Amendments To Implement Certain Provisions of the Fixing America's Surface Transportation Act or ``FAST Act'' |
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T.F. Scott Darling, III
Federal Motor Carrier Safety Administration
22 July 2016
[Federal Register Volume 81, Number 141 (Friday, July 22, 2016)]
[Rules and Regulations]
[Pages 47714-47722]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-17114]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
49 CFR Parts 365, 381, 383, 390, 391, 392, 393, 395, and 396
[Docket No. FMCSA-2016-0091]
RIN 2126-AB89
Amendments To Implement Certain Provisions of the Fixing
America's Surface Transportation Act or ``FAST Act''
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Final rule.
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SUMMARY: The Federal Motor Carrier Safety Administration (FMCSA)
adopts, as final, certain regulations required by the Fixing America's
Surface Transportation Act (FAST Act) enacted on December 4, 2015. The
statutory changes went into effect on October 1, 2015, retroactively,
and require that FMCSA make conforming changes to its regulations to
ensure they are current and consistent with the statutory requirements.
Adoption of these rules is a nondiscretionary, ministerial action that
FMCSA may take without issuing a notice of proposed rulemaking and
receiving public comment, in accordance with the good cause exception
available to Federal agencies under the Administrative Procedure Act
(APA).
DATES: This final rule is effective July 22, 2016. Petitions for
Reconsideration must be received by the Agency no later than August 22,
2016.
ADDRESSES: Petitions for reconsideration must be submitted to:
Administrator, Federal Motor Carrier Safety Administration, 1200 New
Jersey Avenue SE., Washington, DC 20590-0001.
FOR FURTHER INFORMATION CONTACT: Kathryn Sinniger, Federal Motor
Carrier Safety Administration, 1200 New Jersey Avenue SE., Washington,
DC 20590; by telephone at (202) 493-0908, or by electronic mail at
kathryn.sinniger@dot.gov. If you have questions regarding the docket,
call Docket Services, telephone 202-366-9826.
SUPPLEMENTARY INFORMATION:
I. Executive Summary
A. Purpose and Summary of the Major Provisions
This rule makes nondiscretionary, ministerial changes to FMCSA
regulations that are required by the FAST Act (Pub. L. 114-94, 129
Stat. 1312, December 4, 2015). The FAST Act made several notable
changes to the authorities implemented by requirements in the Code of
Federal Regulations (CFR). For example, it exempts welding trucks used
in the construction and maintenance of pipelines from FMCSA's
regulations. It excepts drivers of ready-mixed concrete trucks and hi-
rail vehicles, as well as
[[Page 47715]]
drivers of commercial motor vehicles (CMVs) transporting livestock and
bees, from some of the hours of service (HOS) requirements in 49 CFR
part 395. It also extends the length of the time (from 2 years to 5
years) that an exemption or renewal of an exemption may provide relief
from the regulations.
A full explanation of all changes made in this rule is included
below in section III. Fast Act Provisions Implemented by this
Rulemaking. A copy of the FAST Act has been placed in the docket for
this rulemaking for reference.
B. Benefits and Costs
The economic impact of this rule's provisions, considered both
individually and in the aggregate, does not rise to the level of
economic significance, and a cost-benefit analysis is therefore not
required.
II. Legal Basis for the Rulemaking
A. FAST Act
This rule is based on the FAST Act. Certain provisions of the FAST
Act made mandatory, non-discretionary changes to FMCSA programs. The
majority of these statutory changes went into effect on October 1,
2015, while others will go into effect on October 1, 2016.\1\ This rule
makes only those changes that went into effect on October 1, 2015, that
can be implemented without prior notice and opportunity for comment as
addressed in section II(B) below. Publication of today's rule triggers
the 3-year period during which the States are required to adopt
compatible provisions under FMCSA's Motor Carrier Safety Assistance
Program (MCSAP). 49 CFR 350.331(d), 350.335(b), and part 355, appendix
A.
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\1\ See FAST Act section 1003 (establishing October 1, 2015, as
the effective date for all provisions in Division A of the Act,
covering Surface Transportation) (Pub. L. 114-94, 129 Stat. 1312,
1322, December 4, 2015) and section 5101 (establishing October 1,
2016 as the effective for the changes made in that section) (Pub. L.
114-94, 129 Stat. 1312, 1514, December 4, 2015).
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At a later date, before October 1, 2016, the Agency will issue
another final rule to implement additional ministerial requirements
that will become effective on October 1, 2016.\2\ The Agency also
expects that there will be rulemakings required to address additional
provisions of the FAST Act, where Congress either provided the Agency
with some discretion regarding implementation, or specifically required
that notice and comment rulemaking procedures be followed.
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\2\ See FAST Act section 5101 (Pub. L. 114-94, 129 Stat. 1312,
1514, December 4, 2015), which includes the amendments that become
effective on October 1, 2016.
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It is necessary to make conforming changes to ensure that FMCSA's
regulations are current and consistent with the applicable statutes.
The provisions implemented in this final rule are from the following
sections of the FAST Act, which impacted Title 49, United States Code
(U.S.C.):
1. Section 5206 Applications.
2. Section 5507 Electronic Logging Device Requirements.
3. Section 5518 Covered Farm Vehicles.
4. Section 5519 Operators of Hi-Rail Vehicles.
5. Section 5521 Ready Mix Concrete Delivery Vehicles.
6. Section 5522 Transportation of Construction Materials and
Equipment.
7. Section 5524 Exemptions from Requirements for Certain Welding
Trucks Used in Pipeline Industry.
8. Section 7208 Hazardous Materials Endorsement Exemption.
FMCSA is authorized to implement these statutory provisions by
delegation from the Secretary of Transportation in 49 CFR 1.87.
