        DEPARTMENT OF THE INTERIOR
        Fish and Wildlife Service
        50 CFR Part 17
        [Docket No. FWS-R2-ES-2013-0102; FXES11130900000C6-123-FF09E32000]
        Endangered and Threatened Wildlife and Plants; 90-Day Finding on a Petition To Delist or Reclassify From Endangered to Threatened Five Southwest Species

          AGENCY:
          Fish and Wildlife Service, Interior.

          ACTION:
          Notice of 90-day petition finding and initiation of status review.

          SUMMARY:

           We, the U.S. Fish and Wildlife Service (Service), announce a 90-day finding on a petition to delist the Eriogonum gypsophilum (gypsum wild-buckwheat), and downlist the black-capped vireo (Vireo atricapilla), lesser long-nosed bat (Leptonycteris curasoae yerbabuenae), Echinocereus fendleri var. kuenzleri (Kuenzler hedgehog cactus), and Sclerocactus brevihamatus ssp. tobuschii (Tobusch fishhook cactus) from endangered to threatened under the Endangered Species Act. Based on our review, we find that the petition presents substantial scientific or commercial information indicating that the petitioned actions may be warranted. Therefore, with the publication of this notice, we are initiating a review of the status of these species to determine if the respective actions of delisting and reclassifying are warranted. Section 4(c)(2)(A) of the Act also requires a status review of listed species at least once every 5 years. We are, therefore, electing to conduct each of these 5-year reviews simultaneously with the corresponding 12-month finding. To ensure that this status review is comprehensive, we are requesting scientific and commercial data and other information regarding these species. Based on the status review, we will issue a 12-month finding on the petition, which will address whether the petitioned action is warranted, as provided in section 4(b)(3)(B) of the Act.

          DATES:

          We request that we receive information to consider for the status review on or before November 8, 2013. The deadline for submitting information using the Federal eRulemaking Portal (see ADDRESSES section below) is 11:59 p.m. Eastern Time on this date. After November 8, 2013, you must submit information directly to the Division of Policy and Directives Management (see ADDRESSES section below). Please note that we might not be able to address or incorporate information that we receive after the above requested date.

          ADDRESSES:

            Document availability: You may obtain copies of the July 11, 2012, petition and the 5-year reviews for petitioned species on the internet at http://www.regulations.gov at Docket No. FWS-R2-ES-2013-0102.

            Written comments: You may submit information by one of the following methods:
          (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. Search for FWS-R2-ES-2013-0102, which is the docket number for this action. You may submit information for the status review by clicking on “Comment Now!”
          (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public Comments Processing, Attn: FWS-R2-ES-2013-0102; Division of Policy and Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, MS 2042-PDM; Arlington, VA 22203.

          We will not accept emails or faxes. We will post all information we receive on http://www.regulations.gov. This generally means that we will post any personal information you provide us (see the Request for Information section below for more details).

          FOR FURTHER INFORMATION CONTACT:
          Michelle Shaughnessy, Assistant Regional Director, Southwest Regional Ecological Services Office, 500 Gold Avenue SW., Albuquerque, NM 87102; telephone 505/248-6920; facsimile 505/248-6788. If you use a telecommunications device for the deaf (TDD), please call the Federal Information Relay Service (FIRS) at 800-877-8339.

        SUPPLEMENTARY INFORMATION:

        Background

        Section 4(b)(3)(A) of the Act (16 U.S.C. 1533(b)(3)(A)) requires that we make a finding on whether a petition to list, delist, or reclassify a species presents substantial scientific or commercial information indicating that the petitioned action may be warranted. We are to base this finding on information provided in the petition, supporting information submitted with the petition, and information otherwise available in our files. To the maximum extent practicable, we are to make this finding within 90 days of our receipt of the petition and publish our notice of the finding promptly in the Federal Register.
        Our standard for substantial scientific or commercial information with regard to a 90-day petition finding is “that amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted” (50 CFR 424.14(b)). If we find that substantial scientific or commercial information was presented, we are required to promptly initiate a species status review, which we subsequently summarize in our 12-month finding.

        Section 3(6) of the Act defines an “endangered species” as any species which is in danger of extinction throughout all or a significant portion of its range. A “threatened species” is any species that is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range. Under the Act, we maintain a List of Endangered and Threatened Wildlife and Plants at 50 CFR 17.11 (for animals) and 17.12 (for plants) (List). We amend the List by publishing final rules in the Federal Register. Section 4(c)(2)(A) of the Act requires that we conduct a review of listed species at least once every 5 years (5-year review). Section 4(c)(2)(B) requires that we determine: (1) Whether a species no longer meets the definition of threatened or endangered and should be removed from the List (delisted); (2) whether a species listed as endangered more properly meets the definition of threatened and should be reclassified to threatened (downlisted); or (3) whether a species listed as threatened more properly meets the definition of endangered and should be reclassified to endangered (uplisted). Our regulations at 50 CFR 424.21 require that we publish a notice in the Federal Register announcing those species currently under active review.
        Petition History

        On July 16, 2012, we received a petition dated July 11, 2012, from The Pacific Legal Foundation, Jim Chilton, the New Mexico Cattle Growers' Association, New Mexico Farm & Livestock Bureau, New Mexico Federal Lands Council, and Texas Farm Bureau requesting that the Eriogonum gypsophilum (gypsum wild-buckwheat) be delisted, and the black-capped vireo (Vireo atricapilla), lesser long-nosed bat (Leptonycteris curasoae yerbabuenae), Echinocereus fendleri var. kuenzleri (Kuenzler hedgehog cactus), and Ancistrocactus tobuschii (an accepted synonym for Sclerocactus brevihamatus ssp. tobuschii—Tobusch fishhook cactus) be reclassified as threatened based on the analysis and recommendation contained in the most recent 5-year review for these taxa. The petition appeared to meet all of the requirements of 50 CFR 424.14(a).
        Previous Federal Action
        Gypsum Wild-Buckwheat
        The gypsum wild-buckwheat was federally listed as threatened on February 18, 1981 (46 FR 5730, January 19, 1981). Critical habitat was designated at the time of listing for the Seven Rivers population in Eddy County, New Mexico. A recovery plan was issued March 30, 1984. The recovery plan has not been revised. A 5-year review was completed on November 9, 2007, in which the Service recommended delisting the species.
        Black-Capped Vireo
        The black-capped vireo was federally listed as endangered without critical habitat on November 5, 1987 (52 FR 37420, October 6, 1987). A recovery plan was issued September 30, 1991. The recovery plan has not been revised. A 5-year review was completed on July 26, 2007, in which the Service recommended downlisting the species to threatened.
        Lesser Long-Nosed Bat
        The lesser long-nosed bat was federally listed as endangered without critical habitat on October 31, 1988 (53 FR 38456, September 30, 1988). A recovery plan was issued on March 4, 1997. The recovery plan has not been revised. A 5-year review was completed on August 30, 2007, in which the Service recommended downlisting the species to threatened.
        Kuenzler Hedgehog Cactus
        The Kuenzler hedgehog cactus was federally listed as endangered without critical habitat on November 28, 1979 (44 FR 61924, October 26, 1979). A recovery plan was issued on March 28, 1985. The recovery plan has not been revised. A 5-year review was completed on June 7, 2005, in which the Service recommended downlisting the species to threatened.
        Tobusch Fishhook Cactus
        The Tobusch fishhook cactus was federally listed as endangered without critical habitat on December 7, 1979 (44 FR 64736, November 7, 1979). A recovery plan was issued on March 18, 1987. The recovery plan has not been revised. A 5-year review was completed on January 5, 2010, in which the Service recommended downlisting the species to threatened.
        Species Information
        Gypsum Wild-Buckwheat
        Gypsum wild-buckwheat is a rare, regionally endemic, perennial plant species (Service 2007a, p. 8). It occupies gypsum soils and gypsum outcrops of the Permian-age Castile Formation. These habitats are dry and nearly barren except for common species of gypsophilic plants and gypsum wild-buckwheat. Gypsum wild-buckwheat reproduces both by producing seed and also by producing clone rosettes from rhizomes or rootsprouts. There are only three known populations of gypsum wild-buckwheat, and all occur in Eddy County, in southeastern New Mexico (Service 2007a, pp. 8-12). Only one population (Seven River Hills) was known at the time of listing. Two additional populations were discovered in 1988 in the Yeso Hills of southern Eddy County, New Mexico, one near Black River Village and another at Ben Slaughter Draw below Ben Slaughter Spring. For more information on the life history, biology, and distribution of gypsum wild-buckwheat, see the 2007 5-year review of the species.
        Black-Capped Vireo
        The black-capped vireo is a small (10 to 12 centimeters (cm) (4 to 5 inches (in)) long), insect-eating, migratory songbird (Service 2007b, p. 7). They nest from Oklahoma south through central Texas to the Edwards Plateau, then south to the northern portion of Mexico. Breeding habitat is quite variable across its range, but is generally shrublands with a distinctive patchy structure. The shrub vegetation is mostly deciduous and generally extends from the ground to about 2 meters (m) (6 feet (ft)) above ground and covers about 30 to 60 percent of the total area. Open grassland separates the clumps of shrubs. Black-capped vireos may live for more than 5 years, and usually return year after year to the same territory to breed. They begin to migrate to the wintering grounds on Mexico's western coast in July and are gone from Texas by mid-September (Service 2007b, p. 7). For more information on the life history, biology, and distribution of black-capped vireo, see the 2007 5-year review of the species.
        Lesser Long-Nosed Bat
        The lesser long-nosed bat is one of four members of the tropical bat family Phyllostomidae found in the United States. The bat's core diet is believed to consist of pollen, nectar, and fruits of columnar cacti and agaves. These bats depend on caves and abandoned mines and tunnels for day roosting sites. Night roosts include the bats' day roosts as well as other caves, mines, rock crevices, trees and shrubs, and occasionally abandoned buildings. They migrate seasonally from Mexico to southern Arizona and southwestern New Mexico. For more information on the life history, biology, and distribution of lesser long-nosed bat, see the 2007 5-year review of the species.
        Kuenzler Hedgehog Cactus
        A Kuenzler hedgehog cactus individual may be single stemmed or branched. The stems are normally 15 cm (6 in) long and 10 cm (4 in) wide. Typical Kuenzler hedgehog cactus habitat occurs on gentle, gravelly to rocky slopes and benches on limestone or limy sandstone along the lower fringes of the pinyon-juniper woodland at elevations of 1,600 to 2,000 m (5,200 to 6,600 ft). The recovery plan for Kuenzler hedgehog cactus identified two populations of cacti in the Rio Hondo and Rio Peñasco drainages in Lincoln County (Service 1985). However, by the time of the 2005 5-year review, there were 11 documented population centers (Service 2005). For more information on the life history, biology, and distribution of Kuenzler hedgehog cactus, see the 2005 5-year review of the species.
        Tobusch Fishhook Cactus
        The Tobusch fishhook cactus is a small, round cactus, usually 5.1 to 7.6 cm (2 to 3 in) tall and up to 8.9 cm (3.5 in) in diameter, with light yellow spines with red tips. The lower central spines are hooked at the tip, like a fishhook. It produces yellow to cream flowers about 3.0 to 3.8 cm (1 to 1.5 in) long and wide during February through March. The fruit is fleshy and green, ripening to pink or pinkish-brown by late spring or early summer. The seeds are black.

