Commercial Driver's License Standards: Definition of Tank Vehicle Used for Determining the License Endorsement Requirement

Anne S. Ferro
Federal Motor Carrier Safety Administration
September 26, 2013

[Federal Register Volume 78, Number 187 (Thursday, September 26, 2013)]
[Proposed Rules]
[Pages 59328-59333]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-23510]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Parts 383

[Docket No. FMCSA-2013-0140]
RIN 2126-AB61


Commercial Driver's License Standards: Definition of Tank Vehicle 
Used for Determining the License Endorsement Requirement

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION: Notice of proposed rulemaking (NPRM), request for comments.

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SUMMARY: FMCSA proposes to revise its definition of ``tank vehicle.'' 
Commercial driver's license (CDL) holders who operate such vehicles are 
required to obtain a tank vehicle endorsement. On May 9, 2011, FMCSA 
published a final rule on ``Commercial Driver's License Testing and 
Commercial Learner's Permit Standards'' that included a new definition 
of tank vehicle which required additional drivers to obtain tank 
vehicle endorsements on their commercial learners' permits (CLPs) and 
CDLs. FMCSA received numerous petitions regarding the new definition. 
On May 24, 2012, the Agency published guidance in the Federal Register 
to clarify the ``tank vehicle'' definition. This NPRM would revise the 
definition by incorporating the 2012 regulatory guidance. FMCSA seeks 
comment on the proposal and information on the impact that the revised 
definition would have on the industry.

DATES: Comments must be received on or before November 25, 2013.

ADDRESSES: You may submit comments identified by Docket Number FMCSA-
2013-0140 using any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the online instructions for submitting comments.
     Mail: Docket Management Facility, U.S. Department of 
Transportation, 1200 New Jersey Avenue SE., West Building, Ground 
Floor, Room W12-140, Washington, DC 20590-0001.
     Hand Delivery or Courier: West Building, Ground Floor, 
Room W12-140, 1200 New Jersey Avenue SE., between 9 a.m. and 5 p.m. 
E.T., Monday through Friday, except Federal holidays.
     Fax: 202-493-2251.
    To avoid duplication, please use only one of these four methods. 
See the ``Public Participation and Request for Comments'' portion of 
the SUPPLEMENTARY INFORMATION section below for instructions on 
submitting comments. Comments received after the comment closing date 
will be included in the docket, and we will consider late comments to 
the extent practicable. FMCSA may, however, issue a final rule at any 
time after the close of the comment period.

FOR FURTHER INFORMATION CONTACT: Robert Redmond, Office of Safety 
Programs, Commercial Driver's License Division, Federal Motor Carrier 
Safety Administration, 1200 New Jersey Avenue SE., Washington, DC 
20590-0001, by telephone at (202) 366-5014 or via email at 
robert.redmond@dot.gov. Office hours are from 8 a.m. to 4:30 p.m. ET, 
Monday through Friday, except Federal holidays. If you have questions 
on viewing or submitting material to the docket, contact Docket 
Operations, telephone (202) 366-9826.

SUPPLEMENTARY INFORMATION: 

Table of Contents for Preamble

I. Public Participation and Request for Comments
    A. Submitting Comments
    B. Viewing Comments and Documents
    C. Privacy Act
II. Executive Summary
    A. Purpose and Summary of the Major Provisions
    B. Benefits and Costs
III. Abbreviations
IV. Legal Basis for the Rulemaking
V. Background
VI. Section-by-Section Analysis
VII. Regulatory Analyses

I. Public Participation and Request for Comments

    FMCSA encourages you to participate in this rulemaking by 
submitting comments and related materials. All comments received will 
be posted without change to http://www.regulations.gov and will include 
any personal information you provide.

A. Submitting Comments

    You may submit your comments and material online or by fax, mail, 
or hand delivery, but please use only one of these means. FMCSA 
recommends that you include your name and a mailing address, an email 
address, or a phone number in the body of your document so that FMCSA 
can contact you if there are questions regarding your submission.