B. Administrative Procedure Act
Generally, agencies may promulgate final rules only after issuing a
notice of proposed rulemaking and providing an opportunity for public
comment under procedures required by the APA [5 U.S.C. 553(b) and (c)].
Section 553(b)(3)(B) allows an exception from these requirements when
notice and public comment procedures are ``impracticable, unnecessary,
or contrary to the public interest.'' FMCSA finds that prior notice and
an opportunity for comment are unnecessary because the changes adopted
in this final rule are statutorily mandated, and the Agency is
performing a nondiscretionary, ministerial act. For these same reasons,
the rule will be effective upon publication, as these statutory changes
went into effect on October 1, 2015 [5 U.S.C. 553(d)].
C. FAST Act Waiver of Advance Notice of Proposed Rulemaking/Negotiated
Rulemaking
FMCSA is aware of the regulatory reform requirements imposed by
section 5202 of the FAST Act concerning public participation in
rulemaking (49 U.S.C. 31136(g)). These requirements pertain to certain
major rules, but because this final rule is not major, they are not
applicable. In any event, the Agency finds that, for the reasons stated
below, publication of an advance notice of proposed rulemaking under 49
U.S.C. 31136(g)(1)(A), or a negotiated rulemaking under 49 U.S.C.
31136(g)(1)(B), is unnecessary and contrary to the public interest in
accordance with the waiver provision in 49 U.S.C. 31136(g)(3).
III. Fast Act Provisions Implemented by This Rulemaking
This section describes those portions of the FAST Act that require
FMCSA to make conforming changes to the regulations, which are also
listed here. These regulatory changes are non-discretionary; in other
words, the FAST Act provided all of the necessary content of the
regulations. As noted in the executive summary, there are additional
regulatory changes that will be required by the FAST Act, but those
either have a later effective date, will require FMCSA to exercise some
degree of discretion, or are required to be subject to notice and
comment.
FMCSA has included here a table of affected CFR sections, which
will cross-reference corresponding requirements of the FAST Act. This
table will make it easier for the reader to move back and forth between
the revised regulations and the corresponding section(s) of the FAST
Act.
Table of CFR Sections Affected
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CFR section FAST Act section
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365.101(j) (new)....................... 5524 [129 Stat. 1312, 1560].
381.300(b)............................. 5206(a)(3) [129 Stat. 1312,
1537].
381.317 (new).......................... 5206(a)(3) [129 Stat. 1312,
1537].
383.3(i) (new)......................... 7208 [129 Stat. 1312, 1593].
390.38 (new)........................... 5524 [129 Stat. 1312, 1560].
390.39(b)(1)........................... 5518 [129 Stat. 1312, 1558].
391.2(e) (new)......................... 5524 [129 Stat. 1312, 1560].
392.1(b) (new)......................... 5524 [129 Stat. 1312, 1560].
[[Page 47716]]
393.1(e) (new)......................... 5524 [129 Stat. 1312, 1560].
395.1(e)............................... 5521 [129 Stat. 1312, 1559].
395.1(t) (new)......................... 5206(b)(1)(A) [129 Stat. 1312,
1537].
395.1(u) (new)......................... 5206(b)(1)(B) [129 Stat. 1312,
1537].
395.1(v) (new)......................... 5206(b)(1)(C) [129 Stat. 1312,
1537].
395.1(w) (new)......................... 5519 [129 Stat. 1312, 1558].
395.1(x) (new)......................... 5524 [129 Stat. 1312, 1560].
395.2.................................. 5206(b)(1)(A), 5206(b)(1)(C),
5519, 5522 [129 Stat. 1312,
1537, 1558,1559].
395.8.................................. 5507 [129 Stat. 1312, 1553].
396.1(d) (new)......................... 5524 [129 Stat. 1312, 1560].
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Section 5206 Applications
Previously, 49 U.S.C. 31315(b) allowed an exemption from a
regulation for no longer than 2 years from its approval date, and
allowed an exemption to be renewed upon application to the Secretary
for subsequent periods of no more than 2 years. Section 5206(a)(3) of
the FAST Act amends section 31315(b) to allow an exemption to be
granted for no longer than 5 years and to be renewed, upon request, for
subsequent periods no longer than 5 years, if the Secretary finds that
such an exemption would likely achieve an equivalent, or greater, level
of safety. This rulemaking changes Sec. 381.300(b) to allow exemptions
for up to 5 years that may be renewed for subsequent periods of up to 5
years.
Section 5206(a)(3) of the FAST Act also added subsection (b)(3) to
49 U.S.C. 31315 to permit an applicant whose application for exemption
has been denied to resubmit the application addressing the reason for
denial. FMCSA adds a new Sec. 381.317 describing this process.
Section 5206(b)(1) of the FAST Act made permanent three existing
exemptions from the 30-minute rest break requirements in Sec.
395.3(a)(3)(ii). The first was granted to the National Ready Mixed
Concrete Association (80 FR 17819, April 2, 2015). In this rulemaking,
FMCSA adds new Sec. 395.1(t) allowing a driver of a ready-mixed
concrete delivery vehicle to use time spent waiting with the vehicle at
a job site or terminal to meet the requirement for a 30-minute rest
break. The driver may not perform any other work during this time
waiting. FMCSA also adds a definition of ``ready mix concrete delivery
vehicle'' to Sec. 395.2, to reflect the definition in related section
5521 of the FAST Act, Ready Mix Concrete Delivery Vehicles, which is
discussed below.
The second exemption, also from the requirements in Sec.
395.3(a)(3)(ii), was granted to the California Farm Bureau Federation
(80 FR 35425, June 19, 2015). In this rule, FMCSA adds new Sec.
395.1(u) that provides that the 30-minute rest break requirements do
not apply to a driver transporting bees in interstate commerce if there
are bees on the vehicle.