        The Tobusch fishhook cactus grows in discontinuous patches of very shallow, moderately alkaline, rocky loams or clay soils (primarily of the Tarrant, Ector, or Eckrant series) over massive, fractured limestone bedrock (usually the Edwards formation or an equivalent formation). The sites are open, in full sunlight, with a thin herbaceous cover of grasses and other herbaceous species, but within a matrix of woodland or savanna of live oak-juniper woodland community. In 1979 when the species was federally listed as endangered, fewer than 200 individuals had been documented in Bandera and Kerr Counties, Texas. The Texas Parks and Wildlife Department Natural Diversity Database indicates that, by 1999, researchers had documented 3,395 extant individuals in 8 counties of the Edwards Plateau (Bandera, Edwards, Kerr, Kimble, Kinney, Real, Uvalde, and Val Verde). For more information on the life history, biology, and distribution of Tobusch fishhook cactus, see the 2010 5-year review of the species.
        Evaluation of Information for This Finding
        Section 4 of the Act (16 U.S.C. 1533) and its implementing regulations at 50 CFR 424 set forth the procedures for adding a species to, or removing a species from, the Federal Lists of Endangered and Threatened Wildlife and Plants. A species may be determined to be an endangered or threatened species due to one or more of the five factors described in section 4(a)(1) of the Act:
        (A) The present or threatened destruction, modification, or curtailment of its habitat or range;
        (B) Overutilization for commercial, recreational, scientific, or educational purposes;
        (C) Disease or predation;
        (D) The inadequacy of existing regulatory mechanisms; or
        (E) Other natural or manmade factors affecting its continued existence.
        We must consider these same five factors in delisting a species. We may delist a species according to 50 CFR 424.11(d) if the best available scientific and commercial data indicate that the species is neither endangered nor threatened for the following reasons:
        (1) The species is extinct,
        (2) The species has recovered and is no longer endangered or threatened, or
        (3) The original scientific data used at the time the species was classified were in error.
        In considering what factors might constitute threats, we must look beyond the mere exposure of the species to the factor to determine whether the species responds to the factor in a way that causes actual impacts to the species. If there is exposure to a factor, but no response, or only a positive response, that factor is not a threat. If there is exposure and the species responds negatively, the factor may be a threat and we then attempt to determine how significant a threat it is. If the threat is significant, it may drive or contribute to the risk of extinction of the species such that the species may warrant listing as threatened or endangered as those terms are defined by the Act. This does not necessarily require empirical proof of a threat. The combination of exposure and some corroborating evidence of how the species is likely impacted could suffice. The mere identification of factors that could impact a species negatively may not be sufficient to compel a finding that listing may be warranted. The information shall contain evidence sufficient to suggest that these factors may be operative threats that act on the species to the point that the species may meet the definition of threatened or endangered under the Act.
        In making this 90-day finding, we evaluated whether information regarding threats to the gypsum wild-buckwheat, black-capped vireo, lesser long-nosed bat, Kuenzler hedgehog cactus, and Tobusch fishhook cactus, as presented in the petition and other information available in our files, is substantial, thereby indicating that the petitioned action may be warranted. Our evaluation of this information is presented below.
        Information Provided in the Petition
        The petitioner requested the Service delist the gypsum wild-buckwheat and reclassify the black-capped vireo, lesser long-nosed bat, Kuenzler hedgehog cactus, and Tobusch fishhook cactus as threatened based on the analysis and recommendations contained in the most recent 5-year reviews of these taxa. The petition cited the 5-year reviews for each of these respective species as supporting information for the petition, but provided no other information.
        Evaluation of Information Provided in the Petition and Available in Service Files
        We completed 5-year reviews for each of these five species, which included recommendation of status changes. Each 5-year review contains general background and life-history information, an overview of recovery criteria, an analysis of threats to each taxon based on the five listing factors found in section 4 of the Act, and recommendation of status change. In each 5-year review conducted for the five petitioned species, we analyzed the threats specific to each taxon based on the five listing factors in section 4 of the Act.
        Gypsum Wild-Buckwheat
        The 2007 5-year review for the gypsum wild-buckwheat recommended delisting of the species. The rationale for this recommendation was that the primary threats to the species at the time of listing were no longer deemed significant (Service 2007a, p. 12).
        At the time of listing, gypsum wild-buckwheat was known from only a single population on the Seven Rivers Hills. Since the time of listing, two additional populations of gypsum wild-buckwheat were documented at Black River and Ben Slaughter Draw in Eddy County, Texas (Service 2007a, p. 12). All three known populations contain between 11,000 and 18,000 plants.
        The listing determination for gypsum wild-buckwheat cited off-road-vehicles, grazing, and reservoir development as threats to this species (Service 2007a, p. 12). Due to the expanded range of the species at the time of the 5-year review, these stressors were no longer cited as threats to the species. However, all of the known gypsum wild-buckwheat habitat occurs in areas that are now known to have high potential for mineral extraction and associated development, especially oil and gas. At the time of the 5-year review, this new threat was thought to be mitigated by the Bureau of Land Management's Special Management Areas classification on significant portions of each gypsum wild-buckwheat population.
        In summary, we found that the threats previously identified may no longer be acting on the species at a level that causes the species to be in danger of extinction. Further, the range of the species has expanded, and there is some level of management of newly identified threats in those areas. Therefore, we find there is substantial information indicating that the species may no longer in danger of extinction now or in the foreseeable future, and that delisting may be warranted. This conclusion is based primarily on the analyses found in the 2007 5-year review, which was based on the best scientific information available at that time. Since the time of the 5-year review, we have received no information that would conflict with the conclusions found in that review.
        Black-Capped Vireo
        The 2007 5-year review for the black-capped vireo recommended reclassification of the species from endangered to threatened. The primary rationale for this recommendation was that the magnitude of threats to the species has been reduced since the time of listing, and that the range of the species has expanded (Service 2007b, pp. 22-24).
        At the time of listing, the estimated population of black-capped vireos consisted of 256 to 525 pairs in Oklahoma (4 counties), Texas (21 counties), and Mexico (1 state). Since 2000, the known population consists of 6,200 vireos in Oklahoma (3 counties), Texas (38 counties), and Mexico (3 states) (Service 2007b, p. 22).

