 pounds to machines and would negatively affect the ability to carry payload, which is one of the primary functions of the majority of construction machines. Lastly, construction machines must operate in a variety of conditions and operate often on steep slopes. Equipment with 1:1 DEF tanks of the correct design creates a lower risk of losing DEF fluid suction pickup when operating on extreme tilt as compared to larger tanks.

In order to fulfill the obligation to demonstrate that the maintenance will be done at the recommended interval on in-use engines, requestors noted that manufacturers will deploy warnings and inducements should the DEF level become too low. In addition to these initial inducements, should the operator ignore them, then the requestors noted that manufacturers will employ “severe inducement” intended to disable the functionality of the engine or equipment. 7

Furthermore, EPA notes that several current SCR systems include the final inducement of either having the engine shut down or idle only (with no power) when no DEF is present in the DEF tank (or the system is no longer able to dose with DEF), and such SCR systems meet EPA's expectations of what is required for nonroad SCR systems. 8 As an example, one manufacturer noted that “To provide the necessary assurance that the DEF tank will be refilled, each vehicle will be equipped with a constant viewable DEF level indicator included in the vehicle dashboard display. * * * the operator display system includes a visible warning signal that indicates when the level of DEF in the tank is low and will need refilling. As a final inducement, the system also includes programmed engine derates that limit engine performance once the DEF level drops below certain levels, thereby limiting vehicle performance.” EMA, in its request, noted that should operators fail to notice audible or visible warning signals indicating low DEF, then the manufacturers may also use a reduction in engine power or equipment utility to provide more dramatic notice that the DEF tank needs refilling. This “severe inducement” is intended to disable the functionality of the engine or equipment, and to substantially limit the likelihood that the engine or equipment could perform any useful work, but is not intended to prohibit the engine or equipment's mobility or ability to idle. EMA also notes that it expects EPA to provide guidance on an appropriate final inducement once the SCR system runs out of DEF.

EPA believes that SCR systems are a new technology and are properly considered a critical emission-related component since their primary purpose is to control emissions. In addition, the replenishment of DEF as part of maintaining the SCR system's functionality is considered to be critical emission-related maintenance under 1039.125(a).

EPA believes it appropriate to evaluate the DEF refill rates by taking into consideration the space and weight constraints typically involved with the range of NRCI engines using SCR systems, including safety and impacts of weight and dosing rates on greenhouse gas emissions and fuel efficiency. EPA believes it must also take into consideration the likelihood that the maintenance of DEF refills will be performed by the owner or operator. 9

In our 2009 Federal Register notice regarding heavy-duty on-highway engines and vehicles using SCR systems, we concluded that the requested intervals were appropriate because we determined that manufacturer-recommended DEF refill intervals approximated the maximum feasible maintenance intervals associated with reasonable DEF tank sizes. We also concluded that the maintenance intervals recommended ensure that the functions and operational efficiency of such vehicles are not overly compromised. 10 EPA knows of no SCR technology for NRCI engines that is yet capable of attaining longer operation (generally beyond one tank full of diesel) without a DEF refill. As noted by the requests, there are significant space and weight constraints associated with increasing the DEF tank size in order to accommodate a 2:1 refill ratio. EPA believes it appropriate to take into consideration the need for locating the DEF tank in close proximity to the fuel tank and the remainder of the SCR system, as well as the increased likelihood that the DEF tank will be refilled if it becomes standard operating practice to refill the DEF tank at the same time as the fuel tank. EPA believes that such nonroad equipment is similar to centrally-fueled heavy-duty on-highway vehicles and that there is a sufficient basis and a reasonable expectation that DEF tank refills will occur on a timely basis.

EPA notes that the regulations allow any manufacturer to petition EPA under the “paragraph (a)(5) process” for a new maintenance interval for a particular engine family or application than that approved for the industry if the manufacturer can show that a certain interval is the appropriate maintenance interval for the particular engine configuration being certified.

EPA also notes that all critical emission-related maintenance must have a reasonable likelihood of being done at the recommended intervals on in-use engines. Paragraph 1039.125(a)(1) sets forth several methods by which such demonstration can be made, including data showing that if a lack of maintenance increases emissions, it also unacceptably degrades the engine's performance. In the context of SCR systems and the potential of an empty DEF tank and an inoperable SCR system, EPA notes that equipment under such operating conditions are expected to shut down or idle only. Engine manufacturers employing such final inducements meet the requirements of (a)(1) and furthermore meet the requirement under (a)(5) for DEF refill intervals based on a 1:1 ratio.

For the reasons set forth above, EPA approves a new scheduled maintenance interval for DEF refill that shall be no less than the equipment's fuel capacity (i.e., a 1:1 ratio of DEF refill to fuel refill) for 2011 and later model year nonroad engines.

Anyone may request a hearing on this determination. The request must be in writing and include a description of your objection and any supporting data. The request must be made by February 6, 2012. If, after review of any objection and supporting data, we find that the request raises a substantial factual issue, we will hold a hearing in accordance with 40 CFR Part 1068 Subpart G.

FHFA seeks public comments on the three proposed new systems of records and will take all comments into consideration. See 5 U.S.C. 552a(e)(4) and (11).

Instructions: In addition to referencing “Comments/2011-N-14,” please reference the title and number of the system of records your comment addresses.

Posting and Public Availability of Comments: All comments received will be posted without change on the FHFA Web site at http://www.fhfa.gov, and will include any personal information provided. In addition, copies of all comments received will be available for examination by the public on business days between the hours of 10 a.m. and 3 p.m., at the Federal Housing Finance Agency, Fourth Floor, 1700 G Street NW., Washington, DC 20552. To make an appointment to inspect comments, please call the Office of General Counsel at (202) 414-6924.

This notice satisfies the Privacy Act requirement that an agency publish a system of records notice in the Federal Register when there is an addition to the agency's system of records. Congress has recognized that application of all requirements of the Privacy Act to certain categories of records may have an undesirable and often unacceptable effect upon agencies in the conduct of necessary public business. Consequently, Congress established general exemptions and specific exemptions that could be used to exempt records from provisions of the Privacy Act. Congress also required that exempting records from provisions of the Privacy Act would require the head of an agency to publish a determination to exempt a record from the Privacy Act as a rule in accordance with the Administrative Procedure Act. The Director of FHFA has determined that records and information in these three new systems of records are not exempt from the requirements of the Privacy Act.

As required by the Privacy Act, 5 U.S.C. 552a(r), and pursuant to paragraph 4c of Appendix I to OMB Circular No. A-130, “Federal Agency Responsibilities for Maintaining Records About Individuals,” dated February 8, 1996 (61 FR 6427, 6435 February 20, 1996), FHFA has submitted a report describing the three new systems of records covered by this notice to the Committee on Oversight and Government Reform of the House of Representatives, the Committee on Homeland Security and Governmental Affairs of the Senate, and the Office of Management and Budget.

The first proposed system is “Emergency Notification System” (FHFA-14). The proposed system will contain records related to FHFA employees and contractor personnel who provide emergency contact information, including personal phone numbers, home and email addresses, and names and contact information of emergency points of contact. This proposed system of records will replace the system of records issued by FHFA's predecessor agency OFHEO. The replaced OFHEO system, “OFHEO-6 Emergency Contingency Plan and Personnel Locator System” was published at 71 FR 6085 (February 6, 2006).

The second proposed system is “Payroll, Retirement, Time and Attendance, and Leave Records” (FHFA-15). The proposed system will contain records of individual's name; home address; telephone numbers; Social Security number; organization code; pay rate; salary; grade; length of service; pay and leave records; source documents for posting time and leave attendance; and deductions for Medicare; Old-Age, Survivors, and Disability Insurance (also known as Social Security); bonds; Federal Employee Group Life Insurance; union dues; taxes; allotments; retirement; charities; Federal Government and commercial health benefits; Flexible Spending Account; Long Term Care Insurance; Thrift Savings Plan contributions; 401k plan contributions; awards; shift schedules; pay differential; tax lien data; wage garnishments; and any other information pertaining to payroll, retirement, time and attendance, and leave. This proposed system of records will replace the systems of records issued by FHFA's predecessor agencies, FHFB and OFHEO. The replaced FHFB system “FHFB-1 Employee Attendance Records” was published at 60 FR 46120 (September 5, 1995), as amended at 62 FR 66865 (December 22, 1997), and at 71 FR 61052 (October 17, 2006), and the OFHEO system, “OFHEO-2 Pay and Leave System,” was published at 63 FR 9007 (February 23, 1998).

