[Federal Register Volume 78, Number 178 (Friday, September 13, 2013)]
[Rules and Regulations]
[Pages 56618-56620]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-22160]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
49 CFR Part 385
[Docket No. FMCSA-2013-0274]
RIN 2126-AB62
Incorporation by Reference; North American Standard Out-of-
Service Criteria; Hazardous Materials Safety Permits
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Final rule.
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SUMMARY: FMCSA amends its Hazardous Materials Safety Permits rules to
update the current incorporation by reference of the ``North American
Standard Out-of-Service Criteria and Level VI Inspection Procedures and
Out-of-Service Criteria for Commercial Highway Vehicles Transporting
Transuranics and Highway Route Controlled Quantities of Radioactive
Materials as defined in 49 CFR Part 173.403.'' The rules currently
reference the April 1, 2012, edition of the out-of-service criteria and
through this final rule, FMCSA incorporates the April 1, 2013, edition.
DATES: Effective September 13, 2013. The incorporation by reference of
certain publications listed in the rule is approved by the Director of
the Federal Register as of September 13, 2013.
FOR FURTHER INFORMATION CONTACT: Brian Routhier, Mechanical Engineer,
Federal Motor Carrier Safety Administration, Office of Policy, 1200 New
Jersey Avenue SE., Washington, DC 20590-0001, by telephone at (202)
366-1225 or via email [email protected]. Office hours are from 8
a.m. to 4:30 p.m. e.t., Monday through Friday, except Federal holidays.
If you have questions on viewing the docket, contact Docket Operations,
telephone 202-366-9826.
SUPPLEMENTARY INFORMATION:
I. Legal Basis for the Rulemaking
Congress has enacted several statutory provisions to improve the
safety of hazardous materials transported in interstate commerce.
Specifically, in provisions codified at 49 U.S.C. 5105(e), relating to
inspections of motor vehicles carrying hazardous material and 49 U.S.C.
5109, relating to motor carrier safety permits, it has required the
Secretary of the Department of Transportation to promulgate regulations
as part of a comprehensive safety program on hazardous material safety
permits. The FMCSA Administrator has been delegated authority under 49
CFR 1.87 to carry out the rulemaking functions vested in the Secretary
of Transportation. Subsequently, FMCSA has promulgated regulations to
address the Congressional mandate. Such regulations on hazardous
materials are the underlying provisions that have utilized material
incorporated by reference discussed in this notice.
The Administrative Procedure Act (APA) (5 U.S.C. 553) specifically
provides that adherence to its notice and public comment rulemaking
procedures are not required where the Agency finds there is good cause
(and incorporates the finding and a brief statement of reasons to
support the finding in the rules issued) to dispense with such
procedures. Generally, good cause exists where the Agency determines
that notice and public comment procedures are impracticable,
unnecessary, or contrary to the public interest. Ibid. This document
updates an incorporation by reference found at 49 CFR 385.4 and
referenced at 49 CFR 385.415(b)(1). The revision does not impose new
requirements or substantively change the Code of Federal Regulations.
For these reasons, the FMCSA finds good cause that notice and public
comment procedures are unnecessary.
II. Background
Currently, 49 CFR 385.415 prescribes operational requirements for
motor carriers transporting hazardous materials for which a hazardous
materials safety permit is required. Section 385.415(b)(1) requires
that motor carriers must ensure a pre-trip inspection be performed on
each motor vehicle to be used to transport a highway route controlled
quantity of a Class 7 (radioactive) material, in accordance with the
requirements of the ``North American Standard Out-of-Service Criteria
and Level VI Inspection Procedures and Out-of-Service Criteria for
Commercial Highway Vehicles Transporting Transuranics and Highway Route
Controlled Quantities of Radioactive Materials as defined in 49 CFR
Parts 173.403.'' With regard to the specific edition of the out-of-
service criteria, 49 CFR 385.4, as amended on October 1, 2012 (77 FR
59818) references the April 1, 2012, edition. Today's final rule amends
Sec. 385.4 by replacing the reference to the April 1, 2012 edition
date with the new edition date of April 1, 2013.
FMCSA reviewed the April 1, 2013, edition and determined there are
no substantive changes that would result in motor carriers being
subjected to a new standard. Because the CVSA discontinued the printing
and
[[Page 56619]]
distribution of the 2012 edition, it is necessary to update the
reference to ensure that motor carriers and enforcement officials have
convenient access to the inspection criteria that are referenced in the
rules.