The third exemption from the 30-minute rest break was granted to
the Agricultural and Food Transporters Conference (AFTC) of the
American Trucking Associations (80 FR 33584, June 12, 2015). In this
rulemaking, FMCSA implements this requirement of the Act by adding new
Sec. 395.1(v) that provides that the 30-minute rest break requirements
do not apply to a driver transporting livestock while the livestock are
on the vehicle. FMCSA also adds a definition of livestock to Sec.
395.2, to reflect the classification in the regulatory exemption
developed in response to the AFTC petition.
Section 5507 Electronic Logging Device Requirements
Section 5507 of the FAST Act amends 49 U.S.C. 31137(b) to provide
an exception for motor carriers transporting a motor home or recreation
vehicle trailer in a driveaway-towaway operation, as defined in 49 CFR
390.5. Under this provision, a motor carrier could comply with the HOS
requirements by using either a paper record of duty status form or an
electronic logging device. FMCSA changes Sec. 395.8(a)(1)(iii)(A) by
adding this new exception.
Section 5518 Covered Farm Vehicles
Previously, section 32934(b)(1) of the Moving Ahead for Progress
for the 21st Century Act (MAP-21) (Pub. L. 112-141, 126 Stat. 405, 830,
July 6, 2012; 49 U.S.C. 31136 note) provided that Federal
transportation funding to a State could not be terminated, limited, or
interfered with because the State exempts a covered farm vehicle,
including its operator, from ``any State requirement relating to the
operation of that vehicle.'' The term ``covered farm vehicle'' is
defined in section 32924(c) of MAP-21. Section 5518 of the FAST Act
amends section 32934(b)(1) of MAP-21 to specify that the requirements
are those in section 32934(a) or any other minimum standard provided by
a State relating to the operation of that vehicle. The specific
requirements outlined in section 32934(a) of MAP-21 exempt a covered
farm vehicle and its driver from any requirement relating to (1)
operating with a commercial driver's license (CDL) or drug and alcohol
testing established under 49 U.S.C. chapter 313; (2) medical
certificates established under 49 U.S.C. chapter 311, subchapter III,
or 49 U.S.C. chapter 313; and (3) HOS and vehicle inspection, repair,
and maintenance established under 49 U.S.C. chapter 311, subchapter
III, or 49 U.S.C. chapter 315. The Agency revises Sec. 390.39(b)(1) to
reflect these changes, which should clarify which exemptions found in
State laws for covered farm vehicles may not be taken into
consideration during Federal grants management.
Section 5519 Operators of Hi-Rail Vehicles
For the CMV driver of a hi-rail vehicle who is subject to the HOS
regulations in 49 CFR part 395, section 5519 of the FAST Act provides
that the maximum on-duty time under Sec. 395.3 shall not include
certain time in transportation to or from a duty assignment. Time in
transportation, to or from a duty assignment, will not be included in
the 14 hours on-duty time under Sec. 395.3(a)(2) if (1) it does not
exceed 2 hours per calendar day or a total of 30 hours per calendar
month, and (2) the motor carrier fully and accurately accounts for this
time in the records it maintains and makes such records available to
FMCSA or the Federal Railroad Administration upon request. Section
5519(b) defines ``hi-rail vehicle'' as ``an internal rail flaw
detection vehicle equipped with flange hi-rails.''
[[Page 47717]]
FMCSA adds a new paragraph (w) to Sec. 395.1 to reflect this
exception. In addition, FMCSA adds a definition of hi-rail vehicle to
Sec. 395.2.
Section 5521 Ready Mix Concrete Delivery Vehicles
Section 5521 of the FAST Act amends 49 U.S.C. 31502 by adding a new
subsection (f) that exempts drivers of ready-mixed concrete delivery
vehicles from keeping records of duty status under certain
circumstances. The driver of the ready-mixed concrete delivery vehicle
must (1) operate within a 100-mile radius of the normal work reporting
location; (2) return to the work reporting location and be released
from work within 14 consecutive hours; (3) have at least 10 hours off
duty following each 14 hours on duty; and (4) not exceed 11 hours of
driving time following 10 consecutive hours off duty. The motor carrier
that employs the driver must keep accurate time records. This change
essentially allows the driver of a ready-mixed concrete truck to use
the short-haul exception in Sec. 395.1(e)(1), but with a 14-hour on-
duty period. Section 5521 also adds a definition of ``driver of a ready
mixed concrete delivery vehicle.''
FMCSA revises Sec. 395.1(e)(1) to reflect new 49 U.S.C.
31502(f)(1). The Agency also adds a new definition of ``ready-mixed
concrete delivery vehicle'' to Sec. 395.2. ``Driver'' is already
defined in Sec. 390.5.
Section 5522 Transportation of Construction Materials and Equipment
Section 5522 of the FAST Act amends section 229(e)(4) of the Motor
Carrier Safety Improvement Act of 1999, as transferred and amended (49
U.S.C. 31136 note), which is the definition of transportation of
construction materials and equipment. That definition provided that,
for a driver who transports construction materials and equipment within
a 50 air mile radius of the normal work reporting location of the
driver, any period of 7 or 8 consecutive days may end with the
beginning of any off-duty period of 24 or more successive hours. The
FAST Act increases this to a 75 air mile radius. The Act also allows a
State to establish a different air mile radius limitation if such
limitation is between 50 and 75 air miles and applies only to movements
that take place entirely within the State. FMCSA changes the definition
of transportation of construction materials and equipment in Sec.
395.2 to conform to this change.