The third proposed system is “Personnel Investigative Records” (FHFA-16). The proposed system will contain individual's name; date of birth; current and former home addresses; work histories; education and financial information; Social Security number; information about family members; information about references; types and dates of investigations; investigative reports; dates, levels and types of clearances; and other information pertinent to granting or denying a security clearance or making a suitability determination. This proposed system of records will replace the system of records issued by FHFA's predecessor agency FHFB. The replaced FHFB system, “FHFB-5 Personnel Investigative Records,” was originally published at 60 FR 46120 (September 5, 1995—originally published as “FHFB-7 Agency Personnel Investigative Records”), as amended at 62 FR 66865 (December 22, 1997), 68 FR 39947 (July 3, 2003), and 71 FR 61052 (October 17, 2006).

The three proposed new systems and the routine uses for each are set out in their entirety and described in detail below.

The notice of a major disaster declaration for the Commonwealth of Virginia is hereby amended to include the following areas among those areas determined to have been adversely affected by the event declared a major disaster by the President in his declaration of November 4, 2011.

Comments Invited

In accordance with the Paperwork Reduction Act of 1995, (44 U.S.C. 3501 et seq. ), an agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a valid OMB control number. The ICR documentation is available at http://www.reginfo.gov. Therefore, in preparation for OMB review and approval of the following information collection, TSA is soliciting comments to—

(1) Evaluate whether the proposed information requirement is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;

(2) Evaluate the accuracy of the agency's estimate of the burden;

(3) Enhance the quality, utility, and clarity of the information to be collected; and

(4) Minimize the burden of the collection of information on those who are to respond, including using appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.

OMB Control Number 1652-0029; Maryland Three Airports: Enhanced Security Procedures at Certain Airports in the Washington, DC Area, 49 CFR part 1562. Codified under 49 CFR part 1562, TSA has responsibility for ground security requirements and security procedures at three Maryland airports that are located within the Washington, DC, Metropolitan Area Flight Restricted Zone (Maryland Three Airports), and for individuals operating aircraft to or from these three airports. The Maryland Three Airports are College Park Airport (CGS), Potomac Airfield (VKX), and Washington Executive/Hyde Field (W32). The information collected is used to determine compliance with 49 CFR part 1562.

Part 1562 allows an individual who is approved by TSA to operate an aircraft to or from one of the Maryland Three Airports or to serve as an airport security coordinator in one of these three airports. In order to be approved, an individual is required to successfully complete a security threat assessment. As part of this threat assessment, an individual (pilot or airport security coordinator) is required to undergo a criminal history records check and a check of Government terrorist watch lists and other databases to determine whether the individual poses, or is suspected of posing, a threat to transportation or national security. An individual will not receive TSA's approval under this analysis if TSA determines or suspects the individual of being a threat to national or transportation security. Prospective pilots must be fingerprinted at the Ronald Reagan Washington National Airport's (DCA) badging office with the airport security coordinator, as well as provide the following information to TSA as part of the application process: full name, Social Security number, current Airmen Certificate and medical certificate, date of birth, home address, home and work phone numbers, email address, emergency contact number, aircraft make and model, and FAA aircraft registration number. TSA receives approximately 312 applications annually, and estimates respondents spend approximately 180 minutes to submit the information to TSA, which is a total annual burden of 56,160 hours.

The erroneous legal land description is on page 22547, 3rd column, line 6. The legal land description is corrected to read:

The applicant, Echanis, LLC, a subsidiary of Columbia Energy Partners, LLC, filed right-of-way (ROW) applications for ROWs with the BLM and the U.S. Fish and Wildlife Service for construction, operation, maintenance, and termination of a 29-mile-long, 230kV transmission line that would connect the proposed Echanis Wind Energy Project, located on private land on the north end of Steens Mountain, with Harney Electric Cooperative's existing transmission system near Diamond Junction, Oregon.

The ROD approves the BLM-preferred Alternative, now the Selected Alternative, and will result in the grant of ROWs for construction, operation, maintenance and termination of a 230-kV transmission line, tensioning sites and related access across lands administered by the BLM. The route for the Selected Alternative would originate at the Echanis Wind Energy Project substation, south of Diamond, Oregon and connect to Harney Electric Cooperative's existing 115-kV transmission line near Crane, Oregon. The Selected Alternative would not cross the Malheur National Wildlife Refuge administered by the U.S. Fish and Wildlife Service. This alternative will enable the construction of the Echanis Wind Energy Project on private land. The effects of the wind project on private land are analyzed in the Final Environmental Impact Statement (EIS) because they are “connected actions” under the National Environmental Policy Act of 1969.

This BLM-preferred Alternative was evaluated in the Final EIS. The Notice of Availability of the Final EIS for the North Steens 230kV Transmission Line Project was published in the Federal Register on October 21, 2011 (76 FR 65509).

Because this decision is approved by the Secretary of the Interior, it is not subject to administrative appeal (43 CFR 4.410(a)(3)).

The Commission has received a complaint, as amended, filed on behalf of Digitude Innovations LLC on December 16, 2011. The complaint alleges violations of section 337 of the Tariff Act of 1930 (19 U.S.C. 1337) in the importation into the United States, the sale for importation, and the sale within the United States after importation of certain portable communication devices. The complaint names Research In Motion Ltd. of Canada; Research In Motion Corp. of Irving, TX; HTC Corporation of Taiwan; HTC America, Inc. of Bellevue, WA; LG Electronics, Inc. of South Korea; LG Electronics U.S.A. Inc. of Englewood Cliffs, NJ; LG Electronics MobileComm U.S.A. Inc. of San Diego, CA; Motorola Mobility Holdings, Inc. of Libertyville, Illinois; Samsung Electronics Co., Ltd. of South Korea; Samsung Electronics America, Inc. of Ridgefield Park, New Jersey; Samsung Telecommunications America, LLC of Richardson, TX; Sony Corporation of Japan; Sony Corporation of America of New York, NY; Sony Electronics, Inc. of San Diego, CA; Sony Ericsson Mobile Communication AB of Sweden; Sony Ericsson Mobile Communication (USA) Inc. of Research Triangle Park, NC; Amazon.com, Inc. of Seattle, WA; Nokia Corporation of Finland; Nokia Inc. of Irving, TX; Pantech & Curitel Communication, Inc. of South Korea; Pantech Wireless, Inc. of Atlanta, Georgia as respondents.

The complainant, proposed respondents, other interested parties, and members of the public are invited to file comments, not to exceed five pages in length, on any public interest issues raised by the complaint. Comments should address whether issuance of an exclusion order and/or a cease and desist order in this investigation would negatively affect the public health and welfare in the United States, competitive conditions in the United States economy, the production of like or directly competitive articles in the United States, or United States consumers.

In particular, the Commission is interested in comments that:

(i) Explain how the articles potentially subject to the orders are used in the United States;

(ii) Identify any public health, safety, or welfare concerns in the United States relating to the potential orders;

(iii) Indicate the extent to which like or directly competitive articles are produced in the United States or are otherwise available in the United States, with respect to the articles potentially subject to the orders; and

(iv) Indicate whether Complainant, Complainant's licensees, and/or third party suppliers have the capacity to replace the volume of articles potentially subject to an exclusion order and a cease and desist order within a commercially reasonable time.

Written submissions must be filed no later than by close of business, five business days after the date of publication of this notice in the Federal Register . There will be further opportunities for comment on the public interest after the issuance of any final initial determination in this investigation.

Persons filing written submissions must file the original document and 12 true copies thereof on or before the deadlines stated above with the Office of the Secretary. Submissions should refer to the docket number (“Docket No. 2861”) in a prominent place on the cover page and/or the first page. The Commission's rules authorize filing submissions with the Secretary by facsimile or electronic means only to the extent permitted by section 201.8 of the rules (see Handbook for Electronic Filing Procedures, http://www.usitc.gov/secretary/fed_reg_notices/rules/documents/handbook_on_electronic_filing.pdf. Persons with questions regarding electronic filing should contact the Secretary (202) 205-2000).

