[Federal Register Volume 71, Number 173 (Thursday, September 7, 2006)]
[Rules and Regulations]
[Pages 52751-52754]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-14802]


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DEPARTMENT OF TRANSPORTATION

Office of the Secretary of Transportation

49 CFR Part 1

[Docket No. OST-1999-6189]
RIN 9991-AA50


Organization and Delegation of Powers and Duties

AGENCY: Office of the Secretary of Transportation (OST), DOT.

ACTION: Final rule.

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SUMMARY: This final rule revises delegations of authority to carry out 
the Federal hazardous material transportation law, as amended by the 
Hazardous Materials Transportation Safety and Security Reauthorization 
Act of 2005 (Title VII of the Safe, Accountable, Flexible, Efficient 
Transportation Equity Act: A Legacy for Users or ``SAFETEA-LU''), and 
in accordance with the Norman Y. Mineta Research and Special Programs 
Improvement Act, Public Law 108-426, 118 Stat. 2423 (November 30, 2004) 
(Mineta Act) that were previously published in 71 FR 30828 (May 31, 
2006). This final rule also adds delegations of authority to the 
Federal Motor Carrier Safety Administration (FMCSA) and the Research 
and Innovative Technology Administration (RITA) to carry out certain 
provisions of SAFETEA-LU.

DATES: Effective Date: September 7, 2006.

FOR FURTHER INFORMATION CONTACT: Rebecca S. Behravesh, Attorney 
Advisor, Office of General Counsel, Department of Transportation, 400 
7th St., SW., Room 10424, Washington, DC 20590-0001; Telephone (202) 
366-9314.

SUPPLEMENTARY INFORMATION: 

Background

    The Federal hazardous material transportation law, 49 U.S.C. 5101 
et seq., and the regulations issued thereunder apply to the 
transportation of hazardous materials by air, railroad, highway, and 
water. In 2004, the Mineta Act established the Pipeline and Hazardous 
Materials Safety Administration (PHMSA) and RITA and transferred 
Secretarial authorities previously exercised by the Research and 
Special Programs Administration (RSPA) to PHMSA and RITA. While the 
Secretary delegated authorities to PHMSA and RITA under the Mineta Act, 
the Mineta Act did not remove, restrict, divest or restructure any 
existing authority, including the

[[Page 52752]]