Section 5524 Exemptions From Requirements for Certain Welding Trucks
Used in Pipeline Industry
Section 5524 of the FAST Act defines a welding truck used in the
pipeline industry as a pick-up style truck, owned by a welder, equipped
with a welding rig that is used in the construction or maintenance of
pipelines, and that has a gross vehicle weight and combination weight
rating and weight of 15,000 pounds or less. Section 5524 exempts the
operator of such a vehicle and the operator's employer from any
requirement relating to: (1) Registration as a motor carrier, including
obtaining and displaying a U.S. Department of Transportation (DOT)
number (49 U.S.C. chapters 139 and 311); (2) driver qualifications (49
U.S.C. chapter 311); (3) driving a CMV (49 U.S.C. chapter 311); (4)
parts and accessories and inspection, repair, and maintenance of CMVs
(49 U.S.C. chapter 311); and HOS of drivers, including maximum driving
and on duty time (49 U.S.C. chapter 315). To reflect this section of
the FAST Act, FMCSA adds new Sec. 390.38 that excepts welding trucks,
equipped with a welding rig used in the construction and maintenance of
pipelines, from the requirements in 49 CFR parts 365, 390, 391, 392,
393, 395, and 396. The new Sec. 390.38 also defines ``pipeline welding
trucks'' to conform to the FAST Act.
The Agency also adds specific exemptions in each of the parts
listed in new Sec. 390.38, to ensure that the exemption is clear.
These new exemptions are found at: Sec. Sec. 365.101(j) (exemption
from requirement to apply for operating authority in part 365); 391.2
(e) (exemption from minimum qualifications for CMV drivers in part
391); 392.1 (b) (exemption from CMV operating rules in part 392);
393.1(e) (exemption from parts and accessories requirements in part
393); 395.1(x) (exemption from the HOS rules in part 395); and 396.1(d)
(exemption from inspection, repair, and maintenance requirements in
part 396).
Section 7208 Hazardous Materials Endorsement Exemption
Section 7208 of the FAST Act provides that the Secretary allow a
State, at its discretion, to waive the requirement for a holder of a
Class A CDL to obtain a hazardous materials endorsement to transport
1,000 gallons or less of diesel fuel. A State may waive the requirement
if the license holder is (1) acting within the scope of the license
holder's employment as an employee of a custom harvester operation,
agrichemical business, farm retail outlet and supplier, or livestock
feeder; and (2) is operating a service vehicle that is transporting
diesel in a quantity of 3,785 liters (1,000 gallons) or less and that
is clearly marked with a ``flammable'' or ``combustible'' placard, as
appropriate. FMCSA adds a new paragraph (i) to Sec. 383.3 to reflect
this exemption. Note that if a State exercises this discretion, a
driver may still be required to obtain a hazardous materials
endorsement if they travel to a State that has not opted to waive the
requirement.
IV. This Final Rule
This rule adopts as final certain regulations required by the FAST
Act. These statutory changes went into effect retroactively on October
1, 2015. Because adoption of these rules is a nondiscretionary,
ministerial action, FMCSA did not issue an NPRM or receive public
comment.
V. Section-by-Section Analysis
A. Part 365
In Sec. 365.101, paragraph (j) is added to exempt pipeline welding
trucks from the rules of part 365.
B. Part 381
In Sec. 381.300, paragraph (b) is revised, changing the timeframe
from 2 years to 5 years.
Section 381.317 is added to allow an application for exemption to
be resubmitted if it has been denied.
C. Part 383
In Sec. 383.3, a new paragraph (i) is added to provide that a
State may waive the requirement that a driver obtain a hazardous
materials endorsement to transport diesel fuel under certain
circumstances.
D. Part 390
FMCSA adds new Sec. 390.38 to exempt pipeline welding trucks from
certain requirements of the FMCSRs. Paragraph (a) describes those parts
of the FMCSRs from which the pipeline welding truck is exempt.
Paragraph (b) provides a definition of ``pipeline welding truck.''
In Sec. 390.39, paragraph (b)(1) is revised to reflect changes in
the statutes concerning exemptions found in State laws for covered farm
vehicles.
E. Part 391
In Sec. 391.2, paragraph (e) is added to exempt drivers of
pipeline welding trucks from the rules of part 391.
F. Part 392
In Sec. 392.1, the existing text is designated as paragraph (a),
and a paragraph (b) is added to exempt drivers of pipeline welding
trucks from the rules of part 392.
[[Page 47718]]
G. Part 393
In Sec. 393.1, paragraph (e) is added to exempt pipeline welding
trucks from the rules of part 393.
H. Part 395
FMCSA makes a number of changes to Sec. 395.1 to exempt certain
operations from aspects of the hours of service rules. Paragraph (e)(1)
is changed to provide that drivers of ready-mixed concrete delivery
vehicles who are on duty for 14 consecutive hours may be exempt from
the requirements of Sec. 395.8.
Section 395.1(t) is added to allow the driver of a ready-mixed
concrete delivery vehicle to use 30-minutes or more of time spent
waiting with the vehicle to meet the requirement for the 30-minute rest
break in Sec. 395.3(a)(3)(ii). Paragraphs (u) and (v) are added to
exempt drivers engaged in the interstate transportation of bees or
livestock, respectively, from the requirement for a 30-minute rest
break. FMCSA adds paragraph (w) to provide that on-duty time for the
driver of a hi-rail vehicle does not include time in transportation to
or from a duty assignment under certain circumstances. Paragraph (x)
exempts drivers of pipeline welding trucks from the rules of part 395.
The definitions in Sec. 395.2 are changed to conform to the
changes in the statutes. FMCSA adds definitions of ``hi-rail vehicle,''
``livestock,'' and ``ready-mixed concrete delivery vehicle.'' FMCSA
changes the definition of ``transportation of construction material and
equipment'' to increase the air mile radius to the normal work
reporting location. The definition is also changed to allow the States
to establish a different air mile radius limitation upon notice to the
Administrator.
Section 395.8(a) is changed to allow a motor carrier to require the
driver transporting a motor home or recreation vehicle trailer, in a
driveaway-towaway operation, to record his or her records of duty
status manually.