        The major threats to the black-capped vireo identified at the time of listing included habitat loss through land use conversion, grazing and browsing by domestic and wild herbivores, and brood parasitism by brown-headed cowbirds (Molothrus ater). As discussed in the 5-year review, the threat of habitat destruction by domestic livestock appears to have decreased, based upon the decrease in density and abundance of livestock in those regions of particular concern during the original listing. However, it appears the density of white-tailed deer (Odocoileus virginianus) and exotic ungulates may have increased in the same regions, which may be a concern for habitat availability. Information discussed in the 5-year review concerning brown-headed cowbirds suggests that the species may be decreasing in abundance where its range overlaps the black-capped vireo, at least in Texas. Additionally, in the black-capped vireo's U.S. range, brood parasitism appears to be effectively managed at the major black-capped vireo populations occurring on public land, and supplemented by cowbird control programs on private lands.
        In summary, we found that threats to the species identified at the time of listing do not appear to be acting on the species as severely as previously thought. Further, the range and abundance of the species appears to have expanded, and some level of management exists in regard to threats in those areas. Therefore, we find there is substantial information that the species may no longer be in imminent danger of extinction, and that reclassification may be warranted. This conclusion is based primarily on the analysis found in the 2007 5-year review, which was based on the best scientific information available at that time. Since the time of the 5-year review, we have received no information that would conflict with the conclusions of that review.
        Lesser Long-Nosed Bat
        The 2007 5-year review for the lesser long-nosed bat recommended reclassification of the species from endangered to threatened. The primary rationale for this recommendation was that information indicates the species may be more abundant than was known at the time of listing (Service 2007c).
        At the time of listing, the lesser long-nosed bat occurred at relatively low population numbers (about 500 individuals in Arizona) and exhibited a declining trend (Service 2007c). Information gathered since the listing shows higher population numbers and a generally stable-to-increasing trend (Service 2007c).
        The primary threats identified at the time of listing were habitat destruction and disruption, disturbance of roosting sites, loss of food sources, and direct killing by humans. Information in the 5-year review suggests that these threats persist and may actually be increasing in some areas. However, the severity of these threats may be reduced as a result of the increased abundance of the species.
        In summary, we found that, while threats to the lesser long-nosed bat persist, the magnitude of these threats may be reduced due to the potential increased abundance of the species since the time of listing. Therefore, we find there is substantial information that the species may no longer be in imminent danger of extinction, and that reclassification may be warranted. This conclusion is based primarily on the analyses found in the 2007 5-year review which was based on the best scientific information available at that time. Since the time of the 5-year review, we have received no information that would conflict with the conclusions found in the review.
        Kuenzler Hedgehog Cactus
        The 5-year review for the Kuenzler hedgehog cactus recommended reclassification of the species from endangered to threatened. The primary rationale for this recommendation was that the threats to the species have been reduced as compared to the threats at the time of listing, and the distribution and abundance of the species has increased (Service 2005).
        At the time of listing, only two populations with fewer than 200 individuals were known. However, by the time of the 5-year review, an estimated 11 populations had a total of more than 5,000 individuals. While these populations are scattered and usually not locally abundant, this distribution reflects a wider range and higher overall abundance than was known at the time of listing. Further, most of the known populations of Kuenzler hedgehog cactus occur on Federal lands. Federal land management agencies have inventoried most of the Kuenzler hedgehog cactus habitats within their jurisdictions in order to consult with the Service and avoid serious impacts to occupied habitats.
        Threats at the time of listing were collection and habitat degradation due to road improvements, grazing, and real estate development. As discussed in the 5-year review, collection of Kuenzler hedgehog cactus from its natural habitats has not had a significant observable impact on the known populations. The potential threat of collection is likely mitigated to some extent by the fact that most populations are relatively remote and less likely to be impacted by casual collectors. Further, commercial growers are offering greenhouse-grown plants and seeds to hobbyists who might have otherwise obtained their plants or seeds from natural populations.
        Habitat destruction due to road construction and home building has affected a very small portion of the area occupied by Kuenzler hedgehog cactus. At the time of the 5-year review, no significant mining or oil and gas production activities took place within the habitat of this cactus. Most of the known occupied habitats occur in relatively remote areas, which are unlikely to be converted to land uses other than open range for livestock grazing. Evidence continues to indicate that livestock grazing may continue to impact Kuenzler hedgehog cactus through increased erosion and removal of insulating cover that may affect the success of seedling establishment.
        In summary, we found that, while livestock grazing may continue to affect the species, collection and habitat modification due to development do not appear to be as severe as they were thought to be at the time of listing. Further, the range of the species appears to have expanded, and some level of management occurs in those areas. Therefore, we find there is substantial information that the species may no longer be in imminent danger of extinction, and that reclassification may be warranted. This conclusion is based primarily on the analyses found in the 2005 5-year review, which was based on the best scientific information available at that time. Since the time of that 5-year review, we have received no readily available information that would conflict with the conclusions found in the review.
        Tobusch Fishhook Cactus
        The 5-year review for the Tobusch fishhook cactus recommended reclassification from endangered to threatened. The primary rationale for this recommendation was that the primary threats to the species at the time of listing have been reduced or were not as severe as originally determined, and that the distribution and abundance of the species have increased (Service 2010).
        At the time of listing, only 200 individuals were known. The status of Tobusch fishhook cactus is now thought to be significantly more secure than when it was listed. The cactus has been documented at 10 protected sites, and its known range now extends to eight counties in the Edwards Plateau of central Texas.

        The threats identified at the time of listing were collection and habitat modification and loss due to real estate development, livestock damage, and other natural factors. As discussed in the 2010 5-year review, legally propagated Tobusch fishhook cactus are now available, which suggests the threat of illegal collection may no longer be as severe a threat as it was at the time of listing. Further, livestock trampling and herbivory were not identified as significant causes of mortality or damage to Tobusch fishhook cactus plants. While a significant ongoing trend of subdividing large ranches persists in Texas, relatively little urban or industrial development was occurring within the range of the species at the time of the 5-year review. However, information discussed in the 5-year review indicates that the Tobusch fishhook cactus weevil parasitizes and kills plants, and further suggests that the weevil may have caused significant declines in some populations.
        In summary, we found that, while development and weevil parasitism may continue to impact the species, collection and livestock grazing do not appear to be acting on the species as severely as they were thought to be at the time of listing. Further, the range of the species appears to have expanded. Therefore, we find there is substantial information that the species may no longer be in imminent danger of extinction, and that reclassification may be warranted. This conclusion is based primarily on the analyses found in the 2010 5-year review, which was based on the best scientific information available at that time. Since the time of the 5-year review, we have received no readily available information that would conflict with the conclusions found in the review.
        Finding
        On the basis of our determination under section 4(b)(3)(A) of the Act, we find that information in the petition and readily available in our files presents substantial scientific or commercial information indicating that delisting the gypsum wild-buckwheat and reclassifying black-capped vireo, lesser long-nosed bat, Kuenzler hedgehog cactus, and Tobusch fishhook cactus from endangered to threatened may be warranted.
        Because we have found that the petition presents substantial information indicating that delisting the gypsum wild-buckwheat, and reclassifying black-capped vireo, lesser long-nosed bat, Kuenzler hedgehog cactus, and Tobusch fishhook cactus may be warranted, we are initiating status reviews for each taxon to determine whether the petitioned actions are warranted.
        The “substantial information” standard for a 90-day finding, under section 4(b)(3)(A) of the Act and 50 CFR 424.14(b) of our regulations, differs from the Act's “best scientific and commercial data” standard that applies to a status review to determine whether a petitioned action is warranted. A 90-day finding does not constitute a status review under the Act. In a 12-month finding, we will determine whether a petitioned action is warranted after we have completed a thorough status review of the species, which is conducted following a substantial 90-day finding. Because the Act's standards for 90-day and 12-month findings are different, as described above, a substantial 90-day finding does not mean that the 12-month finding will result in a warranted finding.
        5-Year Reviews

        Section 4(c)(2)(A) of the Act requires that we conduct a review of listed species at least once every 5 years. We are then, under section 4(c)(2)(B), to determine, on the basis of such a review, whether or not any species should be removed from the List (delisted), or reclassified from endangered to threatened, or threatened to endangered. Our regulations at 50 CFR 424.21 require that we publish a notice in the Federal Register announcing those species currently under review. This notice announces our active review of the gypsum wild-buckwheat, black-capped vireo, lesser long-nosed bat, Kuenzler hedgehog cactus, and Tobusch fishhook cactus.
        Request for Information
        When we make a finding that a petition presents substantial information indicating that delisting or reclassifying a species may be warranted, we are required to promptly initiate review of the status of the species (status review). For the status review to be complete and based on the best available scientific and commercial information, we request information on gypsum wild-buckwheat, black-capped vireo, lesser long-nosed bat, Kuenzler hedgehog cactus, and Tobusch fishhook cactus from governmental agencies, Native American tribes, the scientific community, industry, and any other interested parties. We seek information on:
        (1) The species' biology, range, and population trends, including:
        (a) Habitat requirements for feeding, breeding, and sheltering;
        (b) Genetics and taxonomy;
        (c) Historical and current range including distribution patterns;
        (d) Historical and current population levels, and current and projected trends; and
        (e) Past and ongoing conservation measures for the species, its habitat or both.

        (2) The factors that are the basis for making delisting and downlisting determinations for a species under section 4(a) of the Act (16 U.S.C. 1531 et seq.), which are:
        (a) The present or threatened destruction, modification, or curtailment of its habitat or range;
        (b) Overutilization for commercial, recreational, scientific, or educational purposes;
        (c) Disease or predation;
        (d) The inadequacy of existing regulatory mechanisms; or
        (e) Other natural or manmade factors affecting its continued existence.
        Please include sufficient information with your submission (such as scientific journal articles or other publications) to allow us to verify any scientific or commercial information you include.
        Submissions merely stating support for or opposition to the action under consideration without providing supporting information, although noted, will not be considered in making a determination. Section 4(b)(1)(A) of the Act directs that determinations as to whether any species is an endangered or threatened species must be made “solely on the basis of the best scientific and commercial data available.”

        You may submit your information concerning this status review by one of the methods listed in the ADDRESSES section. If you submit information via http://www.regulations.gov, your entire submission—including any personal identifying information—will be posted on the Web site. If your submission is made via a hardcopy that includes personal identifying information, you may request at the top of your document that we withhold this personal identifying information from public review. However, we cannot guarantee that we will be able to do so. We will post all hardcopy submissions on http://www.regulations.gov.

        Information and supporting documentation that we received and used in preparing this finding is available for you to review at http://www.regulations.gov, or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Southwesten Region Ecological Services Office (see FOR FURTHER INFORMATION CONTACT).

        References Cited

        A complete list of references cited is available on the Internet at http://www.regulations.gov and upon request from the Southwest Region Ecological Services Office (see FOR FURTHER INFORMATION CONTACT).
        Authors
        The primary authors of this notice are the staff members of the Southwest Region Ecological Services Office.
        Authority

        The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.).

          Dated: August 26, 2013.
          Rowan W. Gould,
          Acting Director, U.S. Fish and Wildlife Service.

