[Federal Register Volume 81, Number 184 (Thursday, September 22, 2016)]
[Rules and Regulations]
[Pages 65284-65286]
[FR Doc No: 2016-22821]

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2016-0818]
RIN 1625-AA00

Safety Zone; Columbia River, Sand Island, WA

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary safety zone for
the navigable waters of the Columbia River within a 500-yard radius of
the small boat ``Nessy,'' while in the area of Sand Island, near
Chinook, WA, and all involved associated vessels in support of the
Double-Crested Cormorant removal operations conducted by the U.S. Army
Corps of Engineers and U.S. Department of Agriculture Wildlife
Services. This regulation prohibits persons and vessels from being in
the safety zone unless authorized by the Captain of the Port Columbia
River, or a designated representative.

DATES: This rule is effective from September 21, 2016 through October
21, 2016.

ADDRESSES: To view documents mentioned in this preamble as being
available in the docket, go to http://www.regulations.gov, type USCG-
2016-0818 in the ``SEARCH'' box and click ``SEARCH.'' Click on Open
Docket Folder on the line associated with this rule.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule,
call or email Mr. Kenneth Lawrenson, Waterways Management Division,
Marine Safety Unit Portland, U.S. Coast Guard; telephone<PHONE_NUMBER>,
email<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

I. Table of Abbreviations

CFR Code of Federal Regulations
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of proposed rulemaking
Sec.  Section
U.S.C. United States Code

II. Background Information and Regulatory History

    The U.S. Army Corps of Engineers and U.S. Department of Agriculture
Wildlife Services notified the Coast Guard that they intend to conduct
federally permitted removal operations of the Double-Crested Cormorant
starting September 21, 2016. In response, on August 23, 2016, the Coast
Guard published a notice of proposed rulemaking (NPRM) titled Safety
Zone; Columbia River, Sand Island, WA 81 FR 57507. There we stated why
we issued the NPRM, and invited comments on our proposed regulatory
action related to this safety zone. During the comment period that
ended September 12, 2016 we received no comments.
    We are issuing this rule, and under 5 U.S.C. 553(d)(3), the Coast
Guard finds that good cause exists for making it effective less than 30
days after publication in the Federal Register. Delaying the effective
date of this rule would be impracticable because such delay would
eliminate the safety zone's effectiveness and usefulness in preventing
dangers to the boating public associated with the removal operations
being conducted using firearms and live ammunition.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 33 U.S.C.
1231. Coast Guard Captains of the Port are granted authority to
establish safety zones in 33 CFR 1.05-1(f) for safety purposes as
described in 33 CFR part 165.
    The Army Corps of Engineers and U.S. Department of Agriculture
Wildlife Services will conduct a federally permitted removal operation
of the Double-Crested Cormorant starting September 21, 2016. This
operation will involve the use of firearms and live ammunition. The
Captain of the Port Sector Columbia River (COTP) has determined that
potential hazards associated with the removal operation will be a
safety concern for anyone within a 500-yard radius of the small boat
``Nessy,'' while in the area encompassing these points: 46[deg]15'45''
N., 123[deg]59'39'' W.; 46[deg]15'24'' N., 123[deg]59'42'' W.;
46[deg]13'32'' N., 123[deg]57'18'' W.; 46[deg]15'9'' N.,
123[deg]55'24'' W.; and 46[deg]15'54'' N., 123[deg]58'6'' W., and any
associated support vessel(s). The safety zone is needed to protect
personnel and vessels in the navigable waters within the safety zone
during the removal operations.

IV. Discussion of Comments, Changes, and the Rule

    As noted above, we received no comments on our NPRM published
August 23, 2016. There are two changes in the regulatory text of this
rule from the proposed rule in the NPRM. The change in paragraph (a) of
the regulation is non-substantive and clarifies the language that
describes the area that is designated a safety zone. The change in
paragraph (c) of the regulation updates the language regarding
assistance from state law enforcement to align with the statute cited.
    This rule establishes a safety zone from September 21, 2016,
through October 21, 2016. The safety zone will cover all navigable
waters of the Columbia River within 500 yards of the small boat
``Nessy,'' and all involved associated support vessels being used by
personnel during the removal operation, conducted in the area
encompassed by these points: 46[deg]15'45'' N., 123[deg]59'39'' W.;
46[deg]15'24'' N., 123[deg]59'42'' W.; 46[deg]13'32'' N.,
123[deg]57'18'' W.; 46[deg]15'9'' N., 123[deg]55'24'' W.; and
46[deg]15'54'' N., 123[deg]58'6'' W. The 500 yard radius area of the
safety zone is intended to protect persons and vessels from the
dangerous combined effects of live gunfire, unpredictable animal
behavior, and a highly dynamic marine environment characterized by
strong tides, river currents and wind. This safety zone will be
enforced only when the small boat ``Nessy,'' and all involved
associated support vessels, are conducting the removal operations,
which will be three

days a week for four weeks. No vessel or person will be permitted to
enter the safety zone without obtaining permission from the COTP or a
designated representative.

V. Regulatory Analyses

    We developed this rule after considering numerous statutes and
Executive orders related to rulemaking. Below we summarize our analyses
based on a number of these statutes and Executive orders, and we
discuss First Amendment rights of protestors.

A. Regulatory Planning and Review

    Executive Orders 12866 and 13563 direct agencies to assess the
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits. Executive Order 13563 emphasizes the importance of
quantifying both costs and benefits, of reducing costs, of harmonizing
rules, and of promoting flexibility. This rule has not been designated
a ``significant regulatory action,'' under Executive Order 12866.
Accordingly, it has not been reviewed by the Office of Management and
Budget.
    This regulatory action determination is based on the size,
location, duration, and time-of-day of the safety zone. Vessel traffic
would be able to safely transit around this safety zone which would
impact a small designated area of the Columbia River in the area
encompassing these points: 46[deg]15'45'' N., 123[deg]59'39'' W.;
46[deg]15'24'' N., 123[deg]59'42'' W.; 46[deg]13'32'' N.,
123[deg]57'18'' W.; 46[deg]15'9'' N., 123[deg]55'24'' W.; and
46[deg]15'54'' N., 123[deg]58'6'' W. Moreover, the Coast Guard would
issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about
the zone, and the rule would allow vessels to seek permission to enter
the zone.

B. Impact on Small Entities

    The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as
amended, requires Federal agencies to consider the potential impact of
regulations on small entities during rulemaking. The term ``small
entities'' comprises small businesses, not-for-profit organizations
that are independently owned and operated and are not dominant in their
fields, and governmental jurisdictions with populations of less than
50,000. The Coast Guard received no comments from the Small Business
Administration on this rulemaking. The Coast Guard certifies under 5
U.S.C. 605(b) that this rule will not have a significant economic
impact on a substantial number of small entities.
    While some owners or operators of vessels intending to transit the
safety zone may be small entities, for the reasons stated in section
V.A above, this rule will not have a significant economic impact on any
vessel owner or operator.
    Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Public Law 104-121), we want to assist small
entities in understanding this rule. If the rule would affect your
small business, organization, or governmental jurisdiction and you have
questions concerning its provisions or options for compliance, please
contact the person listed in the FOR FURTHER INFORMATION CONTACT
section.
    Small businesses may send comments on the actions of Federal
employees who enforce, or otherwise determine compliance with, Federal
regulations to the 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 the Coast Guard, call 1-888-REG-FAIR
(1-888-734-3247). The Coast Guard will not retaliate against small
entities that question or complain about this rule or any policy or
action of the Coast Guard.

C. Collection of Information

    This rule will not call for a new collection of information under
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

D. Federalism and Indian Tribal Governments

    A rule has implications for federalism under Executive Order 13132,
Federalism, if it has a substantial direct effect 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. We have analyzed this rule under that Order and have
determined that it is consistent with the fundamental federalism
principles and preemption requirements described in Executive Order
13132.
    Also, this rule does not have tribal implications under Executive
Order 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. If
you believe this rule has implications for federalism or Indian tribes,
please contact the person listed in the FOR FURTHER INFORMATION CONTACT
section.

E. Unfunded Mandates Reform Act

    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 $100,000,000 (adjusted for
inflation) or more in any one year. Though this rule will not result in
such an expenditure, we do discuss the effects of this rule elsewhere
in this preamble.

F. Environment

    We have analyzed this rule under Department of Homeland Security
Management Directive 023-01 and Commandant Instruction M16475.lD, which
guide the Coast Guard in complying with the National Environmental
Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that
this action is one of a category of actions that do not individually or
cumulatively have a significant effect on the human environment. This
rule involves a safety zone lasting four weeks, for three days a week,
that will prohibit entry within 500 yards of the small boat ``Nessy''
and all involved associated support vessels, while in the area
encompassing these points: 46[deg]15'45'' N., 123[deg]59'39'' W.;
46[deg]15'24'' N., 123[deg]59'42'' W.; 46[deg]13'32'' N.,
123[deg]57'18'' W.; 46[deg]15'9'' N., 123[deg]55'24'' W.; and
46[deg]15'54'' N., 123[deg]58'6'' W., while personnel are conducting
the removal operations of the Double-Crested Cormorant. It is
categorically excluded from further review under paragraph 34(g) of
Figure 2-1 of the Commandant Instruction. An environmental analysis
checklist supporting this determination and a Categorical Exclusion
Determination are available in the docket where indicated under
ADDRESSES. We seek any comments or information that may lead to the
discovery of a significant environmental impact from this rule.

