[Federal Register: September 20, 2010 (Volume 75, Number 181)]
[Rules and Regulations]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
49 CFR Part 325
[Docket No. FMCSA-2006-24065]
Compliance With Interstate Motor Carrier Noise Emission
Standards: Exhaust Systems
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Direct final rule.
SUMMARY: In response to a petition for rulemaking from the Truck
Manufacturers Association (TMA), the Federal Motor Carrier Safety
Administration (FMCSA) amends its regulations to eliminate
turbochargers from the list of equipment considered to be noise
dissipative devices. As written, the regulation may allow vehicle
operators to remove mufflers and still meet the Federal inspection
requirements if commercial motor vehicle (CMV) engines are equipped
with turbochargers. This was not the intent of that rule. Therefore,
the Agency amends the rule to restore its original intent.
DATES: This rule is effective November 19, 2010, unless an adverse
comment, or notice of intent to submit an adverse comment, is either
submitted to our online docket via http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.regulations.gov on or
before October 20, 2010 or reaches the Docket Management Facility by
that date. If an adverse comment, or notice of intent to submit an
adverse comment, is received by October 20, 2010, we will withdraw this
direct final rule and publish a timely notice of withdrawal in the
ADDRESSES: You may submit comments identified by docket number FCMSA-
2006-24065 using any one of the following methods:
(1) Federal eRulemaking Portal: http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.regulations.gov.
(2) Fax: 202-493-2251.
(3) Mail: Docket Management Facility (M-30), U.S. Department of
Transportation, West Building Ground Floor, Room W12-140, 1200 New
Jersey Avenue, SE., Washington, DC 20590-0001.
(4) Hand Delivery: Same as mail address above, between 9 a.m. and 5
p.m. e.t., Monday through Friday, except Federal holidays. The
telephone number is 202-366-9329.
To avoid duplication, please use only one of these four methods.
See the "Public Participation and Comments" portion of the
SUPPLEMENTARY INFORMATION section below for instructions on submitting
FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, e-
mail or call Mr. Brian Routhier, Vehicle and Roadside Operations
Division (MC-PSV), Office of Bus and Truck Standards and Operations,
email@example.com or (202) 366-1225.
I. Public Participation and Comments
If you would like to participate in this rulemaking, you may submit
comments and related materials. All comments received will be posted,
without change, to http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.regulations.gov and will include any
personal information you have provided.
A. Submitting Comments
If you submit a comment, please include the docket number for this
rulemaking (FMCSA-2006-24065), indicate the specific section of this
document to which each comment applies, and provide a reason for each
suggestion or recommendation. You may submit your comments and material
online, or by fax, mail or hand delivery, but please use only one of
these means. We recommend that you include your name and a mailing
address, an e-mail address, or a phone number in the body of your
document so that we can contact you if we have questions regarding your
submission. As a reminder, FMCSA will only consider adverse comments as
defined in 49 CFR 389.39(b) and explained below.
To submit your comment online, go to http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.regulations.gov,
click on the "submit a comment" box, which will then become
highlighted in blue. In the "Document Type" drop down menu select
"Rule" and insert "FMCSA-2006-24065" in the "Keyword" box. Click
"Search," then click on the balloon shape in the "Actions" column.
If you submit your comments by mail or hand delivery, submit them in an
unbound format, no larger than 8\1/2\ by 11 inches, suitable for
copying and electronic filing. If you submit them by mail and would
like to know that they reached the facility, please enclose a stamped,
self-addressed postcard or envelope.
B. Viewing Comments and Documents
To view comments, as well as documents mentioned in this preamble
as being available in the docket, go to http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.regulations.gov,
click on the "read comments" box, which will then become highlighted
in blue. In the "Keyword" box insert "FMCSA-2006-24065" and click
"Search." Click the "Open Docket Folder" in the "Actions" column.
If you do not have access to the Internet, you may also view the docket
online by visiting the Docket Management Facility in Room W12-140 on
the ground floor of the Department of Transportation West Building,
1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5
p.m. e.t., Monday through Friday, except Federal holidays.
C. Privacy Act
Anyone can search the electronic form of 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 a Privacy Act notice
regarding our public dockets in the January 17, 2008, issue of the
Federal Register (73 FR 3316).
II. Regulatory Information
FMCSA publishes this direct final rule under 49 CFR 389.11 and
389.39 because the Agency determined that the rule is a routine and
non-controversial amendment to 49 CFR part 325. The rule will restore
the original intent of 49 CFR 325.91(b). FMCSA does not expect any
adverse comments. If no adverse comments or notices of intent to submit
an adverse comment are received by October 20, 2010, this rule will
become effective as stated in the DATES section. In that case,
approximately 30 days before the effective date, we will publish a
document in the Federal Register stating that no adverse comments were
received and confirming that this rule will become effective as
scheduled. However, if we
receive any adverse comments or notices of intent to submit an adverse
comment, we will publish a document in the Federal Register announcing
the withdrawal of all or part of this direct final rule. If we decide
to proceed with a rulemaking following receipt of any adverse comments,
we will publish a separate notice of proposed rulemaking (NPRM) and
provide a new opportunity for comment.