      [FR Doc. 2013-21809 Filed 9-6-13; 8:45 am]
      BILLING CODE 4310-55-P


        DEPARTMENT OF TRANSPORTATION
        Pipeline and Hazardous Materials Safety Administration
        49 CFR Part 177
        Federal Motor Carrier Safety Administration
        49 CFR Part 392
        [Docket Numbers PHMSA-2010-0319 (HM-255) & FMCSA-2006-25660]
        RIN 2137-AE69 & 2126-AB04 &
        Highway-Rail Grade Crossing; Safe Clearance

          AGENCY:
          Pipeline and Hazardous Materials Safety Administration (PHMSA), and Federal Motor Carrier Safety Administration (FMCSA), U.S. Department of Transportation (DOT).

          ACTION:
          Notice of proposed rulemaking (NPRM); request for comments.

          SUMMARY:
          FMCSA and PHMSA propose to amend the Federal Motor Carrier Safety Regulations (FMCSRs) and Hazardous Materials Regulations (HMRs), respectively, to prohibit a motor vehicle driver from entering onto a highway-rail grade crossing unless there is sufficient space to drive completely through the grade crossing without stopping. This action is in response to section 112 of the Hazardous Materials Transportation Authorization Act of 1994. The intent of this rulemaking is to reduce highway-rail grade crossing crashes.

          DATES:
          Send your comments on or before March 29, 2011.

          ADDRESSES:
          You may submit comments identified by Federal Docket Management System Numbers PHMSA-2010-0319 (HM-255) and FMCSA-2006-25660 by any of the following methods:
          • Web Site: http://www.regulations.gov. Follow the instructions for submitting comments on the Federal electronic docket site.
          • Fax: 1-202-493-2251.
          • Mail: Docket Management Facility, U.S. Department of Transportation, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590-0001.
          • Hand Delivery: Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m. e.t., Monday through Friday, except Federal holidays.

            Instructions: All submissions must include the Agency names and docket number or Regulatory Identification Number (RIN) for this rulemaking. For detailed instructions on submitting comments and additional information on the rulemaking process, see the Public Participation heading below. Note that all comments received will be posted without change to http://www.regulations.gov, including any personal information provided. Please see the Privacy Act heading below.

            Docket: For access to the docket to read background documents or comments received, go to http://www.regulations.gov at any time or to the ground floor, room W12-140, 1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m. e.t., Monday through Friday, except Federal holidays.

            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 January 17, 2008 (65 FR 19476) or you may visit http://edocket.access.gpo.gov/2008/pdf/E8-785.pdf.

            Public participation: The http://www.regulations.gov Web site is generally available 24 hours each day, 365 days each year. You can get electronic submission and retrieval help and guidelines under the “help” section of the http://www.regulations.gov Web site and also at the DOT's http://docketsinfo.dot.gov Web site. If you want us to notify you that we received your comments, please include a self-addressed, stamped envelope or postcard or print the acknowledgement page that appears after submitting comments online.
          Comments received after the comment closing date will be included in the docket, and we will consider late comments to the extent practicable. FMCSA and PHMSA, however, may issue a final rule at any time after the close of the comment period.

          FOR FURTHER INFORMATION CONTACT:

            At FMCSA: Mr. Thomas Yager, Driver and Carrier Operations; or MCPSD@dot.gov. Telephone (202) 366-4325. Office hours are from 7:45 a.m. to 4:15 p.m., e.t., Monday through Friday, except Federal holidays. At PHMSA: Mr. Ben Supko, Office of Hazardous Materials Standards, (202) 366-8553, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, 1200 New Jersey Avenue, SE., Washington, DC 20590 0001.

        SUPPLEMENTARY INFORMATION:
        Background
        Section 112 of the Hazardous Materials Transportation Authorization Act of 1994 (HMTAA) [Pub. L. 103-311, title I, 108 Stat. 1673, 1676, August 26, 1994] requires FMCSA and PHMSA to amend the FMCSRs and the HMRs, respectively, to prohibit drivers of motor vehicles from driving onto a highway-rail grade crossing unless there is sufficient space to drive completely through the grade crossing without stopping. (Throughout the remainder of this document, FMCSA and PHMSA use the term “grade crossing” to refer to public, open, at-grade highway-rail grade crossings, unless otherwise noted.) The report by the Senate Committee on Commerce, Science, and Transportation (December 9, 1993) states that the intent of section 112 was to “* * * improve safety at highway-railroad crossings in response to fatalities that have occurred from accidents involving commercial motor vehicle operators who failed to use proper caution while crossing.” The report also states that “[t]he Committee believes that imposing a Federal statutory obligation on drivers of all commercial motor vehicles to consider whether they can cross safely and completely * * * will help to reduce the number of tragedies associated with grade crossing accidents” (Senate Report No. 103-217, at 11 (1994), reprinted in 1994 U.S.C.C.A.N. 1763, 1773). The consequences of a motor vehicle failing to clear the tracks at a grade crossing are potentially serious, particularly if a vehicle or train is transporting hazardous materials or passengers. Over time, increased motor vehicle traffic and congestion at some grade crossings, as well as increased train movements, may amplify this risk.
        The Manual on Uniform Traffic Control Devices (MUTCD 2009 edition), published by the Federal Highway Administration (FHWA) and incorporated by reference in 23 CFR part 655, subpart F, describes in chapter 8A the length of roadway necessary for a particular vehicle to clear the tracks safely as the “clear storage distance.” 1
           Chapter 8 guidance material also refers to “storage space.” “Storage space” means the space available for stationary vehicles between a traffic control device (traffic signal, stop sign, or yield sign) and the railroad crossing behind them.

            1 See http://mutcd.fhwa.dot.gov.

        I. Legal Basis for the Rulemaking
        This rulemaking is based on the authority of the Motor Carrier Act of 1935 (MCA or 1935 Act) and the HMTAA. The 1935 Act provides that “The Secretary of Transportation may prescribe requirements for (1) qualifications and maximum hours of service of employees of, and safety of operation and equipment of, a motor carrier; and, (2) qualifications and maximum hours of service of employees of, and standards of equipment of, a motor private carrier, when needed to promote safety of operation” [49 U.S.C. 31502(b)]. Pursuant to 49 U.S.C. 31501(2), the definitions used in 49 U.S.C. 13102 apply to the 1935 Act. “Motor carrier,” therefore, means “a person providing motor vehicle transportation for compensation” [49 U.S.C. 13102(14)]; and “motor private carrier” means “a person, other than a motor carrier, transporting property by motor vehicle when—(A) the transportation is as provided in section 13501 of this title [i.e., in interstate commerce]; (B) the person is the owner, lessee, or bailee of the property being transported; and (C) the property is being transported for sale, lease, rent, or bailment or to further a commercial enterprise” [49 U.S.C. 13102(15)].
        The grade crossing regulations set forth in 49 CFR 392.12 of this NPRM pertain directly to the “* * * safety of operation” of the motor carriers over which FMCSA has jurisdiction. The adoption and enforcement of such rules was specifically authorized by the MCA. This proposed rule is based, in part, on that authority.
        Before prescribing any regulations, FMCSA must also consider their “costs and benefits” [49 U.S.C. 31136(c)(2)(A) and 31502(d)]. Those factors are also discussed in this proposed rule.

        This NPRM is also based on the authority of the Federal hazardous materials transportation law (Federal hazmat law; 49 U.S.C. 5101 et seq.), under which, 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. Section 5103(b)(1)(B) provides that PHMSA's Hazardous Materials Regulations (HMR; 49 CFR Parts 171 through 180) “shall govern safety aspects, including security, of the transportation of hazardous material the Secretary considers appropriate.” As such, PHMSA has the authority to adopt requirements pertaining to hazardous materials transportation that are applicable to both intrastate and interstate commerce. The amendments to 49 CFR 177.804 proposed here are based directly on PHMSA's authority.

        The primary impetus for this rulemaking is section 112 of the HMTAA, which directed the Secretary of Transportation to adopt a rule to prohibit the driver of a commercial motor vehicle (CMV) from driving onto a grade crossing “without having sufficient space to drive completely through the crossing without stopping.” Section 112 reads as follows:

          Sec. 112 Grade Crossing Safety.
          The Secretary of Transportation shall, within 6 months after the date of enactment of this Act, amend regulations—
          (1) under chapter 51 of title 49, United States Code (relating to transportation of hazardous materials), to prohibit the driver of a motor vehicle transporting hazardous materials in commerce, and
          (2) under chapter 315 of such title (relating to motor carrier safety) to prohibit the driver of any commercial motor vehicle, from driving the motor vehicle onto a highway-rail grade crossing without having sufficient space to drive completely through the crossing without stopping. [108 Stat. 1676]

        Section 112(1), of HMTAA mandates a change to prohibit the driver of a commercial motor vehicle that is transporting hazardous materials from driving the motor vehicle onto a highway-rail grade crossing without having sufficient space to drive completely through the crossing without stopping. Because the safety benefits associated with this section are equally applicable to drivers operating in intrastate commerce as they are to interstate commerce, this Section falls under chapter 51 of title 49 U.S.C. and corresponding changes would be incorporated into § 177.804 of the HMR. However, to promote consistency between PHMSA and FMCSA, the definition of “hazardous materials,” provided by the Federal Motor Carrier Safety Regulations (FMCSRs; 49 CFR Parts 350-399), is used to define the scope of this Section.
        FMCSA defines “hazardous materials” in § 383.5 of the 49 CFR as follows:

          Hazardous materials means any material that has been designated as hazardous under 49 U.S.C. 5103 and is required to be placarded under subpart F of 49 CFR part 172 or any quantity of a material listed as a select agent or toxin in 42 CFR part 73.
        Based on this definition and PHMSA's authority, the scope of the proposed changes to 49 CFR 177.804 encompass all drivers who transport 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. This includes drivers of motor vehicles of any size that are used to transport the materials covered by the FMCSA definition. Additionally, it includes drivers engaged in intrastate or interstate commerce.
        Although section 112(2) refers to the driver of a “commercial motor vehicle” under chapter 315 of title 49, the relevant portion of that chapter—49 U.S.C. 31502(a)-(b)—does not use the term “commercial motor vehicle,” referring instead to “motor carriers” and “motor private carriers” as defined in 49 U.S.C. 13102 (the definitions of “motor carrier” and “motor private carrier” are discussed above). A “motor vehicle” is defined in section 13102(16) as “a vehicle, machine, tractor, trailer, or semitrailer propelled or drawn by mechanical power and used on a highway in transportation, or a combination determined by the Secretary, but does not include a vehicle, locomotive, or car operated only on a rail, or a trolley bus operated by electric power from a fixed overhead wire, and providing local passenger transportation similar to street-railway service.” These are the definitions that determine the scope of 49 CFR 392.12, the FMCSA portion of this NPRM.
        It should be noted that, unlike “CMV,” the defined term that describes the motor vehicles over which FMCSA has jurisdiction in many other provisions of the FMCSRs, a “motor vehicle,” as defined in section 13102(16), does not have a minimum weight threshold. This proposed rule, therefore, applies to the operation in interstate commerce of any motor vehicle used by a for-hire “motor carrier” or a “motor private carrier” in furtherance of a commercial enterprise, even if its gross vehicle weight (GVW) or gross vehicle weight rating (GVWR) is less than the 10,001-pound threshold for a CMV. In addition, § 392.12 would not apply to a private carrier of passengers because the definition of a “motor private carrier” in section 13102(15) covers only the transportation of “property,” not passengers.
        II. History
        On July 30, 1998, FHWA published an NPRM to implement section 112(2) (63 FR 40691). The NPRM proposed to amend the FMCSRs by adding a new section, 49 CFR 392.12, to read as follows: “A driver of a commercial motor vehicle shall not drive onto a highway-rail grade crossing without having sufficient space to drive completely through the crossing without stopping.”
        The Motor Carrier Safety Improvement Act of 1999 (Pub. L. 106-159, 113 Stat. 1748, December 9, 1999) created FMCSA as a new operating administration of DOT, effective January 1, 2000. FMCSA assumed the motor carrier safety functions previously exercised by FHWA's Office of Motor Carriers.
        Withdrawal of 1998 NPRM
        On April 28, 2006, FMCSA withdrew the 1998 NPRM [71 FR 25128]. FMCSA stated:

          After reviewing the comments to the NPRM and the transcript of the [November 9, 1999] public meeting, FMCSA has concluded that this rulemaking has created a great deal of misunderstanding and should be terminated.
          FHWA asked the States for information on the number and location of highway-railroad grade crossings with inadequate storage—and on alternative crossings—as the first step in estimating the costs and benefits of the rule required by Section 112. In view of the expected complexity of that analysis, the Agency needed as much information as possible. Many State agencies, however, seem to have assumed that they were required to provide the information; that the final rule would then require them to reconstruct, rewire, reroute or otherwise correct every inadequate crossing; and that the Agency was indifferent to the costs of such an undertaking. In fact, the time, difficulty and cost involved in collecting reliable data on highway-railroad grade crossings became a primary focus of the comments.
          Section 112 requires a rule applicable to drivers, not to States. If the regulatory requirement prevented some motor carriers from using a particular crossing because the storage distance is too short for their normal vehicles, several options are available (such as switching to shorter trucks or using alternate crossings) before any reconstruction efforts suggested by the State commenters need to be considered. And even then, significant civil engineering projects are likely to have a low priority. Consultations among government entities, truckers, and the shippers they serve might produce quick and simple solutions.
          Therefore, FMCSA terminates this rulemaking and will open a new one less burdened by previous misunderstandings. An NPRM to address the requirements of Section 112 will be published when additional analysis of grade crossing problems, which is now under way, has been completed.

        Survey of State Models

        FMCSA reviewed State statutes on grade crossings. As expected, all States have laws regarding operation of vehicles near or over grade crossings. Most of these provisions are variations on the requirements in 49 CFR 392.10 and 392.11 (e.g., stopping between 15 and 50 feet from the tracks, looking and listening for a train, crossing without shifting gears, etc.). On the other hand, only 24 States have storage-space laws similar or identical to the requirements of section 112 of the HMTAA. The recently enacted provisions usually match section 112 very closely. The older laws, adopted in the 1970s and 1980s, prohibit entering an intersection or grade crossing—even on a green light—unless traffic conditions permit the vehicle to drive all the way through without blocking traffic on the cross street or rail line. Although it is not clear how the States interpret such provisions, the reference to blocking traffic on the cross street or rail line might mean that—unlike section 112—these laws would not prohibit a driver from starting across an empty grade crossing with no train in sight if a brief stop at a traffic sign or signal on the other side would leave the rear of the vehicle on the tracks.
        Grade Crossing Safety Outreach Activities
        Since publication of the 1998 NPRM, various regulatory actions, outreach initiatives, and research activities have helped to improve grade crossing safety. FMCSA, the Federal Railroad Administration (FRA), and the Federal Transit Administration (FTA) intensified their outreach and educational activities to prevent grade crossing crashes.2
           In 1999, DOT convened a public meeting to promote information sharing on grade crossing crashes involving CMVs. In addition, FMCSA worked with FRA, FTA, and FHWA to update the Department's “1994 Grade Crossing Action Plan.” In June 2004, the Secretary issued the “Action Plan for Highway-Rail Grade Crossing Safety and Trespass Prevention,” which focused Departmental and private sector resources to enhance grade crossing safety by distributing educational literature to heighten awareness about grade crossings and the “hump” (or vertical alignment profile) challenges they present, particularly to vehicles with long wheelbases or low-hanging equipment. This educational focus also extended to the development of improved highway route guidance to identify and help drivers avoid problematic grade crossings. In 2006, FMCSA, in collaboration with FRA, issued laminated visor cards for drivers, outlining safety tips for crossing railroad tracks. DOT and its agencies will continue to develop further outreach and education efforts.

            2 The FRA uses the terms “accident” and “incident” in its definitions and databases used to collect data on grade crossings. The variations do not rise to a level of significance; however, FMCSA uses the term “crash” in its publications, except when the terms “accident” or “incident” appear in names or quotes.

        2006 Public Meeting and Comments
        On September 20, 2006, following notice in the Federal Register, FMCSA, in conjunction with FHWA, FRA, and PHMSA, held a public meeting in Washington, DC, to provide all interested parties an opportunity to express their views on this rulemaking. Only two members of the public attended, including a representative from the Association of American Railroads (AAR). There was a detailed discussion of the subject matter with that representative. A copy of the transcript from that meeting is available in docket FMCSA-2006-25660.
        The Owner Operator Independent Drivers Association, Inc. (OOIDA) submitted the only comments during the public comment period for the meeting. OOIDA recommended three things. First, OOIDA suggested that FMCSA should provide pavement markings and signage at or near grade crossings to indicate the storage space available to CMV drivers. FMCSA and PHMSA do not have the statutory authority to mark, sign, or require others to mark roads and provide signs at or near grade crossings. FHWA, however, has funding available annually under 23 U.S.C. 104(b)(5) (“highway safety improvement program”) as a set aside under 23 U.S.C. 148(a)(3) (“highway safety improvement project”) and 23 CFR part 924, Highway Safety Improvement Program, for a variety of highway safety improvement projects (HSIPs). Eligible HSIPs include: (1) Construction of projects for the elimination of hazards at a public railroad crossing that is eligible for funding under 23 U.S.C. 130; (2) improvement of highway signage and pavement markings; and (3) installation of a traffic control or other warning device at a location with high crash potential. FMCSA and PHMSA will bring OOIDA's suggestion to the attention of FHWA. We note that competition for limited HSIP resources means that States and other public authorities must decide whether and when particular grade crossings might get pavement markings and signage and that not all grade-crossing improvements are likely to be funded.
        Second, OOIDA suggested that FMCSA undertake additional comparative analyses to determine the number of grade crossings with inadequate storage space in industrial areas. OOIDA suggested that some such grade crossings are rarely used by trains and that regulatory prohibitions in these cases may be far more expensive than any possible benefits. Defining an “industrial area” has proven to be difficult and somewhat subjective. FMCSA and PHMSA do not agree that such comparative analyses are necessary. The regulation proposed today may occasionally—though not frequently—cause disproportionate expense, as OOIDA says; but this is a statutory mandate.
        Finally, OOIDA suggested FMCSA and PHMSA consider educational outreach through State driver licensing agencies to inform automobile drivers of the risks of passing CMVs to occupy space left at the head of the queue by prudent truck drivers at grade crossings. OOIDA reported that its members increasingly witness this practice, which forces CMV drivers to wait through several cycles of the traffic signals before being able to cross. According to OOIDA members, some States and localities have programmed traffic lights with cycles so short that CMVs are often prevented from crossing, especially when impatient automobile drivers rush to occupy any open space ahead of a CMV. This sometimes results in automobile drivers becoming trapped on the tracks when the crossing alarm sounds. OOIDA suggests creating informational signage to inform automobile drivers of the risks involved in such me-first tactics. FMCSA will encourage Motor Carrier Safety Assistance Program lead agencies to distribute grade crossing safety materials to their driver licensing colleagues in State government and to suggest the addition of such material to State driver training manuals that do not already cover the subject.
        III. The Proposed Rule
        Section 392.12
        Today's NPRM would adopt the statutory language of section 112 as 49 CFR 392.12. While the proposed regulatory text is essentially the same as that published in the 1998 NPRM, FMCSA believes the context in which the proposal is presented will make the potential impact of the rulemaking clearer.
        Though the proposed rule would not explicitly prohibit motor vehicles from using certain grade crossings, it might have that effect where the clear storage distance between the train tracks and the next traffic control device is less than the length of the vehicle. To proceed through such a grade crossing, a motor vehicle driver would either have to ignore the traffic control device or comply with the traffic control device but violate the proposed rule by driving onto the grade crossing without having sufficient space to drive completely through the crossing without stopping.
        Section 177.804