authority to regulate the transportation of hazardous materials, that 
the Federal Aviation Administration (FAA), Federal Railroad 
Administration (FRA), and FMCSA previously possessed. Accordingly, 
certain authorities that apply only to a single mode of transportation 
were previously delegated to a modal transportation agency within DOT, 
and enforcement authority was delegated to PHMSA and the modal 
agencies: FAA, FRA, and FMCSA.\1\
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    \1\ The United States Coast Guard also exercises authority under 
the Federal hazardous material transportation law under the 
authority previously delegated to it when it was part of DOT. Under 
6 U.S.C. 468(b) ``the authorities, functions, personnel, and assets 
of the Coast Guard * * * including the authorities and functions of 
the Department of Transportation relating thereto'' were transferred 
to the Department of Homeland Security (DHS). See also 6 U.S.C. 
551(d)(2) which provides that DHS ``shall have all functions 
relating to the agency [transferred to DHS] that any other official 
could by law exercise in relation to the agency immediately before 
such transfer.''
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    The Hazardous Materials Transportation Safety and Security 
Reauthorization Act of 2005, which is Title VII of SAFETEA-LU, Public 
Law 109-59, 119 Stat. 1144, 1891 (Aug. 10, 2005), amended 49 U.S.C. 
5121 to provide additional authority to enforce the Federal hazardous 
material transportation law and the regulations issued under that law. 
The delegations of authority to FAA, FRA, and FMCSA are being revised 
to reflect that additional authority, which includes inspecting, 
investigating, and opening outer packages suspected of containing 
hazardous materials; having suspected hazardous materials tested; 
removing from transportation in commerce packages that may pose an 
imminent hazard; issuing emergency orders necessary to abate imminent 
hazards; and defending the agency's actions before any administrative 
or adjudicatory board proceedings related to the agency's 
implementation of this additional inspection and enforcement authority.
    This rulemaking revises 49 CFR 1.47(j)(1), 1.49(s)(1), and 
1.73(d)(1) to reflect these delegations. In addition, this final rule 
removes from these provisions the parallel phrases ``relating to 
investigations, records, inspections, penalties, and specific relief'' 
and ``including the manufacture, fabrication, marking, maintenance, 
reconditioning, repair or test of containers which are represented, 
marked, certified, or sold for use in the bulk transportation of 
hazardous materials by [air, railroad, and highway, respectively].'' 
This language simply describes the authority conferred by 49 U.S.C. 
5121 (administrative authority to conduct inspections and 
investigations related to the manufacture, fabrication, and maintenance 
of packagings or containers and the transportation of a hazardous 
material in commerce); 5122 (civil enforcement); 5123 (civil 
penalties); and 5124 (criminal penalties), and is being deleted as 
superfluous. In the final rule published on May 31, 2005, similar 
superfluous language was removed from the delegations to PHMSA in 
section 1.53(b)(1). See 71 FR 30828, 30833. The removal of this 
language is intended to simplify the regulatory text and does not 
amend, change, modify, or revise the underlying statutory authority 
that is delegated to FAA, FRA, FMCSA, and PHMSA. The authority to 
delegate the inspection and enforcement authority in the Federal 
hazardous material transportation law in this manner is conferred by 49 
U.S.C. 108(g).
    This rule also removes outdated 49 CFR 1.47(k), which essentially 
duplicates the FAA's authority in Sec.  1.47(j)(1), but refers to the 
section numbers of the inspection and enforcement authority in the 
Federal hazardous material transportation law before the statute was 
recodified in 1994. See Public Law 103-272, 108 Stat. 745 (July 5, 
1994). Existing subsection 1.49(s)(2) is also removed, and subsection 
1.49(s)(1) is redesignated section 1.49(s), because the authorities 
delegated in paragraph (2) are no longer in effect: The rail 
transportation study mandated in 49 U.S.C. 5105(b) has been completed 
and was transmitted to Congress in September 2005 and Congress repealed 
49 U.S.C. 5111 in SAFETEA-LU. In addition, this rule delegates to RITA 
and FMCSA authority to carry out provisions of SAFETEA-LU, beyond the 
delegations contained in the final rule published in the Federal 
Register on May 31, 2006. See 71 FR 30830, 30833.
    This rule also revises 49 CFR 1.74(a) to reflect the broad role and 
authority of the Under Secretary for Transportation Policy in all 
Departmental policy matters. See 49 CFR 1.23(b). The Under Secretary 
provides leadership in the development of all transportation policy, 
including, but not limited to, matters involving hazardous materials 
transportation and intermodal and multimodal transportation. In this 
capacity, the Under Secretary resolves disputes among DOT's Operating 
Administrations on transportation matters, provides oversight, review, 
and coordination of policy functions carried out by the Operating 
Administrations, and performs all other functions necessary to lead 
policy development and advise the Secretary concerning transportation 
policy.
    Because this rule relates to departmental management, organization, 
procedure, and practice, notice and comment are unnecessary under 5 
U.S.C. 553(b). Further, this final rule facilitates enforcement of the 
laws and regulations covered by this delegation. The Acting Secretary 
finds good cause under 5 U.S.C. 553(d)(3) for the final rule to be 
effective on the date of publication in the Federal Register.

Regulatory Analysis and Notices

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

    The final rule is not considered a significant regulatory action 
under Executive Order 12866 and the Regulatory Policies and Procedures 
of the Department of Transportation (44 FR 11034). There are no costs 
associated with this rule.

B. Executive Order 13132

    This final rule has been analyzed in accordance with the principles 
and criteria contained in Executive Order 13132 (``Federalism''). This 
final rule does not have a substantial direct effect on, or sufficient 
federalism implications for, the States, nor would it limit the 
policymaking discretion of the States. Therefore, the consultation 
requirements of Executive Order 13132 do not apply.

C. Executive Order 13175

    This final rule has been analyzed in accordance with the principles 
and criteria contained in Executive Order 13175 (``Consultation and 
Coordination with Indian Tribal Governments''). Because this rule does 
not significantly or uniquely affect the communities of the Indian 
tribal governments and does not impose substantial direct compliance 
costs, the funding and consultation requirements of Executive Order 
13175 do not apply.

