Incorporation by Reference; North American Standard Out-of-Service Criteria; Hazardous Materials Safety Permits

Anne S. Ferro
Federal Motor Carrier Safety Administration
September 13, 2013

[Federal Register Volume 78, Number 178 (Friday, September 13, 2013)]
[Rules and Regulations]
[Pages 56618-56620]
From the Federal Register Online via the Government Printing 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 brian.routhier@dot.gov. 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.

0
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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