Federal Register / Vol. 76, No. 1 / Monday, January 3, 2011 / Notices 83 

20Administrative Conference of the United 

States, Recommendation No. 93–4, Improving the 

Environment for Agency Rulemaking (1993). 21Administrative Conference of the United 

States, Recommendation No. 84–5, Preemption of 

State Regulation by Federal Agencies (1984). 

22Office of Info. & Regulatory Affairs, Circular A– 

4 on Regulatory Analysis (2003), available at http:// 

www.whitehouse.gov/sites/default/files/omb/assets/ 

regulatory_matters_pdf/a-4.pdf (last visited October 

15, 2010). 

Recommendation aimed at reducing 

‘‘ossification’’ of the regulatory process.20 The 

Conference recognizes, however, that certain 

principles, including those embodied in the 

preemption provisions of Executive Order 

13132, are sufficiently important to warrant 

systematic consideration by agencies 

engaging in rulemaking. The following 

Recommendation has accordingly been 

structured both to encourage compliance 

with existing executive directives and 

increase the efficiency of internal agency 

processes designed to ensure such 

compliance. 

Recommendation 

1. The Conference reiterates its previous, 

related recommendation that ‘‘Congress 

should address foreseeable preemption issues 

clearly and explicitly when it enacts a statute 

affecting regulation or deregulation of an area 

of conduct.’’ 21

Internal Procedures for Compliance With the 

Preemption Provisions of Executive Order 

13132 

2. Agencies that engage in rulemaking 

proceedings that may have preemptive effect 

on State law should have internal written 

guidance to ensure compliance with the 

preemption provisions of Executive Order 

13132, which should describe: 

a. How the agency determines the need for 

any preemption; 

b. How the agency consults with State and 

local officials concerning preemption; and 

c. How the agency otherwise ensures 

compliance with the preemption provisions 

of Executive Order 13132. 

3. Agencies should post their internal 

guidance for compliance with the 

preemption provisions of Executive Order 

13132 on the Internet or otherwise make 

publicly available the information contained 

therein. 

4. Agencies should have an oversight 

procedure to improve agency procedures for 

implementing the preemption provisions of 

Executive Order 13132. This procedure 

should include an internal process for 

evaluating the authority and basis asserted in 

support of a preemptive rulemaking. The 

agency should provide a reasoned basis, with 

such evidence as may be appropriate, that 

supports its preemption conclusion. 

Updated Policies To Ensure Timely 

Consultation With State and Local Interests 

Concerning Preemption 

5. Agencies should have a consultation 

process that contains elements such as the 

following: 

a. Agencies should use an updated contact 

list for representatives of State interests, 

including but not limited to the ‘‘Big Seven.’’ 

The Administrative Conference will maintain 

such a list for use by agencies. 

b. Agencies should maintain some form of 

regularized personal contact in order to build 

relationships with representatives of State 

interests. 

c. Agencies should disclose to the public 

when they meet with the representatives of 

State interests in the course of rulemaking 

proceedings that may preempt State law. The 

disclosure should include the identity of the 

organization(s) or institution(s) that 

participate and the subject matter of the 

discussion. 

d. Agencies should reach out to 

appropriate State and local officials early in 

the process when they are considering 

preemptive rules. Such outreach should, to 

the extent practicable, precede issuance of 

the notice of proposed rulemaking. 

6. Agencies should establish contact with 

organizations and State and local regulatory 

bodies and officials that have relevant 

substantive expertise or jurisdiction. 

7. Agencies should adopt, as one 

component of their notice practice, a 

procedure for notifying State attorneys 

general when they are considering rules that 

may have preemptive effect. This may be 

achieved via direct communication with 

State attorneys general and by contacting an 

appropriate representative organization such 

as, for example, the National Association of 

Attorneys General. 

Actions by OIRA/OMB To Improve the 

Process 

8. OIRA/OMB should request agencies to 

post on their open government Web sites a 

summary of the agencies’ responses to the 

directive contained in the Preemption 

Memorandum to conduct a 10-year 

retrospective review of preemptive 

rulemaking. 

9. OIRA/OMB should update its 

Federalism Guidelines with respect to 

preemption. 

10. OIRA should include reference to 

Executive Order 13132 in Circular A–4.22

[FR Doc. 2010–32985 Filed 12–30–10; 8:45 am] 

BILLING CODE 6110–01–P 

DEPARTMENT OF AGRICULTURE 

Animal and Plant Health Inspection 

Service 

[Docket No. APHIS–2010–0041] 

Pioneer Hi-Bred International, Inc.; 

Availability of Petition and 

Environmental Assessment for 

Determination of Nonregulated Status 

for Corn Genetically Engineered To 

Produce Male Sterile/Female Inbred 

Plants 

AGENCY: Animal and Plant Health 

Inspection Service, USDA. 

ACTION: Notice. 

