Incorporation by Reference; North American Standard Out-of-Service Criteria; Hazardous Materials Safety Permits |
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T.F. Scott Darling, III
Federal Motor Carrier Safety Administration
June 18, 2015
[Federal Register Volume 80, Number 117 (Thursday, June 18, 2015)]
[Rules and Regulations]
[Pages 34839-34841]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-14961]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
49 CFR Parts 385
[Docket No. FMCSA-FMCSA-2015-0075]
RIN 2126-AB78
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.'' Currently the rules
reference the April 1, 2014, edition of the out-of-service criteria
and, through this final rule, FMCSA incorporates the April 1, 2015,
edition.
DATES: Effective June 18, 2015. The incorporation by reference of
certain publications listed in the rule is approved by the Director of
the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part
51 as of June 18, 2015.
FOR FURTHER INFORMATION CONTACT: Mr. Michael Huntley, Federal Motor
Carrier Safety Administration, Office of Policy, 1200 New Jersey Avenue
SE., Washington, DC 20590-0001, by telephone at (202) 366-9209 or via
email michael.huntley@dot.gov. Office hours are from 8 a.m. to 4:30
p.m., Monday through Friday, except Federal holidays. If you have
questions on viewing the docket, contact Docket Operations, telephone
202-366-9826.
SUPPLEMENTARY INFORMATION:
I. Executive Summary
This rulemaking updates an incorporation by reference found at 49
CFR 385.4 and referenced at 49 CFR 385.415(b)(1). The rules currently
reference the April 1, 2014, edition of ``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.'' In this final rule,
FMCSA incorporates the April 1, 2015, edition. The revision does not
impose new requirements or substantively amend the Code of Federal
Regulations.
II. 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. Consistent with that
authority, FMCSA has promulgated regulations to address the
congressional mandate. Such regulations on hazardous materials are the
underlying provisions that have utilized the 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
to dispense with such procedures (and incorporates the finding and a
brief statement of reasons to support the finding in the rules issued).
Generally, good cause exists where the Agency determines that notice
and public comment procedures are impracticable, unnecessary, or
contrary to the public interest (5 U.S.C. 553 (b)(3)(B)). 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.
III. 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
part 173.403.'' With regard to the specific edition of the out-of-
service criteria, 49 CFR 385.4, as amended on May 15, 2014 (79 FR
27766), references the April 1, 2014, edition. Specifically, this final
rule amends Sec. 385.4 (b) by replacing the reference to the April 1,
2014, edition date with the new edition date of April 1, 2015.
FMCSA reviewed the April 1, 2015, edition and determined there are
no substantive changes that would result in motor carriers being
subjected to a new or amended standard. The changes are highlighted
below for reference. It is necessary to update the reference to ensure
that motor carriers and enforcement officials have convenient access to
the correctly identified inspection criteria that are referenced in the
rules.
There are eight changes made in the 2015 edition. Additional
conforming changes have been made to the table of contents, but those
are not included in this summary. (All references are to the April 1,
2015 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 first change is to create consistency in the language used between
commercial driver's license (CDL) and non-CDL drivers, when being taken
out of service. (Part I, item 2.a.(1)) It does not change the criteria
used to take drivers out of service, therefore this is not a
substantive change. The second change is to align the standard with
FMCSA's regulation governing operation of a vehicle while fatigued,
found at 49 CFR 392.3. (Part I, Item 6.) Again, this change does not
alter the criteria an inspector would use to take
[[Page 34840]]
a driver out of service and as such does not rise to a substantive
change.
The third change removes Part I, Item 7, which addresses
communication. The 2014 edition included an item covering the
responsibility of the driver and motor carrier to ensure adequate
communication in Canada, Mexico, and the United States (the three
countries covered by the standard). However, because the FMCSRs only
require drivers in the United States to be able to communicate in
English for basic purposes (converse with the general public, to
understand highway traffic signs and signals in the English language,
to respond to official inquiries, and to make entries on reports and
records), there should be no additional burden placed on drivers in the
United States as a result of the change in the 2015 standard. As a
result, removing this item will not have a substantive impact on
drivers.