D. Regulatory Flexibility Act

    Because no notice of proposed rulemaking is required for this rule 
under the Administrative Procedure Act, 5 U.S.C. 553, the provisions of 
the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) do not apply. We 
also do not believe this rule would impose any costs on small entities 
because it simply delegates authority from one official to another. 
Therefore, I certify this final rule will not have a significant 
economic impact on a substantial number of small entities.

[[Page 52753]]

E. Paperwork Reduction Act

    This final rule contains no information collection requirements 
under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

F. Unfunded Mandates Reform Act

    The Department has determined that the requirements of Title II of 
the Unfunded Mandates Reform Act of 1995 do not apply to this 
rulemaking.

List of Subjects in 49 CFR Part 1

    Authority delegations (Government agencies), Organization and 
functions (Government agencies).


0
For the reasons set forth in the preamble, the Office of the Secretary 
of Transportation amends 49 CFR part 1 as follows:

PART 1--[AMENDED]

0
1. The authority citation for part 1 continues to read as follows:

    Authority: 49 U.S.C. 322; 28 U.S.C. 2672; 31 U.S.C. 3711(a)(2); 
Public Law 101-552, 104 Stat. 2736; Public Law 106-159, 113 Stat. 
1748; Public Law 107-71, 115 Stat. 597; Public Law 107-295, 116 
Stat. 2064; Public Law 107-295, 116 Stat. 2065; Public Law 107-296, 
116 Stat. 2135; 41 U.S.C. 414; Public Law 108-426, 118 Stat. 2423; 
Public Law 109-59, 119 Stat. 1144.


0
2. Amend Sec.  1.46 by adding new paragraph (n) to read as follows:


Sec.  1.46  Delegations to the Administrator of the Research and 
Innovative Technology Administration.

* * * * *
    (n) Transportation research and development strategic planning. 
Carry out the function vested in the Secretary by Section 5208 of 
Public Law 109-59, 119 Stat. 1144 (Aug. 10, 2005).

0
3-4. Revise Sec.  1.47(j)(1) and remove paragraph (k).


Sec.  1.47  Delegations to Federal Aviation Administrator.

* * * * *
    (j)(1) Except as delegated by Sec.  1.74(a), carry out the 
functions vested in the Secretary by 49 U.S.C. 5121(a), (b), (c), and 
(d), 5122, 5123, and 5124, with particular emphasis on the 
transportation or shipment of hazardous materials by air.
* * * * *

0
5. Revise Sec.  1.49(s) to read as follows:


Sec.  1.49  Delegations to Federal Railroad Administrator.

* * * * *
    (s) Except as delegated by Sec.  1.74(a), carry out the functions 
vested in the Secretary by 49 U.S.C. 5121(a), (b), (c) and (d), 5122, 
5123, and 5124, with particular emphasis on the transportation or 
shipment of hazardous materials by railroad.
* * * * *

0
6. Revise Sec.  1.53(b) to read as follows:


Sec.  1.53  Delegations to the Administrator of the Pipeline and 
Hazardous Materials Safety Administration.

* * * * *
    (b) Hazardous materials. Except as delegated by Sec.  1.74(a):
    (1) Carry out the functions vested in the Secretary by 49 U.S.C. 
5121(a), (b), (c), (d) and (e), 5122, 5123, and 5124, with particular 
emphasis on the shipment of hazardous materials and the manufacture, 
fabrication, marking, maintenance, reconditioning, repair or test of 
multi-modal containers that are represented, marked, certified, or sold 
for use in the transportation of hazardous materials; and
    (2) Carry out the functions vested in the Secretary by all other 
provisions of the Federal hazardous material transportation law (49 
U.S.C. 5101 et seq.) except as delegated by Sec. Sec.  1.47(j)(2) and 
1.73(d)(2) of this chapter and by paragraph 2(99) of Department of 
Homeland Security Delegation No. 0170.
* * * * *

0
7. Amend Sec.  1.73 as follows:
0
a. Revise paragraphs (a)(7) and (a)(9);
0
b. Revise paragraph (d)(1);
0
c. Revise paragraph (e);
0
d. Revise paragraph (q); and
0
e. Remove paragraphs (r) through (y).
    The revisions read as follows:


Sec.  1.73  Delegations to the Administrator of the Federal Motor 
Carrier Safety Administration.