[[Page 59329]]

    To submit your comment online, go to http://www.regulations.gov and 
in the search box insert the docket number ``FMCSA-2013-0140'' and 
click the search button. When the new screen appears, click on the blue 
``Comment Now!'' button on the right hand side of the page. On the new 
page, enter information required including the specific section of this 
document to which each comment applies, and provide a reason for each 
suggestion or recommendation. If you submit your comments by mail or 
hand delivery, submit them in an unbound format, no larger than 
8[frac12] by 11 inches, suitable for copying and electronic filing. If 
you submit comments by mail and would like to know that they reached 
the facility, please enclose a stamped, self-addressed postcard or 
envelope.
    We will consider all comments and material received during the 
comment period and may change this proposed rule based on your 
comments. FMCSA may issue a final rule at any time after the close of 
the comment period.

B. Viewing Comments and Documents

    To view comments, as well as any documents mentioned in this 
preamble, or to submit your comments online, go to http://www.regulations.gov and in the search box insert the docket number 
``FMCSA-2013-0140'' and click ``Search.'' Next, click ``Open Docket 
Folder'' and you will find all documents and comments related to the 
proposed rulemaking. If you do not have access to the Internet, you may 
view the docket online by visiting the Docket Management Facility in 
Room W12-140 on the ground floor of the Department of Transportation 
West Building, 1200 New Jersey Avenue SE., Washington, DC 20590, 
between 9 a.m. and 5 p.m. ET, Monday through Friday, except Federal 
holidays.

C. 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 the U.S. 
Department of Transportation's (DOT) Privacy Act Statement for the 
Federal Docket Management System published in the Federal Register on 
January17, 2008 (73 FR 3316), or you may visit http://www.gpo.gov/fdsys/pkg/FR-2008-01-17/pdf/E8-785.pdf.

II. Executive Summary

A. Purpose and Summary of the Major Provisions

    FMCSA proposes to revise the definition of ``tank vehicle'' in 49 
CFR 383.5. The revised version makes changes to clarify two points: 
that the quantity amounts apply regardless of the method of tank 
securement, and that the transportation of tanks that are manifested as 
empty or as residue (and that are actually empty or contain only 
residue) does not require the driver to have a tank vehicle 
endorsement.

B. Benefits and Costs

    Although the Agency does not know the precise number of additional 
drivers that would be required to obtain a tank endorsement due to this 
proposed rule, we estimate that even if every existing less than 
truckload (LTL) driver were to get an endorsement the total cost would 
be $5.82 million, far below the $100 million threshold for economic 
significance. The safety benefit of this rule, like the 2011 final 
rule, derives from the added training and knowledge (which may be 
accomplished through self-study) that drivers of tank vehicles will 
need in order to pass the test for the tank vehicle endorsement, 
thereby reducing the risk of rollover crashes.

III. Abbreviations

ATA American Trucking Associations
CE Categorical Exclusion
CDL Commercial Driver's License
CFR Code of Federal Regulations
CLP Commercial Learner's Permit
CMV Commercial Motor Vehicle
CMVSA Commercial Motor Vehicle Safety Act of 1986
DOT U.S. Department of Transportation
DGAC Dangerous Goods Advisory Council
E.O. Executive Order
FMCSA Federal Motor Carrier Safety Administration
FMCSRs Federal Motor Carrier Safety Regulations
IBC Intermediate Bulk Container
HM Hazardous Material
HMRs Hazardous Materials Regulations
LTL Less Than Truckload
MCA Motor Carrier Act of 1935
MCSA Motor Carrier Safety Act of 1984
NEPA National Environmental Policy Act
NPRM Notice of Proposed Rulemaking
OMB Office of Management and Budget
RFA Regulatory Flexibility Act
SAFETEA-LU Safe, Accountable, Flexible, Efficient Transportation 
Equity Act: A Legacy for Users
Secretary Secretary of Transportation
TEA-21 Transportation Equity Act for the 21st Century