III. Regulatory Analyses
Executive Order (E.O.) 12866 (Regulatory Planning and Review and DOT
Regulatory Policies and Procedures as Supplemented by E.O. 13563)
FMCSA has determined that this action is not a significant
regulatory action within the meaning of E.O. 12866, as supplemented by
E.O. 13563 (76 FR 3821, January 18, 2011), or within the meaning of the
DOT regulatory policies and procedures (44 FR 1103, February 26, 1979).
The Office of Management and Budget (OMB) did not review this document.
FMCSA expects the final rule will have no costs; therefore, a full
regulatory evaluation is unnecessary.
Regulatory Flexibility Act
Pursuant to the Regulatory Flexibility Act (RFA) of 1980 (5 U.S.C.
601 et seq.), as amended by the Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104-121, 110 Stat. 857), FMCSA is not
required to prepare a final regulatory flexibility analysis under 5
U.S.C. 604(a) for this final rule because the agency has not issued a
notice of proposed rulemaking prior to this action. FMCSA has
determined that it has good cause to adopt the rule without notice and
comment.
Assistance for Small Entities
In accordance with section 213(a) of the Small Business Regulatory
Enforcement Fairness Act of 1996, FMCSA wants to assist small entities
in understanding this rule so that they can better evaluate its effects
on themselves and participate in the rulemaking initiative. If the rule
would affect your small business, organization, or governmental
jurisdiction and you have questions concerning its provisions or
options for compliance, please consult the FMCSA point of contact, Mr.
Brian Routhier, listed in the FOR FURTHER INFORMATION CONTACT section
of this rule.
Small businesses may send comments on the actions of Federal
employees who enforce or otherwise determine compliance with Federal
regulations to the SBA's Small Business and Agriculture Regulatory
Enforcement Ombudsman and the Regional Small Business Regulatory
Fairness Boards. The Ombudsman evaluates these actions annually and
rates each agency's responsiveness to small business. If you wish to
comment on actions by employees of FMCSA, call 1-888-REG-FAIR (1-888-
734-3247). DOT has a policy ensuring the rights of small entities to
regulatory enforcement fairness and an explicit policy against
retaliation for exercising these rights.
Unfunded Mandates Reform Act of 1995
The final rule will not impose an unfunded Federal mandate, as
defined by the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1532, et
seq.), that will result in the expenditure by State, local and tribal
governments, in the aggregate, or by the private sector, of $143.1
million (which is the value of $100 million in 2010 after adjusting for
inflation) or more in any 1 year.
E.O. 13132 (Federalism)
A rulemaking has implications for Federalism under Section 1(a) of
E.O. 13132 if it has a substantial direct effect on State or local
governments and would either preempt State law or impose a substantial
direct cost of compliance on State or local governments. FMCSA analyzed
this action in accordance with Executive Order 13132. This final rule
does not preempt or modify any provision of State law, impose
substantial direct unreimbursed compliance costs on any State, or
diminish the power of any State to enforce its own laws. Accordingly,
this rulemaking does not have Federalism implications warranting the
application of Executive Order 13132.
E.O. 12372 (Intergovernmental Review)
The regulations implementing E.O. 12372 regarding intergovernmental
consultation on Federal programs and activities do not apply to this
rule.
E.O. 13175 (Indian Tribal Governments)
This rule does not have tribal implications under E.O. 13175,
Consultation and Coordination with Indian Tribal Governments, because
it would not have a substantial direct effect on one or more Indian
tribes, on the relationship between the Federal Government and Indian
tribes, or on the distribution of power and responsibilities between
the Federal Government and Indian tribes.
Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et
seq.), Federal agencies must obtain approval from the OMB for each
collection of information they conduct, sponsor, or require through
regulations. FMCSA determined that no new information collection
requirements are associated with this final rule.
National Environmental Policy Act
FMCSA analyzed this final rule for the purpose of ascertaining the
applicability of the National Environmental Policy Act of 1969 (42
U.S.C. 4321 et seq.) and our Environmental Procedures Order 5610.1,
issued March 1, 2004 (69 FR 9680). This final rule is categorically
excluded from further analysis and documentation under the Categorical
Exclusion (CE) in paragraph 6(b) of Appendix 2 of FMCSA Order 5610.1.
This CE addresses minor revisions such as found in this rulemaking;
therefore preparation of an environmental assessment or environmental
impact statement is not necessary.