A comment is considered "adverse" if the comment explains why
this rule or a part of this rule would be inappropriate, including a
challenge to its underlying premise or approach, or would be
ineffective or unacceptable without a change.
On October 29, 1974, the Environmental Protection Agency (EPA)
issued regulations establishing standards (40 CFR 202.21) for maximum
external noise emissions of CMVs having a gross vehicle weight rating
(GVWR) or a gross combination weight rating (GCWR) of more than 10,000
pounds that are operated by commercial motor carriers engaged in
interstate commerce (39 FR 38208). Those regulations were issued under
the authority of the Noise Control Act of 1972 (Pub. L. 92-574, 86
Stat. 1234, 42 U.S.C. 4901-4918, October 27, 1972), which also directed
the Secretary of Transportation to promulgate regulations to ensure
compliance with the EPA standards.
On February 28, 1975, the Federal Highway Administration (FHWA)'s
Bureau of Motor Carrier Safety published in the Federal Register (40 FR
8658) proposed regulations establishing measurement methodologies for
determining whether CMVs conform to the Interstate Motor Carrier Noise
Emission Standards published by the EPA. FHWA published final
regulations on September 12, 1975 (40 FR 42437), which have remained
unchanged since that date. These requirements became effective on
October 15, 1975, and are codified at 49 CFR part 325.
While the corresponding section of the EPA regulation requires CMVs
with a GVWR or GCWR of more than 10,000 pounds that are operated by
interstate motor carriers to be "* * * equipped with a muffler or
other noise dissipative device * * *," the language adopted by FHWA in
Sec. 325.91 requires the same vehicles to be "* * * equipped with
either a muffler or other noise dissipative device, such as a
turbocharger (supercharger driven by exhaust gases) * * *."
The language adopted by FHWA is essentially identical to that
established by EPA, except that Sec. 325.91(b) specifically treats a
turbocharger as a noise dissipative device. There is no discussion of
turbochargers in the preambles of FHWA's NPRM or final rule.
On June 17, 2005, TMA submitted a petition for rulemaking
requesting that the phrase, " such as a turbocharger (supercharger
driven by exhaust gases)" be removed from 49 CFR 325.91(b).
In its petition, TMA noted:
At the time these regulations were written, many diesel engines
were naturally aspirated, and coincidently much louder than then-
comparable turbocharged equipped engines/trucks. In that context, it
made sense to include turbochargers with mufflers as acceptable
noise dissipative devices, since both devices quieted trucks
appreciably compared to trucks with naturally aspirated engines and
totally unmuffled exhaust systems.
TMA noted that "removing the muffler can cause the truck to be 10-
20 dB(A) louder; a 10 to 100 fold increase in the emitted sound power
level of the vehicle." TMA concluded that it was "not aware of any
other credible, satisfactorily performing, and commercially available
exhaust noise dissipative device other than mufflers."
The Agency granted TMA's petition and published a notice in the
Federal Register on September 25, 2006 (71 FR 55822), requesting public
comments on (1) whether the Federal Motor Carrier Safety Regulations
should be amended as requested by TMA, (2) whether there are any data
or other relevant information to suggest the need for such a change,
and (3) the impact of the requested change on motor carriers' ability
to achieve compliance with the requirements of Sec. 325.91.
FMCSA received comments from (1) Advocates for Highway and Auto
Safety, (2) TMA, (3) the Motor & Equipment Manufacturers Association,
and (4) the American Trucking Associations. Each commenter fully
supported the requested change and no one opposed the amendment.
IV. Discussion of the Rule
FMCSA amends 49 CFR 325.91(b) by eliminating turbochargers from the
list of equipment considered to be noise dissipative devices. This
provision no longer serves its original purpose. Section 325.91(b),
concerning visual inspection requirements for exhaust systems, was
adopted when heavy-duty engines equipped with sound-reducing devices
had either a muffler or a turbocharger, but not both. FMCSA notes that
all newly manufactured trucks are currently required to be equipped and
certified to meet EPA's Transportation Equipment Noise Emission
Controls requirement of 80 dB(A) (40 CFR part 202) before they are
placed into initial service. This amendment is a non-safety related
change to the CFR, and FMCSA further believes that the vast majority of
CMV operators currently comply with Sec. 325.91, as intended.
In view of the steady increase in the number of heavy trucks and
buses on the road, noise control remains an important issue for many
communities. Yet Sec. 325.91(b) allows the operators of vehicles with
turbocharged engines to remove the muffler. This might improve fuel
economy by a very small amount; and it would obviously eliminate the
cost of buying new mufflers; but it would also increase the noise
otherwise produced by the vehicle, which is contrary to the purpose of
the original rule. While turbochargers were not originally installed as
noise dissipative devices, a byproduct of their basic function was a
reduction in noise generated by the vehicle. However, given the
widespread installation of mufflers or alternative devices that
similarly dissipate engine noise (such as diesel particulate filters),
there is no further justification for considering turbochargers as
noise dissipative devices. Therefore, through this direct final rule,
FMCSA removes turbochargers from the list of noise dissipative devices
in 49 CFR 325.91(b).