IV. Legal Basis for the Rulemaking

    This rulemaking is based on the broad authority of the Commercial 
Motor Vehicle Safety Act of 1986 (CMVSA) (Pub. L. 99-570, Title XII, 
100 Stat. 3207-170, 49 U.S.C. chapter 313); the Motor Carrier Safety 
Act of 1984 (MCSA) (Pub. L. 98-554, Title II, 98 Stat. 2832, 49 U.S.C. 
31136); and the Motor Carrier Act of 1935 (MCA) (Chapter 498, 49 Stat. 
543, 49 U.S.C. 31502). It is also based on section 4019 of the 
Transportation Equity Act for the 21st Century (TEA-21), and section 
4122 of the Safe, Accountable, Flexible, Efficient Transportation 
Equity Act: A Legacy for Users (SAFETEA-LU) (Pub. L. 109-59, 119 Stat. 
1144, at 1734, 49 U.S.C. 31302, 31308, and 31309).
    The CDL program was established by the CMVSA of 1986. Parts 383 and 
384 of Title 49, Code of Federal Regulations (CFR), implement the CMVSA 
requirements. The CMVSA prohibits any person who does not hold a valid 
CDL or CLP issued by his/her State of domicile from operating a CMV 
that requires a driver with a CDL. The CMVSA also authorized the 
Secretary of Transportation (Secretary) to adopt regulations for a CLP 
[49 U.S.C. 31305(b)(2)]. This NPRM would revise the definition of 
``tank vehicle'' which would impact commercial motor vehicle (CMV) 
drivers operating certain types and sizes of tank vehicles.
    The authority for this rulemaking is also based in part on the MCA. 
The MCA authorizes the Secretary to prescribe requirements for the 
``qualifications . . . of employees'' of for-hire and private motor 
carriers [49 U.S.C. 31502(b)]. This rule, like the CDL regulations, is 
based in part on that authority and is intended to enhance the 
qualifications of CMV drivers by ensuring that they obtain the proper 
endorsements before operating a CMV.
    Section 4019 of TEA-21 required the DOT to complete a review of the 
CDL testing system to determine if the current CDL system is an 
accurate measure of an individual's knowledge and skills as an operator 
of a CMV. It also authorized the Agency to issue regulations reflecting 
the results of its review. This rule includes new or enhanced 
requirements adopted in response to the Agency's review.
    Section 4122 of SAFETEA-LU required the DOT to prescribe 
regulations on minimum uniform standards for the issuance of CLPs, as 
it has already done for CDLs [49 U.S.C. 31308(2)]. More specifically, 
section 4122 provided that an applicant for a CLP must first pass a 
knowledge test which complies with minimum standards prescribed by the 
Secretary; that the CLP document must have the same information and 
security features as the CDL; and that a driver's record must be 
created for each CLP holder in

[[Page 59330]]

the Commercial Driver's License Information System.