I. Part 396
In Sec. 396.1, paragraph (d) is added to exempt pipeline welding
trucks from the rules of part 396.
VI. Rulemaking Analyses
Executive Order 12866 (Regulatory Planning and Review and DOT
Regulatory Policies and Procedures as Supplemented by E.O. 13563)
FMCSA has determined this final rule is not a significant
regulatory action within the meaning of Executive Order (E.O.) 12866,
as supplemented by E.O. 13563 (76 FR 3821, January 21, 2011), and is
also not significant within the meaning of DOT regulatory policies and
procedures (44 FR 11034, February 26, 1979). As explained above, this
final rule is strictly ministerial in that it incorporates
nondiscretionary statutory requirements. These statutory changes went
into effect retroactively on October 1, 2015. The regulatory changes
included in this rule are necessary to make FMCSA's regulations
consistent with the FAST Act and their economic impact will not exceed
the $100 million annual threshold. Any costs associated with this
action are attributable to the non-discretionary statutory provisions.
This final rule is not expected to generate substantial congressional
or public interest. Therefore, a full regulatory impact analysis has
not been conducted nor has there been a review by the Office of
Management and Budget (OMB).
Although a full regulatory evaluation is unnecessary because of the
low economic impact of this rulemaking, FMCSA analyzed the cost impact
of the FAST Act provisions implemented by this final rule. This rule's
provisions generally provided exemptions to FMCSA regulations and
should ease the economic burden on regulated entities. The impacts of
these provisions should be small and affect a small number of
individuals and businesses.
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,
Kathryn Sinniger, 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 Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538)
requires Federal agencies to assess the effects of their discretionary
regulatory actions. In particular, the Act addresses actions that may
result in the expenditure by a State, local, or tribal government, in
the aggregate, or by the private sector of $155 million (which is the
value equivalent of $100,000,000 in 1995, adjusted for inflation to
2014 levels) or more in any 1 year. Though this final rule will not
result in such an expenditure, the Agency does discuss the effects of
this rule elsewhere in this preamble.
Paperwork Reduction Act
This final rule calls for no new collection of information under
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520), nor does it
revise any existing approved collections of information.
E.O. 13132 (Federalism)
A rule has implications for Federalism under section 1(a) of
Executive Order 13132 if it has ``substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government.''
FMCSA has determined that this rule would not have substantial
direct costs on or for States, nor would it limit the policymaking
discretion of States. Nothing in this document preempts any State law
or regulation. Therefore, this rule does not have sufficient federalism
implications to warrant the preparation of a Federalism summary impact
statement.
E.O. 12988 (Civil Justice Reform)
This final rule meets applicable standards in sections 3(a) and
3(b)(2) of
[[Page 47719]]
E.O. 12988 to minimize litigation, eliminate ambiguity, and reduce
burden.
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 final rule is not economically
significant. Therefore, no analysis of the impacts on children is
required. In any event, this regulatory action does not pose an
environmental or safety risk that could disproportionately affect
children.
E.O. 12630 (Taking of Private Property)
FMCSA reviewed this final 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 takings implications.
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), therefore the
Agency finds that there will be no impact on the privacy of
individuals.
The Privacy Act (5 U.S.C. 552a) applies only to Federal agencies
and any non-Federal agency which receives records contained in a system
of records from a Federal agency for use in a matching program.
E.O. 12372 (Intergovernmental Review)
The regulations implementing E.O. 12372 regarding intergovernmental
consultation on Federal programs and activities do not apply to this
action.
E.O. 13211 (Energy Supply, Distribution, or Use)
FMCSA analyzed this action under E.O. 13211, Actions Concerning
Regulations That Significantly Affect Energy Supply, Distribution, or
Use. FMCSA determined that it is not a ``significant energy action''
under that E.O. because it is not economically significant and is not
likely to have an adverse effect on the supply, distribution, or use of
energy.
E.O. 13175 (Indian Tribal Governments)
This final 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.
National Technology Transfer and Advancement Act (Technical Standards)
The National Technology Transfer and Advancement Act (NTTAA) (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 final rule does
not use technical standards. Therefore, we did not consider the use of
voluntary consensus standards.
National Environmental Policy Act and Clean Air Act
FMCSA analyzed this rule in accordance with the National
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321, et seq.) and
FMCSA's NEPA Implementing Procedures and Policy for Considering
Environmental Impacts, Order 5610.1 (FMCSA Order), March 1, 2004 (69 FR
9680). FMCSA's Order states that ``[w]here FMCSA has no discretion to
withhold or condition an action if the action is taken in accordance
with specific statutory criteria and FMCSA lacks control and
responsibility over the effects of an action, that action is not
subject to this Order.'' Id. at chapter 1(D). Because Congress
specifies the Agency's precise action here, thus leaving the Agency no
discretion over such action, and since the Agency lacks jurisdiction
and therefore control and responsibility over the effects of this
action, this rulemaking falls under chapter 1(D). Therefore, no further
analysis is considered.
In addition to the NEPA requirements to examine impacts on air
quality, the Clean Air Act (CAA) as amended (42 U.S.C. 7401, et seq.)
also requires FMCSA to analyze the potential impact of its actions on
air quality and to ensure that FMCSA actions conform to State and local
air quality implementation plans. This non-discretionary action is
expected to fall within the CAA de minimis standards and is not subject
to the Environmental Protection Agency's General Conformity Rule (40
CFR parts 51 and 93).
Additionally, FMCSA evaluated the effects of this final rule in
accordance with Executive Order 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. This final rule is exempt from analysis under
the National Environmental Policy Act. This final rule simply makes
ministerial, mandatory changes and would not result in high and adverse
environmental impacts.
