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Incorporation by Reference; North American Standard Out-of-Service Criteria; Hazardous Materials Safety Permits

American Government Special Collections Reference Desk

American Government

Incorporation by Reference; North American Standard Out-of-Service Criteria; Hazardous Materials Safety Permits

T.F. Scott Darling, III
Federal Motor Carrier Safety Administration
June 18, 2015


[Federal Register Volume 80, Number 117 (Thursday, June 18, 2015)]
[Rules and Regulations]
[Pages 34839-34841]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-14961]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Parts 385

[Docket No. FMCSA-FMCSA-2015-0075]
RIN 2126-AB78


Incorporation by Reference; North American Standard Out-of-
Service Criteria; Hazardous Materials Safety Permits

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

ACTION: Final rule.

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SUMMARY: FMCSA amends its Hazardous Materials Safety Permits rules to 
update the current incorporation by reference of the ``North American 
Standard Out-of-Service Criteria and Level VI Inspection Procedures and 
Out-of-Service Criteria for Commercial Highway Vehicles Transporting 
Transuranics and Highway Route Controlled Quantities of Radioactive 
Materials as defined in 49 CFR part 173.403.'' Currently the rules 
reference the April 1, 2014, edition of the out-of-service criteria 
and, through this final rule, FMCSA incorporates the April 1, 2015, 
edition.

DATES: Effective June 18, 2015. The incorporation by reference of 
certain publications listed in the rule is approved by the Director of 
the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 
51 as of June 18, 2015.

FOR FURTHER INFORMATION CONTACT: Mr. Michael Huntley, Federal Motor 
Carrier Safety Administration, Office of Policy, 1200 New Jersey Avenue 
SE., Washington, DC 20590-0001, by telephone at (202) 366-9209 or via 
email michael.huntley@dot.gov. Office hours are from 8 a.m. to 4:30 
p.m., Monday through Friday, except Federal holidays. If you have 
questions on viewing the docket, contact Docket Operations, telephone 
202-366-9826.

SUPPLEMENTARY INFORMATION: 

I. Executive Summary

    This rulemaking updates an incorporation by reference found at 49 
CFR 385.4 and referenced at 49 CFR 385.415(b)(1). The rules currently 
reference the April 1, 2014, edition of ``North American Standard Out-
of-Service Criteria and Level VI Inspection Procedures and Out-of-
Service Criteria for Commercial Highway Vehicles Transporting 
Transuranics and Highway Route Controlled Quantities of Radioactive 
Materials as defined in 49 CFR part 173.403.'' In this final rule, 
FMCSA incorporates the April 1, 2015, edition. The revision does not 
impose new requirements or substantively amend the Code of Federal 
Regulations.

II. Legal Basis for the Rulemaking

    Congress has enacted several statutory provisions to improve the 
safety of hazardous materials transported in interstate commerce. 
Specifically, in provisions codified at 49 U.S.C. 5105(e), relating to 
inspections of motor vehicles carrying hazardous material, and 49 
U.S.C. 5109, relating to motor carrier safety permits, it has required 
the Secretary of the Department of Transportation to promulgate 
regulations as part of a comprehensive safety program on hazardous 
material safety permits. The FMCSA Administrator has been delegated 
authority under 49 CFR 1.87 to carry out the rulemaking functions 
vested in the Secretary of Transportation. Consistent with that 
authority, FMCSA has promulgated regulations to address the 
congressional mandate. Such regulations on hazardous materials are the 
underlying provisions that have utilized the material incorporated by 
reference discussed in this notice.
    The Administrative Procedure Act (APA) (5 U.S.C. 553) specifically 
provides that adherence to its notice and public comment rulemaking 
procedures are not required where the Agency finds there is good cause 
to dispense with such procedures (and incorporates the finding and a 
brief statement of reasons to support the finding in the rules issued). 
Generally, good cause exists where the Agency determines that notice 
and public comment procedures are impracticable, unnecessary, or 
contrary to the public interest (5 U.S.C. 553 (b)(3)(B)). This document 
updates an incorporation by reference found at 49 CFR 385.4 and 
referenced at 49 CFR 385.415(b)(1). The revision does not impose new 
requirements or substantively change the Code of Federal Regulations. 
For these reasons, the FMCSA finds good cause that notice and public 
comment procedures are unnecessary.

