Federal Register / Vol. 74, No. 165 / Thursday, August 27, 2009 / Rules and Regulations 43639 

DEPARTMENT OF DEFENSE 

Department of the Army, Corps of 

Engineers 

33 CFR Part 334 

Disestablishment of Restricted Area 

for Pascagoula Naval Station, 

Pascagoula, MS 

AGENCY: U.S. Army Corps of Engineers, 

DoD. 

ACTION: Direct final rule. 

SUMMARY: The U.S. Navy (USN) 

requested that the U.S. Army Corps of 

Engineers (Corps) disestablish the 

restricted area at the former Naval 

Station Pascagoula in Pascagoula, 

Mississippi. The restricted area was 

established on November 9, 1992. The 

purpose of the restricted area was to 

reduce safety hazards and security risks 

and protect persons and property from 

dangers encountered in the area. As a 

result of the 2005 Base Realignment and 

Closure Act, the Naval Station was 

closed on June 1, 2007, and the property 

transferred to the State of Mississippi. 

DATES: This rule is effective October 26, 

2009 without further notice, unless the 

Corps receives adverse comment by 

September 28, 2009. If we receive such 

adverse comment, we will publish a 

timely withdrawal in the Federal 

Register informing the public that this 

rule will not take effect. 

ADDRESSES: You may submit comments, 

identified by docket number COE– 

2009–0036, by any of the following 

methods: 

Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

E-mail: 

david.b.olson@usace.army.mil. Include 

the docket number COE–2009–0036 in 

the subject line of the message. 

Mail: U.S. Army Corps of Engineers, 

Attn: CECW–CO (David B. Olson), 441 

G Street, NW., Washington, DC 20314– 

1000. 

Hand Delivery/Courier: Due to 

security requirements, we cannot 

receive comments by hand delivery or 

courier. 

Instructions: Direct your comments to 

docket number COE–2009–0036. All 

comments received will be included in 

the public docket without change and 

may be made available on-line at http:// 

regulations.gov, including any personal 

information provided, unless the 

commenter indicates that the comment 

includes information claimed to be 

Confidential Business Information (CBI) 

or other information whose disclosure is 

restricted by statute. Do not submit 

information that you consider to be CBI, 

or otherwise protected, through 

regulations.gov or e-mail. The 

regulations.gov Web site is an 

anonymous access system, which means 

we will not know your identity or 

contact information unless you provide 

it in the body of your comment. If you 

send an e-mail directly to the Corps 

without going through regulations.gov, 

your e-mail address will be 

automatically captured and included as 

part of the comment that is placed in the 

public docket and made available on the 

Internet. If you submit an electronic 

comment, we recommend that you 

include your name and other contact 

information in the body of your 

comment and with any disk or CD–ROM 

you submit. If we cannot read your 

comment because of technical 

difficulties and cannot contact you for 

clarification, we may not be able to 

consider your comment. Electronic 

comments should avoid the use of any 

special characters, any form of 

encryption, and be free of any defects or 

viruses. 

Docket: For access to the docket to 

read background documents or 

comments received, go to 

www.regulations.gov. All documents in 

the docket are listed. Although listed in 

the index, some information is not 

publicly available, such as 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. 

FOR FURTHER INFORMATION CONTACT: Mr. 

David Olson, Headquarters, Operations 

and Regulatory Community of Practice, 

Washington, DC at 202–761–4922 or Mr. 

John B. McFadyen, U.S. Army Corps of 

Engineers, Mobile District, at 251–690– 

3222. 

SUPPLEMENTARY INFORMATION: By letter 

dated June 25, 2009, the Director, USN 

Base Realignment and Closure Program 

Management Office Southeast requested 

the removal of the restricted area at USN 

Station Pascagoula. The request was 

made because the 2005 Base 

Realignment and Closure Act closed the 

installation and subsequently 

transferred the property to the State of 

Mississippi on June 1, 2007. In response 

to this request by the USN, and 

pursuant to its authorities in Section 7 

of the Rivers and Harbors Act of 1917 

(40 Stat 266; 33 U.S.C. 1) and Chapter 

XIX of the Army Appropriations Act of 

1919 (40 Stat 892; 33 U.S.C. 3), the 

Corps is amending the regulations in 33 

CFR part 334 by disestablishing the 

restricted area. 

The Corps is publishing this rule 

without prior proposal because we view 

this as a non-controversial amendment 

and anticipate no adverse comment. The 

Corps regulations governing restricted 

areas state that notice of proposed 

rulemaking and public procedures are 

not needed before publishing a final 

rule revoking a restricted area regulation 

(see 33 CFR 334.5(b)). 