List of Subjects
49 CFR Part 365
Administrative practice and procedure, Brokers, Buses, Freight
forwarders, Maritime carriers, Mexico, Motor Carriers, Moving of
household goods.
49 CFR Part 381
Motor carriers.
49 CFR Part 383
Administrative practice and procedure, Alcohol abuse, Drug abuse,
Highway safety, Motor carriers.
49 CFR Part 390
Highway safety, Intermodal transportation, Motor carriers, Motor
vehicle safety, Reporting and recordkeeping requirements.
49 CFR Part 391
Alcohol abuse, Drug abuse, Drug testing, Highway safety, Motor
Carriers, Reporting and recordkeeping requirements, Safety,
Transportation.
49 CFR Part 392
Alcohol abuse, Drug abuse, Highway safety, Motor carriers.
49 CFR Part 393
Highway safety, Motor carriers, Motor vehicle safety.
[[Page 47720]]
49 CFR Part 395
Highway safety, Motor carriers, Reporting and recordkeeping
requirements.
49 CFR Part 396
Highway safety, Motor carriers, Motor vehicle safety, Reporting and
recordkeeping requirements.
For the reasons stated in this preamble, FMCSA amends 49 CFR
chapter III as set forth below:
PART 365--RULES GOVERNING APPLICATIONS FOR OPERATING AUTHORITY
0
1. The authority citation for part 365 is revised to read as follows:
Authority: 5 U.S.C. 553 and 559; 49 U.S.C. 13101, 13301, 13901-
13906, 14708, 31138, and 31144; sec. 5524 of Pub. L. 114-94, 129
Stat. 1312, 1560; and 49 CFR 1.87.
0
2. Amend Sec. 365.101 by adding paragraph (j) to read as follows:
Sec. 365.101 Applications governed by these rules.
* * * * *
(j) The rules in this part do not apply to ``pipeline welding
trucks'' as defined in 49 CFR 390.38(b).
PART 381--WAIVERS, EXEMPTIONS, AND PILOT PROGRAMS
0
3. The authority citation for part 381 continues to read as follows:
Authority: 49 U.S.C. 31136(e) and 31315; and 49 CFR 1.87.
0
4. Amend Sec. 381.300 by revising paragraph (b) to read as follows:
Sec. 381.300 What is an exemption?
* * * * *
(b) An exemption provides the person or class of persons with
relief from the regulations for up to 5 years, and may be renewed, upon
request, for subsequent 5-year periods.
* * * * *
0
5. Add Sec. 381.317 to read as follows:
Sec. 381.317 May I resubmit my application for exemption if it is
denied?
If the Administrator denies your application for exemption and you
can reasonably address the reasons for denial, you may resubmit your
application following the procedures in Sec. 381.310.
PART 383--COMMERCIAL DRIVER'S LICENSE STANDARDS; REQUIREMENTS AND
PENALTIES
0
6. 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 of Pub. L. 106-159, 113 Stat. 1748, 1766, 1767; sec.
1012(b) of Pub. L. 107-56, 115 Stat. 272, 297; sec. 4140 of Pub. L.
109-59, 119 Stat. 1144, 1746; sec. 32934 of Pub. L. 112-141, 126
Stat. 405, 830; sec. 7208 of Pub. L. 114-94, 129 Stat. 1312, 1593;
and 49 CFR 1.87.
0
7. Amend Sec. 383.3 by adding paragraph (i) to read as follows:
Sec. 383.3 Applicability.
* * * * *
(i) Hazardous materials endorsement exemption for certain drivers
transporting diesel. A State may waive the requirement for a holder of
a Class A commercial driver's license to obtain a hazardous materials
endorsement under this part, if the license holder is:
(1) Acting within the scope of the license holder's employment, and
within the State of domicile (or another State with a hazardous
materials endorsement exemption) as an employee of a custom harvester
operation, agrichemical business, farm retail outlet and supplier, or
livestock feeder; and
(2) Operating a service vehicle that is:
(i) Transporting diesel in a quantity of 3,785 liters (1,000
gallons) or less; and
(ii) Clearly marked with a ``flammable'' or ``combustible''
placard, as appropriate.
PART 390--FEDERAL MOTOR CARRIER SAFETY REGULATIONS; GENERAL
0
8. The authority citation for part 390 is revised to read as follows:
Authority: 49 U.S.C. 504, 508, 31132, 31133, 31134, 31136,
31137, 31144, 31151, 31502; sec. 114, Pub. L. 103-311, 108 Stat.
1673, 1677-1678; sec. 212, 217, Pub. L. 106-159, 113 Stat. 1748,
1766, 1767; sec. 229, Pub. L. 106-159 (as transferred by sec. 4114
and amended by secs. 4130-4132, Pub. L. 109-59, 119 Stat. 1144,
1726, 1743-1744); sec. 4136, Pub. L. 109-59, 119 Stat. 1144, 1745;
sec. 32101(d) and 32934, Pub. L. 112-141, 126 Stat. 405, 778, 830;
sec. 2, Pub. L. 113-125, 128 Stat. 1388; sec. 5403(d), 5518, 5524,
Pub. L. 114-94, 129 Stat. 1312, 1548, 1558, 1560; and 49 CFR 1.81,
1.81a and 1.87.
0
9. Add Sec. 390.38 to read as follows:
Sec. 390.38 Exemptions for pipeline welding trucks.
(a) Federal requirements. A pipeline welding truck, as defined in
paragraph (b) of this section, including the individuals operating such
vehicle and the employer of such individual, is exempt from the
following:
(1) Any requirement relating to registration as a motor carrier,
including the requirement to obtain and display a Department of
Transportation number, in 49 CFR part 365 or 390.
(2) Any requirement relating to driver qualifications in 49 CFR
part 391.
(3) Any requirement relating to driving of commercial motor
vehicles in 49 CFR part 392.