III. Background

    Currently, 49 CFR 385.415 prescribes operational requirements for 
motor carriers transporting hazardous materials for which a hazardous 
materials safety permit is required. Section 385.415(b)(1) requires 
that motor carriers must ensure a pre-trip inspection be performed on 
each motor vehicle to be used to transport a highway route controlled 
quantity of a Class 7 (radioactive) material, in accordance with the 
requirements of the ``North American Standard Out-of-Service Criteria 
and Level VI Inspection Procedures and Out-of-Service Criteria for 
Commercial Highway Vehicles Transporting Transuranics and Highway Route 
Controlled Quantities of Radioactive Materials as defined in 49 CFR 
part 173.403.'' With regard to the specific edition of the out-of-
service criteria, 49 CFR 385.4, as amended on May 15, 2014 (79 FR 
27766), references the April 1, 2014, edition. Specifically, this final 
rule amends Sec.  385.4 (b) by replacing the reference to the April 1, 
2014, edition date with the new edition date of April 1, 2015.
    FMCSA reviewed the April 1, 2015, edition and determined there are 
no substantive changes that would result in motor carriers being 
subjected to a new or amended standard. The changes are highlighted 
below for reference. It is necessary to update the reference to ensure 
that motor carriers and enforcement officials have convenient access to 
the correctly identified inspection criteria that are referenced in the 
rules.
    There are eight changes made in the 2015 edition. Additional 
conforming changes have been made to the table of contents, but those 
are not included in this summary. (All references are to the April 1, 
2015 North American Standard Out-of-Service Criteria and Level VI 
Inspection Procedures and Out-of-Service Criteria for Commercial 
Highway Vehicles Transporting Transuranics and Highway Route Controlled 
Quantities of Radioactive Materials as defined in 49 CFR part 173.403.) 
The first change is to create consistency in the language used between 
commercial driver's license (CDL) and non-CDL drivers, when being taken 
out of service. (Part I, item 2.a.(1)) It does not change the criteria 
used to take drivers out of service, therefore this is not a 
substantive change. The second change is to align the standard with 
FMCSA's regulation governing operation of a vehicle while fatigued, 
found at 49 CFR 392.3. (Part I, Item 6.) Again, this change does not 
alter the criteria an inspector would use to take

[[Page 34840]]

a driver out of service and as such does not rise to a substantive 
change.
    The third change removes Part I, Item 7, which addresses 
communication. The 2014 edition included an item covering the 
responsibility of the driver and motor carrier to ensure adequate 
communication in Canada, Mexico, and the United States (the three 
countries covered by the standard). However, because the FMCSRs only 
require drivers in the United States to be able to communicate in 
English for basic purposes (converse with the general public, to 
understand highway traffic signs and signals in the English language, 
to respond to official inquiries, and to make entries on reports and 
records), there should be no additional burden placed on drivers in the 
United States as a result of the change in the 2015 standard. As a 
result, removing this item will not have a substantive impact on 
drivers.
    The fourth, fifth and sixth changes amend Part II, Item 1. (BRAKE 
SYSTEMS). The language for the out-of-service condition for Defective 
Brakes and Front Steering Axle(s) Brakes was modified to add loose and 
missing caliper mounting bolts to the 20% calculation for determining 
OOSC for hydraulic brakes. Its omission was an oversight when the 
criterion for brakes was rewritten; FMCSA views this change as 
nonsubstantive. (Part II, Item 1.a. & b.) An amendment to the language 
for the application of OOSC for worn hoses clarifies that this section 
is intended for air brake hoses only, and as such is not a substantive 
change. (Part II, Item 1.h.) Also, the amendment to the OOSC addresses 
the improper repair of hydraulic brake lines by means of placing a 
piece of tubing over the metal tubing and attaching with hose clamps. 
As this method of repair is not permitted under the FMCSRs, this change 
will not have a substantive impact. (Part II, Item 1.o.)
    The seventh change revises wording that was causing confusion in 
Part II, Item 3. (COUPLING). The current language causes confusion and 
gives the impression that the entire fifth wheel is not being taken 
into consideration. The new OOSC language clarifies how to measure 
cracks in parent metal, how to determine the 20% weld cracks, and 
defines a ``well defined (especially open) crack'' as well as a crack 
in a repair weld. This revision is a clarification and not a 
substantive change. (Part II, Item 3.a. & b.)
    The final change adds a paragraph (c) to Part II, Item 15. This new 
paragraph explicitly calls out the practice of using loose or temporary 
seating. As the practice is already prohibited under the FMCSRs (see 49 
CFR 393.91, 390.33), the additional language does not alter the 
criteria an inspector would use to take a driver out of service and as 
such does not rise to a substantive change. (Part II, Item 15.c.)