Any person desiring to submit a document to the Commission in confidence must request confidential treatment. All such requests should be directed to the Secretary to the Commission and must include a full statement of the reasons why the Commission should grant such treatment. See 19 CFR 201.6. Documents for which confidential treatment by the Commission is properly sought will be treated accordingly. All nonconfidential written submissions will be available for public inspection at the Office of the Secretary.

This action is taken under the authority of section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and of sections 201.10 and 210.50(a)(4) of the Commission's Rules of Practice and Procedure (19 CFR 201.10, 210.50(a)(4)).

The notice of the President's major disaster declaration for the State of Vermont, dated 09/01/2011 is hereby amended to extend the deadline for filing applications for physical damages as a result of this disaster to 12/15/2011.

All other information in the original declaration remains unchanged.

The notice of the President's major disaster declaration for the Commonwealth of Virginia, dated 11/04/2011 is hereby amended to extend the deadline for filing applications for physical damages as a result of this disaster to 03/05/2012.

All other information in the original declaration remains unchanged.

Notice is hereby given that as a result of the President's major disaster declaration on 12/22/2011, Private Non-Profit organizations that provide essential services of governmental nature may file disaster loan applications at the address listed above or other locally announced locations.

The following areas have been determined to be adversely affected by the disaster:

The Interest Rates are:

The number assigned to this disaster for physical damage is 12976B and for economic injury is 12977B.

Notice is hereby given that FHWA, FTA and other agencies have taken final agency actions by issuing licenses, permits, and approvals for the transportation project in the States of Oregon and Washington. Federal Lead Agencies: Federal Highway Administration (FHWA) and Federal Transit Administration (FTA). Project Sponsors: Oregon and Washington Departments of Transportation (ODOT, WSDOT), Southwest Washington Regional Transportation Council (RTC), Metro, Clark County Public Transportation Benefit Area (C-TRAN), and Tri-County Metropolitan Transportation District (TriMet). Project Description: The project is a bridge, transit, highway, and bicycle and pedestrian improvement project, consisting of a new river crossing over the Columbia River, improvements to highway interchanges and the local street network, bicycle and pedestrian improvements, and an extension of light rail from the Expo Center in Portland (OR) to Clark College in Vancouver (WA). The actions by the Federal and other agencies on this project, as well as the laws under which such actions were taken, are described in the Final Environmental Impact Statement (FEIS) for the project published in the Federal Register on September 23, 2011, and in the Record of Decision issued on December 7, 2011. The FEIS and ROD are available by contacting FHWA at the address above or can be downloaded from the project Web site at www.columbiarivercrossing.org.

This notice applies to all FHWA, FTA, and other agency decisions on the listed project as of the issuance date of this notice and all laws under which such actions were taken, including, but not limited to those arising under the following laws, as amended:

1. General: National Environmental Policy Act [42 U.S.C. 4321-4347]; Federal-Aid Highway Act [23 U.S.C. 109]; the Federal transit statutes [49 U.S.C. Chapter 53].

2. Air: Clean Air Act, as amended [42 U.S.C. 7401-7671(q)].

3. Land: Section 4(f) of the Department of Transportation Act of 1966 [49 U.S.C. 303]; Landscaping and Scenic Enhancement (Wildflowers) [23 U.S.C. 319].

4. Wildlife: Endangered Species Act [16 U.S.C. 1531-1544]; Anadromous Fish Conservation Act [16 U.S.C. 757(a)-757(f)]; Fish and Wildlife Coordination Act [16 U.S.C. 661-667(e)]; Magnuson-Stevenson Fishery Conservation and Management Act of 1976, as amended [16 U.S.C. 1801 et seq. ]; Migratory Bird Treaty Act [16 U.S.C. 703-712].

5. Historic and Cultural Resources: Section 106 of the National Historic Preservation Act of 1966, as amended [16 U.S.C. 470f]; Archaeological Resources Protection Act of 1977 [16 U.S.C. 470aa-470mm]; Archaeological and Historic Preservation Act [16 U.S.C. 469-469c-2]; Native American Grave Protection and Repatriation Act [25 U.S.C. 3001-3013].

6. Social and Economic: Civil Rights Act of 1964 [42 U.S.C. 2000(d)-2000(d)(1)); American Indian Religious Freedom Act [42 U.S.C. 1996); Farmland Protection Policy Act [7 U.S.C. 4201-4209]; the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended [42 U.S.C. 61].

7. Wetlands and Water Resources: Clean Water Act, 33 U.S.C. 1251-1377 [Section 404, Section 401, Section 319]; Coastal Zone Management Act [16 U.S.C. 1451-1465]; Land and Water Conservation Fund [16 U.S.C. 4601-4-4601-11]; Safe Drinking Water Act [42 U.S.C. 300f et seq. ]; Rivers and Harbors Act of 1899 [33 U.S.C. 401-406]; TEA-21 Wetlands Mitigation [23 U.S.C. 103(b)(6)(m), 133(b)(11)]; Flood Disaster Protection Act [42 U.S.C. 4001-4129].

8. Executive Orders: E.O. 11990 Protection of Wetlands; E.O. 11988 Floodplain Management; E.O. 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low Income Populations; E.O. 11593 Protection and Enhancement of Cultural Resources; E.O. 13007 Indian Sacred Sites; E.O. 13287 Preserve America; E.O. 13175 Consultation and Coordination with Indian Tribal Governments; E.O. 11514 Protection and Enhancement of Environmental Quality; E.O. 13112 Invasive Species. (Catalog of Federal Domestic Assistance Program Number 20.205, Highway Planning and Construction. The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities apply to this program.) Nothing in this notice creates a cause of action under these executive orders.

You may see all the comments online through the Federal Document Management System (FDMS) at: http://www.regulations.gov.

Docket: For access to the docket to read background documents or comments, go to http://www.regulations.gov and/or Room W12-140 on the ground level of the West Building, 1200 New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

Privacy Act: Anyone may search the electronic form of all comments received into any of DOT's dockets by the name of the individual submitting the comment (or of the person signing the comment, if submitted on behalf of an association, business, labor union, or other entity). You may review DOT's Privacy Act Statement for the Federal Docket Management System (FDMS) published in the Federal Register on January 17, 2008 (73 FR 3316), or you may visit http://edocket.access.gpo.gov/2008/pdf/E8-785.pdf.

On November 16, 2011, FMCSA published a notice of receipt of Federal diabetes exemption applications from twenty individuals and requested comments from the public (76 FR 71112). The public comment period closed on December 16, 2011, and no comments were received.

FMCSA has evaluated the eligibility of the twenty applicants and determined that granting the exemptions to these individuals would achieve a level of safety equivalent to or greater than the level that would be achieved by complying with the current regulation 49 CFR 391.41(b)(3).

Two individuals, Mr. Matthew J. Cipolloni (NJ) and Mr. Michael K. Schulist (MI) were both published in a notice of comments published on October 17, 2011 (76 FR 64165). They were both granted exemptions on December 19, 2011 but their names were inadvertently omitted from the Notice of Final Disposition published on that date (76 FR 78718) and they are now included in this notice.

The Agency established the current requirement for diabetes in 1970 because several risk studies indicated that drivers with diabetes had a higher rate of crash involvement than the general population. The diabetes rule provides that “A person is physically qualified to drive a commercial motor vehicle if that person has no established medical history or clinical diagnosis of diabetes mellitus currently requiring insulin for control” (49 CFR 391.41(b)(3)).

FMCSA established its diabetes exemption program, based on the Agency's July 2000 study entitled “A Report to Congress on the Feasibility of a Program to Qualify Individuals with Insulin-Treated Diabetes Mellitus to Operate in Interstate Commerce as Directed by the Transportation Act for the 21st Century.” The report concluded that a safe and practicable protocol to allow some drivers with ITDM to operate CMVs is feasible. The September 3, 2003 (68 FR 52441), Federal Register notice in conjunction with the November 8, 2005 (70 FR 67777), Federal Register notice provides the current protocol for allowing such drivers to operate CMVs in interstate commerce.

These twenty-two applicants have had ITDM over a range of 1 to 23 years. These applicants report no severe hypoglycemic reactions resulting in loss of consciousness or seizure, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning symptoms, in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the past 5 years. In each case, an endocrinologist verified that the driver has demonstrated a willingness to properly monitor and manage his/her diabetes mellitus, received education related to diabetes management, and is on a stable insulin regimen. These drivers report no other disqualifying conditions, including diabetes-related complications. Each meets the vision requirement at 49 CFR 391.41(b)(10).