(4) Any requirement relating to parts and accessories and
inspection, repair, and maintenance of commercial motor vehicles in 49
CFR parts 393 and 396.
(5) Any requirement relating to hours of service of drivers,
including maximum driving and on duty time, found in 49 CFR part 395.
(b) Definition. ``Pipeline welding truck'' means a motor vehicle
that is travelling in the State in which the vehicle is registered or
another State, is owned by a welder, is a pick-up style truck, is
equipped with a welding rig that is used in the construction or
maintenance of pipelines, and has a gross vehicle weight and
combination weight rating and weight of 15,000 pounds or less.
0
10. Amend Sec. 390.39 by revising paragraph (b)(1) to read as follows:
Sec. 390.39 Exemptions for ``covered farm vehicles.''
* * * * *
(b) State requirements--(1) In general. Federal transportation
funding to a State may not be terminated, limited, or otherwise
interfered with as a result of the State exempting a covered farm
vehicle, including the individual operating that vehicle, from--
(i) A requirement described in paragraph (a) of this section; or
(ii) Any other minimum standard provided by a State relating to the
operation of that vehicle.
* * * * *
PART 391--QUALIFICATIONS OF DRIVERS AND LONGER COMBINATION VEHICLE
(LCV) DRIVER INSTRUCTORS
0
11. The authority citation for part 391 is revised to read as follows:
Authority: 49 U.S.C. 504, 508, 31133, 31136, 31149, and 31502;
sec. 4007(b) of Pub. L. 102-240, 105 Stat. 1914, 2152; sec. 114 of
Pub. L. 103-311, 108 Stat. 1673, 1677; sec. 215 of Pub. L. 106-159,
113 Stat. 1748, 1767; sec. 32934 of Pub. L. 112-141, 126 Stat. 405,
830; sec. 5524 of Pub. L. 114-94, 129 Stat. 1312, 1560; and 49 CFR
1.87.
0
12. Revise Sec. 391.2 by adding paragraph (e) to read as follows:
Sec. 391.2 General exceptions.
* * * * *
(e) Pipeline welding trucks. The rules in this part do not apply to
drivers of ``pipeline welding trucks'' as defined in 49 CFR 390.38(b).
[[Page 47721]]
PART 392--DRIVING OF COMMERCIAL MOTOR VEHICLES
0
13. The authority citation for part 392 is revised to read as follows:
Authority: 49 U.S.C. 504, 13902, 31136, 31151, 31502; Section
112 of Pub. L. 103-311, 108 Stat. 1673, 1676 (1994), as amended by
sec. 32509 of Pub. L. 112-141, 126 Stat. 405, 805 (2012); sec. 5524
of Pub. L. 114-94, 129 Stat. 1312, 1560; and 49 CFR 1.87.
0
14. Revise Sec. 392.1 by designating the existing text as paragraph
(a) and adding paragraph (b) to read as follows:
Sec. 392.1 Scope of the rules in this part.
* * * * *
(b) The rules in this part do not apply to drivers of ``pipeline
welding trucks'' as defined in 49 CFR 390.38(b).
PART 393--PARTS AND ACCESSORIES NECESSARY FOR SAFE OPERATION
0
15. The authority citation for part 393 is revised to read as follows:
Authority: 49 U.S.C. 31136, 31151, and 31502; sec. 1041(b) of
Pub. L. 102-240, 105 Stat. 1914, 1993 (1991); sec. 5524 of Pub. L.
114-94, 129 Stat. 1312, 1560; and 49 CFR 1.87.
0
16. Revise Sec. 393.1 by adding paragraph (e) to read as follows:
Sec. 393.1 Scope of the rules in this part.
* * * * *
(e) The rules in this part do not apply to ``pipeline welding
trucks'' as defined in 49 CFR 390.38(b).
PART 395--HOURS OF SERVICE OF DRIVERS
0
17. The authority citation for part 395 is revised to read as follows:
Authority: 49 U.S.C. 504, 31133, 31136, 31137, and 31502; sec.
113, Pub. L. 103-311, 108 Stat. 1673, 1676; sec. 229, Pub. L. 106-
159 (as transferred by sec. 4115 and amended by secs. 4130-4132,
Pub. L. 109-59, 119 Stat. 1144, 1726, 1743, 1744); sec. 4133, Pub.
L. 109-59, 119 Stat. 1144, 1744; sec. 108, Pub. L. 110-432, 122
Stat. 4860-4866; sec. 32934, Pub. L. 112-141, 126 Stat. 405, 830;
sec. 5206(b) of Pub. L. 114-94, 129 Stat. 1312, 1537; and 49 CFR
1.87.
0
18. Amend Sec. 395.1 by revising paragraph (e)(1) and adding
paragraphs (t), (u), (v), (w), and (x), to read as follows:
Sec. 395.1 Scope of rules in this part.