        To ensure that the statutory language of section 112 applies to both interstate and intrastate motor carriers, PHMSA would revise 49 CFR 177.804. PHMSA proposes to add a new paragraph (b) to require drivers of commercial motor vehicles 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 to comply with the FMCSA safe clearance requirements for highway-rail crossings. As such, motor carriers and drivers who engage in the transportation of covered materials must comply with the safe clearance requirements in § 392.12 of the FMCSRs.
        Additional Assistance
        FMCSA and PHMSA acknowledge OOIDA's concerns that this rulemaking could result in CMV drivers encountering situations in which compliance with the proposed rule might be difficult to achieve. Therefore, the two Agencies will work with State enforcement agencies, the motor carrier and railroad industries, and safety advocacy groups to provide information to assist carriers in identifying options for traveling safely through problematic grade crossings, including developing educational and technical assistance and frequently asked questions. FMCSA and PHMSA will also consider issuing regulatory guidance in response to inquiries to provide additional assistance to the motor carrier industry and State enforcement personnel in implementing the rule.
        IV. Scope of the Safety Problem
        Generally, the grade crossings where the physical storage distance is less than 100 feet would present the greatest challenge to motor vehicle drivers. A typical 3-axle “day cab” (a tractor without a sleeper berth) with a 2-axle, 53-foot semitrailer is 65 feet long. A typical 3-axle truck tractor (with a sleeper berth) pulling a 2-axle, 53-foot semitrailer would be about 65 to 72 feet long. Typical cars on American highways range from 13 to 18 feet 3
           in length. With one short car and one long car ahead of it in a queue at a grade crossing with 100 feet of storage space, a 65-foot truck might find it impossible to clear the railroad track.

            3 FMCSA and PHMSA reviewed various auto manufacturers' Web sites for the specific length measurements for small sports cars and large luxury executive sedans to arrive at the 13 to 18 feet range.

        Number of Grade Crossings
        The number of such grade crossings was determined by analyzing several FRA and geographic mapping databases. Table I summarizes the findings on grade crossings in the continental United States where the clear storage space is limited. FMCSA and PHMSA estimate that the total number of public, at-grade, open highway-rail grade crossings of all types is 145,702. Of these, 84,835 grade crossings have an estimated available clear storage distance of more than 1,500 feet.
        There are about 60,867 grade crossings where the estimated available clear storage distance is 1,500 feet or less. FMCSA and PHMSA estimate that approximately 19,824 of these grade crossings have a clear storage distance of less than 100 feet. FMCSA and PHMSA estimate there are 41,043 grade crossings (60,867 minus 19,824 equals 41,043) where the estimated available storage distance is greater than 100 feet but 1,500 feet or less. In addition, there are 1,384 other grade crossings estimated to have a relatively higher risk of storage-distance issues due to a combination of factors such as the volume of motor vehicle and CMV traffic, the number of train movements, and the number of lanes of roadway. Therefore, the total number of grade crossings of primary interest for this proposed rule is 21,208 (19,824 plus 1,384 equals 21,208), representing approximately 14.5 percent of grade crossings in the United States.

          Table I—Grade Crossings in the Continental U.S.

            Distance to nearest intersection
            Number of grade crossings

            All Grade Crossings
            145,702

            Greater Than 1,500 feet
            84,835

            Less Than or Equal To 1,500 feet
            60,867

            Less Than 100 feet
            19,824

            100-500 feet
            26,959

            501-1,000 feet
            8,843

            1,001-1,500 feet
            5,241

        Number of Grade Crossing Crashes
        FMCSA and PHMSA used FRA's Railroad Accident/Incident Reporting System, Highway-Rail Grade Crossing Accident/Incident File to analyze the extent to which storage distance has historically been recorded as a factor in grade crossing crashes. FMCSA and PHMSA analyzed crashes involving CMVs during the period 1998 through 2005. Table II summarizes the estimated number of grade crossing crashes.

          Table II—Crashes at Grade Crossings With Limited Storage Space 1998 to 2005

            Definition
            Number of crashes (1998 to 2005)

            All Crashes at All Highway-Rail Grade Crossings Involving All Types of Vehicles
            26,027

            All Crashes at Any One of the 21,208 FMCSA-Identified Grade Crossings of Interest to the Proposal's Regulatory Impact Assessment—
            4,168

            —With a Train Striking a Truck or Bus—
            890

            —Stopped or Trapped on the Crossing—
            289

            —Definitely or Probably Storage Related
            32

            —Possibly Storage Related *
            122

          * In order to ensure adequate consideration of the potential that the crash was storage related, this number was developed using the same proportion as those with sufficient narrative information, i.e., assuming 42.1 percent of crashes with indeterminate narratives are classified as storage-distance related. (See Regulatory Impact Assessment in dockets PHMSA-2010-0319 (HM-255) or FMCSA-2006-25660 for further information.)

        V. Costs and Benefits of Rule Implementation
        Data are not available to estimate with any degree of certainty the costs and benefits of implementing this rule. However, the Agencies are required by statute to implement a rule prohibiting drivers from going across grade crossings unless there is sufficient space to clear the crossings completely without stopping. States with existing statutes or regulations similar to the proposed Federal rule have somewhat lower crash rates at grade crossings identified as having significant risk of storage-related issues. While factors other than the States' storage-space rules may be responsible for some of the differences in crash rates, the Agencies believe the differential is large enough to suggest that such rules have safety benefits. The States' voluntary adoption of storage-space rules also suggests that the costs of implementing the requirements have not proven to be an issue with the States or with the motor carrier industry. Based on the safety impacts seen in the States that have adopted requirements similar to those considered in this rulemaking, FMCSA and PHMSA believe the rule would provide a cost-beneficial enhancement to safety.
        As mentioned above in the Legal Basis section of the preamble, CMVs have a minimum weight threshold of 10,001 pounds. However, the “motor vehicles” to which the proposed rule would apply have no such threshold; any motor vehicle, no matter how small, used by a “motor carrier” or “motor private carrier” in interstate commerce in furtherance of a commercial enterprise would be subject to the proposed rule. Yet these lighter vehicles—mainly pickup trucks and work vans—are unlikely to be affected by this proposal because virtually every grade crossing has enough storage space to accommodate one of them; and they are simply too short and maneuverable to be trapped on grade crossings with storage space for several vehicles. Even if traffic suddenly bunched up, leaving one of these vehicles stopped on the tracks, it could drive onto the shoulder or otherwise maneuver out of harm's way. Because FMCSA has concluded that the proposed rule would impose no costs on vehicles too small to qualify as CMVs, they are ignored in the following analysis of costs and benefits.
        Also mentioned in the Legal Basis section of this NPRM is that PHMSA's authority includes intrastate carriers. PHMSA estimated the number of carriers that may be affected by assessing hazmat registration data from the 2010-2011 registration year. The data is collected on DOT form F 5800.2 in accordance with § 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 person is indeed a carrier, the mode of transportation used, and the US DOT Number. Based on PHMSA's analysis of form F 5800.2—18,841 persons have registered as motor carriers of hazardous materials. Of those 18,841 persons 17,599 included a US DOT Number. Therefore, based on PHMSA's registration data, the difference between persons registered as motor carriers and persons that have obtained a US DOT Number is 1,242 (18,841 − 17,599 = 1,242). PHMSA considers these persons to be intrastate motor carriers. PHMSA compared these numbers with the FMCSA Motor Carrier Management Information System (MCMIS). Based on MCMIS data, PHMSA verified that the 1,242 carriers identified through registration data have not been issued a US DOT Number by FMCSA.
        To ensure that all intrastate carriers are identified, PHMSA multiplied the number of intrastate carriers identified through registration data by a 20% underreporting factor. As a result, the total population of intrastate carriers affected by this rulemaking is 1,490 intrastate motor carriers (1,242 × 1.20 = 1,490). For the purposes of this NPRM the cost and benefit impact is applied to each intrastate and interstate motor carrier equally. In the cost and benefit discussions that follow the Agencies consider the costs and benefits applicable to the total population of intrastate and interstate carriers affected by this proposed rule. The Agencies consider that, because the proposed rule does not mandate specific changes in carrier operations, driver training, or grade crossing infrastructure enhancements, its cost impacts should not be significant. Because a substantial number of States already have in place storage-space rules, motor vehicle drivers operating in or through those States should have the experience and knowledge needed to ensure compliance. FMCSA and PHMSA do not believe the rule is so complex that it would require special training of drivers operating in the other States. The Agencies request public comment on this issue.
        For motor vehicles, the storage-distance related annual crash rate per 1,000 grade crossings is 0.72.4
           FMCSA and PHMSA found that the difference in this rate between States that have laws/regulations similar to the proposed Federal rule and those that do not is 0.285 crashes per 1,000 grade crossings per year. Thus, FMCSA and PHMSA would expect 2.62 fewer crashes per year, if all States adopted the proposed Federal rule,5
           and 0.2 fewer train derailments.6

            4 122 crashes/8 years/21,208 grade crossings with limited storage space × 1,000 = 0.72.

            5 0.000285 fewer incidents per grade crossing × 9,204 storage space impacted grade crossings in states without a similar rule equals 2.62 fewer crashes per year.