The qualifications and medical condition of each applicant were stated and discussed in detail in the November 16, 2011, Federal Register notice and they will not be repeated in this notice.

FMCSA did not receive any comments in this proceeding.

Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption from the diabetes requirement in 49 CFR 391.41(b)(3) if the exemption is likely to achieve an equivalent or greater level of safety than would be achieved without the exemption. The exemption allows the applicants to operate CMVs in interstate commerce.

To evaluate the effect of these exemptions on safety, FMCSA considered medical reports about the applicants' ITDM and vision, and reviewed the treating endocrinologists' medical opinion related to the ability of the driver to safely operate a CMV while using insulin.

Consequently, FMCSA finds that in each case exempting these applicants from the diabetes requirement in 49 CFR 391.41(b)(3) is likely to achieve a level of safety equal to that existing without the exemption.

The terms and conditions of the exemption will be provided to the applicants in the exemption document and they include the following: (1) That each individual submit a quarterly monitoring checklist completed by the treating endocrinologist as well as an annual checklist with a comprehensive medical evaluation; (2) that each individual reports within 2 business days of occurrence, all episodes of severe hypoglycemia, significant complications, or inability to manage diabetes; also, any involvement in an accident or any other adverse event in a CMV or personal vehicle, whether or not it is related to an episode of hypoglycemia; (3) that each individual provide a copy of the ophthalmologist's or optometrist's report to the medical examiner at the time of the annual medical examination; and (4) that each individual provide a copy of the annual medical certification to the employer for retention in the driver's qualification file, or keep a copy in his/her driver's qualification file if he/she is self-employed. The driver must also have a copy of the certification when driving, for presentation to a duly authorized Federal, State, or local enforcement official.

Based upon its evaluation of the twenty-two exemption applications, FMCSA exempts, George T. Beard (VA), Gary L. Breitenbach (SC), Matthew J. Cipolloni (NJ), Matthew G. Denisov (NE), Marlin L. Enquist (SD), Steven W. Gerling (IA), Jackie D. Greenlee (MO), Justin W. Jackson (OK), Edward L. Keith (IL), David T. Kylander (MO), Eugene J. Nowicki (MI), Jonathan R. Oskin (PA), Kevin A. Perdue (MD), Michael E. Pleak (IN), Sarah M. Powell (NM), Michael K. Schulist (MI), Christopher C. Stephenson (KS), Richard F. VanPelt (NY), Michael A. Villareal (AZ), Richard L. White (MS), Jon W. Wood (MN) and Paul A. Wright (NY) from the ITDM requirement in 49 CFR 391.41(b)(3), subject to the conditions listed under “Conditions and Requirements” above.

In accordance with 49 U.S.C. 31136(e) and 31315 each exemption will be valid for two years unless revoked earlier by FMCSA. The exemption will be revoked if the following occurs: (1) The person fails to comply with the terms and conditions of the exemption; (2) the exemption has resulted in a lower level of safety than was maintained before it was granted; or (3) continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136(e) and 31315. If the exemption is still effective at the end of the 2-year period, the person may apply to FMCSA for a renewal under procedures in effect at that time.

Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption from the Federal Motor Carrier Safety Regulations for a 2-year period if it finds “such exemption would likely achieve a level of safety that is equivalent to or greater than the level that would be achieved absent such exemption.” The statute also allows the Agency to renew exemptions at the end of the 2-year period. The seventeen individuals listed in this notice have recently requested such an exemption from the diabetes prohibition in 49 CFR 391.41(b)(3) which applies to drivers of CMVs in interstate commerce. Accordingly, the Agency will evaluate the qualifications of each applicant to determine whether granting the exemption will achieve the required level of safety mandated by the statutes.

Mr. Buffkin, age 50, has had ITDM since 2011. His endocrinologist examined him in 2011 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Buffkin understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Buffkin meets the vision requirements of 49 CFR 391.41(b)(10). His optometrist examined him in 2011 and certified that he does not have diabetic retinopathy. He holds a Class A Commercial Driver's License (CDL) from North Carolina.

Mr. Camden, 58, has had ITDM since 2005. His endocrinologist examined him in 2011 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Camden understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Camden meets the vision requirements of 49 CFR 391.41(b)(10). His optometrist examined him in 2011 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Indiana.

Mr. Cox, 53, has had ITDM since 2011. His endocrinologist examined him in 2011 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Cox understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Cox meets the vision requirements of 49 CFR 391.41(b)(10). His optometrist examined him in 2011 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from New York.

Mr. Dingman, 63, has had ITDM since 2001. His endocrinologist examined him in 2011 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Dingman understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Dingman meets the vision requirements of 49 CFR 391.41(b)(10). His optometrist examined him in 2011 and certified that he does not have diabetic retinopathy. He holds a Class R operator's license from Colorado.

Mr. Gilbertson, 34, has had ITDM since 2011. His endocrinologist examined him in 2011 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Gilbertson understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Gilbertson meets the vision requirements of 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2011 and certified that he does not have diabetic retinopathy. He holds a Class B CDL from Wisconsin.

Mr. Gutierrez, 36, has had ITDM since 2009. His endocrinologist examined him in 2011 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Gutierrez understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Gutierrez meets the vision requirements of 49 CFR 391.41(b)(10). His optometrist examined him in 2011 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Oklahoma.

Mr. Hulse, 42, has had ITDM since 2010. His endocrinologist examined him in 2011 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Hulse understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Hulse meets the vision requirements of 49 CFR 391.41(b)(10). His optometrist examined him in 2011 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Kansas.

Mr. Igert, 35, has had ITDM since 2008. His endocrinologist examined him in 2011 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Igert understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Igert meets the vision requirements of 49 CFR 391.41(b)(10). His optometrist examined him in 2011 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Missouri.

Mr. Karvonen, 24, has had ITDM since 1994. His endocrinologist examined him in 2011 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Karvonen understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Karvonen meets the vision requirements of 49 CFR 391.41(b)(10). His optometrist examined him in 2011 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Washington.

Mr. Kruger, 32, has had ITDM since 1993. His endocrinologist examined him in 2011 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Kruger understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Kruger meets the vision requirements of 49 CFR 391.41(b)(10). His optometrist examined him in 2011 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Colorado.

Mr. Lee, 39, has had ITDM since 2010. His endocrinologist examined him in 2011 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Lee understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Lee meets the vision requirements of 49 CFR 391.41(b)(10). His optometrist examined him in 2011 and certified that he does not have diabetic retinopathy. He holds an operator's license from Michigan.

Mr. Morton, 58, has had ITDM since 2011. His endocrinologist examined him in 2011 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Morton understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Morton meets the vision requirements of 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2011 and certified that he has stable nonproliferative diabetic retinopathy. He holds a Class A CDL from Virginia.

Mr. Norstebon, 54, has had ITDM since 2005. His endocrinologist examined him in 2011 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Norstebon understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Norstebon meets the vision requirements of 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2011 and certified that he has stable nonproliferative diabetic retinopathy. He holds a Class D operator's license from North Dakota.

Mr. Olbinski, 58, has had ITDM since 2006. His endocrinologist examined him in 2011 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Olbinski understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Olbinski meets the vision requirements of 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2011 and certified that he does not have diabetic retinopathy. He holds a Class B CDL from Illinois.

Mr. Risley, 50, has had ITDM since 2010. His endocrinologist examined him in 2011 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Risley understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Risley meets the vision requirements of 49 CFR 391.41(b)(10). His optometrist examined him in 2011 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Indiana.

Mr. Schmenk, 54, has had ITDM since 2009. His endocrinologist examined him in 2011 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Schmenk understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Schmenk meets the vision requirements of 49 CFR 391.41(b)(10). His optometrist examined him in 2011 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Ohio.

Mr. Westbrooks, 60, has had ITDM since 2011. His endocrinologist examined him in 2011 and certified that he has had no severe hypoglycemic reactions resulting in loss of consciousness, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the last 5 years. His endocrinologist certifies that Mr. Westbrooks understands diabetes management and monitoring, has stable control of his diabetes using insulin, and is able to drive a CMV safely. Mr. Westbrooks meets the vision requirements of 49 CFR 391.41(b)(10). His opthalmologist examined him in 2011 and certified that he does not have diabetic retinopathy. He holds a Class A CDL from Texas.