G. Protest Activities

    The Coast Guard respects the First Amendment rights of protesters.
Protesters are asked to contact the person listed in the FOR FURTHER
INFORMATION CONTACT section to coordinate protest activities so that
your message can be received without jeopardizing the safety or
security of people, places or vessels.

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and
recordkeeping requirements, Security measures, Waterways.

    For the reasons discussed in the preamble, the Coast Guard amends
33 CFR part 165 as follows:

PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS

0
1. The authority citation for part 165 continues to read as follows:

    Authority:  Authority: 33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR
1.05-1, 6.04-1, 6.04-6, 160.5; Department of Homeland Security
Delegation No. 0170.1.

0
2. Add Sec.  165.T13-0818 to read as follows:

Sec.  165.T13-0818  Safety Zone; Columbia River.

    (a) Location. The following area is the safety zone: all navigable
waters of the Columbia River within 500 yards of the small boat
``Nessy,'' and all involved associated support vessels, while in the
area encompassing these points: 46[deg]15'45'' N., 123[deg]59'39'' W.;
46[deg]15'24'' N., 123[deg]59'42'' W.; 46[deg]13'32'' N.,
123[deg]57'18'' W.; 46[deg]15'9'' N., 123[deg]55'24'' W.; and
46[deg]15'54'' N., 123[deg]58'6'' W.
    (b) Regulations. In accordance with the general regulations in
subpart C of this part, no person may enter or remain in the safety
zone created in this section or bring, cause to be brought, or allow to
remain in the safety zone created in this section any vehicle, vessel,
or object unless authorized by the Captain of the Port or his
designated representative.
    (c) Enforcement. Any Coast Guard commissioned, warrant, or petty
officer may enforce the rules in this section. Where immediate action
is required and representatives of the Coast Guard are not present or
are not present in sufficient force to provide effective enforcement of
this section, any Oregon Law Enforcement Officer or Washington Law
Enforcement Officer may enforce the rules contained in this section
pursuant to 46 U.S.C. 70118. In addition, the Captain of the Port may
be assisted by members of the U. S. Army Corps of Engineers and U.S.
Department of Agriculture Wildlife Services onboard the small boat
``Nessy,'' and other federal, state, or local agencies in enforcing
this section.
    (d) Enforcement period. This section is effective from September
21, 2016, through October 21, 2016. It will be enforced when the small
boat ``Nessy,'' and all involved associated support vessels, are
conducting the removal operations of the Double-Crested Cormorant. The
small boat ``Nessy'' is described as a 20-foot black and gray aluminum
work skiff with an overhead light arch. The Coast Guard will inform
mariners of any change to this period of enforcement via Broadcast
Notice to Mariners.

    Dated: September 16, 2016.
D.F. Berliner,
Captain, U.S. Coast Guard, Acting Captain of the Port, Sector Columbia
River.
[FR Doc. 2016-22821 Filed 9-21-16; 8:45 am]
 BILLING CODE 9110-04-P


[Federal Register Volume 76, Number 83 (Friday, April 29, 2011)]
[Proposed Rules]
[Pages 23923-23929]
[FR Doc No: 2011-10140]

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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

49 CFR Part 177

[Docket No. PHMSA-2010-0227 (HM-256A)]
RIN 2137-AE65

Hazardous Materials: Restricting the Use of Cellular Phones by
Drivers of Commercial Motor Vehicles in Intrastate Commerce

AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA),
DOT.

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: The Pipeline and Hazardous Materials Safety Administration
(PHMSA) proposes to restrict the use of hand-held mobile telephones,
including hand-held cell phones, by drivers during the operation of a
motor vehicle containing a quantity of hazardous materials requiring
placarding under Part 172 of the 49 CFR or any quantity of a select
agent or toxin listed in 42 CFR Part 73. Additionally, in accordance
with requirements proposed by the Federal Motor Carrier Safety
Administration (FMCSA), motor carriers are prohibited from requiring or
allowing drivers of covered motor vehicles to engage in the use of
hand-held mobile telephones while driving. This rulemaking would
improve health and safety on the Nation's highways by reducing the
prevalence of distracted driving-related crashes, fatalities, and
injuries involving drivers of commercial motor vehicles.

DATES: Comments must be received by June 28, 2011.

ADDRESSES: You may submit comments identified by the docket number
PHMSA-2010-0227 by any of the following methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting
comments.
     Fax:<PHONE_NUMBER>.
     Mail: Docket Operations, U.S. Department of
Transportation, West Building, Ground Floor, Room W12-140, Routing
Symbol M-30, 1200 New Jersey Avenue, SE., Washington, DC 20590.
     Hand Delivery: To Docket Operations; Room W12-140 on the
ground floor of the West Building, 1200 New Jersey Avenue, SE.,
Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday,
except Federal holidays.
    Instructions: All submissions must include the agency name and
docket number for this rule. Note that all comments received will be
posted without change, including any personal information provided.
Please see the discussion of the Privacy Act below.
    Docket: For access to the docket to read background documents and
comments received, go to http://www.regulations.gov at any time or
DOT's Docket Operations Office (see ADDRESSES).

FOR FURTHER INFORMATION CONTACT: Delmer Billings, Office of Hazardous
Materials Safety,<PHONE_NUMBER>, Pipeline and Hazardous Materials
Safety Administration, U.S. Department of Transportation, 1200 New
Jersey Avenue, SE., Washington, DC 20590-0001.

SUPPLEMENTARY INFORMATION:

I. Background

A. US DOT Strategy

    The United States Department of Transportation (US DOT) is leading
the effort to end the dangerous practice of distracted driving on our
nation's roadways and in other modes of transportation. Driver
distraction can be defined as the voluntary or involuntary diversion of
attention from the primary driving tasks due to an object, event, or
person that shifts the attention away from the fundamental driving
task. The US DOT has identified three main types of distraction that
occur while operating a motor vehicle:
    1. Visual--taking your eyes off of the road;
    2. Manual--taking your hands off of the wheel; and
    3. Cognitive--taking your mind off of driving.
    The US DOT is working across the spectrum with private and public
entities to tackle distracted driving, and will lead by example. The
individual agencies of the US DOT are working together to share
knowledge, promote a

greater understanding of the issue, and identify additional strategies
to end distracted driving. Additionally, several states have forbidden
the operation of many types of electronic devices, including cellular
phones, while driving any motor vehicle. See US DOT Distracted Driving
Web site, http://www.distraction.gov; see also Insurance Institute for
Highway Safety Web site, http://www.iihs.org/.

B. PHMSA Distracted Driving Safety Advisory Notice and Texting
Restriction

    In support of the US DOT strategy to end distracted driving PHMSA
issued ``Safety Advisory Notice: Personal Electronic Device Related
Distractions (Safety Advisory Notice No.10-5)'' on August 3, 2010 (75
FR 45697) to alert the hazardous materials community to the dangers
associated with the use of cellular (mobile) phones and electronic
devices while operating a commercial motor vehicle (CMV; 49 CFR 383.5).
    On February 28, 2011 PHMSA issued a final rule (HM-256; PHMSA-2010-
0221 (76 FR 10771)) to prohibit texting on electronic devices by
drivers during the operation of a motor vehicle containing a quantity
of hazardous materials requiring placarding or any quantity of a select
agent or toxin listed in the Department of Health and Human Services
``Select Agents and Toxins'' regulations. The final rule stresses the
heightened risk of transportation incidents involving hazardous
materials when CMV drivers are distracted by electronic devices.
Accordingly, both the February 28, 2011 final rule and this notice of
proposed rulemaking (NPRM) urge motor carriers that transport hazardous
materials to institute policies and provide awareness training to
discourage the use of mobile telephones and electronic devices by CMV
drivers.