V. Background

    FMCSA proposes a new definition of ``tank vehicle'' to clarify the 
population required to secure a CDL tank vehicle endorsement.
    On April 9, 2008, FMCSA published an NPRM entitled ``Commercial 
Driver's License Testing and Commercial Learner's Permit Standards'' 
(73 FR 19282) to revise the standards for CDL testing and to require 
new standards for a CLP. The NPRM acknowledged that the definition of 
``tank vehicle'' in Sec.  383.5 was confusing because of the reference 
to the definition of ``cargo tank'' in 49 CFR part 171. The definition 
in Part 383 could be misinterpreted to mean that a driver needed a tank 
vehicle endorsement to operate a vehicle with a permanently attached 
tank that had a rated capacity greater than 119 gallons. In the case of 
a portable tank temporarily attached to the vehicle, a tank endorsement 
was needed only if the portable tank had a rated capacity of 1,000 
gallons or more.
    FMCSA recognized the disparity in minimum rated capacity between 
permanently attached tanks (119 gallons) and temporarily attached 
portable tanks (1000 gallons) for the tank vehicle endorsement. As 
FMCSA had no reports of any problems with drivers transporting portable 
tanks with a rated capacity of less than 1,000 gallons, the NPRM 
proposed a rated capacity threshold of 1,000 or more gallons for all 
tanks before a driver would need a tank endorsement. The proposed 
change was also expected to eliminate the controversy over whether the 
driver of a ready mix concrete truck equipped with a small water tank 
to clean the mixer drum or a truck transporting generators with small 
fuel tanks needed a tank vehicle endorsement.
    The NPRM proposed defining ``tank vehicle'' as any commercial motor 
vehicle that is designed to transport any liquid or gaseous materials 
within a tank having an aggregate rated capacity of 1,000 gallons or 
more that is either permanently or temporarily attached to the vehicle 
or the chassis. A commercial motor vehicle transporting an empty 
storage container tank, not designed for transportation, with a rated 
capacity of 1,000 gallons or more that is temporarily attached to a 
flatbed trailer is not considered a tank vehicle.
    In the final rule, ``Commercial Driver's License Testing and 
Commercial Learner's Permit Standards'' (76 FR 26854), published on May 
9, 2011, FMCSA responded to comments submitted to the NPRM docket and 
stated that, while the proposed amendment setting a 1,000 gallon 
aggregate capacity threshold was included in the final rule, there was 
also a need to retain a minimum individual rated tank capacity of more 
than 119 gallons for the purpose of determining the aggregate capacity 
of a vehicle carrying multiple tanks. In the final rule, reference was 
made to cargo tanks and portable tanks as defined in 49 CFR 171. Both 
of these types of tanks are defined as ``bulk packaging'' which is 
further defined in part 171 as having a capacity greater than 119 
gallons. Therefore, only tanks with a rated capacity greater than 119 
gallons were considered in determining the 1,000-gallon aggregate 
capacity threshold for a tank vehicle endorsement.
    The definition of ``tank vehicle,'' adopted in the final rule is 
any commercial motor vehicle that is designed to transport any liquid 
or gaseous materials within a tank or tanks having an individual rated 
capacity of more than 119 gallons and an aggregate rated capacity of 
1,000 gallons or more that is either permanently or temporarily 
attached to the vehicle or the chassis. A commercial motor vehicle 
transporting an empty storage container tank, not designed for 
transportation, with a rated capacity of 1,000 gallons or more that is 
temporarily attached to a flatbed trailer is not considered a tank 
vehicle.
    After publication of the final rule, FMCSA received questions and 
requests for clarification from the Dangerous Goods Advisory Council 
(DGAC), American Trucking Associations (ATA), FedEx Corporation, and 
Fremont Carriers, Inc. In response, FMCSA published guidance in the 
Federal Register on May 24, 2012 [77 FR 30919]. The guidance explained 
that the definition proposed by the NPRM would have included a single 
tank with a capacity of 1,000 gallons. However, after reviewing the 
public comments to the rulemaking docket, the Agency modified the 
definition to include multiple tanks with an aggregate capacity of 
1,000 gallons.
    FMCSA recognized that the revised definition meant that 
intermediate bulk containers (IBCs) being delivered to a shipper meet 
the ``tank vehicle'' definition, and that the driver would require a 
tank vehicle endorsement. IBCs are commonly used as containers for 
transporting liquid hazardous materials (HM). They are subject to the 
DOT Hazardous Materials Regulations (HMRs). These packages commonly 
move by less than truckload (LTL) carriers. While IBCs may have a 
capacity of up to 3,000 liters, the sizes more commonly in use range up 
to 1,000 liters (264 gallons).
    The guidance published on May 24, 2012, confirmed that the 
transportation of IBCs is covered by the definition whether they are 
temporarily or permanently attached--by bolts, straps, chains, or by 
blocking and bracing--because the characteristics of tanks and their 
liquid contents, and the driving skills needed to safely operate a tank 
vehicle, are essentially identical, no matter how the tanks are secured 
in or on the vehicle. The aggregate capacity of four or more 1,000 
liter IBCs would exceed the 1,000 gallon threshold. To be qualified to 
haul the range of cargo they normally handle, drivers for many LTL 
carriers must obtain a CDL tank vehicle endorsement.
    The guidance also clarified that the definition of tank vehicle 
does not cover the transportation of empty IBCs or other tanks when 
these containers are cargo manifested on a bill of lading either as 
empty or empty except for residue.
    Lastly, the guidance confirmed that the effective date of the final 
rule was 60 days after publication, or July 9, 2011. While the rule 
provided a compliance date of July 9, 2014 (3 years from the effective 
date of the rule) for the State requirements under subpart B of Part 
384 (49 CFR part 384), this compliance date was limited to the subpart 
referenced.
    FMCSA recognizes that the States participating in the Motor Carrier 
Safety Assistance Program (currently all States) have different 
timeframes for incorporating the Agency's definitional changes into 
State law. However, States that automatically implement the Federal 
Motor Carrier Safety Regulations (FMCSRs) are able to take immediate 
action against drivers transporting HM in a tank vehicle without the 
proper endorsement. As a result, FMCSA recommended that tank vehicle 
drivers impacted by the final rule secure the needed endorsement as 
quickly as possible or investigate the requirements of the States where 
they travel to avoid violating an endorsement requirement already in 
effect.
    FMCSA received petitions for reconsideration and rulemaking from 
the ATA, FedEx Corporation, and Fremont Carriers, Inc. The Agency also 
received letters of concern from the DGAC and others supporting the ATA 
petition. Each of these documents is available in docket FMCSA-2013-
0140.
    The Agency appreciates that the 2011 final rule expanded the number 
of vehicles requiring drivers with tank endorsements on their CDLs, 
which