In accordance with 49 U.S.C. 31136(e) and 31315, FMCSA requests public comment from all interested persons on the exemption petitions described in this notice. We will consider all comments received before the close of business on the closing date indicated in the date section of the notice.

FMCSA notes that section 4129 of the Safe, Accountable, Flexible and Efficient Transportation Equity Act: A Legacy for Users requires the Secretary to revise its diabetes exemption program established on September 3, 2003 (68 FR 52441). 1 The revision must provide for individual assessment of drivers with diabetes mellitus, and be consistent with the criteria described in section 4018 of the Transportation Equity Act for the 21st Century (49 U.S.C. 31305).

Section 4129 requires: (1) Elimination of the requirement for 3 years of experience operating CMVs while being treated with insulin; and (2) establishment of a specified minimum period of insulin use to demonstrate stable control of diabetes before being allowed to operate a CMV.

In response to section 4129, FMCSA made immediate revisions to the diabetes exemption program established by the September 3, 2003 notice. FMCSA discontinued use of the 3-year driving experience and fulfilled the requirements of section 4129 while continuing to ensure that operation of CMVs by drivers with ITDM will achieve the requisite level of safety required of all exemptions granted under 49 U.S.C. 31136(e).

Section 4129(d) also directed FMCSA to ensure that drivers of CMVs with ITDM are not held to a higher standard than other drivers, with the exception of limited operating, monitoring and medical requirements that are deemed medically necessary.

The FMCSA concluded that all of the operating, monitoring and medical requirements set out in the September 3, 2003 notice, except as modified, were in compliance with section 4129(d). Therefore, all of the requirements set out in the September 3, 2003 notice, except as modified by the notice in the Federal Register on November 8, 2005 (70 FR 67777), remain in effect.

You may see all the comments online through the Federal Document Management System (FDMS) at: http://www.regulations.gov.

Docket: For access to the docket to read background documents or comments, go to http://www.regulations.gov and/or Room W12-140 on the ground level of the West Building, 1200 New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

Privacy Act: Anyone may search the electronic form of all comments received into any of DOT's dockets by the name of the individual submitting the comment (or of the person signing the comment, if submitted on behalf of an association, business, labor union, or other entity). You may review DOT's Privacy Act Statement for the Federal Docket Management System (FDMS) published in the Federal Register on January 17, 2008 (73 FR 3316), or you may visit http://edocket.access.gpo.gov/2008/pdf/E8-785.pdf.

On November 21, 2011, FMCSA published a notice of receipt of Federal diabetes exemption applications from eighteen individuals and requested comments from the public (76 FR 72031). The public comment period closed on December 21, 2011, and no comments were received.

FMCSA has evaluated the eligibility of the eighteen applicants and determined that granting the exemptions to these individuals would achieve a level of safety equivalent to or greater than the level that would be achieved by complying with the current regulation 49 CFR 391.41(b)(3).

The Agency established the current requirement for diabetes in 1970 because several risk studies indicated that drivers with diabetes had a higher rate of crash involvement than the general population. The diabetes rule provides that “A person is physically qualified to drive a commercial motor vehicle if that person has no established medical history or clinical diagnosis of diabetes mellitus currently requiring insulin for control” (49 CFR 391.41(b)(3)).

FMCSA established its diabetes exemption program, based on the Agency's July 2000 study entitled “A Report to Congress on the Feasibility of a Program to Qualify Individuals with Insulin-Treated Diabetes Mellitus to Operate in Interstate Commerce as Directed by the Transportation Act for the 21st Century.” The report concluded that a safe and practicable protocol to allow some drivers with ITDM to operate CMVs is feasible. The September 3, 2003 (68 FR 52441), Federal Register notice in conjunction with the November 8, 2005 (70 FR 67777), Federal Register notice provides the current protocol for allowing such drivers to operate CMVs in interstate commerce.

These eighteen applicants have had ITDM over a range of 1 to 31 years. These applicants report no severe hypoglycemic reactions resulting in loss of consciousness or seizure, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning symptoms, in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the past 5 years. In each case, an endocrinologist verified that the driver has demonstrated a willingness to properly monitor and manage his/her diabetes mellitus, received education related to diabetes management, and is on a stable insulin regimen. These drivers report no other disqualifying conditions, including diabetes-related complications. Each meets the vision requirement at 49 CFR 391.41(b)(10).

The qualifications and medical condition of each applicant were stated and discussed in detail in the November 21, 2011, Federal Register notice and they will not be repeated in this notice.

FMCSA received two comments in this proceeding. The comments were considered and discussed below.

Laura J. Krol of the Pennsylvania Department of Transportation has reviewed the driving histories of Gerald R. Curran, Shawn K. Fleming and Kenneth B. Pratt and supports granting them waivers.

Michael R. Simmons of Hoenwald, Tennessee expressed his disappointment that he cannot obtain a Federal waiver, as he is an intrastate driver.

In response to this comment, FMCSA's exemption process supports drivers with ITDM who seek to operate in interstate commerce.

Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption from the diabetes requirement in 49 CFR 391.41(b)(3) if the exemption is likely to achieve an equivalent or greater level of safety than would be achieved without the exemption. The exemption allows the applicants to operate CMVs in interstate commerce.

To evaluate the effect of these exemptions on safety, FMCSA considered medical reports about the applicants' ITDM and vision, and reviewed the treating endocrinologists' medical opinion related to the ability of the driver to safely operate a CMV while using insulin.

Consequently, FMCSA finds that in each case exempting these applicants from the diabetes requirement in 49 CFR 391.41(b)(3) is likely to achieve a level of safety equal to that existing without the exemption.

The terms and conditions of the exemption will be provided to the applicants in the exemption document and they include the following: (1) That each individual submit a quarterly monitoring checklist completed by the treating endocrinologist as well as an annual checklist with a comprehensive medical evaluation; (2) that each individual reports within 2 business days of occurrence, all episodes of severe hypoglycemia, significant complications, or inability to manage diabetes; also, any involvement in an accident or any other adverse event in a CMV or personal vehicle, whether or not it is related to an episode of hypoglycemia; (3) that each individual provide a copy of the ophthalmologist's or optometrist's report to the medical examiner at the time of the annual medical examination; and (4) that each individual provide a copy of the annual medical certification to the employer for retention in the driver's qualification file, or keep a copy in his/her driver's qualification file if he/she is self-employed. The driver must also have a copy of the certification when driving, for presentation to a duly authorized Federal, State, or local enforcement official.

Based upon its evaluation of the eighteen exemption applications, FMCSA exempts, Mark A. Aspden (MA), Rodney C. Backus (NY), Peter A. Breister (WI), Gerald R. Curran (PA), Shawn K. Fleming (PA), Daniel C. French (VA), Garry W. Garrison (WI), Gregory L. Horton (GA), Anthony B. Jones (WI), Jay T. Kirschmann (ND), Patrick G. Landers (NY), Paul J. Marshall (UT), Robert J. Pierce (MI), Kenneth B. Pratt (PA), James G. Rahn (IA), Ward A. Stone (WI), Todd J. Timmerman (WI) and James L. Weinert (OH) from the ITDM requirement in 49 CFR 391.41(b)(3), subject to the conditions listed under “Conditions and Requirements” above.

In accordance with 49 U.S.C. 31136(e) and 31315 each exemption will be valid for two years unless revoked earlier by FMCSA. The exemption will be revoked if the following occurs: (1) The person fails to comply with the terms and conditions of the exemption; (2) the exemption has resulted in a lower level of safety than was maintained before it was granted; or (3) continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136(e) and 31315. If the exemption is still effective at the end of the 2-year period, the person may apply to FMCSA for a renewal under procedures in effect at that time.

Background

Under 49 U.S.C. 31315 and 31136(e), FMCSA may grant an exemption for a 2-year period if it finds “such exemption would likely achieve a level of safety that is equivalent to or greater than the level that would be achieved absent such exemption.” The statutes also allow the Agency to renew exemptions at the end of the 2-year period. The fifteen individuals listed in this notice have recently requested an exemption from the epilepsy prohibition in 49 CFR 391.41(b)(8), which applies to drivers who operate CMVs as defined in 49 CFR 390.5, in interstate commerce. Section 391.41(b)(8) states that a person is physically qualified to drive a commercial motor vehicle if that person has no established medical history or clinical diagnosis of epilepsy or any other condition which is likely to cause the loss of consciousness or any loss of ability to control a commercial motor vehicle.

