[Federal Register Volume 72, Number 151 (Tuesday, August 7, 2007)]
[Rules and Regulations]
[Pages 44035-44036]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-15206]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Part 393

[Docket No. FMCSA-1997-2364]
RIN 2126-AB08


Parts and Accessories Necessary for Safe Operation; Fire 
Extinguisher Exception for Driveaway-Towaway Operations

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION: Final rule.

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SUMMARY: FMCSA amends part 393 of the Federal motor carrier safety 
regulations concerning parts and accessories necessary for safe 
operation in response to a petition for rulemaking filed by JHT 
Holdings, Inc. The petitioner requested that the previous provision 
excepting driveaway-towaway operations from supplying each power unit 
with a fire extinguisher be reinstated. This amendment is intended to 
correct that inadvertent omission in the final rule issued on August 
15, 2005.

DATES: This rule is effective September 6, 2007.

FOR FURTHER INFORMATION CONTACT: Mr. Jeffrey J. Van Ness, phone (202) 
366-8802, Vehicle and Roadside Operations Division, Office of Bus and 
Truck Standards and Operations, Federal Motor Carrier Safety 
Administration, 1200 New Jersey Ave., SE., Washington, DC 20590.

SUPPLEMENTARY INFORMATION:

Legal Basis for the Rulemaking

    The Motor Carrier Act of 1935 authorized the Interstate Commerce 
Commission (ICC) to regulate truck safety; that authority was 
transferred to the newly established Department of Transportation (DOT) 
in 1966 (see section 6(e)(6) of the DOT Act, 80 Stat. 939-940).
    The ICC issued the Federal Motor Carrier Safety Regulations 
(FMCSRs) in the late 1930s and promulgated major revisions on May 15, 
1952 (17 FR 4422). The amended regulations required fire extinguishers 
in most vehicles, but included an exception for driveaway-towaway 
operations (17 FR at 4445).
    This rulemaking simply restores the driveaway-towaway exception, 
which was inadvertently deleted in the final rule FMCSA published on 
August 15, 2005 (70 FR 48008). Because the ICC fully explained the 
legal basis of the 1952 rulemaking (see 54 M.C.C. 337, at 338), and 
because all subsequent amendments to the driveaway-towaway exception--
whether by the ICC or DOT--were ministerial in nature, no further 
discussion of the legal basis of this action is required.

Background

    On August 15, 2005, FMCSA amended 49 CFR part 393, Parts and 
Accessories Necessary for Safe Operation. The amendments removed 
obsolete and redundant regulations; responded to several petitions for 
rulemaking; provided improved definitions of vehicle types, systems, 
and components; resolved inconsistencies between 49 CFR part 393 and 
the National Highway Traffic Safety Administration's (NHTSA) Federal 
Motor Vehicle Safety Standards (FMVSSs) (49 CFR part 571); and codified 
certain FMCSA regulatory guidance concerning the requirements of 49 CFR 
part 393. Generally, the amendments did not involve the establishment 
of new or more stringent requirements but clarified existing 
requirements. The final rule was intended to make many sections more 
concise, easier to understand, and more performance-oriented.
    The final rule was based on a notice of proposed rulemaking (NPRM) 
published by the Federal Highway Administration (FHWA) on April 14, 
1997 (62 FR 18170). FHWA had received numerous petitions for rulemaking 
and requests for interpretation of the requirements of 49 CFR part 393, 
which raised the need for amendments to clarify several provisions of 
the safety regulations.
    Parts 393 and 396 of the FMCSRs include several exceptions for 
driveaway-towaway operations. The driveaway-towaway exceptions are 
intended to address situations in which compliance with some of the 
vehicle regulations is not practicable because of the circumstances 
surrounding the delivery or transportation of the vehicle. Examples of 
driveaway-towaway operations include the delivery of a newly 
manufactured CMV from a manufacturer to a dealership, the delivery of a 
new or used motor vehicle from the dealership to the purchaser, or 
certain movements of vehicles to a repair or maintenance facility. 
Among the provisions of 49 CFR parts 393 and 396 which do not apply to 
driveaway-towaway operations are the requirements for lamps and 
reflectors, brakes, driver vehicle inspection reports, maintenance 
records, and periodic inspection.

Technical Amendment of Sec.  393.95

    On December 9, 2005, JHT Holdings, Inc. (JHT) contacted FMCSA by 
telephone and asked why the longstanding provision excepting driveaway-
towaway operations from the requirement in Sec.  393.95(a) that every 
driven unit be equipped with a fire extinguisher had been deleted in 
the August 2005 final rule. Based on the conversation with JHT, FMCSA 
conducted a review of the August 2005 final rule to ensure there were 
no inconsistencies between the preamble and the accompanying regulatory 
text. This review confirmed the unintended removal of the provision 
excepting driveaway-towaway operations from the requirement in Sec.  
393.95(a). The provision was originally adopted on May 15, 1952 (17 FR 
4422, at 4445).
    On December 22, 2005, while conducting the review of the August 
2005 final rule, the Agency received a Petition for Rulemaking from 
JHT. The petition formally requested that the Agency reinstate the 
provision excepting driveaway-towaway operations from the requirement 
in Sec.  393.95(a) that every driven unit be equipped with a fire 
extinguisher.
    FHWA did not specifically address the proposed removal of this 
exception in the preamble of the April 1997 NPRM, and FMCSA did not 
discuss the issue in the preamble of the August 2005 final rule. In 
addition, the proposed amendment was not addressed in the regulatory 
analyses prepared in support of the NPRM or the final rule. However, 
the regulatory language in both the NPRM and the final rule omitted the 
exception for driveaway-towaway operations. FMCSA has determined that 
the removal of this exception from the regulations was inadvertent.
    Therefore, FMCSA is today publishing a technical amendment that 
reinstates the provision excepting driveaway-towaway operations from 
the requirement in Sec.  393.95(a) that every driven unit be equipped 
with a fire extinguisher. The exception formerly appeared in Sec.  
393.95(a)(4) but is being recodified as Sec.  393.95(a)(6) because 
paragraph (a) was reorganized in the August 2005 final rule.