V. Regulatory Analyses
When developing this direct final rule, FMCSA considered numerous
statutes and executive orders related to rulemaking. Below the Agency
summarizes its analyses.
A. Regulatory Planning and Review
This rule is not a significant regulatory action under section 3(f)
of Executive Order 12866, Regulatory Planning and Review, and does not
require an assessment of potential costs and benefits under section
6(a)(3) of that Order. The Office of Management and Budget has not
reviewed it under that Order. The Agency does not believe that this
rule will have a significant economic impact.
B. Small Entities
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have
considered whether this rule would have a significant economic impact
on a substantial number of small entities. The term ``small entities''
comprises small businesses, not-for-profit organizations that are
owned and operated and are not dominant in their fields, and
governmental jurisdictions with populations of less than 50,000.
FMCSA 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. Comments submitted in response to this finding will be
evaluated under the criteria in the ``Regulatory Information'' section
of this preamble.
C. Paperwork Reduction Act
This rule calls for no new collection of information under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has federalism implications under Executive Order 13132,
Federalism, if the rule 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 the States. We have analyzed
this rule under that Order and have determined that it does not have
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 $140.8 million (which is the
value of $100,000,000 in 2009 after adjusting for inflation) or more in
any 1 year. This rule would not result in such an expenditure.
F. Taking of Private Property
This rule will not effect a taking of private property or otherwise
have taking implications under Executive Order 12630, Governmental
Actions and Interference with Constitutionally Protected Property
G. Civil Justice Reform
This rule meets applicable standards in sections 3(a) and 3(b)(2)
of Executive Order 12988, Civil Justice Reform, to minimize litigation,
eliminate ambiguity, and reduce burden.
H. Protection of Children
FMCSA has analyzed this rule under Executive Order 13045,
Protection of Children from Environmental Health Risks and Safety
Risks. This rule is not economically significant and does not create an
environmental risk to health or risk to safety that may
disproportionately affect children.
I. Indian Tribal Governments
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.
J. Energy Effects
FMCSA has analyzed this rule under Executive Order 13211, Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use. The Agency has determined that it is not a
"significant energy action" under that order because it is not a
"significant regulatory action" under Executive Order 12866 and is
not likely to have a significant adverse effect on the supply,
distribution, or use of energy. The Administrator of the Office of
Information and Regulatory Affairs has not designated it as a
significant energy action. Therefore, it does not require a Statement
of Energy Effects under Executive Order 13211.
K. Technical Standards
The National Technology Transfer and Advancement Act (NTTAA) (15
U.S.C. 272 note) directs agencies to use voluntary consensus standards
in their regulatory activities unless the agencies provide Congress,
through the Office of Management and Budget, with an explanation of why
using these standards would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., specifications of materials, performance, design, or
operation; test methods; sampling procedures; and related management
systems practices) that are developed or adopted by voluntary consensus
This rule does not use technical standards. Therefore, we did not
consider the use of voluntary consensus standards.
The Agency analyzed this direct final rule for the purpose of the
National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et
seq.) and determined under our environmental procedures Order 5610.1,
published March 1, 2004 in the Federal Register (69 FR 9680), that this
action is categorically excluded (CE) under Appendix 2, paragraph 6 (b)
of the Order from further environmental documentation. This CE relates
to establishing regulations and actions taken pursuant to these
regulations that are editorial in nature. In addition, the Agency
believes that the action includes no extraordinary circumstances that
would have any effect on the quality of the environment. Thus, the
action does not require an environmental assessment or an environmental
In addition to the NEPA requirements to examine impacts on air
quality, we have also analyzed this proposed rule under the Clean Air
Act, as amended (CAA), section 176(c), (42 U.S.C. 7401 et seq.) and
implementing regulations promulgated by EPA. Approval of this action is
exempt from the CAA's general conformity requirement since it would not
result in any potential increase in emissions that are above the
general conformity rule's de minimis emission threshold levels (40 CFR
93.153(c)(2)). This action merely eliminates turbochargers from the
list of equipment considered to be noise dissipative devices.
A Categorical Exclusion Determination is available for inspection
or copying in the regulations.gov Web site listed under ADDRESSES.
List of Subjects in 49 CFR Part 325
Motor carriers, Noise control.
For the reasons discussed in the preamble, the Federal Motor Carrier
Safety Administration amends 49 CFR part 325 as follows:
PART 325-COMPLIANCE WITH INTERSTATE MOTOR CARRIER NOISE EMISSION
1. The authority citation for part 325 continues to read as follows:
Authority: 42 U.S.C. 4917; 49 U.S.C. 301; 49 CFR 1.73.
2. Amend Sec. 325.91 by revising paragraph (b) to read as follows:
Sec. 325.91 Exhaust systems.
* * * * *
(b) Is not equipped with either a muffler or other noise
dissipative device; or
* * * * *
Issued on: September 15, 2010.
Anne S. Ferro,
[FR Doc. 2010-23419 Filed 9-17-10; 8:45 am]
BILLING CODE 4910-EX-P