[[Page 59331]]

resulted in increased costs for the drivers. As the tank vehicle 
definition continues to be a source of questions and concern, the 
Agency proposes a slightly revised version to improve understanding and 
enforcement.
    The Agency offers this revised definition to clarify that vehicles 
transporting multiple IBCs (over 119 gallons each) with an aggregate 
capacity of 1,000-gallons or more are tank vehicles that would require 
an endorsement; and that the endorsement is needed if one or more tanks 
are on the vehicle, regardless of the method by which the tanks are 
secured to the vehicle. In addition, this definition clearly explains 
that tanks manifested as empty or as residue as part of the load 
(assuming they are actually empty or contain only residue) do not make 
the vehicle a ``tank vehicle'' provided the tanks are actually empty or 
contain only residue. The revised definition incorporates the substance 
of the regulatory guidance published on May 24, 2012.
    Because, DOT uses 119 gallons in the definition of bulk package in 
the HMRs, that value is also used here to specify the minimum tank size 
that can be aggregated to reach the 1,000-gallon threshold. The Agency 
specifically seeks comments and data on whether or not a different 
threshold should be used.

VI. Section-by-Section Analysis

    This section includes a summary of the regulatory changes proposed 
for 49 CFR part 383 organized by section number.

Proposed Changes to Part 383

    Part 383, Commercial Driver's License Standards; Requirements and 
penalties, contains the requirements for CLPs and CDLs. With certain 
exceptions, the rules in this part apply to every person who operates a 
CMV in interstate, foreign or intrastate commerce, to all employers of 
such persons, and to all States.
    Section 383.5, Definitions. FMCSA proposes to revise the definition 
of ``tank vehicle.'' The revised version makes changes to clarify two 
points: that the quantity amounts apply regardless of the method of 
tank securement, and that the transportation of tanks manifested as 
empty or as residue, provided they are actually empty or contain only 
residue, does not require the driver to have a tank endorsement.
    In view of the revised definition of tank vehicle proposed in this 
NPRM, FMCSA would withdraw previous regulatory guidance on this 
subject, including the questions and answers published on May 24, 2012. 
Specifically, the guidance to be withdrawn is question 33 to 49 CFR 
383.3 and questions 13 and 14 to 49 CFR 383.5, as printed below.

Guidance to 49 CFR 383.3

    Question 33: Must the driver of an empty tank vehicle that is being 
transported from the manufacturer to a local distributor or purchaser 
have a tank endorsement on his or her commercial driver's license 
(CDL)?
    Guidance: Yes. One of the primary objectives of the CDL program is 
to ensure that drivers are qualified to safely operate the type of 
vehicle they will be driving. To achieve this objective, the FMCSRs 
require a driver to pass a knowledge and skills test for the CMV group 
they intend to drive. In addition to this requirement, if the driver 
will be operating double/triple trailers, a tank vehicle, or a CMV used 
to transport passengers, they must also obtain an appropriate 
endorsement on their CDL. The specific requirements for the knowledge 
and skills tests an applicant must meet to obtain a CDL and the various 
endorsements can be found in Subpart G of part 383 of the FMCSRs.