C. FMCSA Rulemaking and Definitions

1. FMCSA Rulemaking
    On December 21, 2010 (Docket FMCSA-2010-0096 (75 FR 80014)) FMCSA
published an NPRM proposed to restrict the use of hand-held mobile
telephone use, including cell phone use, by CMV drivers as a necessary
component of an overall strategy to reduce the number of crashes caused
by distracted driving. The FMCSA NPRM focuses on all interstate CMV
drivers, including those drivers of CMVs that do not require a CDL. In
general, the FMCSA proposal would cover all CMV drivers subject to
FMCSA's safe driving rules under 49 CFR part 392.
    Additionally, on September 27, 2010, the Federal Motor Carrier
Safety Administration (FMCSA) published a final rule limiting the use
of wireless communication devices by CMV drivers (Docket FMCSA-2009-
0370 (75 FR 59118)). The FMCSA final rule prohibits texting by CMV
drivers operating in interstate commerce and imposes sanctions for
drivers that fail to comply. In the final rule FMCSA cites numerous
studies evaluating the dangers of various forms of distracted driving.
2. Definitions
    In existing Federal Motor Carrier Safety Regulations (FMCSRs; 49
CFR Parts 350-399) FMCSA defines a ``CMV'' in Sec.  383.5 of the 49 CFR
as follows:
    Commercial motor vehicle means a motor vehicle or combination of
motor vehicles used in commerce to transport passengers or property if
the motor vehicle--
    (a) Has a gross combination weight rating of 11,794 kilograms or
more (26,001 pounds or more) inclusive of a towed unit(s) with a gross
vehicle weight rating of more than 4,536 kilograms (10,000 pounds);
    (b) Has a gross vehicle weight rating of 11,794 or more kilograms
(26,001 pounds or more);
    (c) Is designed to transport 16 or more passengers, including the
driver; or
    (d) Is of any size and is used in the transportation of hazardous
materials as defined in this section.
    In its December 21, 2010 NPRM addressing the use of hand-held
mobile telephones by CMV drivers, FMCSA proposed to define the terms
``mobile telephone'' and ``using a hand-held mobile telephone'' in
Sec.  390.5 as follows:
    Mobile telephone means a mobile communication device that falls
under or uses any commercial mobile radio service, as defined in
regulations of the Federal Communications Commission, 47 CFR 20.3. It
does not include twoway or Citizens Band Radio services.
    Using a hand-held mobile telephone means using at least one hand to
hold a mobile telephone to conduct a voice communication or to reach
for or dial a mobile telephone.
    In addition, in its NPRM FMCSA proposes to define the term
``driving'' in Sec.  392.82 as follows:
    Driving means operating a commercial motor vehicle, with the motor
running, including while temporarily stationary because of traffic, a
traffic control device, or other momentary delays. Driving does not
include operating a commercial motor vehicle, with or without the motor
running, when the driver has moved the vehicle to the side of, or off,
a highway and has halted in a location where the vehicle can safely
remain stationary.

D. Studies, Data, and Analysis on Driver Distractions

    Distracted driving reduces a driver's situational awareness,
decision making, or performance; and it may result in a crash, near-
crash, or unintended lane departure by the driver. In an effort to
understand and mitigate crashes associated with driver distraction, the
US DOT has been studying the distracted driving issue with respect to
both behavioral and vehicle safety countermeasures. Researchers and
writers classify distraction into various categories, depending on the
nature of their work. In its NPRM, FMCSA states:

    FMCSA is aware of several recent CMV crashes in which the use of
a mobile telephone may have contributed to the crash. In one case,
according to media reports, a truck driver from Arkansas told police
she was talking on her cell phone when she became involved in a
crash that killed two boys on May 9, 2010. In another media report,
on March 26, 2010, a tractor trailer crossed the median strip of
Interstate 65 in central Kentucky and collided with a van
transporting 9 adults, two children, and an infant. All the adults
and the infant in the van and the truck driver were killed. The NTSB
is conducting an investigation into the crash, including attempting
to determine if a mobile telephone was a factor in the crash.
According to media reports, in February 2010, a Montgomery County,
Pennsylvania, school bus driver was allegedly talking on his cell
phone before a deadly crash.\1\
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    \1\ Driver To Stand Trial In Fatal School Bus Crash. (April 20,
2010) Philadelphia, PA: KYW-TV. Retrieved from the CBS3 Web site,
July 21, 2010, from: http://cbs3.com/local/montgomery.county.school.2.1645628.html.

    Below we summarize studies, data, and analysis that provide the
foundation for this NPRM.
1. NTSB Safety Recommendation H-06-27
    On November 14, 2004, a motor coach crashed into a bridge overpass
on the George Washington Memorial Parkway in Alexandria, Virginia. This
crash was the impetus for a National Transportation Safety Board (NTSB)
investigation and subsequent recommendation (Safety Recommendation H-
06-27) to FMCSA regarding cell phone use by passenger-carrying CMVs.
The NTSB determined that one probable cause of the crash was the use of
a hands-free cell phone, resulting in cognitive distraction; therefore,
the driver did not ``see'' the low bridge warning signs.
    In a letter to NTSB dated March 5, 2007, FMCSA agreed to initiate a
study to assess:
     The potential safety benefits of restricting cell phone
use by drivers of passenger-carrying CMVs;

     The applicability of an NTSB recommendation to property-
carrying CMV drivers;
     Whether adequate data existed to warrant a rulemaking; and
     The availability of statistically meaningful data
regarding cell phone distraction.
Subsequently, the report ``Driver Distraction in Commercial Vehicle
Operations'' was published on October 1, 2009.
2. FMCSA's Motor Carrier Safety Advisory Committee's Recommendation
    Section 4144 of the Safe, Accountable, Flexible, Efficient
Transportation Equity Act: A Legacy for Users (SAFETEA-LU), Public Law
109-59, 119 Stat. 1144, 1748 (Aug. 10, 2005), required the Secretary to
establish a Motor Carrier Safety Advisory Committee (MCSAC). The
committee provides advice and recommendations to the FMCSA
Administrator on motor carrier safety programs and regulations and
operates in accordance with the Federal Advisory Committee Act (5
U.S.C. App. 2).
    In MCSAC's March 27, 2009, report to FMCSA titled ``Developing a
National Agenda for Motor Carrier Safety,'' MCSAC recommended that
FMCSA adopt new Federal rules concerning distracted driving.\2\ MCSAC
believed that the available research shows that cognitive distractions
pose a safety risk and that there will be increases in crashes from
cell phone use and texting unless the problems are addressed.
Therefore, one of MCSAC's recommendations for the National Agenda for
Motor Carrier Safety was that FMCSA initiate a rulemaking to ban the
use of hand-held and hands-free mobile telephones while driving.
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    \2\ Parker, David R., Chair, Motor Carrier Safety Advisory
Committee (March 27, 2009). Letter to Rose A. McMurray, Acting
Deputy Administrator, FMCSA, on MCSAC National Agenda for Motor
Vehicle Safety. Retrieved July 23, 2010, from: http://mcsac.fmcsa.dot.gov/documents/MCSACTask09-01FinalReportandLettertoAdministrator090428.pdf.
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3. Driver Distraction in Commercial Vehicle Operations (``the VTTI
Study'')--Olson et al., 2009 \3\
    Under contract with FMCSA, the Virginia Tech Transportation
Institute (VTTI) completed its ``Driver Distraction in Commercial
Vehicle Operations'' study \4\ and released the final report on October
1, 2009. The purpose of the study was to investigate the prevalence of
driver distraction in CMV safety-critical events (i.e., crashes, near-
crashes, lane departures, as explained in the VTTI study) recorded in a
naturalistic data set that included over 200 truck drivers and 3
million miles of data. The dataset was obtained by placing monitoring
instruments on vehicles and recording the behavior of drivers
conducting real-world revenue-producing operations. The study found
that drivers were engaged in non-driving related tasks in 71 percent of
crashes, 46 percent of near-crashes, and 60 percent of all safety-
critical events. Tasks that significantly increased risk included
texting, looking at a map, writing on a notepad, or reading.
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    \3\ Olson, R. L., Hanowski, R.J., Hickman, J.S., & Bocanegra, J.
(2009) Driver distraction in commercial vehicle operations.
(Document No. FMCSA-RRR-09-042) Washington, DC: Federal Motor
Carrier Safety Administration, July 2009. Retrieved October 20,
2009, from http://www.fmcsa.dot.gov/facts-research/art-public-reports.aspx?
    \4\ The formal peer review of the ``Driver Distraction in
Commercial Vehicle Operations Draft Final Report'' was completed by
a team of three technically qualified peer reviewers who are
qualified (via their experience and educational background) to
critically review driver distraction-related research.
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    Odds ratios (OR) were calculated to identify tasks that were high
risk. For a given task, an odds ratio of ``1.0'' indicated the task or
activity was equally likely to result in a safety-critical event as it
was a non-event or baseline driving scenario. An odds ratio greater
than ``1.0'' indicated a safety-critical event was more likely to
occur, and odds ratios of less than ``1.0'' indicated a safety-critical
event was less likely to occur. According to this research, drivers
dialing a cell phone took their eyes off the forward roadway for an
average of 3.8 seconds and for 1.3 seconds when talking/listening to a
hand-held phone. Drivers took their eyes off the forward roadway a
combined total of 5.1 seconds. At 55 mph (or 80.7 feet per second),
this equates to a driver traveling 411 feet. At 65 mph (or 95.3 feet
per second), the driver would have traveled 486 feet without looking at
the roadway. This clearly creates a significant risk to the safe
operation of the CMV.
    The study further analyzed population attributable risk (PAR),
which incorporates the frequency of engaging in a task. If a task is
done more frequently by a driver or a group of drivers, it will have a
greater PAR percentage. Safety could be improved the most if a driver
or group of drivers were to stop performing a task with a high PAR. The
PAR percentage for dialing a cell phone is 2.5 and for talking/
listening to a hand-held phone is 0.2, which means that a combined 2.7
percent of the incidence of safety-critical events is attributable to
dialing and talking/listening to a hand-held phone, and thus, could be
avoided by not performing these activities.