SUMMARY: We are advising the public 

that the Animal and Plant Health 

Inspection Service has received a 

petition from Pioneer Hi-Bred 

International, Inc., seeking a 

determination of nonregulated status for 

corn designated as DP–32138–1, which 

has been genetically engineered to 

produce male sterile/female inbred 

plants for the generation of hybrid corn 

seed that is non-transgenic. The petition 

has been submitted in accordance with 

our regulations concerning the 

introduction of certain genetically 

engineered organisms and products. In 

accordance with those regulations, we 

are soliciting comments on whether this 

genetically engineered corn is likely to 

pose a plant pest risk. We are also 

making available for public comment an 

environmental assessment for the 

proposed determination of nonregulated 

status. 

DATES: We will consider all comments 

that we receive on or before March 4, 

2011. 

ADDRESSES: You may submit comments 

by either of the following methods: 

• Federal eRulemaking Portal: Go to 

http://www.regulations.gov/fdmspublic/ 

component/ 

main?main=DocketDetail&d=APHIS2010-0041 to submit or view comments 

and to view supporting and related 

materials available electronically. 

• Postal Mail/Commercial Delivery: 

Please send one copy of your comment 

to Docket No. APHIS–2010–0041, 

Regulatory Analysis and Development, 

PPD, APHIS, Station 3A–03.8, 4700 

River Road Unit 118, Riverdale, MD 

20737–1238. Please state that your 

comment refers to Docket No. APHIS– 

2010–0041. 

Reading Room: You may read any 

comments that we receive on this 

docket in our reading room. The reading 

room is located in room 1141 of the 

USDA South Building, 14th Street and 

Independence Avenue, SW., 

Washington, DC. Normal reading room 

hours are 8 a.m. to 4:30 p.m., Monday 

through Friday, except holidays. To be 

sure someone is there to help you, 

please call (202) 690–2817 before 

coming. 

Other Information: Additional 

information about APHIS and its 

programs is available on the Internet at 

http://www.aphis.usda.gov. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Rick Coker, Regulatory Analyst, 

Biotechnology Regulatory Services, 

APHIS, 4700 River Road Unit 147, 

Riverdale, MD 20737–1236; (301) 734– 

5720, e-mail: 

richard.s.coker@aphis.usda.gov. To 

obtain copies of the petition, draft 

environmental assessment, or plant pest 

risk assessment, contact Ms. Cindy Eck 


jlentini on DSKJ8SOYB1PROD with NOTICES
84 Federal Register / Vol. 76, No. 1 / Monday, January 3, 2011 / Notices 

at (301) 734–0667, e-mail: 

cynthia.a.eck@aphis.usda.gov. Those 

documents are also available on the 

Internet at http://www.aphis.usda.gov/ 

brs/aphisdocs/08_33801p.pdf, http:// 

www.aphis.usda.gov/brs/aphisdocs/ 

08_33801p_dea.pdf, and http:// 

www.aphis.usda.gov/brs/aphisdocs/ 

08_33801p_dpra.pdf. 

SUPPLEMENTARY INFORMATION: 

Background 

The regulations in 7 CFR part 340, 

‘‘Introduction of Organisms and 

Products Altered or Produced Through 

Genetic Engineering Which Are Plant 

Pests or Which There Is Reason to 

Believe Are Plant Pests,’’ regulate, 

among other things, the introduction 

(importation, interstate movement, or 

release into the environment) of 

organisms and products altered or 

produced through genetic engineering 

that are plant pests or that there is 

reason to believe are plant pests. Such 

genetically engineered organisms and 

products are considered ‘‘regulated 

articles.’’ 

The regulations in § 340.6(a) provide 

that any person may submit a petition 

to the Animal and Plant Health 

Inspection Service (APHIS) seeking a 

determination that an article should not 

be regulated under 7 CFR part 340. 

Paragraphs (b) and (c) of § 340.6 

describe the form that a petition for a 

determination of nonregulated status 

must take and the information that must 

be included in the petition. 

APHIS has received a petition (APHIS 

Petition Number 08–338–01p) from 

Pioneer Hi-Bred International, Inc. 

(Pioneer) of Johnston, IA, seeking a 

determination of nonregulated status for 

corn (Zea mays L.) designated as DP– 

32138–1, which has been genetically 

engineered to produce male sterile/ 

female inbred plants for the generation 

of hybrid corn seed that is nontransgenic, stating that corn event DP– 

32138–1 is unlikely to pose a plant pest 

risk and, therefore, should not be a 

regulated article under APHIS’ 

regulations in 7 CFR part 340. 

As described in the petition, the 

controlled expression of a seed color 

marker gene and pollen fertility and 

sterility genes allows for the generation 

of red transgenic seed for seed increase 

of male sterile-female inbred lines and 

for the production of non-transgenic 

fertile pollen for use in non-transgenic 

hybrid commercial seed production. 

Corn event DP–32138–1 is currently 

regulated under 7 CFR part 340. 