FMCSA provides medical advisory criteria for use by medical examiners in determining whether drivers with certain medical conditions should be certified to operate commercial motor vehicles in intrastate commerce. The advisory criteria indicates that if an individual has had a sudden episode of a non-epileptic seizure or loss of consciousness of unknown cause which did not require anti-seizure medication, the decision whether that person's condition is likely to cause the loss of consciousness or loss of ability to control a CMV should be made on an individual basis by the medical examiner in consultation with the treating physician. Before certification is considered, it is suggested that a 6-month waiting period elapse from the time of the episode. Following the waiting period, it is suggested that the individual have a complete neurological examination. If the results of the examination are negative and anti-seizure medication is not required, then the driver may be qualified.

In those individual cases where a driver had a seizure or an episode of loss of consciousness that resulted from a known medical condition ( e.g., drug reaction, high temperature, acute infectious disease, dehydration, or acute metabolic disturbance), certification should be deferred until the driver has fully recovered from that condition, has no existing residual complications, and is not taking anti-seizure medication.

Drivers with a history of epilepsy/seizures off anti-seizure medication and seizure-free for 10 years may be qualified to operate a CMV in interstate commerce. Interstate drivers with a history of a single unprovoked seizure may be qualified to drive a CMV in interstate commerce if seizure-free and off anti-seizure medication for a 5-year period or more.

Mr. Boddie is a 52-year-old driver in the state of Pennsylvania. He had a single seizure event in March 2011 that his physician believes was the result of uncontrolled hypertension. He was placed on anti-seizure medication and anti-hypertensive medications in March 2011 and discontinued use in August of the same year. He states his blood pressure is under control and he continues to take his anti-hypertensive medication.

Mr. Corvasce is a 40-year-old CMV driver form the state of New York. He was diagnosed with a brain tumor and had surgery to remove it successfully in January 2010. He was put on anti-seizure medication as a precaution after the surgery. His last seizure was December 2009. He remains on the same anti-seizure medication, with the dosage and frequency remaining the same for 2 years. His physician states he that his condition is stable. He would like to operate tractor trailer trucks in interstate commerce.

Mr. D'Angelo is a 55-year-old CMV driver in the state of New York. He had a single seizure at the age of 14 in 1970. He has remained on anti-seizure medication since that time. The dosage and frequency of the anti-seizure medications have remained the same since 2002. His doctor states that his condition would not interfere with his ability to safely operate a commercial motor vehicle.

Mr. Drake is a 37-year-old CMV driver in the state of Delaware. Mr. Drake had surgery in July 2009 to remove the part of his brain that was the focus of his seizures. His last seizure was July 2009. He is on the same anti-seizure medication, with the dosage and frequency remaining the same for over 10 years. His Neurologist states that there should be no restriction preventing him from having a CDL and that would likely obtain a level of safety that is equivalent or greater than other drivers.

Mr. Godbey is a 52-year-old CMV driver in the state of Ohio. He was diagnosed with complex partial epilepsy in 2006. His last seizure was in 2006. He takes anti-seizure medication. The dosage and frequency of the anti-seizure medications have remained the same for 5 years. He has a good safety record in relation to his personal driving record and his physician states he is in excellent health.

Mr. Gutermann is a 45-year-old driver from the state of Wisconsin. He previously held a CDL and drove a truck for Mobil Oil. He was involved in a non-job related motor vehicle accident and sustained a traumatic head injury. He was prescribed anti-seizure medication and had two seizures in 1998 while physicians were adjusting his medication. His last seizure was July 1998. His physician states he is taking the same anti-seizure medication, with the dosage and frequency remaining the same for 13 years. The physician states that he feels it is appropriate to allow him to be recertified to drive commercial vehicles.

Mr. Hogan is a 57-year-old CMV driver in the state of Wisconsin. Mr. Hogan had a single seizure event in February 2010 and has been on the same anti-seizure medication since that time, with the dosage and frequency remaining the same for 22 months. His last seizure was November 2009. He follows up regularly with his physician and his blood levels are in a therapeutic range. His physician states that he believes that in granting Mr. Hogan the exemption, he would maintain the same level of safety as other CMV drivers.

Mr. Hyster is a 22-year-old CMV driver in the state of Ohio. Mr. Hyster was diagnosed with epilepsy in 2005 and placed on anti-seizure medication. His last seizure was in January 2009, after being told to stop his medication by previous physician. He is again on anti-seizure medication. The dosage and frequency of the anti-seizure medication has remained the same for 23 months. His physician states that he believes that Mr. Hyster will likely achieve a level of safety expected of drivers as long as he remains on medication.

Mr. Keitzman is a 49-year-old CMV driver in the state of Wisconsin. In December 2007 he underwent surgery to remove a right parietal vascular malformation. His physician states that this brain abnormality was the cause of his seizures. He has been on the same anti-seizure medications with the dosage and frequency remaining the same since October 2008. His last seizure was October 2008. His physician states that he is neurologically normal. His current employer states that he has been an intrastate tractor semi-trailer driver for them since 1991 and has proven to be a safe, competent, and conscientious driver.

Mr. Kogut is a 53-year-old CMV driver in the state of North Carolina. He was involved in a motor vehicle accident in 1982 and sustained a head injury. Following the accident, he had a single seizure. He has taken the same anti-seizure medication for more than 29 years with no change in dosage or frequency of use. His physician states that he feels that Mr. Kogut should be allowed to drive CMVs.

Mr. McLain is 47-year old CMV driver in the state of Maine. He had a nighttime seizure-like episode in August 2010. He was diagnosed subsequently with AVM (Arteriovenous Malformation), a brain congenital condition. He underwent surgery to remove the defect and has had no further seizures or seizure-like episodes. His last seizure was in August 2010. He was given anti-seizure medication following the operation and has been off the medication since October 2010. He remains asymptomatic and his physician states she is in favor of allowing him to drive without restrictions.

Mr. McNeal is a 49-year-old driver in the state of Indiana. In 2007, he had a single seizure event and was diagnosed with a brain tumor. He had the tumor removed successfully and his last seizure was May 2007. He is taking anti-seizure medication, with the dosage and frequency for over 4 years. He has had an electro-encephalogram (EEG) in 2009 that showed no epileptiform activity and an Magnets Imaging Resonance (MRI) in 2010 showed no evidence of tumor recurrence. His physician states that although there is no way to guarantee his never having another seizure, neurological examination currently shows no deficits which would impair his safe operation of a motor vehicle.

Mr. Reiker is a 52-year-old driver who drives in the state of Illinois. Mr. Reiker was diagnosed with a brain tumor in December 2009 following a single seizure event in November 2009. He had surgery in March 2010 to remove the tumor and has been given anti-seizure medication following the surgery. The dosage and frequency of the anti-seizure medication has remained the same for more than 2 years. His last seizure was December 2009. Three subsequent MRIs indicate no tumor re-growth. His physician states that, in his opinion, at this time Mr. Reiker's driving safety is equivalent to other CMV drivers.

Mr. Smith is a 51-year-old CMV driver in the state of California. He had a single episode of loss of consciousness in August 2010. He is taking the same anti-seizure medication with the dosage and frequency remaining the same for 16 months. His last seizure was August 2010. He is under the regular care of a neurologist, who states he is stable and doing very well. He states further that Mr. Smith is likely to achieve a level of safety that is equivalent or greater than the level of any other person to drive. He would be driving a semi truck and seeks to work five days on and then two days off.

Ms. Woskie is a 41-year-old Class B bus driver in the state of Massachusetts. She was diagnosed with a Cavernoma, a brain malformation, in October 2010, causing her to have three seizures within one month. Surgery was performed to remove the congenital defect and she was placed on anti-seizure medication, which was discontinued in November 2011. She would like to begin driving a bus again.

In accordance with 49 U.S.C. 31315 and 31136(e), FMCSA requests public comment from all interested persons on the exemption applications described in this notice. We will consider all comments received before the close of business on the closing date indicated earlier in the notice.

Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption from the Federal Motor Carrier Safety Regulations for a 2-year period if it finds “such exemption would likely achieve a level of safety that is equivalent to or greater than the level that would be achieved absent such exemption.” FMCSA can renew exemptions at the end of each 2-year period. The twelve individuals listed in this notice have each requested such an exemption from the vision requirement in 49 CFR 391.41(b)(10) which applies to drivers of CMVs in interstate commerce. Accordingly, the Agency will evaluate the qualifications of each applicant to determine whether granting an exemption will achieve the required level of safety mandated by statute.

Mr. Amaya, age 36, has had amblyopia in his left eye since birth. The best corrected visual acuity in his right eye is 20/15 and in his left eye, 20/200. Following an examination in 2011, his optometrist noted, “In my medical opinion, Rene Amaya has sufficient vision to perform the driving tasks required to operate a commercial vehicle.” Mr. Amaya reported that he has driven straight trucks for 2 years, accumulating 78,000 miles and tractor-trailer combinations for 2½ years, accumulating 102,500 miles. He holds a Class A Commercial Driver's License (CDL) from New Mexico. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.

Mr. Cline, 32, has had amblyopia in his left eye since childhood. The best corrected visual acuity in his right eye is 20/20 and in his left eye, 20/60. Following an examination in 2011, his optometrist noted, “In my medical opinion, with his vision correction, his vision allows him to perform commercial driving tasks.” Mr. Cline reported that he has driven straight trucks for 3 1/2 ; years, accumulating 88,000 miles and tractor-trailer combinations for 3 years, accumulating 18,000 miles. He holds a Class A CDL from North Carolina. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.

Mr. Judd, 49, has had amblyopia in his left eye since birth. The best corrected visual acuity in his right eye is 20/20 and in his left eye, 20/200. Following an examination in 2011, his optometrist noted, “It is my opinion that Mr. Judd has sufficient vision to perform driving tasks in a commercial vehicle.” Mr. Judd reported that he has driven straight trucks for 9 years, accumulating 135,000 miles. He holds an operator's license from Indiana. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.

Mr. Lawson, 50, has had amblyopia in his left eye since birth. The best corrected visual acuity in his right eye is 20/20 and in his left eye, 20/400. Following an examination in 2011, his optometrist noted, “I see no visual reason that Mr. Lawson would not be able to continue driving commercially (as he has for many years).”

Mr. Lawson reported that he has driven straight trucks for 10 years, accumulating 21 million miles and tractor-trailer combinations for 15 years, accumulating 577,000 miles. He holds a Class A CDL from North Carolina. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.

Mr. Nelson, 42, has had keratoconus in his left eye since 2002. The best corrected visual acuity in his right eye is 20/20 and in his left eye, 20/100. Following an examination in 2011, his optometrist noted, “This patient has normal color vision and has sufficient vision to operate a motor vehicle commercial or otherwise.” Mr. Nelson reported that he has driven straight trucks for 20 years, accumulating 500,000 miles and tractor-trailer combinations for 20 years, accumulating 400,000 miles. He holds a Class A CDL from North Carolina. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.

Mr. Nubert, 55, has had reduced vision in his right eye due to a birth defect. The best corrected visual acuity in his right eye is 20/400 and in his left eye, 20/20. Following an examination in 2011, his optometrist noted, “I feel that he does have sufficient vision to perform the driving tasks to operate a commercial vehicle.”

Mr. Nubert reported that he has driven straight trucks for 26 years, accumulating 572,000 miles and tractor-trailer combinations for 8 years, accumulating 240,000 miles. He holds a Class A CDL from Ohio. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.

Ms. Payne, 43, has had amblyopia in her left eye since birth. The best corrected visual acuity in her right eye is 20/20 and in her left eye, 20/70. Following an examination in 2011, her optometrist noted, “Based upon my findings and medical expertise, I, W.E. Robinson, Jr., hereby certify Terri D. Payne to be visually able to safely operate a commercial motor vehicle.” Ms. Payne reported that she has driven straight trucks for 12 years, accumulating 57,600 miles. She holds a Class D operator's license from Kentucky. Her driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.

Mr. Reese, 46, has had amblyopia in his right eye since childhood. The best corrected visual acuity in his right eye is 20/400 and in his left eye, 20/20. Following an examination in 2011, his optometrist noted, “In my opinion, you have sufficient vision to perform the driving taks required to operate a commercial vehicle.” Mr. Reese reported that he has driven tractor-trailer combinations for 15 years, accumulating 61,500 miles. He holds a Class A CDL from Georgia. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.

Mr. Reineke, 60, has had macular scarring in his left eye due to a traumatic injury sustained in 1981. The best corrected visual acuity his right eye is 20/25 and in his left eye is finger-count vision. Following an examination in 2011, his ophthalmologist noted, “I believe Mr. Reineke to have sufficient vision to operate a commercial vehicle.”

Mr. Reineke reported that he has driven straight trucks for 6 years, accumulating 18,000 miles and tractor-trailer combinations for 4 years, accumulating 60,000 miles. He holds a Class A CDL from New Mexico. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.

Mr. Reynolds, 51, has had retinal vein occlusion in his right eye for the past five years. The best corrected visual acuity in his right eye is 20/400 and in his left eye, 20/20. Following an examination in 2011, his ophthalmologist noted, “Due to the fact your vision is stable, I believe you have sufficient vision to perform you job as a commercial vehicle operator.” Mr. Reynolds reported that he has driven straight trucks for 23 years, accumulating 3.4 million miles and tractor-trailer combinations for 5 years accumulating 1 million miles. He holds a Class D operator's license from Ohio. His driving record for the last 3 years shows no crashes and no convictions in a CMV.

Mr. Ventimiglia, 46, has had reduced vision in his right eye since birth. The best corrected visual acuity in his right eye is count-finger vision and in his left eye, 20/25. Following an examination in 2011, his optometrist noted, “I certify that Larry has sufficient vision to perform the driving tasks required to operate a commercial vehicle.” Mr. Ventimiglia reported that he has driven straight trucks for less than 3 years, accumulating about 31,200 miles. He holds a Class A CDL from Nevada. His driving record for the last 3 years shows no crashes and no convictions in a CMV.

Mr. Wyatt, 34, has had a central corneal scar in his left eye since childhood. The best corrected visual acuity in his right eye is 20/20 and in his left eye, 20/100. Following an examination in 2011, his optometrist noted, “Patient can recognize traffic control colors and has sufficient vision to operate a commercial vehicle.” Mr. Wyatt reported that he has driven straight trucks for 2 1/2 years, accumulating 137,500 miles and tractor-trailer combinations for 2 1/2 years, accumulating 137,500 miles. He holds a Class A CDL from North Carolina. His driving record for the last 3 years shows no crashes and no convictions for moving violations in a CMV.

In accordance with 49 U.S.C. 31136(e) and 31315, FMCSA requests public comment from all interested persons on the exemption petitions described in this notice. The Agency will consider all comments received before the close of business February 6, 2012. Comments will be available for examination in the docket at the location listed under the ADDRESSES section of this notice. The Agency will file comments received after the comment closing date in the public docket, and will consider them to the extent practicable.

In addition to late comments, FMCSA will also continue to file, in the public docket, relevant information that becomes available after the comment closing date. Interested persons should monitor the public docket for new material.

You may see all the comments online through the Federal Document Management System (FDMS) at http://www.regulations.gov.

Docket: For access to the docket to read background documents or comments, go to http://www.regulations.gov at any time or Room W12-140 on the ground level of the West Building, 1200 New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The FDMS is available 24 hours each day, 365 days each year. If you want acknowledgment that we received your comments, please include a self-addressed, stamped envelope or postcard or print the acknowledgement page that appears after submitting comments on-line.

Privacy Act: Anyone may search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or of the person signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's Privacy Act Statement for the FDMS published in the Federal Register on January 17, 2008 (73 FR 3316), or you may visit http://edocket.access.gpo.gov/2008/pdf/E8-785.pdf.

On November 10, 2011, FMCSA published a notice of receipt of exemption applications from certain individuals, and requested comments from the public (76 FR 70213). That notice listed seven applicants' case histories. The seven individuals applied for exemptions from the vision requirement in 49 CFR 391.41(b)(10), for drivers who operate CMVs in interstate commerce.

Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption for a 2-year period if it finds “such exemption would likely achieve a level of safety that is equivalent to or greater than the level that would be achieved absent such exemption.” The statute also allows the Agency to renew exemptions at the end of the 2-year period. Accordingly, FMCSA has evaluated the seven applications on their merits and made a determination to grant exemptions to each of them.

The vision requirement in the FMCSRs provides:

A person is physically qualified to drive a commercial motor vehicle if that person has distant visual acuity of at least 20/40 (Snellen) in each eye without corrective lenses or visual acuity separately corrected to 20/40 (Snellen) or better with corrective lenses, distant binocular acuity of a least 20/40 (Snellen) in both eyes with or without corrective lenses, field of vision of at least 70° in the horizontal meridian in each eye, and the ability to recognize the colors of traffic signals and devices showing requirement red, green, and amber (49 CFR 391.41(b)(10)).

FMCSA recognizes that some drivers do not meet the vision requirement, but have adapted their driving to accommodate their vision limitation and demonstrated their ability to drive safely. The seven exemption applicants listed in this notice are in this category. They are unable to meet the vision requirement in one eye for various reasons, including retinopathy, prosthesis, central scaring, amblyopia, melanoma and completely detached retina. In most cases, their eye conditions were not recently developed. Three of the applicants were either born with their vision impairments or have had them since childhood. The four individuals sustained their vision conditions as an adult and have had them for a period of five to twenty seven years.

Although each applicant has one eye which does not meet the vision requirement in 49 CFR 391.41(b)(10), each has at least 20/40 corrected vision in the other eye, and in a doctor's opinion, has sufficient vision to perform all the tasks necessary to operate a CMV. Doctors' opinions are supported by the applicants' possession of valid commercial driver's licenses (CDLs) or non-CDLs to operate CMVs. Before issuing CDLs, States subject drivers to knowledge and skills tests designed to evaluate their qualifications to operate a CMV.

All of these applicants satisfied the testing requirements for their State of residence. By meeting State licensing requirements, the applicants demonstrated their ability to operate a commercial vehicle, with their limited vision, to the satisfaction of the State.

While possessing a valid CDL or non-CDL, these seven drivers have been authorized to drive a CMV in intrastate commerce, even though their vision disqualified them from driving in interstate commerce. They have driven CMVs with their limited vision for careers ranging from 5 to 50 years. In the past 3 years, none of the drivers were involved in crashes, and one was convicted of a moving violation in a CMV.

The qualifications, experience, and medical condition of each applicant were stated and discussed in detail in the November 10, 2011 notice (76 FR 70213).

Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption from the vision requirement in 49 CFR 391.41(b)(10) if the exemption is likely to achieve an equivalent or greater level of safety than would be achieved without the exemption. Without the exemption, applicants will continue to be restricted to intrastate driving. With the exemption, applicants can drive in interstate commerce. Thus, our analysis focuses on whether an equal or greater level of safety is likely to be achieved by permitting each of these drivers to drive in interstate commerce as opposed to restricting him or her to driving in intrastate commerce.

To evaluate the effect of these exemptions on safety, FMCSA considered the medical reports about the applicants' vision as well as their driving records and experience with the vision deficiency.

To qualify for an exemption from the vision requirement, FMCSA requires a person to present verifiable evidence that he/she has driven a commercial vehicle safely with the vision deficiency for the past 3 years. Recent driving performance is especially important in evaluating future safety, according to several research studies designed to correlate past and future driving performance. Results of these studies support the principle that the best predictor of future performance by a driver is his/her past record of crashes and traffic violations. Copies of the studies may be found at Docket Number FMCSA-1998-3637.

We believe we can properly apply the principle to monocular drivers, because data from the Federal Highway Administration's (FHWA) former waiver study program clearly demonstrate the driving performance of experienced monocular drivers in the program is better than that of all CMV drivers collectively (See 61 FR 13338, 13345, March 26, 1996). The fact that experienced monocular drivers demonstrated safe driving records in the waiver program supports a conclusion that other monocular drivers, meeting the same qualifying conditions as those required by the waiver program, are also likely to have adapted to their vision deficiency and will continue to operate safely.

The first major research correlating past and future performance was done in England by Greenwood and Yule in 1920. Subsequent studies, building on that model, concluded that crash rates for the same individual exposed to certain risks for two different time periods vary only slightly (See Bates and Neyman, University of California Publications in Statistics, April 1952). Other studies demonstrated theories of predicting crash proneness from crash history coupled with other factors. These factors—such as age, sex, geographic location, mileage driven and conviction history—are used every day by insurance companies and motor vehicle bureaus to predict the probability of an individual experiencing future crashes (See Weber, Donald C., “Accident Rate Potential: An Application of Multiple Regression Analysis of a Poisson Process,” Journal of American Statistical Association, June 1971). A 1964 California Driver Record Study prepared by the California Department of Motor Vehicles concluded that the best overall crash predictor for both concurrent and nonconcurrent events is the number of single convictions. This study used 3 consecutive years of data, comparing the experiences of drivers in the first 2 years with their experiences in the final year.

Applying principles from these studies to the past 3-year record of the seven applicants, none of the applicants were involved in crashes, and one was convicted of a moving violation in a CMV; failure to stop at a traffic signal. All the applicants achieved a record of safety while driving with their vision impairment, demonstrating the likelihood that they have adapted their driving skills to accommodate their condition. As the applicants' ample driving histories with their vision deficiencies are good predictors of future performance, FMCSA concludes their ability to drive safely can be projected into the future.

We believe that the applicants' intrastate driving experience and history provide an adequate basis for predicting their ability to drive safely in interstate commerce. Intrastate driving, like interstate operations, involves substantial driving on highways on the interstate system and on other roads built to interstate standards. Moreover, driving in congested urban areas exposes the driver to more pedestrian and vehicular traffic than exists on interstate highways. Faster reaction to traffic and traffic signals is generally required because distances between them are more compact. These conditions tax visual capacity and driver response just as intensely as interstate driving conditions. The veteran drivers in this proceeding have operated CMVs safely under those conditions for at least 3 years, most for much longer. Their experience and driving records lead us to believe that each applicant is capable of operating in interstate commerce as safely as he/she has been performing in intrastate commerce. Consequently, FMCSA finds that exempting these applicants from the vision requirement in 49 CFR 391.41(b)(10) is likely to achieve a level of safety equal to that existing without the exemption. For this reason, the Agency is granting the exemptions for the 2-year period allowed by 49 U.S.C. 31136(e) and 31315 to the seven applicants listed in the notice of November 10, 2011 (76 FR 70213).

We recognize that the vision of an applicant may change and affect his/her ability to operate a CMV as safely as in the past. As a condition of the exemption, therefore, FMCSA will impose requirements on the seven individuals consistent with the grandfathering provisions applied to drivers who participated in the Agency's vision waiver program.

Those requirements are found at 49 CFR 391.64(b) and include the following:

(1) That each individual be physically examined every year (a) by an ophthalmologist or optometrist who attests that the vision in the better eye continues to meet the requirement in 49 CFR 391.41(b)(10), and (b) by a medical examiner who attests that the individual is otherwise physically qualified under 49 CFR 391.41; (2) that each individual provide a copy of the ophthalmologist's or optometrist's report to the medical examiner at the time of the annual medical examination; and (3) that each individual provide a copy of the annual medical certification to the employer for retention in the driver's qualification file, or keep a copy in his/her driver's qualification file if he/she is self-employed. The driver must also have a copy of the certification when driving, for presentation to a duly authorized Federal, State, or local enforcement official.

FMCSA received no comments in this proceeding.

Based upon its evaluation of the seven exemption applications, FMCSA exempts Adam O. Carson (MS), Michael P. Eisenreich (MN), Carlton G. Frank (FL), Roger W. Hammock (AL), John T. Thor (MN), George Ulferts (IA) and Donald F. Wilton (CA) from the vision requirement in 49 CFR 391.41(b)(10), subject to the requirements cited above (49 CFR 391.64(b)).

In accordance with 49 U.S.C. 31136(e) and 31315, each exemption will be valid for 2 years unless revoked earlier by FMCSA. The exemption will be revoked if: (1) The person fails to comply with the terms and conditions of the exemption; (2) the exemption has resulted in a lower level of safety than was maintained before it was granted; or (3) continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136 and 31315.

If the exemption is still effective at the end of the 2-year period, the person may apply to FMCSA for a renewal under procedures in effect at that time.