Guidance to 49 CFR 383.5

    Question 13: On May 9, 2011, FMCSA revised the definition of ``tank 
vehicle'' to include any commercial motor vehicle that is designed to 
transport any liquid or gaseous materials within a tank or tanks having 
an individual rated capacity of more than 119 gallons and an aggregate 
rated capacity of 1,000 gallons or more that is either permanently or 
temporarily attached to the vehicle or the chassis. Does the new 
definition include loaded IBCs or other tanks temporarily attached to a 
CMV?
    Guidance: Yes. The new definition is intended to cover (1) a 
vehicle transporting an IBC or other tank used for any liquid or 
gaseous materials, with an individual rated capacity of 1,000 gallons 
or more that is either permanently or temporarily attached to the 
vehicle or chassis; or (2) a vehicle used to transport multiple IBCs or 
other tanks having an individual rated capacity of more than 119 
gallons and an aggregate rated capacity of 1,000 gallons or more that 
are permanently or temporarily attached to the vehicle or the chassis.
    Question 14: On May 9, 2011, FMCSA revised the definition of ``tank 
vehicle.'' Does the new definition cover the transportation of empty 
intermediate bulk containers (IBCs) or other tanks, or empty storage 
tanks?
    Guidance: No. The definition of ``tank vehicle'' does not cover the 
transportation of empty IBCs or other tanks when these containers are 
manifested as either empty or as residue on a bill of lading. 
Furthermore, the definition of tank vehicle does not cover the 
transportation of empty storage tanks that are not designed for 
transportation and have a rated capacity of 1,000 gallons or more, that 
are temporarily attached to a flatbed vehicle.

VII. Regulatory Analyses

A. 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 proposed rule is not a significant 
regulatory action under E.O. 12866 (58 FR 51735, October 4, 1993), as 
supplemented by E.O. 13563 (76 FR 3821, January 21, 2011), and not 
significant within the meaning of the DOT regulatory policies and 
procedures (44 FR 11034, February 26, 1979). This rule may affect some 
drivers who may need a tank endorsement and will thus be subject to 
Sec. Sec.  383.71(b)(8), 383.121, and 383.141. The revised definition 
in 49 CFR 383.5 clarifies that vehicles with a tank or multiple bulk 
tanks (each over 119 gallons, including IBCs) with an aggregate 
capacity of 1,000-gallons or more are tank vehicles; and that the 
endorsement is needed if the tank(s) is (are) on the vehicle, 
regardless of the method of tank securement. The modified definition 
does not cover the transportation of empty IBCs, storage tanks not 
designed for transportation of liquid or gaseous materials, or tanks 
empty except for residue. FMCSA welcomes the submission of any relevant 
comments, data, or other materials be submitted to the Docket Number 
FMCSA-2013-0140.
    The total financial burden imposed on drivers to obtain a tank 
endorsement depends on a number of factors. The average fee charged for 
a tank endorsement by the States is about $20 (California $30, Georgia 
$20, Maryland $20, Oregon $10 and Pennsylvania $23.50). That is a 
minimal burden for an individual driver. FMCSA does not have data on 
how many drivers currently have tank endorsements, as States are not 
required to report on that information. Nor is the number of drivers 
who would be required to obtain a tank endorsement precisely known, but 
to be conservative, we have used the total number of LTL drivers: 
291,045.\1\

[[Page 59332]]