   Table 1--Odds Ratio and Population Attributable Risk Percentage by
                              Selected Task
------------------------------------------------------------------------
                                                            Population
                                                           attributable
                  Task                      Odds ratio         risk
                                                           percentage *
------------------------------------------------------------------------
                        Complex Tertiary ** Task
------------------------------------------------------------------------
Text message on cell phone..............            23.2             0.7
Other--Complex (e.g., clean side mirror)            10.1             0.2
Interact with/look at dispatching device             9.9             3.1
Write on pad, notebook, etc.............             9.0             0.6
Use calculator..........................             8.2             0.2
Look at map.............................             7.0             1.1
Dial cell phone.........................             5.9             2.5
Read book, newspaper, paperwork, etc....             4.0             1.7
------------------------------------------------------------------------
                        Moderate Tertiary ** Task
------------------------------------------------------------------------
Use/reach for other electronic device...             6.7             0.2
Other--Moderate (e.g., open medicine                 5.9             0.3
 bottle)................................
Personal grooming.......................             4.5             0.2
Reach for object in vehicle.............             3.1             7.6

Look back in sleeper berth..............             2.3             0.2
Talk or listen to hand-held phone.......             1.0             0.2
Eating..................................             1.0               0
Talk or listen to CB radio..............             0.6               *
Talk or listen to hands-free phone......             0.4               *
------------------------------------------------------------------------
* Calculated for tasks where the odds ratio is greater than one.
** Non-driving related tasks.

    A complete copy of the final report for this study is included in
FMCSA Docket FMCSA-2009-0370, available at http://www.regulations.gov.
4. Cell Phone Distraction in Commercial Trucks and Buses: Assessing
Prevalence in Conjunction With Crashes and Near-Crashes--Hickman \5\
    The purpose of this research was to conduct an analysis of
naturalistic data collected by DriveCam[supreg]. The introduction of
naturalistic driving studies that record drivers (through video and
kinematic vehicle sensors) in actual driving situations created a
scientific method to study driver behavior under the daily pressures of
real-world driving conditions. The research documented the prevalence
of distractions while driving a CMV, including both trucks and buses,
using an existing naturalistic data set. This data set came from 183
truck and bus fleets comprising a total of 13,306 vehicles captured
during a 90-day period. There were 8,509 buses and 4,797 trucks. The
data sets in the current study did not include continuous data; it only
included recorded events that met or exceeded a kinematic threshold (a
minimum g-force setting that triggers the event recorder). These
recorded events included safety-critical events (e.g., hard braking in
response to another vehicle) and baseline events (i.e., an event that
was not related to a safety-critical event, such as a vehicle that
traveled over train tracks and exceeded the kinematic threshold). A
total of 1,085 crashes, 8,375 near-crashes, 30,661 crash-relevant
conflicts, and 211,171 baselines were captured in the dataset.
---------------------------------------------------------------------------

    \5\ Hickman, J., Hanowski, R., & Bocanegra, J. (2010).
Distraction in Commercial Trucks and Buses: Assessing Prevalence and
Risk in Conjunction with Crashes and Near-Crashes. Washington, DC:
Federal Motor Carrier Safety Administration. (Final Report due
Spring 2010).
---------------------------------------------------------------------------

    Odds ratios were calculated to show a measure of association
between involvement in a safety-critical event and performing non-
driving related tasks, such as dialing or texting. The odds ratios show
the odds of being involved in a safety-critical event when a non-
driving related task is present compared to situations when there is no
non-driving related task. The odds ratios for text/e-mail/accessing the
Internet tasks were very high, indicating a strong relationship between
text/e-mail/accessing the Internet while driving and involvement in a
safety-critical event. Very few instances of this behavior were
observed during safety-critical events in the current study and even
fewer during control events. Although truck and bus drivers do not use
cell phones frequently, the data suggest that truck and bus drivers who
use their cell phone to make calls, text, e-mail, or access the
Internet are very likely to be involved in a safety-critical event.
    Additional research and data are specifically identified in FMCSA's
NPRM on restricting cell phone use by CMV drivers.

E. Existing Prohibitions and Restrictions by Federal, State, and Local
Governments

1. Executive Order 13513
    The President immediately used the feedback from the DOT Summit on
Distracted Driving and issued Executive Order 13513, which ordered
that:

Federal employees shall not engage in text messaging (a) when
driving a Government Owned Vehicle, or when driving a Privately
Owned Vehicle while on official Government business, or (b) when
using electronic equipment supplied by the Government while driving.

    2. The Executive Order is applicable to the operation of CMVs by
Federal government employees carrying out their duties and
responsibilities, or using electronic equipment supplied by the
government. This order also encourages contractors to comply while
operating CMVs on behalf of the Federal government. FMCSA
    In light of the available studies, the NTSB recommendation, and
MCSAC's recommendations, FMCSA has proposed a restriction on the use of
mobile (cellular) telephones by CMV drivers operating in interstate
commerce. The proposed rule would include definitions related to the
restriction. It also would add a driver disqualification provision for
interstate CMV drivers. A driver disqualification provision would also
be included for CDL holders convicted of two or more violations of
State or local traffic laws or ordinances on motor vehicle traffic
control concerning mobile telephone use.
    FMCSA's NPRM would amend regulations in 49 CFR parts 383 and 384
concerning the Agency's CDL regulations, part 390 concerning general
applicability of the FMCSRs, part 391 concerning driver qualifications
and disqualifications, and part 392 concerning driving rules. In
general, the proposed requirements are intended to reduce the risks of
distracted driving by restricting mobile telephone use by a driver who
is operating a CMV in interstate commerce.
    The proposed rule would also require interstate motor carriers to
ensure compliance by their drivers with the restrictions on use of a
mobile telephone while driving a CMV. Motor carriers would be
prohibited from requiring or allowing drivers of CMVs to use a mobile
telephone while operating in interstate commerce.
3. Federal Railroad Administration
    On October 7, 2008, FRA published Emergency Order 26 (73 FR 58702).
Pursuant to FRA's authority under 49 U.S.C. 20102 and 20103, the order,
which took effect on October 1, 2008, restricts railroad operating
employees from using distracting electronic and electrical devices
while on duty. Among other things, the order prohibits both the use of
cell phones and texting. FRA cited numerous examples of the adverse
impact that electronic devices can have on safe operations. These
examples included fatal accidents that involved operators who were
distracted while texting or talking on a cell phone. In light of these
incidents, FRA is imposing restrictions on the use of such electronic
devices, both through its

order and a rulemaking that seeks to codify the order. In a NPRM
published May 18, 2010, FRA proposed to amend its railroad
communications regulations by restricting the use of mobile telephones
and other distracting electronic devices by railroad operating
employees (75 FR 27672).
4. State Restrictions
    Nine States and the District of Columbia have traffic laws
prohibiting all motor vehicle drivers from using a hand-held mobile
telephone while driving. School bus drivers are currently prohibited
from any mobile telephone use in 19 States and the District of
Columbia. A list of these States can be found at the following Web
site:  http://www.iihs.org/laws/cellphonelaws.aspx. Generally, the
State traffic laws are applicable to all drivers operating motor
vehicles within those jurisdictions, including CMV operators. Some
States are already tracking enforcement. For example, since March of
2008, when New Jersey's wireless hand-held telephone and electronic
communication device ban became effective, more than 224,000
citations--an average of almost 10,000 a month--were issued to
motorists violating this cell phone law.
    Additionally, as part of its continuing effort to combat distracted
driving, DOT kicked off pilot programs in Hartford, Connecticut, and
Syracuse, New York, to test whether increased law enforcement efforts
can get distracted drivers to put down their mobile telephones and
focus on the road. During one week of the pilot program in Hartford,
police cited more than 2,000 drivers for talking on mobile telephones
and 200 more for texting while driving.

II. Applicability of this NPRM

    PHMSA's Office of Hazardous Materials Safety is the Federal safety
authority for the transportation of hazardous materials by air, rail,
highway, and water. Under the Federal hazardous materials
transportation law (Federal hazmat law; 49 U.S.C. 5101 et seq.), the
Secretary of Transportation is charged with protecting the nation
against the risks to life, property, and the environment that are
inherent in the commercial transportation of hazardous materials. The
Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180) are
promulgated under the mandate in Sec.  5103(b) of Federal hazardous
materials transportation law (Federal hazmat law; 49 U.S.C. 5101 et
seq.) that the Secretary of Transportation ``prescribe regulations for
the safe transportation, including security, of hazardous material in
intrastate, interstate, and foreign commerce.'' Section 5103(b)(1)(B)
provides that the HMR ``shall govern safety aspects, including
security, of the transportation of hazardous material the Secretary
considers appropriate.'' As such, PHMSA strives to reduce the risks
inherent to the transportation of hazardous materials in both
intrastate and interstate commerce.\6\
---------------------------------------------------------------------------

    \6\ The term ``intrastate commerce'' is trade, traffic, or
transportation within a single state. The term ``interstate
commerce'' is trade, traffic, or transportation involving the
crossing of a state boundary. Additionally, ``interstate commerce''
includes transportation originating or terminating outside the state
of United States. (See 49 CFR 390.5)
---------------------------------------------------------------------------

    The texting restrictions adopted by FMCSA in under Docket FMCSA-
2009-0370 have been incorporated into Sec.  392.80 of the FMCSRs and
apply to CMV motor carriers and drivers in interstate commerce. During
the coordination process for PHMSA's August 3, 2010 safety advisory
notice on distracted driving, PHMSA and FMCSA representatives expressed
concern that changes to the FMCSRs regarding distracted driving would
only apply to motor carriers and drivers of CMVs that operate in
interstate commerce.\7\ As such, any requirements adopted by FMCSA
regarding distracted driving would not apply to motor carriers and
drivers that transport covered hazardous materials in intrastate
commerce.
---------------------------------------------------------------------------