            6 14 derailments/122 grade crossing incidents × 2.62 incidents prevented equals 0.2 fewer train derailments.

        The total annual savings from crashes avoided (in 2009 dollars) is estimated to be approximately $975,000. This consists of $381,000 in reduced fatalities, $159,000 in reduced injuries, $1,600 in reduced hazardous material spills, $31,000 in reduced highway property damage, and $402,000 in reduced costs for train derailments. Total implementation costs per year are estimated to be $279,000. Thus, the expected annual savings from implementation of this proposed rule would be about $696,000.

        Table III displays the 10-year average annual and discounted net costs and benefits of the statute that we are implementing in this proposal.

          Table III—Total Estimated 10-Year Costs and Benefits for Implementing the Statute Mandating the Proposed Grade Crossing Storage-Space Rule
          [In thousands, 2009 dollars]

            Annual impact
            10-Year total
            10-Year (Discounted at 3 percent)*

            10-Year (Discounted at 7 percent)*

            Benefits
            $975.0
            $9,750
            $8,566
            $6,352

            Costs **
            $381.0
            $3,810
            $2,172
            $1,818

            Net Benefits
            $696.0
            $6,960
            $5,419
            $4,535

          * Present values of 10-year costs are discounted at 3 percent and 7 percent as specified in OMB Circular A-4, Regulatory Analysis, September 2003. Note that the first year costs and benefits are not discounted.
          ** Excludes any potential costs from rerouting due to uncertainty of costs. See Sensitivity Analysis section below.

        Sensitivity Analysis
        It is important to note that the proposed rule could increase vehicle miles traveled (VMT) due to re-routing. Because of major data limitations, FMCSA and PHMSA performed a sensitivity analysis to explore this possibility but are unable to identify what that increase—if any—would be. The Congressionally mandated rule would be cost beneficial if the additional VMT does not exceed 0.63 percent of the maximum possible increase calculated in the sensitivity analysis.7
           The Agencies request comments from motor carriers on the extent to which this rulemaking would cause them to reroute their motor vehicles.

            7 $696,000 in annual savings ÷ 110,000,000 for maximum additional VMT equals 0.63 percent.

        This proposed storage-distance rule will discourage drivers of motor vehicles, particularly tractor-trailer combinations, from using grade crossings at which the storage distance is less than the overall length of the vehicle. FMCSA and PHMSA believe most drivers will make similar trips dozens or hundreds of times a year and experience the need to re-route only the first time. This assumes that the drivers and companies learn from their mistakes and avoid re-routing. Driver and dispatcher awareness training and improved in-cab geographic information system displays may allow companies and motor vehicle drivers to plan routes more efficiently before or shortly after leaving the point of origin, enabling them to avoid problem grade crossings entirely, instead of re-routing appreciably at the last minute.
        If significant numbers of companies or drivers do not plan their trips efficiently, and drivers unexpectedly encounter grade crossings with storage distances of less than their overall lengths (FMCSA and PHMSA assumed that a distance of approximately 100 feet could be problematical 8
          ), there would be additional costs to motor vehicle operators and the public due to the rerouting required. These route changes would likely result in additional VMT, with consequent increases in operating costs and adverse safety impacts.

            8 This distance is larger than most motor coach and tractor-trailer lengths, but less than that of some multiple-trailer and over-dimensional vehicles.

        The sensitivity analysis for this proposed rule first determined an estimated range of extra VMT that might result if all large motor vehicles were re-routed away from all grade crossings with insufficient storage space. This assumes that the drivers and companies never change their behavior and always go to the grade crossing before re-routing, for all trips taken along that route. FMCSA and PHMSA classify this outcome as the high-end limit of VMT increases. The actual number of re-routed trips would be only a small fraction of the possible number because companies and drivers learn from their mistakes and avoid re-routing. The low-end limit on VMT increases would occur if only minimal routing changes are made. FMCSA and PHMSA also provide an estimate that is intermediate between these two extremes. As indicated above, the proposed rule would be cost beneficial if additional VMT does not exceed 0.63 percent.
        The second step in the sensitivity analysis is to calculate the additional costs resulting from each of the proposed cases. These include increases in large truck operating costs, and societal costs associated with crashes that could be expected to occur as mileage increases.
        Based on the current analysis, there are an estimated 19,824 grade crossings in the U.S. where the physical storage distance is estimated to be less than 100 feet. For each of these grade crossings, the average annual daily traffic (AADT) volume of all motor vehicles passing through the grade crossing and the percent of vehicle traffic through the crossing estimated to consist of “trucks” were obtained from the FRA's Grade Crossing Inventory System (GCIS). The AADT figure for all vehicle types was transformed into an annual average equivalent figure and multiplied by the GCIS “percent trucks” data field to produce an estimate of the total number of all CMV movements (of all types of CMVs) through each grade crossing during the course of 1 year. Because only a portion of these truck movements involve tractor-trailer combinations of sufficient length, nationwide VMT distribution data by vehicle size and type was used to refine the estimate (derived both from the 2002 Vehicle Inventory and Use Survey (VIUS),9
           and the 2005 Highway Statistics 10
          ).

            9 U.S. Department of Commerce, Economics and Statistics Administration, “2002 Economic Census: Vehicle Inventory and Use Survey,” December 2004.

            10 U.S. Department of Transportation, Federal Highway Administration, Office of Highway Policy Information, “Highway Statistics,” 2005.

        The estimated total number of all truck movements at each grade crossing is calculated from the total vehicle AADT data and the GCIS “percent truck” figure. This figure is then reduced further by 17 percent, to reflect the reduction in the relative share (from VIUS and the 2005 Highway Statistics) of combination vehicles on non-access-controlled roadways (where grade crossings would be found).

        The additional miles that each motor vehicle might actually travel is likely to vary widely at each grade crossing of interest based on local conditions and the specific origin and destination of each trip. An estimate of potential average additional miles traveled per motor vehicle was developed for each grade crossing based on individual inspection of approximately 10 randomly selected grade crossings each in urban, suburban, and rural areas throughout the U.S. The actual miles traveled estimates for the 10 grade crossings in each type of area were then averaged and applied to all grade crossings (classifying their locations as rural, suburban, or urban) based on an analysis using geographic information systems (GIS) software. An estimate of the extra VMT that might be generated by each motor vehicle trying to avoid suspect grade crossings was determined to be about on average 0.75 miles. FMCSA and PHMSA believe numerous grade crossings close together in metropolitan areas may result in such a small average extra VMT estimate.
        FMCSA and PHMSA included for analysis only the subset of grade crossings with storage distance estimated to be 100 feet or less that are located in the 27 jurisdictions (26 States and the District of Columbia) that do not currently have storage-space laws similar or identical to the requirements of this NPRM. The Agencies only include grade crossings where storage distance is estimated to be 100 feet or less since, for purposes of re-routing, these are the only crossings a driver could easily identify. There are 8,749 such grade crossings in these 27 jurisdictions.
        The final estimate of the number of annual movements of large trucks through each of these 8,749 affected grade crossings was then multiplied by the estimates of additional miles traveled per trip to derive a final maximum estimate of 110,902,390 additional VMT annually (affecting about 146,307,200 motor vehicle trips annually) in the 27 jurisdictions where no equivalent State law currently exists.11

            11 8,749 affected grade crossings times ~12,676 per trip additional miles estimated equals 110,902,390 additional VMT annually.

        The costs of these additional miles traveled by large trucks include added motor carrier operating costs (driver salary, fuel, depreciation, etc.), and safety-related costs associated with increased risks of crashes. Estimates of the per-mile operating costs for large trucks were derived from a September 2004 study of motor carrier industry financial and operating performance profiles.12
           The average total operating cost for large motor vehicles carrying all commodity types was estimated to be $1.93 per vehicle-mile in 2001. Inflating to 2009 dollars, this is equivalent to $2.34 per vehicle-mile.

            12 Thomas M. Corsi, et al., “Motor Carrier Industry Profile Study: Financial and Operating Performance Profiles by Industry Segment, 2001-2002,” Office of Information Management, Federal Motor Carrier Safety Administration, September 2004.

        Estimates of safety-related costs were derived from average fatality, injury, and property-damage-only incidence rates developed by FMCSA for large truck transportation,13
           and cost-per-incident estimates. These results are summarized in Table IV below.

            13 FMCSA, “Large Truck Crash Facts,” February 2007.

          Table IV—Estimated Annual Motor Vehicle Operating and Safety Costs Resulting From Added VMT to Bypass Storage-Space Impacted Grade Crossings
          [$2009, thousands]

            Cost category
            Highest possible estimate of additional VMT
            Mid-range estimate; 10 percent of maximum additional VMT
            Lower-end estimate; 1 percent of maximum additional VMT

            Extra VMT
            110,900
            11,100
            1,100

            CMV Operations Crash Related:
            $261,500
            $ 26,100
            $ 2,600

            Fatalities
            $ 15,600
            $ 1,550
            $ 200

            Injuries
            $ 8,200
            $ 800
            < $ 100

            Property Damage
            $ 500
            < $ 100
            < $ 100

            Hazardous Material Spills
            < $ 100
            < $ 100
            < $ 100

            Total Costs
            $286,000
            $28,700
            $3,100

        These additional operations and safety costs are several hundred times greater than the estimated net benefits in Table III, which ignores potential re-routing costs. The high-end estimated crash-related costs, by themselves, are about 42 times greater than the total annual net benefits of this proposal. Motor carriers, however, are incentivized to minimize VMT in order to save time and money; FMCSA and PHMSA believe that operators will be able to find alternate routes that add little distance to their trips. We believe the lower-end estimate of additional VMT in Table IV is likely to be the most realistic.
        FMCSA and PHMSA seek additional information from the public to further assess the costs and benefits of this proposal. FMCSA has found no indications of problems caused by rerouting in those States with laws similar to this NPRM. FMCSA and PHMSA seek comments from States with laws similar to this proposal on how many extra miles, on average, their grade crossing prohibitions force trucks and buses to travel to avoid crossings with insufficient storage space.
        Regulatory Analyses
        Executive Order 12866 (Regulatory Planning and Review) and DOT Regulatory Policies and Procedures
        FMCSA and PHMSA have determined that this action is a non-significant regulatory action within the meaning of Executive Order 12866. FMCSA and PHMSA expect the proposed rule would have minimal costs and generate minimal public interest. Previous efforts to implement section 112 of the HMTAA have elicited little public response. Of the 45 comments submitted to the July 30, 1998, NPRM, 35 were from State agencies expressing concern that the rulemaking would impose certain economic burdens on the States. As explained previously in this NPRM, however, those concerns were based on a misunderstanding of the applicability of the proposed rule. Comments were received from three transportation industry associations (the American Trucking Associations (ATA), AAR, the National School Transportation Association (NSTA)) and three transit authorities, with only four comments from other entities.