Multiplying this number of LTL drivers by $20 per endorsement will 
result in an over-estimate of the total cost of the rule because some 
unknown numbers of these LTL drivers already have tank endorsements. In 
any case, 291,045 LTL drivers x $20 per endorsement produces a total 
cost of the rule of $5.82 million. This action could not exceed the 
$100 million threshold required for an economically significant 
rule.\2\ The Agency does not expect the rule to generate substantial 
congressional or public interest due to the fact that the NPRM would 
not change the substance of the guidance published in the Federal 
Register on May 24, 2012 (77 FR 30919). Therefore, a full regulatory 
impact analysis has not been conducted, nor has this NPRM been reviewed 
by Office of Management and Budget (OMB).
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    \1\ U.S. Department of Commerce, U.S. Census Bureau: 2007 
Economic Census--Transportation and Warehousing available at http://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=BP_2011_00A1&prodType=table.
    \2\ 5,000,000 drivers would have to seek a $20 tank vehicle 
endorsement before the $100 million threshold was reached.
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B. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) of 1980 (5 U.S.C. 601 et seq.) 
requires Federal agencies to consider the effects of the regulatory 
action on small business and other small entities and to minimize any 
significant economic impact. The term ``small entities'' comprises 
small businesses and not-for-profit organizations that are 
independently owned and operated and are not dominant in their fields, 
and governmental jurisdictions with populations of less than 50,000.\3\ 
Accordingly, DOT policy requires an analysis of the impact of all 
regulations on small entities, and mandates that agencies strive to 
lessen any adverse effects on these businesses.
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    \3\ RFA (5 U.S.C. 601 et seq.) see National Archives at http://www.archives.gov/federal-register/laws/regulatory-flexibility/601.html.
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    Under the RFA, as amended by the Small Business Regulatory 
Enforcement Fairness Act of 1996 (Pub. L. 104-121, 110 Stat. 857), the 
proposed rule is not expected to have a significant economic impact on 
the LTL driver population most likely to be affected. The current 
number of LTL drivers with tank vehicle endorsements could not be 
determined unless all 50 State Driver Licensing Agencies performed 
computer searches of their databases, which they have never done. 
However, FMCSA believes that, historically, the tank vehicle 
endorsement has been closely tied to the HM endorsement, and that 
nearly all drivers who transport HM have already obtained the tank 
vehicle endorsement. In other words, the drivers likely to be affected 
by this rule are only that small group which neither transported HM in 
bulk nor hauled non-hazardous products like milk or orange juice in 
tank vehicles large enough to require a tank endorsement. FMCSA 
believes that number to be relatively small. As indicated above, the 
number of drivers assumed for purposes of this analysis to need a tank 
vehicle endorsement (291,045, at a total cost of $5.82 million) is 
almost certainly an over-estimate.
    Consequently, I certify that the proposed action would not have a 
significant economic impact on a substantial number of small entities.

C. 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 proposed rule so that they can better evaluate 
its effects on themselves and participate in the rulemaking initiative. 
If the proposed 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, Robert Redmond, listed in the FOR FURTHER INFORMATION CONTACT 
section of this proposed rule.
    Small businesses may send comments on the actions of Federal 
employees who enforce or otherwise determine compliance with Federal 
regulations to the Small Business Administration'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 regarding the rights 
of small entities to regulatory enforcement fairness and an explicit 
policy against retaliation for exercising these rights.

D. Unfunded Mandates Reform Act of 1995

    This proposed rule would not impose an unfunded Federal mandate, as 
defined by the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1532 et 
seq.), that would 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. 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 E.O. 13132. This proposed 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.

 F. E.O. 12988 (Civil Justice Reform)

    This proposed 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.

G. E.O. 13045 (Protection of Children)

    E.O. 13045, Protection of Children from Environmental Health Risks 
and Safety Risks (62 FR 19885, Apr. 23, 1997), requires agencies 
issuing ``economically significant'' rules, if the regulation also 
concerns an environmental health or safety risk that an agency has 
reason to believe may disproportionately affect children, to include an 
evaluation of the regulation's environmental health and safety effects 
on children. The Agency determined this proposed rule is not 
economically significant. Therefore, no analysis of the impacts on 
children is required. In any event, the Agency does not anticipate that 
this regulatory action could in any respect present an environmental or 
safety risk that could disproportionately affect children.

H. E.O. 12630 (Taking of Private Property)

    FMCSA reviewed this proposed rule in accordance with E.O. 12630, 
Governmental Actions and Interference with Constitutionally Protected 
Property Rights, and has determined it will not effect a taking of 
private property or otherwise have taking implications.

I. Privacy Impact Assessment

    Section 522 of title I of division H of the Consolidated 
Appropriations Act, 2005, enacted December 8, 2004 (Pub. L. 108-447, 
118 Stat. 2809, 3268, 5 U.S.C. 552a note), requires the Agency to 
conduct a privacy impact assessment of a regulation that will affect 
the privacy of individuals. FMCSA has determined that this proposed 
rule does not require

[[Page 59333]]

the collection of personally identifiable information.

J. E.O. 12372 (Intergovernmental Review)

    The regulations implementing E.O. 12372 regarding intergovernmental 
consultation on Federal programs and activities do not apply to this 
program.

K. Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.), 
Federal agencies must obtain approval from OMB for each collection of 
information they conduct, sponsor, or require through regulations. 
There is no new information collections requirement associated with 
this NPRM to pose an undue burden on drivers, their employers, States 
or others in the motor carrier industry.

L. National Environmental Policy Act and Clean Air Act

    FMCSA analyzed this proposed rule for the purpose of the National 
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq.) and 
determined under its environmental procedures Order 5610.1, published 
March 1, 2004 in the Federal Register (69 FR 9680), that this action is 
categorically excluded from further environmental documentation under 
two categorical exclusions (CEs) in FMCSA's NEPA Order. The first CE in 
Paragraph 6(b) applies to the editorial nature of this rule in aligning 
the definitions. The second, found in Paragraph 6(s)(7) address 
regulations concerning requirements for drivers to have a single CMV 
driver's license. In addition, the Agency believes that the action 
includes no extraordinary circumstances that will have any effect on 
the quality of the environment. Thus, FMCSA determines action does not 
require an environmental assessment or an environmental impact 
statement. FMCSA requests comments on this determination.
    FMCSA also analyzed this proposed 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 does not affect direct or indirect 
emissions of criteria pollutants.

M. E.O. 12898 (Environmental Justice)

    FMCSA evaluated the environmental effects of this proposed 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 
``disproportionate'' and ``high and adverse impact'' on minority or 
low-income populations.

N. E.O. 13211 (Energy Supply, Distribution, or Use)

    FMCSA has analyzed this proposed rule under E.O. 13211, Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. The Agency has determined that it is not a 
``significant energy action'' under that order because it is not a 
``significant regulatory action'' likely to have a significant adverse 
effect on the supply, distribution, or use of energy. Therefore, it 
does not require a Statement of Energy Effects under E.O. 13211.

O. E.O. 13175 (Indian Tribal Governments)

    This proposed rule does not have tribal implications under E.O. 
13175, Consultation and Coordination with Indian Tribal Governments, 
because it does 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.

P. National Technology Transfer and Advancement Act (Technical 
Standards)

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

List of Subjects in 49 CFR Part 383

    Administrative practice and procedure, Alcohol abuse, Drug abuse, 
Highway safety, Incorporation by reference, Motor carriers.

    For the reasons stated in the preamble, FMCSA proposes to amend 49 
CFR,part 383 as follows:

PART 383--COMMERCIAL DRIVER'S LICENSE STANDARDS; REQUIREMENTS AND 
PENALTIES

0
1. The authority citation for part 383 is revised to read as follows:

    Authority:  49 U.S.C. 521, 31136, 31301 et seq., and 31502; 
secs. 214 and 215, Pub. L. 106-159, 113 Stat. 1748, 1766, 1767; sec. 
1012(b) of Pub. L. 107-56, 115 Stat. 272, 397; sec. 4140, Pub. L. 
109-59, 119 Stat. 1144, 1746; and 49 CFR 1.87.

0
2. Amend Sec.  383.5 by revising the definition for ``tank vehicle'' to 
read as follows:


Sec.  383.5  Definitions.

* * * * *

Tank vehicle:

* * * * *
    (1) Means any commercial motor vehicle transporting, or designed to 
transport, any liquid or gaseous materials within:
    (i) A tank that is either permanently or temporarily attached or 
secured to the vehicle or chassis and has a rated capacity of 1,000 
gallons or more; or
    (ii) Multiple tanks either permanently or temporarily attached or 
secured, when the aggregate rated capacity of those tanks is 1,000 
gallons or more, as determined by adding the capacity of each 
individual tank with a capacity of more than 119 gallons.
    (2) If a commercial motor vehicle transports one or more tanks that 
are manifested either as empty or as residue and that are actually 
empty or contain only residue, those tanks shall not be considered in 
determining whether the vehicle is a tank vehicle.
* * * * *

     Issued under the authority delegated in 49 CFR 1.87 on August 
15, 2013.
Anne S. Ferro,
Administrator.
[FR Doc. 2013-23510 Filed 9-25-13; 8:45 am]
BILLING CODE 4910-EX-P