The FMCSA also analyzed this rule under the Clean Air Act, as
amended (CAA), section 176(c) (42 U.S.C. 7401 et seq.), and
implementing regulations promulgated by the Environmental Protection
Agency. Approval of this action is exempt from the CAA's general
conformity requirement since it will have no effect on air emissions.
E.O. 12898 (Environmental Justice)
FMCSA evaluated the environmental effects of this final rule in
accordance with E.O. 12898 and determined that there are no
environmental justice issues associated with its provisions nor any
collective environmental impact resulting from its promulgation.
Environmental justice issues would be raised if there were a
``disproportionate'' and ``high and adverse impact'' on minority or
low-income populations. FMCSA analyzed this action under NEPA and found
the action to be Categorically Excluded from analysis due to the lack
of impact to the environment. This final rule simply updates an
incorporation by reference and would not result in high and adverse
environmental impacts.
E.O. 13211 (Energy Effects)
FMCSA has analyzed this rule under E.O. 13211, Actions Concerning
Regulations That Significantly Affect Energy Supply, Distribution, or
Use. FMCSA has determined that it is not a ``significant energy
action'' under that Executive Order because it is not a ``significant
regulatory action'' under E.O. 12866 and is not likely to have a
significant adverse effect on the supply, distribution, or use of
energy. Therefore, the rule does not require a Statement of Energy
Effects under E.O. 13211.
[[Page 56620]]
E.O. 13045 (Protection of Children)
FMCSA analyzed this action under E.O. 13045, Protection of Children
from Environmental Health Risks and Safety Risks. FMCSA determined that
this final rule will not create an environmental risk to health or
safety that may disproportionately affect children.
E.O. 12988 (Civil Justice Reform)
This action meets applicable standards in sections 3(a) and 3(b)(2)
of E.O. 12988, Civil Justice Reform, to minimize litigation, eliminate
ambiguity, and reduce burden.
E.O. 12630 (Taking of Private Property)
This rule will not affect a taking of private property or otherwise
have taking implications under E.O. 12630, Governmental Actions and
Interference with Constitutionally Protected Property Rights.
National Technology Transfer and Advancement Act
The National Technology Transfer and Advancement Act (15 U.S.C. 272
note) requires Federal agencies proposing to adopt technical standards
to consider whether voluntary consensus standards are available. If the
Agency chooses to adopt its own standards in place of existing
voluntary consensus standards, it must explain its decision in a
separate statement to OMB. Because FMCSA does not intend to adopt its
own technical standards, there is no need to submit a separate
statement to OMB on this matter.
Privacy Impact Assessment
Section 522(a)(5) of the Transportation, Treasury, Independent
Agencies, and General Government Appropriations Act, 2005 (Pub. L. 108-
447, Division H, Title I, 118 Stat. 2809 at 3268, Dec. 8, 2004)
requires DOT and certain other Federal agencies to conduct a privacy
impact assessment of each rule that will affect the privacy of
individuals. Because this final rule will not affect the privacy of
individuals, FMCSA did not conduct a separate privacy impact
assessment.
List of Subjects in 49 CFR Part 385
Administrative practice and procedure, Highway safety,
Incorporation by reference. Mexico, Motor carriers, Motor vehicle
safety, Reporting and recordkeeping requirements.
In consideration of the foregoing, FMCSA is amending 49 CFR chapter
III, part 385 as set forth below:
PART 385--SAFETY FITNESS PROCEDURES
0
1. The authority citation for part 385 is revised to read as follows:
Authority: 49 U.S.C. 113, 504, 521(b), 5105(e), 5109, 13901-
13905, 31133, 31135, 31136, 31137(a), 31144, 31148, and 31502; Sec.
113(a), Pub. L. 103-311; Sec. 408, Pub. L. 104-88; Sec. 350 of Pub.
L. 107-87; and 49 CFR 1.87.
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2. Revise Sec. 385.4(b)(1) to read as follows:
Sec. 385.4 Matter incorporated by reference.
* * * * *
(b) * * *
(1) ``North American Standard Out-of-Service Criteria and Level VI
Inspection Procedures and Out-of-Service Criteria for Commercial
Highway Vehicles Transporting Transuranics and Highway Route Controlled
Quantities of Radioactive Materials as defined in 49 CFR Part
173.403,'' April 1, 2013; incorporation by reference approved for Sec.
385.415(b).
* * * * *
Issued under the authority of delegation in 49 CFR 1.87 on:
September 5, 2013.
Anne S. Ferro,
Administrator.
[FR Doc. 2013-22160 Filed 9-12-13; 8:45 am]
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