        The Agencies note that when FMCSA held a public meeting on the implementation of section 112 in September 2006, there were only two participants—one from the AAR, none from the motor carrier industry or the States. The interest initially expressed by States in response to the 1998 NPRM seems to have diminished since the NPRM was withdrawn in 2006, presumably because FMCSA's discussion of the comments to the docket resolved their concerns. The motor carriers and drivers to which this rule would apply, as well as the associations that represent their interests, have shown little interest in this proceeding; FMCSA and PHMSA therefore believe the rulemaking is non-significant in the context of Executive Order 12866.
        The Agency has prepared a regulatory analysis of the costs and benefits of this proposal. The estimated costs and benefits are small, and the rule may be cost beneficial. That is not certain, however, given the additional VMT that may be generated but that cannot be reliably estimated. A copy of the analysis document is included in docket FMCSA-2006-25660.
        Regulatory Flexibility Act
        In compliance with the Regulatory Flexibility Act (5 U.S.C. 601-612), FMCSA and PHMSA have considered the effects of this proposed regulatory action on small entities and determined that this proposed rule would not have a significant economic impact on a substantial number of small entities, as defined by the U.S. Small Business Administration's Office of Size Standards.
        FMCSA has determined that the requirements in this rulemaking apply to a substantial number of small entities (i.e., small owner/operator motor carriers and other small businesses employing CMV drivers). The NPRM, however, does not mandate specific changes in carrier operations or driver training. Any rerouting and other logistics costs that might be borne by small carriers would occur only to the extent that their private benefits were judged to be greater than their costs. Carriers are presumed to pursue the most efficient transportation routes in order to minimize time, fuel usage, tire wear-and-tear and dead heading. Obtaining the most efficient route is a function of many factors, one of which is the avoidance of deficient storage-space railroad tracks. To the extent that existing carriers have not already attained and incorporated efficient route plans, they may sustain a revenue reduction, but it is one that is expected to be minimal and temporary.
        Also, there would probably be only minimal additional costs for driver training as the training would probably occur as a modification of emphasis in existing training curricula and would not likely add extra time to the training requirement.
        We estimated that a preponderance of this rule's implementation costs, expected to be composed of government administrative, enforcement, or training activities, will affect transportation personnel in the 27 jurisdictions that do not have an existing law or regulation similar to the proposed Federal rule.
        Accordingly, the Administrators of FMCSA and PHMSA hereby certify that this proposal would not have a significant economic impact on a substantial number of small entities.
        Unfunded Mandates Reform Act of 1995

        There is only one circumstance under which this rulemaking would impose an unfunded Federal mandate, as defined by the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1532, et seq.), resulting in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $140.3 million or more in any 1 year. If drivers and motor carriers resolutely fail to learn from previous experience (by repeatedly approaching railroad highway grade crossings with storage space inadequate to accommodate their vehicles and then turning away to find alternative crossings), the additional VMT generated by these errors might have a cost exceeding the threshold for this statute. FMCSA and PHMSA, however, believe that drivers and carriers would make such mistakes only a few times, and thereafter select streets and roads with appropriate grade crossings that do not require re-routing. PHMSA and FMCSA, therefore, believe that this rule would not impose an unfunded Federal mandate.
        Executive Order 12988 (Civil Justice Reform)
        This proposed action would meet applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
        Executive Order 12630 (Taking of Private Property)
        This proposed rulemaking would not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
        Executive Order 13132 (Federalism)
        This proposed action has been analyzed in accordance with the principles and criteria contained in Executive Order 13132. FMCSA and PHMSA have preliminarily determined that this rulemaking would not have a substantial direct effect on States, nor would it limit the policy-making discretion of the States. Nothing in this document would preempt any State law or regulation.
        Executive Order 12372 (Intergovernmental Review)
        The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities do not apply to this program.
        Paperwork Reduction Act
        The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires that FMCSA and PHMSA consider the impact of paperwork and other information collection burdens imposed on the public. FMCSA and PHMSA have determined that there are no current new information collection requirements associated with this proposed rule.
        National Environmental Policy Act

        The Agencies analyzed this proposed rule for the purpose of the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq.) and determined under FMCSA's environmental procedures Order 5610.1, issued March 1, 2004 (69 FR 9680), that there is no adverse impact to Air Quality because the Proposed Action would result in a decrease in highway and rail vehicle emissions as a result of fewer crashes. There are possible, moderately positive impacts to public health and safety, specifically at grade crossings, based on a decrease in the likelihood of fatalities and injuries as a result of CMV crashes due to insufficient storage distance at grade crossings. There are no identified overall negative environmental or socioeconomic impacts associated with the proposed rule.
        The beneficial impacts of the proposed rule include the positive effect on hazardous materials transportation, reduced locomotive idling time otherwise incurred as follow-on trains are delayed by derailments at grade crossings, and public health and safety, specifically at grade crossings. There are also net positive socioeconomic benefits, to motor and rail carriers in particular, in addition to positive indirect impacts to aspects of the physical and human environment.

        FMCSA and PHMSA have also analyzed this rule under the Clean Air Act, as amended (CAA), section 176(c) (42 U.S.C. 7401 et seq.), and implementing regulations promulgated by the Environmental Protection Agency. Approval of this action is exempt from the CAA's general conformity requirement since it involves rulemaking and policy development and issuance.
        A copy of the joint FMCSA and PHMSA Environmental Assessment (EA) is included in docket FMCSA-2006-25660. FMCSA and PHMSA request the public to comment on this environmental assessment.
        Executive Order 12898 (Environmental Justice)
        FMCSA and PHMSA evaluated the environmental effects of this proposed rule in accordance with Executive Order 12898 and determined that there are neither environmental justice issues associated with its provisions nor any collective environmental impact resulting from its promulgation. Environmental justice issues would be raised if there were “disproportionate” and “high and adverse impact” on minority or low-income populations. None of the alternatives analyzed in FMCSA's EA, discussed under NEPA, would result in high and adverse environmental impacts.
        Executive Order 13211 (Energy Effects)
        FMCSA and PHMSA analyzed this proposed action under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution or Use. FMCSA and PHMSA determined preliminarily that it would not be a “significant energy action” under that Executive Order because it would not be economically significant and would not be likely to have a significant adverse effect on the supply, distribution, or use of energy.

          List of Subjects
          49 CFR Part 177
          Hazardous materials transportation, Motor carriers, Radioactive materials, Reporting and recordkeeping requirements.
          49 CFR Part 392
          Highway safety, Motor carriers.

        In consideration of the foregoing, PHMSA and FMCSA propose to amend title 49, Code of Federal Regulations, chapter I, part 177, and chapter III, part 392, as set forth below:

          PART 177—CARRIAGE BY PUBLIC HIGHWAY
          1. The authority citation for part 177 is revised to read as follows:

            Authority:
            49 U.S.C. 5101-5127; sec. 112 of Pub. L. 103-311, 108 Stat. 1673, 1676 (1994); 49 CFR 1.53.

          2. Amend § 177.804 by redesignating the existing text as paragraph (a), amending newly designated paragraph (a) by adding a paragraph heading, and by adding a new paragraph (b) to read as follows:

            § 177.804
            Compliance with Federal Motor Carrier Safety Regulations.

            (a) General. * * *
            (b) Highway-rail crossings. Drivers of commercial motor vehicles transporting a quantity of hazardous materials, as defined in 49 CFR 383.5, 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 must comply with the safe clearance requirements for highway-rail crossings in § 392.12 of the FMCSRs.

          PART 392—DRIVING OF COMMERCIAL MOTOR VEHICLES
          3. The authority citation for part 392 is revised to read as follows:

            Authority:
            49 U.S.C. 13902, 31136, 31151, 31502; Section 112 of Pub. L. 103-311, 108 Stat. 1673, 1676 (1994); and 49 CFR 1.73.

          4. Section 392.12 is added to read as follows:

            § 392.12
            Highway-rail crossings; safe clearance.
            No driver of a commercial motor vehicle shall drive onto a highway-rail grade crossing without having sufficient space to drive completely through the crossing without stopping.

            Issued in Washington, DC on January 20, 2011 under authority delegated in 49 CFR part 1.

            By the Federal Motor Carrier Safety Administration.
            Anne S. Ferro,
            Administrator.
            By the Pipeline and Hazardous Materials Safety Administration.
            Cynthia L. Quarterman,
            Administrator.

      [FR Doc. 2011-1841 Filed 1-27-11; 8:45 am]
      BILLING CODE 4910-EX-P