    \7\ In accordance with Sec.  390.3(a) the rules in Subchapter B,
including Parts 350-399, of the 49 CFR are applicable to all
employers, employees, and commercial motor vehicles, which transport
property or passengers in interstate commerce. The only FMCSA
regulations that are applicable to intrastate operations are: The
commercial driver's license (CDL) requirement, for drivers operating
commercial motor vehicles as defined in 49 CFR 383.5; controlled
substances and alcohol testing for all persons required to possess a
CDL; and minimum levels of financial responsibility for the
intrastate transportation of certain quantities of hazardous
materials and substances.
---------------------------------------------------------------------------

    PHMSA developed this NPRM to expand the limitations on the use of
hand-held mobile telephones proposed by FMCSA's NPRM to the
transportation of a quantity of hazardous materials requiring
placarding under Part 172 of the 49 CFR or any quantity of a material
listed as a select agent or toxin in 42 CFR Part 73 in intrastate
commerce. The safety benefits associated with limiting the distractions
caused by electronic devices, including cell phones, are equally
applicable to drivers transporting covered hazardous materials via
intrastate as they are to interstate commerce. The use of a hand-held
mobile telephone while driving constitutes a safety risk to the motor
vehicle driver, other motorists, and bystanders. As proposed in the
FMCSA NPRM, the consequences of using hand-held mobile telephones while
driving can include state and local sanctions, fines, and possible
revocation of commercial driver's licenses.
    PHMSA has determined that the use of hand-held mobile phones
presents a hazard equally, whether the motor carrier is involved in
interstate or intrastate commerce. PHMSA estimates that there are
approximately 1,490 intrastate motor carriers that could be affected by
this rulemaking. Studies performed on behalf FMCSA have estimated that
the cost of a property damage only crash is $17,000. Crashes involving
a fatality are estimated to be approximately $6 million. Based on
estimates outlined in the Preliminary Regulatory Impact Assessment
PHMSA estimates the costs as follows:

                 Summary of Costs and Threshold Analysis
------------------------------------------------------------------------

------------------------------------------------------------------------
Cost of Lost Carrier Productivity..........................       $5,148
Cost of Increased Fuel Consumption.........................       $9,535
Cost of Parking, Entering and Exiting Roadway Crashes......      $10,335
                                                            ------------
    Total Costs............................................      $25,018
                                                            ============
Benefit of Eliminating One Fatality........................       \1\ $6
Break-even Number of Lives Saved...........................          < 1
Benefit of Eliminating One Crash...........................      $17,000
Break-even of Number of Crashes Prevented..................         < 2
------------------------------------------------------------------------
\1\ In millions.

III. Summary of Changes

    In accordance with the comments received and public meeting
discussion this NPRM proposes the following changes by section:
    Section 177.804. We propose to add a new paragraph (b) to prohibit
the use of hand-held mobile telephones by any CMV driver transporting a
quantity of hazardous materials requiring placarding under Part 172 of
the 49 CFR or any quantity of a material listed as a select agent or
toxin in 42 CFR Part 73. As such, motor carriers and drivers who engage
in the transportation of covered materials must comply with the
distracted driving requirements in Sec.  392.82 of the FMCSR.

IV. Regulatory Analysis and Notices

A. Statutory/Legal Authority for This Rulemaking

    This rulemaking is issued under authority of the Federal hazardous
materials transportation law (49 U.S.C. 5101 et seq.), which authorizes
the

Secretary of Transportation to prescribe regulations for the safe
transportation, including security, of hazardous materials in
interstate, intrastate, and foreign commerce.

B. Executive Order 12866 and DOT Regulatory Policies and Procedures

    PHMSA has determined that this rulemaking action is a significant
regulatory action under Executive Order 12866, Regulatory Planning and
Review, and significant under DOT regulatory policies and procedures
because of the substantial Congressional and public interest concerning
the crash risks associated with distracted driving, even though the
economic costs of the proposed rule do not exceed the $100 million
annual threshold.
    Executive Order 12866 requires agencies to regulate in the ``most
cost-effective manner,'' to make a ``reasoned determination that the
benefits of the intended regulation justify its costs,'' and to develop
regulations that ``impose the least burden on society.'' As discussed
throughout this rulemaking, the intent of this NPRM is to expand upon
the applicability of the FMCSA NPRM to prohibit use of cell phones by
drivers of motor vehicles that contain a quantity of hazardous
materials requiring placarding under Part 172 of the 49 CFR or any
quantity of a material listed as a select agent or toxin in 42 CFR Part
73. As a result, the population of motor carriers covered by this
proposed rule is comprised of a very small portion of motor carriers
operating in intrastate commerce.
    PHMSA calculated its affected population by assessing hazmat
registration data from the 2010-2011 registration year. This data is
collected on DOT form F 5800.2 in accordance with Sec.  107.608(a) of
the 49 CFR. Generally, the registration requirements apply to any
person who offers for transportation or transports a quantity of
hazardous materials requiring placarding under Part 172 of the 49 CFR.
Additional data collected on form F 5800.2 verify that the registrant
is indeed a carrier, the mode of transportation used, and the US DOT
Number.\8\ Using this key data from the registration form submissions
we can make some assumptions to estimate the number of motor carriers
subject to this NPRM. Based on our analysis of form 5800.2-18,841
persons have registered as motor carriers of hazardous materials. Of
those 18,841 registrants 17,599 included a US DOT Number. Therefore,
based on the registration data 1,242 motor carriers are considered
intrastate carriers. We compared these numbers with the FMCSA Motor
Carrier Management Information System (MCMIS).\9\ Based on MCMIS data
we verified that the 1,242 carriers identified through registration
data have not been issued a US DOT Number by FMCSA.
---------------------------------------------------------------------------

    \8\ The FMCSRs require certain commercial carriers to obtain a
US DOT number. Companies that operate commercial vehicles
transporting passengers or hauling cargo in interstate commerce must
be registered with the FMCSA and must have a US DOT Number. The US
DOT Number serves as a unique identifier when collecting and
monitoring a company's safety information acquired during audits,
compliance reviews, crash investigations, and inspections. FMCSA
provides two services for people who need to obtain a U.S. DOT
number. The MC-150 form can be downloaded from the FMCSA Web site in
PDF form and mailed in; or, they may file electronically via the web
site. Both options are found at the following URL: http://www.fmcsa.dot.gov/factsfigs/formspubs.htm.
    \9\ MCMIS contains information on the safety fitness of
commercial motor carriers (truck & bus) and hazardous material
shippers subject to both the FMCSRs and the HMR. This information is
available to the general public through the MCMIS Data Dissemination
Program.
---------------------------------------------------------------------------

    To better define the population of intrastate carriers subject to
this rulemaking we assessed the data further. Generally, registration
data is limited to persons that offer or transport placarded quantities
of hazardous materials. Registration data does not include persons that
transport a material listed as a select agent or toxin in 42 CFR Part
73. In addition, the data includes those carriers that are required to
obtain a US DOT Number through their state even if they operate solely
in intrastate commerce. In select states, all registrants of commercial
motor vehicles, even intrastate and non-motor carrier registrants, are
required to obtain a US DOT Number as a necessary condition for
commercial vehicle registration. FMCSA indicates that 28 states
currently require motor carriers to obtain a US DOT Number, regardless
if they operate in interstate or intrastate commerce.\10\ Based on
these assumptions, the number of intrastate carriers identified through
hazmat registration data may be under estimated by up to 60% to 70%.
---------------------------------------------------------------------------

    \10\ ``What is a USDOT Number?'' See: http://www.fmcsa.dot.gov/registration-licensing/registration-USDOT.htm.
---------------------------------------------------------------------------

    Based on the assumptions outlined above and PHMSA's desire to take
a conservative approach to the affected population we will multiply the
number of intrastate carriers identified through registration data by a
20% under reporting factor. This will result in a total population
affected by this rulemaking of 1,490 intrastate carriers (1,242 x 1.20
= 1,490). This conservative estimate ensures that PHMSA is fully
considering the impacts of expanding applicability of the FMCSA NPRM to
prohibit cell phone by drivers of motor vehicles that contain a
quantity of hazardous materials requiring placarding under Part 172 of
the 49 CFR or any quantity of a material listed as a select agent or
toxin in 42 CFR Part 73.
    The regulatory evaluation prepared in support of this rulemaking
considers the following potential costs: (a) Loss in carrier
productivity due to time spent while parking or pulling over to the
side of the roadway to make cell phone calls; (b) increased fuel usage
due to idling as well as exiting and entering the travel lanes of the
roadway; and (c) increased crash risk due to covered CMVs that are
parked on the side of the roadway and exiting and entering the travel
lanes of the roadway. The regulatory evaluation also considers
potential costs to the states. However, since the analysis does not
yield appreciable costs to the states, further analysis pursuant to the
Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1532) was deemed
unnecessary.
    PHMSA estimates that this proposed rule will cost $ 25,018
annually. Additionally, PHMSA has not identified a significant increase
in crash risk associated with drivers' strategies for complying with
this proposed rule. As indicated in the regulatory evaluation, a crash
resulting in property damage only (PDO) averages approximately $17,000
in damages. Consequently, the cell phone use restriction would have to
eliminate just two PDO crash every year for the benefits of this
proposed rule to exceed the costs. A summary of the costs and threshold
analysis is provided in the following table:

                 Summary of Costs and Threshold Analysis
------------------------------------------------------------------------

------------------------------------------------------------------------
Cost of Lost Carrier Productivity..........................       $5,148
Cost of Increased Fuel Consumption.........................       $9,535
Cost of Parking, Entering and Exiting Roadway Crashes......      $10,335
                                                            ------------
    Total Costs............................................      $25,018
                                                            ============
Benefit of Eliminating One Fatality........................       \1\ $6
Break-even Number of Lives Saved...........................         < 1
------------------------------------------------------------------------
\1\ In millions.