In the ‘‘Proposed Rules’’ section of 

today’s Federal Register, we are 

publishing a separate document that 

will serve as the proposal to disestablish 

this restricted area if adverse comments 

are filed. This rule will be effective on 

October 26, 2009 without further notice 

unless we receive adverse comment by 

September 28, 2009 . If we receive 

adverse comment, we will publish a 

timely withdrawal in the Federal 

Register informing the public that the 

direct final rule will not take effect. We 

will address all public comments in a 

subsequent final rule based on the 

proposed rule. We will not institute a 

second comment period on this action. 

Any parties interested in commenting 

must do so at this time. 

Procedural Requirements 

a. Review Under Executive Order 

12866. This rule is issued with respect 

to a military function of the Defense 

Department and the provisions of 

Executive Order 12866 do not apply. 

b. Review Under the Regulatory 

Flexibility Act. This rule has been 

reviewed under the Regulatory 

Flexibility Act (Pub. L. 96–354) which 

requires the preparation of a regulatory 

flexibility analysis for any regulation 

that will have a significant economic 

impact on a substantial number of small 

entities (i.e., small businesses and small 

governments). The Corps has 

determined that the removal of this 

restricted area and the addition of the 

new restricted area would have 

practically no economic impact on the 

public, or result in no anticipated 

navigational hazard or interference with 

existing waterway traffic. This will have 

no significant economic impact on small 

entities. 

c. Review Under the National 

Environmental Policy Act. The Corps 

expects that the final rule will not have 

a significant impact to the quality of the 

human environment and, therefore, 

preparation of an environmental impact 

statement will not be required. An 

environmental assessment has been 

prepared and it may be reviewed at the 

District office listed at the end of the 

FOR FURTHER INFORMATION CONTACT, 

above. If we receive adverse comment, 


srobinson on DSKHWCL6B1PROD with RULES
43640 Federal Register / Vol. 74, No. 165 / Thursday, August 27, 2009 / Rules and Regulations 

an environmental assessment will be 

prepared for the subsequent final rule. 

d. Unfunded Mandates Act . The final 

rule does not impose an enforceable 

duty among the private sector and, 

therefore, are not a Federal private 

sector mandate and are not subject to 

the requirements of Section 202 or 205 

of the Unfunded Mandates Reform Act 

(Pub. L. 104–4, 109 Stat. 48, 2 U.S.C. 

1501 et seq.). We have also found under 

Section 203 of the Act, that small 

governments will not be significantly or 

uniquely affected by this rulemaking. 

List of Subjects in 33 CFR Part 334 

Danger zones, Navigation (water), 

Restricted areas, Waterways. 

■ For the reasons set out in the 

preamble, the Corps amends 33 CFR 

part 334 as follows: 

PART 334—DANGER ZONE AND 

RESTRICTED AREA REGULATIONS 

■ 1. The authority citation for 33 CFR 

part 334 continues to read as follows: 

Authority: 40 Stat. 266 (33 U.S.C. 1) and 

40 Stat. 892 (33 U.S.C. 3). 

§ 334.786 [Removed] 

■ 2. Remove § 334.786. 

Dated: August 14, 2009. 

Michael G. Ensch, 

Chief, Operations, Directorate of Civil Works. 

[FR Doc. E9–20295 Filed 8–26–09; 8:45 am] 

BILLING CODE 3710–92–P 

DEPARTMENT OF TRANSPORTATION 

Federal Motor Carrier Safety 

Administration 

49 CFR Part 390 

Regulatory Guidance Concerning 

Applicability of the Federal Motor 

Carrier Safety Regulations to Mobile 

Cranes Operated in Interstate 

Commerce 

AGENCY: Federal Motor Carrier Safety 

Administration (FMCSA), DOT. 

ACTION: Notice of regulatory guidance. 

SUMMARY: The FMCSA announces a 

revision of the regulatory guidance 

concerning the applicability of the 

Federal Motor Carrier Safety 

Regulations (FMCSRs) to mobile cranes 

operated in interstate commerce. The 

regulatory guidance is presented in a 

question-and-answer format. The 

guidance is generally applicable to 

drivers, commercial motor vehicles 

(CMVs), and motor carrier operations 

subject to the FMCSRs. All prior 

interpretations and regulatory guidance 

concerning the applicability of the 

FMCSRs to operations of mobile cranes 

in interstate commerce issued in the 

Federal Register, as well as memoranda 

and letters, may no longer be relied 

upon as authoritative if they are 

inconsistent with the guidance 

published today. This guidance will 

provide the motor carrier industry and 

Federal, State, and local law 

enforcement officials with uniform 

information for assessing the 

applicability of the FMCSRs to the 

operations of mobile cranes. 

