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

American Government Special Collections Reference Desk

American Government

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

Anne S. Ferro
Federal Motor Carrier Safety Administration
May 15, 2014


[Federal Register Volume 79, Number 94 (Thursday, May 15, 2014)]
[Rules and Regulations]
[Pages 27766-27768]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-10981]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Part 385

[Docket No. FMCSA-2014-0135]
RIN 2126-AB73


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, 2013, edition of the out-of-service criteria and 
through this final rule, FMCSA incorporates the April 1, 2014, edition.

DATES: Effective May 15, 2014. 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 May 15, 2014.

FOR FURTHER INFORMATION CONTACT: Mr. 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., 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, 2013, 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, 2014, edition. The revision does not 
impose new requirements or substantively amend the Code of Federal 
Regulations.

[[Page 27767]]

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. Subsequently, 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 
(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.

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 
Parts 173.403.'' With regard to the specific edition of the out-of-
service criteria, 49 CFR 385.4, as amended on September 13, 2013 (78 FR 
56618), and September 24, 2013 (78 FR 58481), references the April 1, 
2013, edition. Specifically, today's final rule amends Sec.  385.4(b) 
by replacing the reference to the April 1, 2013, edition date with the 
new edition date of April 1, 2014.
    FMCSA reviewed the April 1, 2014, edition and determined there are 
no substantive changes that would result in motor carriers being 
subjected to a new or amended standard. 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.

IV. 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 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

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Public Law 104-121), FMCSA wants to assist small 
entities in understanding this proposed rule so that they can better 
evaluate its effects on them 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, Brian Routhier, listed in the FOR FURTHER 
INFORMATION CONTACT section of this proposed 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.

E.O. 13132 (Federalism)

    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.

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

[[Page 27768]]

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 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.

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. In addition, it is 
not an economically significant rule, and no such analysis is therefore 
required.

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 effect 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.

E-Government Act of 2002

    The E-Government Act of 2002, Public Law 107-347, Sec.  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. 
As a result, FMCSA has not conducted a privacy impact assessment.

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 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.

    (a) * * *
    (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, 2014; incorporation by reference approved for Sec.  
385.415(b).
* * * * *

    Issued under the authority of delegation in 49 CFR 1.87 on: May 
5, 2014.
Anne S. Ferro,
Administrator.
[FR Doc. 2014-10981 Filed 5-14-14; 8:45 am]
BILLING CODE 4910-EX-P

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