C. Executive Order 13132

    Executive Order 13132 requires agencies to assure meaningful and
timely input by state and local officials in the development of
regulatory policies that may have a substantial, direct effect 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. A rule has
implications for Federalism under Executive Order 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 them. We invite state and local governments to comment on
the effect that the adoption of this rule may have on state or local
safety or environmental protection programs.

D. Executive Order 13175

    This proposed 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 proposed 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.

E. Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 (5 U.S.C. 601-612) requires
Federal agencies to consider the effects of the regulatory action on
small business and other small entities and to minimize any significant
economic impact. The term ``small entities'' comprises small businesses
and not-for-profit organizations that are independently owned and
operated and are not dominant in their fields, and governmental
jurisdictions with populations of less than 50,000. Accordingly, DOT
policy requires an analysis of the impact of all regulations on small
entities, and mandates that agencies strive to lessen any adverse
effects on these businesses.
    PHMSA has conducted an economic analysis of the impact of this
proposed rule on small entities and certifies that a Regulatory
Flexibility Analysis is not necessary because the rule will not have a
significant economic impact on a substantial number of small entities
subject to the requirements of this proposed rule. We assume that all
of the 1,490 motor carriers identified by this proposed rule are small
entities. However, the direct costs of this rule that small entities
may incur are only expected to be minimal. They consist of the costs of
lost productivity from foregoing cell phone use while on-duty and fuel
usage costs for pulling to the side of the road to idle the truck or
passenger-carrying vehicle and making a cell phone call. The majority
of motor carriers are small entities. Therefore, PHMSA will use the
total cost of this proposed rule ($25,018) applied to the number of
small entities (1,490) as a worse case evaluation which would average
$16.79 annually per carrier.

F. Executive Order 13272 and DOT Regulatory Policies and Procedures

    This notice has been developed in accordance with Executive Order
13272 (``Proper Consideration of Small Entities in Agency Rulemaking'')
and DOT's procedures and policies to promote compliance with the
Regulatory Flexibility Act to ensure that potential impacts of draft
rules on small entities are properly considered.

G. Paperwork Reduction Act

    This rule would call for no new collection of information under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

H. Regulation Identifier Number (RIN)

    A regulation identifier number (RIN) is assigned to each regulatory
action listed in the Unified Agenda of Federal Regulations. The
Regulatory Information Service Center publishes the Unified Agenda in
April and October of each year. The RIN contained in the heading of
this document can be used to cross-reference this action with the
Unified Agenda.

I. Unfunded Mandates Reform Act of 1995

    This proposed rule does not impose unfunded mandates, under the
Unfunded Mandates Reform Act of 1995. It does not result in costs of
$141.3 million or more to either state, local, or tribal governments,
in the aggregate, or to the private sector, and is the least burdensome
alternative that achieves the objective of the rule.

J. Privacy Act

    Anyone is able to search the electronic form of all comments
received into any of our dockets by the name of the individual
submitting the comment (or signing the comment, if submitted on behalf
of an association, business, labor union, etc.). You may review DOT's
complete Privacy Act Statement in the Federal Register published on
April 11, 2000 (Volume 65, Number 70; Pages 19477-78) or you may visit
http://www.dot.gov. This proposed rule is not a privacy-sensitive
rulemaking because the rule will not require any collection,
maintenance, or dissemination of Personally Identifiable Information
(PII) from or about members of the public.

K. National Environmental Policy Act

    The National Environmental Policy Act of 1969 (NEPA) requires
Federal agencies to consider the consequences of major Federal actions
and that they prepare a detailed statement on actions significantly
affecting the quality of the human environment. PHMSA assessment did
not reveal any significant positive or negative impacts on the
environment expected to result from the rulemaking action. There could
be minor impacts on emissions, hazardous materials spills, solid waste,
socioeconomics, and public health and safety. Interested parties are
invited to address the potential environmental impacts of regulations
applicable to the storage of explosives transported in commerce. We are
particularly interested in comments about safety and security measures
that would provide greater benefit to the human environment or on
alternative actions the agency could take that would provide beneficial
impacts.

List of Subjects in 49 CFR Part 177

    Hazardous materials transportation, Motor carriers, Radioactive
materials, Reporting and recordkeeping requirements.

    In consideration of the foregoing, 49 CFR Chapters I and III are
proposed to be amended as follows:

PART 177--CARRIAGE BY PUBLIC HIGHWAY

    1. The authority citation for part 177 would continue to read as
follows:

    Authority:  49 U.S.C. 5101-5127; 49 CFR 1.53.

    2. Section 177.804 is amended by adding a new paragraph (c) to read
as follows:

Sec.  177.804  Compliance with Federal Motor Carrier Safety
Regulations.

* * * * *
    (c) Prohibition against hand-held mobile telephones. In accordance
with Sec.  392.82 of the FMCSRs a person transporting a quantity of
hazardous materials requiring placarding under Part 172 of the 49 CFR
or any quantity of a material listed as a select agent or toxin in 42
CFR Part 73 may not engage in, allow, or require use of a hand-held
mobile telephone while driving.

    Issued in Washington, DC, on April 21, 2011, under authority
delegated in 49 CFR Part 106.
 Magdy El-Sibaie,
Associate Administrator for Hazardous Materials Safety.
[FR Doc. 2011-10140 Filed 4-28-11; 8:45 am]
BILLING CODE 4910-60-P


[Federal Register: September 17, 2010 (Volume 75, Number 180)]
[Notices]
[Page 57098-57100]
[DOCID:fr17se10-145]

-----------------------------------------------------------------------

SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-62900; File No. SR-Phlx-2010-123]

 Self-Regulatory Organizations; NASDAQ OMX PHLX LLC; Notice of
Filing and Immediate Effectiveness of Proposed Rule Change To Establish
a New FLEX Options Pilot Program

September 13, 2010.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(``Act''),\1\ and Rule 19b-4 \2\ thereunder, notice is hereby given
that on September 2, 2010, NASDAQ OMX PHLX LLC (``Phlx'' or the
``Exchange'') filed with the Securities and Exchange Commission (the
``Commission'') the proposed rule change as described in Items I and II
below, which Items have been prepared by the Exchange. The Commission
is publishing this notice to solicit comments on the proposed rule
change from interested persons.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
---------------------------------------------------------------------------

I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    The Exchange is filing with the Commission a proposal to replace
the 150 contract FLEX minimum value pilot program with a new pilot
program that eliminates minimum value sizes for equity-traded FLEX
index options and FLEX equity options (together known as ``FLEX
Options'').\3\ The text of the proposed rule change is available on the
Exchange's Web site at http://nasdaqomxphlx.cchwallstreet.com/
NASDAQOMXPHLX/Filings/, at the principal office of the Exchange, and at
the Commission's Public Reference Room.
---------------------------------------------------------------------------

    \3\ In addition to FLEX Options, FLEX currency options are also
traded on the Exchange. These flexible index, equity, and currency
options provide investors the ability to customize basic option
features including size, expiration date, exercise style, and
certain exercise prices; and may have expiration dates within five
years. See Rule 1079. FLEX currency options traded on the Exchange
are also known as FLEX World Currency Options (``WCO'') or Foreign
Currency Options (``FCO''). The new pilot program proposed in this
filing does not encompass currency options.

---------------------------------------------------------------------------

II. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, the Exchange included statements
concerning the purpose of and basis for the proposed rule change and
discussed any comments it received on the proposed rule change. The
text of these statements may be examined at the places specified in
Item IV below. The Exchange has prepared summaries, set forth in
sections A, B, and C below, of the most significant aspects of such
statements.

A. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change

1. Purpose
    The purpose of this filing is to amend Commentary .01 to Rule 1079
to replace the 150 contract FLEX minimum value pilot program with a new
pilot program that eliminates minimum value sizes for FLEX Options for
an opening transaction (``Pilot Program'' or ``Pilot''). The Pilot
Program would end on March 28, 2011.
    The rule changes proposed by the Exchange are similar to those in
use by Chicago Board Options Exchange, Incorporated (``CBOE'') and NYSE
Amex LLC (``NYSE Amex'').\4\
---------------------------------------------------------------------------

    \4\ See Securities Exchange Act Release No. 61439 (January 28,
2010), 75 FR 5831 (February 4, 2010) (SR-CBOE-2009-087) (order
approving no minimum value pilot). NYSE Amex based its no minimum
value pilot on the CBOE pilot. See Securities Exchange Act Release
No. 62084 (May 12, 2010), 75 FR 28091 (May 19, 2010) (SR-NYSEAmex-
2010-40) (notice of filing and immediate effectiveness).
---------------------------------------------------------------------------

    Rule 1079 deals with the process of listing and trading FLEX
options on the Exchange. Rule 1079 states that the term ``FLEX option''
means a FLEX option contract that is traded subject to this rule. Rule
1079 permits the Exchange to list FLEX options on: Any index upon which
options currently trade on the Exchange; any security which is options-
eligible pursuant to Rule 1009; or any foreign currency which is
options-eligible pursuant to Rule 1009 and which underlies non-FLEX
U.S. dollar-settled foreign currency options that are trading on the
Exchange. Rule 1079 discusses, among other things: Opening FLEX options
trading through the Request-for-Quote (``RFQ'') process; quotes
responsive to RFQs; trading parameters and procedures; and position and
exercise limits for FLEX options.
    Rule 1079(a)(8)(A) currently sets the minimum opening transaction
value size in the case of a FLEX Option in a newly established
(opening) series if there is no open interest in the particular series
when an RFQ is submitted: (i) $10 million underlying equivalent value,
respecting FLEX market index options, and $5 million underlying
equivalent value respecting FLEX industry index options; \5\ (ii)
except as provided in Commentary .01, the lesser of 250 contracts or
the number of contracts overlying $1 million in the underlying
securities, with respect to FLEX equity options; and (iii) 50 contracts
in the case of FLEX currency options.\6\
---------------------------------------------------------------------------

    \5\ Market index options and industry index options are broad-
based index options and narrow-based index options, respectively.
See Rule 1000A(b)(11) and (12).
    \6\ The Exchange notes that CBOE has similar provisions in CBOE
Rules 24A.4(a)(4)(ii)(A) and 24B.4(a)(5)(ii)(A). Unlike Phlx,
however, CBOE does not trade currency options and does not discuss
them in the noted CBOE rule sections.
---------------------------------------------------------------------------

    Presently, under an existing pilot program in Commentary .01 to
Rule 1079, the Exchange has reduced the minimum value size requirement
of subparagraph (a)(8)(A)(ii) for an opening FLEX Equity transaction to
the lesser of 150 contracts (previously 250 contracts) or the number of
contracts overlying $1 million in underlying securities (``150 minimum
value pilot program'').\7\ The Exchange proposes to replace the
existing 150 minimum value pilot program with a new Pilot Program in
Commentary .01 that eliminates the minimum value size requirements for
FLEX Options.\8\
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    \7\ See Securities Exchange Act Release Nos. 57824 (May 15,
2008), 73 FR 29805 (May 22, 2008) (SR-Phlx-2008-35) (notice of
filing and immediate effectiveness establishing the 150 minimum
value pilot program); and 60627 (September 4, 2009), 74 FR 47032
(September 14, 2009) (SR-Phlx-2009-78) (notice of filing and
immediate effectiveness extending the 150 minimum value pilot
program).
    \8\ The Exchange is not aware of any significant compliance or
enforcement issues pursuant to the 150 minimum value pilot program.
---------------------------------------------------------------------------

    If, in the future, the Exchange proposes an extension of the new
Pilot Program that establishes no minimum size, or should the Exchange
propose to make the new Pilot Program permanent, the Exchange will
submit, along with any filing proposing such amendments to the Pilot, a
Pilot Program report that would provide an analysis of the Pilot
Program covering the period during which the Pilot was in effect. This
report would include: (i) Data and analysis on the open interest and
trading volume in (a) FLEX equity options with opening transaction with
a minimum size of 0 to 249 contracts and less than $1 million in
underlying value; (b) FLEX index options with opening transaction with
a minimum opening size of less than $10 million in underlying
equivalent value; and (ii) analysis of the types of investors that
initiated opening FLEX Options transactions (i.e., institutional, high
net worth, or retail). The report would be submitted to the Commission
at least two months prior to the expiration date of the Pilot Program
and would be provided on a confidential basis.
    The Exchange notes that any positions established under this Pilot
would not be impacted by the expiration of the Pilot. For example, a
10-contract FLEX equity option opening position that overlies less than
$1 million in the underlying security and expires in January 2015 could
be established during the Pilot. If the Pilot Program were not
extended, the position would continue to exist and any further trading
in the series would be subject to the minimum value size requirements
for continued trading in that series.
    The Exchange believes that the proposed Pilot Program would provide
greater opportunities for traders and investors to manage risk through
the use of FLEX Options, including investors that may otherwise trade
in the unregulated over the counter (``OTC'') market where similar size
restrictions do not apply.
2. Statutory Basis
    The Exchange believes that its proposal is consistent with Section
6(b) of the Act \9\ in general, and furthers the objectives of Section
6(b)(5) of the Act \10\ in particular, in that it is designed to
prevent fraudulent and manipulative acts and practices, to promote just
and equitable principles of trade, to foster cooperation and
coordination with persons engaged in facilitating transactions in
securities, and to remove impediments to and perfect the mechanisms of
a free and open market and a national market system, by eliminating a
minimum size for FLEX transactions, which the Exchange believes would
provide greater opportunities for traders and investors to manage risk
through the use of FLEX Options.
---------------------------------------------------------------------------

    \9\ 15 U.S.C. 78f(b).
    \10\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange does not believe that the proposed rule change will
impose any burden on competition not necessary or appropriate in
furtherance of the purposes of the Act.

C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants or Others

    No written comments were either solicited or received.

III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action

    Because the foregoing proposed rule change does not: (1)
Significantly affect the protection of investors or the public
interest; (2) impose any significant burden on competition; and (3)
become operative for 30 days from the date on which it was filed, or
such shorter time as the Commission may designate if consistent with
the protection of investors and the public interest, it has become
effective pursuant to Section 19(b)(3)(A) of the Act \11\ and Rule 19b-
4(f)(6) thereunder.\12\
---------------------------------------------------------------------------

    \11\ 15 U.S.C. 78s(b)(3)(A).
    \12\ 17 CFR 240.19b-4(f)(6). When filing a proposed rule change
pursuant to Rule 19b-4(f)(6) under the Act, an exchange is required
to give the Commission written notice of its intent to file the
proposed rule change, along with a brief description and text of the
proposed rule change, at least five business days prior to the date
of filing of the proposed rule change, or such shorter time as
designated by the Commission. The Commission notes that the Exchange
has satisfied this requirement.
---------------------------------------------------------------------------

    A proposed rule change filed under Rule 19b-4(f)(6) normally may
not become operative prior to 30 days after the date of filing.\13\
However, Rule 19b-4(f)(6) \14\ permits the Commission to designate a
shorter time if such action is consistent with the protection of
investors and the public interest. Phlx has requested that the
Commission waive the 30-day operative delay.
---------------------------------------------------------------------------

    \13\ 17 CFR 240.19b-4(f)(6)(iii).
    \14\ Id.
---------------------------------------------------------------------------

    The Commission has considered Phlx's request to waive the 30-day
operative delay. Because, however, the Commission does not believe,
practically speaking, that a pilot should retroactively commence, the
Commission is only waiving the operative delay as of the date of this
notice for the reasons discussed below.\15\ The Commission believes
that waiving the 30-day operative delay to allow the commencement of
the pilot as of the date of issuance of this notice of the proposed
rule change is consistent with the protection of investors and the
public interest. The Commission notes that the proposed rule change is
substantially similar to a pilot that was previously approved by the
Commission and is currently in existence for CBOE,\16\ and to a pilot
program that is currently in existence on NYSE Amex.\17\ The Commission
notes that these pilots were subject to full notice and comment in the
Federal Register. The Commission received no comments on the NYSE Amex
proposal, and only received comments that supported the CBOE
proposal.\18\ Further, the Exchange's proposal does not raise any new
or novel issues that were not already considered in connection with the
CBOE and NYSE Amex proposals. For these reasons, consistent with
investor protection and the public interest, the Commission designates
this pilot to be operative upon the date of issuance of this
notice.\19\
---------------------------------------------------------------------------

    \15\ The Commission also notes that waiving the operative date
as of the date of this notice is consistent with approval of CBOE's
pilot, which allowed implementation as of the date of the
Commission's approval order, and Amex's pilot, where the pilot was
operative upon the date of issue of the notice.
    \16\ See supra note 4.
    \17\ Id.
    \18\ Id.
    \19\ For the purposes only of waiving the operative date of this
proposal, the Commission has considered the proposed rule's impact
on efficiency, competition, and capital formation. See 15 U.S.C.
78c(f).
---------------------------------------------------------------------------

    At any time within 60 days of the filing of the proposed rule
change, the Commission summarily may temporarily suspend such rule
change if it appears to the Commission that such action is necessary or
appropriate in the public interest, for the protection of investors, or
otherwise in furtherance of the purposes of the Act.

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and
arguments concerning the foregoing, including whether the proposed rule
change is consistent with the Act. Comments may be submitted by any of
the following methods:

Electronic Comments

     Use the Commission's Internet comment form (http://
www.sec.gov/rules/sro.shtml); or
     Send an e-mail to<EMAIL_ADDRESS>Please include
File Number SR-Phlx-2010-123 on the subject line.

Paper Comments

     Send paper comments in triplicate to Elizabeth M. Murphy,
Secretary, Securities and Exchange Commission, 100 F Street, NE.,
Washington, DC 20549-1090.