DATES: Effective Date: This regulatory 

guidance is effective on August 27, 

2009. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Deborah M. Freund, Vehicle and 

Roadside Operations Division, Office of 

Bus and Truck Standards and 

Operations, (202) 366–5370, Federal 

Motor Carrier Safety Administration, 

1200 New Jersey Ave., SE., Washington, 

DC 20590–0001. 

SUPPLEMENTARY INFORMATION: 

Legal Basis 

The Motor Carrier Safety Act of 1984 

(Pub. L. 98–554, Title II, 98 Stat. 2832, 

October 30, 1984) (the 1984 Act) 

provides authority to regulate drivers, 

motor carriers, and vehicle equipment. 

It requires the Secretary to prescribe 

regulations on CMV safety. The 

regulations shall prescribe minimum 

safety standards for CMVs. At a 

minimum, the regulations shall ensure 

that—(1) CMVs are maintained, 

equipped, loaded, and operated safely; 

(2) the responsibilities imposed on 

operators of CMV’s do not impair their 

ability to operate the vehicles safely; (3) 

the physical condition of operators of 

CMV is adequate to enable them to 

operate the vehicles safely; and (4) the 

operation of CMVs does not have a 

deleterious effect on the physical 

condition of the operators. (49 U.S.C. 

31136(a)) Section 211 of the 1984 Act 

also grants the Secretary broad power, 

in carrying out motor carrier safety 

statutes and regulations, to ‘‘prescribe 

recordkeeping and reporting 

requirements’’ and to ‘‘perform other 

acts the Secretary considers 

appropriate.’’ (49 U.S.C. 31133(a)(8) and 

(10)) 

The Administrator of FMCSA has 

been delegated authority under 49 CFR 

1.73(g) to carry out the functions vested 

in the Secretary of Transportation by 49 

U.S.C. chapter 311, subchapters I and 

III, relating to commercial motor vehicle 

programs and safety regulation. 

This document provides regulatory 

guidance to the public with respect to 

the applicability of the Federal Motor 

Carrier Safety Regulations (FMCSRs) to 

the operations of mobile cranes in 

interstate commerce. 

Members of the motor carrier industry 

and other interested parties may also 

access the guidance in this document 

through the FMCSA’s Internet site at 

http://www.fmcsa.dot.gov. 

Specific questions addressing any of 

the interpretive material published in 

this document should be directed to the 

contact person listed earlier under FOR

FURTHER INFORMATION CONTACT, or the 

FMCSA Division Office in each State. 

Basis for the Notice 

The CMVs are defined in 49 CFR 

390.5 as any self-propelled or towed 

motor vehicle used on a highway in 

interstate commerce to transport 

passengers or property when the 

vehicle— 

(1) Has a gross vehicle weight rating 

or gross combination weight rating, or 

gross vehicle weight or gross 

combination weight, of 4,536 kg (10,001 

pounds) or more, whichever is greater; 

or 

(2) Is designed or used to transport 

more than 8 passengers (including the 

driver) for compensation; or 

(3) Is designed or used to transport 

more than 15 passengers, including the 

driver, and is not used to transport 

passengers for compensation; or 

(4) Is used in transporting material 

found by the Secretary of Transportation 

to be hazardous under 49 U.S.C. 5103 

and transported in a quantity requiring 

placarding under regulations prescribed 

by the Secretary under 49 CFR, subtitle 

B, chapter I, subchapter C. 

Paragraph (1) of the definition applies 

to the vehicles that are the subject of 

this notice. 

Question 9 under 49 CFR 390.5 of the 

existing regulatory guidance concerns 

the applicability of the FMCSRs to 

mobile cranes. The current guidance 

was published in the November 17, 

1993 Federal Register (58 FR 60734) 

and again in the April 4, 1997 Federal 

Register (62 FR 16370). It reads as 

follows: 

Question 9: Are mobile cranes 

operating in interstate commerce subject 

to the FMCSRs? 

Guidance: Yes, the definition of CMV 

encompasses mobile cranes. 

In a September 21, 2000, decision 

concerning a civil penalty enforcement 

case entitled In the Matter of Williams 

Equipment Corporation (Docket No. 

FHWA–1997–2433), the Acting Chief 

Safety Officer (CSO) of FMCSA found 

this regulatory guidance 

‘‘unpersuasive.’’ The Acting CSO cited 

Christensen v. Harris County, 120 S.Ct. 

1655, 1657 (2000): 


srobinson on DSKHWCL6B1PROD with RULES