* * * * *
(e) Short-haul operations--(1) 100 air-mile radius driver. A driver
is exempt from the requirements of Sec. 395.8 if:
(i) The driver operates within a 100 air-mile radius of the normal
work reporting location;
(ii)(A) The driver, except a driver-salesperson or a driver of a
ready-mixed concrete delivery vehicle, returns to the work reporting
location and is released from work within 12 consecutive hours;
(B) The driver of a ready-mixed concrete delivery vehicle returns
to the work reporting location and is released from work within 14
consecutive hours;
(iii)(A) A property-carrying commercial motor vehicle driver,
except the driver of a ready-mixed concrete delivery vehicle, has at
least 10 consecutive hours off duty separating each 12 hours on duty;
(B) A driver of a ready-mixed concrete delivery vehicle has at
least 10 consecutive hours off duty separating each 14 hours on duty;
(C) A passenger-carrying commercial motor vehicle driver has at
least 8 consecutive hours off duty separating each 12 hours on duty;
(iv)(A) A property-carrying commercial motor vehicle driver, except
the driver of a ready-mixed concrete delivery vehicle, does not exceed
the maximum driving time specified in Sec. 395.3(a)(3) following 10
consecutive hours off duty; or
(B) A driver of a ready-mixed concrete delivery vehicle does not
exceed 11 hours maximum driving time following 10 consecutive hours off
duty; or
(C) A passenger-carrying commercial motor vehicle driver does not
exceed 10 hours maximum driving time following 8 consecutive hours off
duty; and
(v) The motor carrier that employs the driver maintains and retains
for a period of 6 months accurate and true time records showing:
(A) The time the driver reports for duty each day;
(B) The total number of hours the driver is on duty each day;
(C) The time the driver is released from duty each day; and
(D) The total time for the preceding 7 days in accordance with
Sec. 395.8(j)(2) for drivers used for the first time or
intermittently.
* * * * *
(t) Ready-mixed concrete delivery vehicle. A driver of a ready-
mixed concrete delivery vehicle subject to the requirement for a 30-
minute rest break in Sec. 395.3(a)(3)(ii) may use 30-minutes or more
of time spent while waiting with the commercial motor vehicle at a job
site or terminal to meet the requirement for the 30-minute rest break,
providing the driver performs no other work during the break.
(u) Transport of commercial bees. The provisions of Sec.
395.3(a)(3)(ii), requiring a 30-minute rest break, do not apply to a
driver engaged in the interstate transportation of bees by commercial
motor vehicle as long as the bees are on the vehicle.
(v) Transport of livestock. The provisions of Sec.
395.3(a)(3)(ii), requiring a 30-minute rest break, do not apply to a
driver engaged in the interstate transportation of livestock by
commercial motor vehicle while the livestock are on the vehicle.
(w) Hi-rail vehicles. For the driver of a hi-rail vehicle, the
maximum on duty time under Sec. 395.3 shall not include time in
transportation to or from a duty assignment if such time in
transportation--
(1) Does not exceed 2 hours per calendar day or a total of 30 hours
per calendar month; and
(2) Is fully and accurately accounted for in records to be
maintained by the motor carrier and such records are made available
upon request of the Federal Motor Carrier Safety Administration or the
Federal Railroad Administration.
(x) Pipeline welding trucks. The rules in this part do not apply to
drivers of ``pipeline welding trucks,'' as defined in 49 CFR 390.38(b).
0
19. Amend Sec. 395.2 by revising the first sentence in the definition
of ``Transportation of construction materials and equipment'' and by
adding definitions of ``Hi-rail vehicle,'' ``Livestock,'' and ``Ready-
mixed concrete delivery vehicle,'' in alphabetical order, to read as
follows:
Sec. 395.2 Definitions.
* * * * *
Hi-rail vehicle means an internal rail flaw detection vehicle
equipped with flange hi-rails.
Livestock means cattle, elk, reindeer, bison, horses, deer, sheep,
goats, swine, poultry (including egg-producing poultry), fish used for
food, and other animals designated by the Secretary of Agriculture that
are part of a foundation herd (including dairy producing cattle) or
offspring; or are purchased as part of a normal operation and not to
obtain additional benefits under the Emergency Livestock Feed
Assistance Act of 1988, as amended.
* * * * *
Ready-mixed concrete delivery vehicle means a vehicle designed to
deliver ready-mixed concrete on a daily basis and equipped with a
mechanism under which the vehicle's propulsion engine provides the
power to operate a mixer drum to agitate and mix the product en route
to the delivery site.
* * * * *
Transportation of construction material and equipment means the
transportation of construction and
[[Page 47722]]
pavement materials, construction equipment, and construction
maintenance vehicles, by a driver to or from an active construction
site (a construction site between mobilization of equipment and
materials to the site to the final completion of the construction
project) within a 75 air mile radius of the normal work reporting
location of the driver, except that a State, upon notice to the
Administrator, may establish a different air mile radius limitation for
purposes of this definition if such limitation is between 50 and 75 air
miles and applies only to movements that take place entirely within the
State. * * *
* * * * *
0
20. Amend Sec. 395.8 by revising paragraph (a)(1)(iii)(A) to read as
follows.
Sec. 395.8 Driver's record of duty status.
(a)(1) * * *
(iii)(A) A motor carrier may require a driver to record the
driver's duty status manually in accordance with this section, rather
than require the use of an ELD, if the driver is operating a commercial
motor vehicle:
(1) In a manner requiring completion of a record of duty status on
not more than 8 days within any 30-day period;
(2) In a driveaway-towaway operation in which the vehicle being
driven is part of the shipment being delivered;
(3) In a driveaway-towaway operation in which the vehicle being
transported is a motor home or a recreation vehicle trailer; or
(4) That was manufactured before model year 2000.
* * * * *
PART 396--INSPECTION, REPAIR, AND MAINTENANCE
0
21. The authority citation for part 396 is revised to read as follows:
Authority: 49 U.S.C. 504, 31133, 31136, 31151, and 31502; sec.
32934, Pub. L. 112-141, 126 Stat. 405, 830; sec. 5524 of Pub. L.
114-94, 129 Stat. 1312, 1560; and 49 CFR 1.87.
0
22. Revise Sec. 396.1 by adding paragraph (d) to read as follows:
Sec. 396.1 Scope.
* * * * *
(d) The rules in this part do not apply to ``pipeline welding
trucks'' as defined in 49 CFR 390.38(b).
Issued under the authority of delegation in 49 CFR 1.87: July
14, 2016.
T.F. Scott Darling, III,
Acting Administrator.
[FR Doc. 2016-17114 Filed 7-21-16; 8:45 am]
BILLING CODE 4910-EX-P