The fourth, fifth and sixth changes amend Part II, Item 1. (BRAKE
SYSTEMS). The language for the out-of-service condition for Defective
Brakes and Front Steering Axle(s) Brakes was modified to add loose and
missing caliper mounting bolts to the 20% calculation for determining
OOSC for hydraulic brakes. Its omission was an oversight when the
criterion for brakes was rewritten; FMCSA views this change as
nonsubstantive. (Part II, Item 1.a. & b.) An amendment to the language
for the application of OOSC for worn hoses clarifies that this section
is intended for air brake hoses only, and as such is not a substantive
change. (Part II, Item 1.h.) Also, the amendment to the OOSC addresses
the improper repair of hydraulic brake lines by means of placing a
piece of tubing over the metal tubing and attaching with hose clamps.
As this method of repair is not permitted under the FMCSRs, this change
will not have a substantive impact. (Part II, Item 1.o.)
The seventh change revises wording that was causing confusion in
Part II, Item 3. (COUPLING). The current language causes confusion and
gives the impression that the entire fifth wheel is not being taken
into consideration. The new OOSC language clarifies how to measure
cracks in parent metal, how to determine the 20% weld cracks, and
defines a ``well defined (especially open) crack'' as well as a crack
in a repair weld. This revision is a clarification and not a
substantive change. (Part II, Item 3.a. & b.)
The final change adds a paragraph (c) to Part II, Item 15. This new
paragraph explicitly calls out the practice of using loose or temporary
seating. As the practice is already prohibited under the FMCSRs (see 49
CFR 393.91, 390.33), the additional language does not alter the
criteria an inspector would use to take a driver out of service and as
such does not rise to a substantive change. (Part II, Item 15.c.)
IV. Regulatory Analyses
Regulatory Planning and Review (Executive Order (E.O.) 12866) and DOT
Regulatory Policies and Procedures
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 11034, February 26,
1979). FMCSA expects the final rule will have no costs; therefore, a
full regulatory evaluation is unnecessary. The Office of Management and
Budget (OMB) did not, therefore, review this document.
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,
Michael Huntley, listed in the FOR FURTHER INFORMATION CONTACT section
of this rule.
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 $151
million (which is the 2012 inflation-adjusted value of the 1995
threshold of $100 million) or more in any 1 year.
Federalism (E.O. 13132)
A rule has implications for federalism under E.O. 13132,
Federalism, 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 States or localities. FMCSA analyzed this
rule under that Order and has determined that it does not have
implications for federalism.
Civil Justice Reform (E.O. 12988)
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.
Protection of Children (E.O. 13045)
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. In addition, it is
not an economically significant rule, and no such analysis is therefore
required.
Taking of Private Property (E.O. 12630)
This rule will not effect a taking of private property or otherwise
have taking implications under E.O. 12630, Governmental Actions and
Interference with Constitutionally Protected Property Rights.
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 (PIA) of a regulation that will
affect the privacy of individuals. This rule does not require the
collection of personally identifiable information (PII).
Intergovernmental Review (E.O. 12372)
The regulations implementing E.O. 12372 regarding intergovernmental
consultation on Federal programs and activities do not apply to this
rule.
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.
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National Environmental Policy and Clean Air 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.
Environmental Justice (E.O. 12898)
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 impacts 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.
Energy Supply, Distribution, or Use (E.O. 13211)
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 E.O. 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.
Indian Tribal Governments (E.O. 13175)
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.
National Technology Transfer and Advancement Act (Technical Standards)
and 1 CFR Part 51
The National Technology Transfer and Advancement Act (NTTAA) (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. The standard incorporated by reference
is discussed in detail in section III. Background and is reasonably
available through the CSVA Web site.
E-Government Act of 2002
The E-Government Act of 2002, Public Law 107-347, section 208, 116
Stat. 2899, 2921 (Dec. 17, 2002), requires Federal agencies to conduct
a privacy impact assessment for new or substantially changed technology
that collects, maintains, or disseminates information in an
identifiable form. No new or substantially changed technology would
collect, maintain, or disseminate information as a result of this rule.
Accordingly, FMCSA has not conducted a 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
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1. The authority citation for part 385 continues 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, 2015; incorporation by reference approved for Sec.
385.415(b).
* * * * *
Issued under the authority of delegation in 49 CFR 1.87 on: June
5, 2015.
T. F. Scott Darling, III,
Chief Counsel.
[FR Doc. 2015-14961 Filed 6-17-15; 8:45 am]
BILLING CODE 4910-EX-P