* * * * *
    (a) * * *
    (7) Chapter 145, sections 14501, 14502, 14504, and 14504a relating 
to Federal-State relations, and section 14506 relating to 
identification of vehicles;
* * * * *
    (9) Chapter 149, sections 14901 through 14912 and 14915 relating to 
civil and criminal penalties for violations of 49 U.S.C. subtitle IV, 
part B.
* * * * *
    (d)(1) Except as delegated by Sec.  1.74(a), carry out the 
functions vested in the Secretary by 49 U.S.C. 5121(a), (b), (c), and 
(d), 5122, 5123, and 5124, with particular emphasis on the 
transportation or shipment of hazardous materials by highway.
* * * * *
    (e) Carry out the functions vested in the Secretary by:
    (1) 49 U.S.C. chapter 313 relating to commercial motor vehicle 
operators, including the requirement of section 31305(a)(5)(C) that 
States issue a hazardous materials endorsement to a commercial driver's 
license only after being informed pursuant to 49 U.S.C. 5103a that the 
applicant does not pose a security risk warranting denial of the 
license; and
    (2) Section 4123(c), (d) and (e) of Public Law 109-59, 119 Stat. 
1735 (Aug. 10, 2005) relating to grants, funding, and contract 
authority and availability, respectively, for commercial driver's 
license information system modernization.
* * * * *
    (q) Carry out the functions vested in the Secretary by the 
following sections of Public Law 109-59, 119 Stat. 1144 (Aug. 10, 
2005):
    (1) Section 4105(b)(1) relating to the study concerning predatory 
tow truck operations;
    (2) Section 4126 relating to the commercial vehicle information 
systems and networks program;
    (3) Section 4128 relating to grants under the safety data 
improvement program;
    (4) Section 4129 relating to the operation of commercial motor 
vehicles by individuals who use insulin to treat diabetes mellitus;
    (5) Section 4130 relating to the operators of vehicles transporting 
agricultural commodities and farm supplies;
    (6) Section 4131 relating to the maximum hours of service for 
operators of ground water well drilling rigs;
    (7) Section 4132 relating to hours of service for operators of 
utility service vehicles;
    (8) Section 4133 relating to hours of service rules for operators 
providing transportation to movie production sites;
    (9) Section 4134 relating to the grant program for persons to train 
operators of commercial motor vehicles;
    (10) Section 4135 relating to the task force concerning commercial 
driver's license program;
    (11) Section 4139(a)(1) relating to the training of and outreach to 
State personnel; section (b)(1) relating to a review of Canadian and 
Mexican compliance with Federal motor vehicles safety standards; and 
the first sentence of section (b)(2) relating to the report concerning 
the findings and conclusions of the review required by section (b)(1);
    (12) Section 4146 relating to an hours-of-service exception during 
harvest periods;

[[Page 52754]]

    (13) Section 4147 relating to emergency conditions requiring 
immediate response;
    (14) Section 4213 relating to the establishment of a working group 
for the development of practices and procedures to enhance Federal-
State relations;
    (15) Section 4214 relating to consumer complaint information;
    (16) Section 5503 relating to the motor carrier efficiency study; 
and
    (17) Section 5513(a), under the condition of section (m), relating 
to the research grant for a thermal imaging inspection system 
demonstration project.

0
8. Amend Sec.  1.74 introductory text and paragraph (a) to read as 
follows:


Sec.  1.74  Delegations to the Under Secretary for Transportation 
Policy.

    The Under Secretary for Transportation Policy is delegated 
authority to:
    (a) Lead the development of transportation policy and serve as the 
principal adviser to the Secretary on all transportation policy 
matters.
* * * * *

    Issued this 24th day of August 2006, at Washington, DC.
Maria Cino,
Acting Secretary of Transportation.
[FR Doc. E6-14802 Filed 9-6-06; 8:45 am]
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