Regulatory Analyses and Notices

Good Cause Exception to Notice and Comment

    This final rule makes only a minor technical correction to Sec.  
393.95. The rule amends that section to reinstate a

[[Page 44036]]

provision inadvertently removed by the final rule published on August 
15, 2005 (70 FR 48008). Therefore, FMCSA finds good cause to adopt the 
rule without prior notice or opportunity for public comment (5 U.S.C. 
553(b)(3)(B)).

Executive Order 12866 (Regulatory Planning and Review) and DOT 
Regulatory Policies and Procedures

    FMCSA has determined that this action is not a significant 
regulatory action within the meaning of Executive Order 12866 or 
Department of Transportation regulatory policies and procedures. This 
document is not required to be reviewed by the Office of Management and 
Budget. Because this rulemaking merely makes a minor change that will 
not result in additional costs, a regulatory evaluation has not been 
prepared by the Agency.

Regulatory Flexibility Act

    In compliance with the Regulatory Flexibility Act (5 U.S.C. 601-
612), FMCSA has considered the effects of this regulatory action on 
small entities and determined that this rule will not have a 
significant impact on a substantial number of small entities. Because 
this rulemaking merely makes a minor change that will not result in 
additional costs, a regulatory flexibility analysis has not been 
prepared by the Agency.

Unfunded Mandates Reform Act of 1995

    This rulemaking 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 $120.7 million 
or more in any one year.

Executive Order 12988 (Civil Justice Reform)

    This action will meet applicable standards in sections 3(a) and 
3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize 
litigation, eliminate ambiguity, and reduce burden.

Executive Order 13045 (Protection of Children)

    FMCSA has analyzed this action under Executive Order 13045, 
Protection of Children from Environmental Health Risks and Safety 
Risks. This rulemaking does not concern an environmental risk to health 
or safety that may disproportionately affect children.

Executive Order 12630 (Taking of Private Property)

    This rulemaking will not effect a taking of private property or 
otherwise have taking implications under Executive Order 12630, 
Governmental Actions and Interference with Civil Constitutionally 
Protected Property Rights.

Executive Order 13132 (Federalism)

    This action has been analyzed in accordance with the principles and 
criteria contained in Executive Order 13132. It has been determined 
that this rulemaking will not have a substantial direct effect on 
States nor will it limit the policy-making discretion of the States. 
Nothing in this document will preempt any State law or regulation.

Executive Order 12372 (Intergovernmental Review)

    The regulations implementing Executive Order 12372 regarding 
intergovernmental consultation on Federal programs and activities do 
not apply to this program.

Paperwork Reduction Act

    This final rule does not contain a collection of information 
requirement for the purposes of the Paperwork Reduction Act of 1995 (44 
U.S.C. 3501 et seq.).

National Environmental Policy Act

    FMCSA analyzed this final rule for the purpose of the National 
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and 
determined under FMCSA Order 5610.1 (69 FR 9680, March 1, 2004) that 
this action is categorically excluded (CE) under Appendix 2, paragraph 
6.b. from further environmental documentation. This CE relates to 
establishing regulations and actions taken pursuant to these 
regulations that are editorial in nature. In addition, FMCSA believes 
that the action includes no extraordinary circumstances that would have 
any effect on the quality of the environment. Thus, the action does not 
require an environmental assessment or an environmental impact 
statement.
    FMCSA also analyzed this final rule under the Clean Air Act (CAA), 
as amended 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 involves rulemaking activity which would not 
result in any emissions increase nor would it have any potential to 
result in emissions that are above the general conformity rule's de 
minimis emission threshold levels (40 CFR 93.153(c)(2)). Moreover, it 
is reasonably foreseeable that the rule would not increase total CMV 
mileage, change the routing of CMVs, change how CMVs operate, or change 
the CMV fleet-mix of motor carriers. This action merely reinstates 
inadvertently omitted text from a prior FMCSA final rule.

Executive Order 13211 (Energy Effects)

    FMCSA has analyzed this action under Executive Order 13211, Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. It has been determined that this action will not 
be a significant energy action under that order because it will not be 
economically significant and will not likely have a significant adverse 
effect on the supply, distribution, or use of energy.

List of Subjects for 49 CFR Part 393

    Highways and roads, incorporation by reference, motor carriers, 
motor vehicle equipment, motor vehicle safety.


0
In consideration of the foregoing, FMCSA amends 49 CFR part 393 as 
follows:

PART 393--PARTS AND ACCESSORIES NECESSARY FOR SAFE OPERATION

0
1. The authority citation for part 393 continues to read as follows:

    Authority: 49 U.S.C. 322, 31136, and 31502; section 1041(b) of 
Pub. L. 102-240, 105 Stat. 1914, 1993 (1991); and 49 CFR 1.73.


0
2. Amend Sec.  393.95 by adding paragraph (a)(6) to read as follows:


Sec.  393.95  Emergency equipment on all power units.

* * * * *
    (a) * * *
    (6) Exception. This paragraph (a) does not apply to the driven unit 
in a driveaway-towaway operation.
* * * * *

    Issued on: July 30, 2007.
John H. Hill,
Administrator.
[FR Doc. E7-15206 Filed 8-6-07; 8:45 am]
BILLING CODE 4910-EX-P