All submissions should refer to File Number SR-Phlx-2010-123. This file
number should be included on the subject line if e-mail is used. To
help the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's Internet Web site (http://www.sec.gov/rules/
sro.shtml). Copies of the submission, all subsequent amendments, all
written statements with respect to the proposed rule change that are
filed with the Commission, and all written communications relating to
the proposed rule change between the Commission and any person, other
than those that may be withheld from the public in accordance with the
provisions of 5 U.S.C. 552, will be available for Web site viewing and
printing in the Commission's Public Reference Room, 100 F Street, NE.,
Washington, DC 20549, on official business days between the hours of 10
a.m. and 3 p.m. Copies of the filing also will be available for
inspection and copying at the principal office of the Exchange. All
comments received will be posted without change; the Commission does
not edit personal identifying information from submissions. You should
submit only information that you wish to make available publicly. All
submissions should refer to File Number SR-Phlx-2010-123 and should be
submitted on or before October 8, 2010.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\20\
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    \20\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Deputy Secretary.
[FR Doc. 2010-23298 Filed 9-16-10; 8:45 am]
BILLING CODE 8010-01-P


[Federal Register Volume 83, Number 157 (Tuesday, August 14, 2018)]
[Rules and Regulations]
[Pages 40151-40153]
[FR Doc No: 2018-17361]

=======================================================================
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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R02-OAR-2018-0237; FRL-9981-83--Region 2]

Approval of Air Quality Implementation Plans; New Jersey;
Infrastructure Requirements for the 2012 PM2.5 NAAQS; Interstate
Transport Provisions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving
elements of the State Implementation Plan (SIP) submission from New
Jersey regarding the infrastructure requirements of section 110 of the
Clean Air Act (CAA) for the 2012 annual fine particulate matter
(PM2.5) National Ambient Air Quality Standard (NAAQS or
standard). The infrastructure requirements are designed to ensure that
the structural components of each state's air quality management
program are adequate to meet the state's responsibilities under the
CAA. This action pertains specifically to infrastructure requirements
concerning interstate transport provisions.

DATES: This final rule is effective on September 13, 2018.

ADDRESSES: The EPA has established a docket for this action under
Docket ID Number EPA-R02-OAR-2018-0237. All documents in the docket are
listed on the http://www.regulations.gov website. Although listed in
the index, some information is not publicly available, e.g.,
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Certain other material, such as
copyrighted material, is not placed on the internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available electronically through http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Kenneth Fradkin, Environmental
Protection Agency, 290 Broadway, New York, New York 10007-1866, at
(212) 637-3702, or by email at [email protected].

SUPPLEMENTARY INFORMATION: The Supplementary Information section is
arranged as follows:

Table of Contents

I. What is the background for this action?
II. What comments were received in response to the EPA's proposed
action?
III. What action is the EPA taking?
IV. Statutory and Executive Order Reviews

I. What is the background for this action?

    Under sections 110(a)(1) and (2) of the Clean Air Act (CAA), each
state is required to submit a State Implementation Plan (SIP) that
provides for the implementation, maintenance, and enforcement of a
revised primary or secondary National Ambient Air Quality Standards
(NAAQS or standard). CAA sections 110(a)(1) and (2) require each state
to make a new SIP submission within three years after the EPA
promulgates a new or revised NAAQS for approval into the existing
federally-approved SIP to assure that the SIP meets the applicable
requirements for such new and revised NAAQS.
    On May 21, 2018 (83 FR 23402), EPA published a Notice of Proposed
Rulemaking (NPR) in the Federal Register for the State of New Jersey.
The NPR proposed to approve elements of the State of New Jersey's
Infrastructure SIP submission, dated October 17, 2014, which were
submitted to address CAA section 110(a) infrastructure requirements for
the following NAAQS: 2008 ozone, 2008 lead, 2010 nitrogen dioxide
(NO2), 2010 sulfur dioxide (SO2), 2011 carbon
monoxide (CO), 2006 particulate matter of 10 microns or less
(PM10), and 2012 particulate matter of 2.5 microns or less
(PM2.5). Specifically, EPA proposed in the May 21, 2018
action to approve the portion of the submission addressing the
interstate transport provisions for the 2012 PM2.5 NAAQS
under CAA section 110(a)(2)(D)(i)(I), otherwise known as the ``good
neighbor'' provision.
    Other detailed information relevant to this action on New Jersey's
infrastructure SIP submission, including infrastructure requirements
concerning interstate transport provisions, and the rationale for EPA's
proposed action are explained in the NPR and the associated Technical
Support Document (TSD) in the docket and are not restated here.

II. What comments were received in response to the EPA's proposed
action?

    In response to the EPA's May 21, 2018 proposed rulemaking to
approve the portion of the New Jersey's infrastructure SIP submission,
dated October 17, 2014, addressing the interstate transport provisions
for the 2012 PM2.5 NAAQS, EPA received two comments from the
public during the 30-day public comment period. After reviewing the
comments, EPA has determined that the comments are outside the scope of
our proposed action or fail to identify any material issue
necessitating a response. None of the comments raise issues germane to
the EPA's proposed action. For this reason, the EPA will not provide a
specific response to the comments. The comments may be viewed under
Docket ID Number EPA-R02-OAR-2018-0237 on the http://www.regulations.gov website.

III. What action is EPA taking?

    EPA is approving the portion of New Jersey's October 17, 2014
infrastructure SIP submission addressing the interstate transport
provisions for the 2012 PM2.5 NAAQS under CAA section
110(a)(2)(D)(i)(I).
    EPA will address the requirements of CAA sections
110(a)(2)(D)(i)(I) for the 2008 lead, 2010 NO2, 2010
SO2, 2011 CO, and the 2006 PM10 NAAQS in a
separate action at a later date. As noted in the NPR, New Jersey
withdrew the portion of its October 17, 2014 SIP submission addressing
110(a)(2)(D)(i)(I)

with respect to the 2008 8-hour ozone NAAQS.
    EPA addressed interstate transport provisions concerning the
Prevention of Significant Deterioration (PSD) regulations and
visibility protection (i.e., section 110(a)(2)(D)(i)(II)) for 2012
PM2.5, 2008 ozone, 2008 lead, 2010 NO2, 2010
SO2, 2011 CO, and the 2006 PM10 NAAQS) on
September 19, 2016.\1\
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    \1\ 81 FR 64070 (September 19, 2016).
---------------------------------------------------------------------------

IV. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a
SIP submission that complies with the provisions of the Act and
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act.
Accordingly, this action merely approves state law as meeting Federal
requirements and does not impose additional requirements beyond those
imposed by state law. For that reason, this action:
     Is not a significant regulatory action subject to review
by the Office of Management and Budget under Executive Orders 12866 (58
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
     Is not an Executive Order 13771 (82 FR 9339, February 2,
2017) regulatory action because SIP approvals are exempted under
Executive Order 12866;
     Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
     Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the Clean Air Act; and
     Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, the SIP is not approved to apply on any Indian
reservation land or in any other area where EPA or an Indian tribe has
demonstrated that a tribe has jurisdiction. In those areas of Indian
country, the rule does not have tribal implications and will not impose
substantial direct costs on tribal governments or preempt tribal law as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by October 15, 2018. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this action for the purposes of
judicial review nor does it extend the time within which a petition for
judicial review may be filed, and shall not postpone the effectiveness
of such rule or action. This action may not be challenged later in
proceedings to enforce its requirements. (See section 307(b)(2)).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Particulate matter, Reporting
and recordkeeping requirements.

    Authority: 42 U.S.C. 7401 et seq.

    Dated: July 25, 2018.
Peter D. Lopez,
Regional Administrator, Region 2.

    40 CFR part 52 is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 52 continues to read as follows:

    Authority: 42 U.S.C. 7401 et seq.

Subpart FF--New Jersey

0
2. In Sec.  52.1570, the table in paragraph (e) is amended by adding
the entry ``NJ Infrastructure SIP for the 2012 PM2.5 NAAQS;
Interstate Transport Provisions'' at the end of the table to read as
follows:

Sec.  52.1570  Identification of plan.

* * * * *
    (e) * * *

                                          EPA-Approved New Jersey Nonregulatory and Quasi-Regulatory Provisions
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                         Applicable  geographic or
             SIP element                     nonattainment area           New Jersey  submittal date       EPA approval date           Explanation
--------------------------------------------------------------------------------------------------------------------------------------------------------

                                                                      * * * * * * *
NJ Infrastructure SIP for the 2012    State-wide.....................  October 17, 2014...............  August 14, 2018,         This action addresses
 PM2.5 NAAQS; Interstate Transport                                                                       [insert Federal          the following CAA
 Provisions.                                                                                Register citation].      elements:
                                                                                110(a)(2)(D)(i)(I)
                                                                                prongs 1 and 2.
--------------------------------------------------------------------------------------------------------------------------------------------------------

0
3. In Sec.  52.1586, paragraph (b)(1) is amended by adding a sentence
at the end of the paragraph to read as follows:

Sec.  52.1586  Section 110(a)(2) infrastructure requirements.

* * * * *
    (b) * * *
    (1) * * * Submittal from New Jersey dated October 17, 2014 to
address the CAA infrastructure requirements of section 110(a)(2) for
the 2012 PM2.5 is approved for (D)(i)(I).
* * * * *
[FR Doc. 2018-17361 Filed 8-13-18; 8:45 am]
BILLING CODE 6560-50-P