Interstate movements and field tests of 

corn event DP–32138–1 have been 

conducted under permits issued or 

notifications acknowledged by APHIS. 

Field tests conducted under APHIS 

oversight allowed for evaluation in a 

natural agricultural setting while 

imposing measures to minimize the risk 

of persistence in the environment after 

completion of the test. Data are gathered 

on multiple parameters and used by the 

applicant to evaluate agronomic 

characteristics and product 

performance. These data are used by 

APHIS to determine if the new variety 

poses a plant pest risk. Pioneer has 

petitioned APHIS to make a 

determination that corn event DP– 

32138–1 shall no longer be considered 

a regulated article under 7 CFR part 340. 

In section 403 of the Plant Protection 

Act (7 U.S.C. 7701 et seq.), ‘‘plant pest’’ 

is defined as any living stage of any of 

the following that can directly or 

indirectly injure, cause damage to, or 

cause disease in any plant or plant 

product: A protozoan, a nonhuman 

animal, a parasitic plant, a bacterium, a 

fungus, a virus or viroid, an infectious 

agent or other pathogen, or any article 

similar to or allied with any of the 

foregoing. APHIS has prepared a plant 

pest risk assessment to determine if corn 

event DP–32138–1 is unlikely to pose a 

plant pest risk. 

APHIS has also prepared a draft 

environmental assessment (EA) in 

which it presents two alternatives based 

on its analyses of data submitted by 

Pioneer, a review of other scientific 

data, and field tests conducted under 

APHIS oversight. APHIS is considering 

the following alternatives: (1) Take no 

action, i.e., APHIS would not change the 

regulatory status of corn event DP– 

32138–1 and it would continue to be a 

regulated article, or (2) grant 

nonregulated status to corn event DP– 

32138–1 in whole. 

The draft EA has been prepared to 

provide the APHIS decisionmaker with 

a review and analysis of any potential 

environmental impacts associated with 

the proposed determination of 

nonregulated status for corn event DP– 

32138–1. The draft EA was prepared in 

accordance with (1) the National 

Environmental Policy Act of 1969 

(NEPA), as amended (42 U.S.C. 4321 et 

seq.), (2) regulations of the Council on 

Environmental Quality for 

implementing the procedural provisions 

of NEPA (40 CFR parts 1500–1508), (3) 

USDA regulations implementing NEPA 

(7 CFR part 1b), and (4) APHIS’ NEPA 

Implementing Procedures (7 CFR part 

372). 

In accordance with § 340.6(d) of the 

regulations, we are publishing this 

notice to inform the public that APHIS 

will accept written comments regarding 

the petition for a determination of 

nonregulated status from interested or 

affected persons for a period of 60 days 

from the date of this notice. We are also 

soliciting written comments from 

interested or affected persons on the 

draft EA prepared to examine any 

potential environmental impacts of the 

proposed determination for the 

deregulation of the subject corn line, 

and the plant pest risk assessment. The 

petition, draft EA, and plant pest risk 

assessment are available for public 

review, and copies of the petition, draft 

EA, and plant pest risk assessment are 

available as indicated under ADDRESSES

and FOR FURTHER INFORMATION CONTACT

above. 

After the comment period closes, 

APHIS will review all written comments 

received during the comment period 

and any other relevant information. All 

comments received regarding the 

petition, draft EA, and plant pest risk 

assessment will be available for public 

review. After reviewing and evaluating 

the comments on the petition, the draft 

EA, plant pest risk assessment, and 

other data, APHIS will furnish a 

response to the petitioner, either 

approving or denying the petition. 

APHIS will then publish a notice in the 

Federal Register announcing the 

regulatory status of corn event DP– 

32138–1 and the availability of APHIS’ 

written environmental decision and 

regulatory determination. 

Authority: 7 U.S.C. 7701–7772 and 7781– 

7786; 31 U.S.C. 9701; 7 CFR 2.22, 2.80, and 

371.3. 

Done in Washington, DC, this 27th day of 

December, 2010 . 

Gregory L. Parham, 

Acting Administrator, Animal and Plant 

Health Inspection Service. 

[FR Doc. 2010–33083 Filed 12–30–10; 8:45 am] 

BILLING CODE 3410–34–P 

DEPARTMENT OF AGRICULTURE 

Forest Service 

Notice of Environmental Impact 

Statement; Withdrawal 

AGENCY: Forest Service, USDA. 

ACTION: Notice of withdrawal of intent 

to prepare an environmental impact 

statement. 

SUMMARY: The United States Department 

of Agriculture, Forest Service, Prescott 

National Forest, is withdrawing the 

March 2, 2010, Federal Register notice 

(75 FR 9388) which announced their 

intent to prepare an Environmental 

Impact Statement in accordance with 

the National Environmental Policy Act, 


jlentini on DSKJ8SOYB1PROD with NOTICES