IV. Regulatory Analyses

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

    FMCSA has determined that this action is not a significant 
regulatory action within the meaning of E.O. 12866, as supplemented by 
E.O. 13563 (76 FR 3821, January 18, 2011), or within the meaning of the 
DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 
1979). FMCSA expects the final rule will have no costs; therefore, a 
full regulatory evaluation is unnecessary. The Office of Management and 
Budget (OMB) did not, therefore, review this document.

Regulatory Flexibility Act

    Pursuant to the Regulatory Flexibility Act (RFA) of 1980 (5 U.S.C. 
601 et seq.), as amended by the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121, 110 Stat. 857), FMCSA is not 
required to prepare a final regulatory flexibility analysis under 5 
U.S.C. 604(a) for this final rule because the Agency has not issued a 
notice of proposed rulemaking prior to this action. FMCSA has 
determined that it has good cause to adopt the rule without notice and 
comment.

Assistance for Small Entities

    In accordance with section 213(a) of the Small Business Regulatory 
Enforcement Fairness Act of 1996, FMCSA wants to assist small entities 
in understanding this rule so that they can better evaluate its effects 
on themselves and participate in the rulemaking initiative. If the rule 
would affect your small business, organization, or governmental 
jurisdiction and you have questions concerning its provisions or 
options for compliance, please consult the FMCSA point of contact, 
Michael Huntley, listed in the FOR FURTHER INFORMATION CONTACT section 
of this rule.

Unfunded Mandates Reform Act of 1995

    The final rule will not impose an unfunded Federal mandate, as 
defined by the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1532, et 
seq.), that will result in the expenditure by State, local, and tribal 
governments, in the aggregate, or by the private sector, of $151 
million (which is the 2012 inflation-adjusted value of the 1995 
threshold of $100 million) or more in any 1 year.

Federalism (E.O. 13132)

    A rule has implications for federalism under E.O. 13132, 
Federalism, if it has a substantial direct effect on State or local 
governments and would either preempt State law or impose a substantial 
direct cost of compliance on States or localities. FMCSA analyzed this 
rule under that Order and has determined that it does not have 
implications for federalism.

Civil Justice Reform (E.O. 12988)

    This action meets applicable standards in sections 3(a) and 3(b)(2) 
of E.O. 12988, Civil Justice Reform, to minimize litigation, eliminate 
ambiguity, and reduce burden.

Protection of Children (E.O. 13045)

    FMCSA analyzed this action under E.O. 13045, Protection of Children 
from Environmental Health Risks and Safety Risks. FMCSA determined that 
this final rule will not create an environmental risk to health or 
safety that may disproportionately affect children. In addition, it is 
not an economically significant rule, and no such analysis is therefore 
required.

Taking of Private Property (E.O. 12630)

    This rule will not effect a taking of private property or otherwise 
have taking implications under E.O. 12630, Governmental Actions and 
Interference with Constitutionally Protected Property Rights.

Privacy Impact Assessment

    Section 522 of title I of division H of the Consolidated 
Appropriations Act, 2005, enacted December 8, 2004 (Pub. L. 108-447, 
118 Stat. 2809, 3268, 5 U.S.C. 552a note), requires the Agency to 
conduct a privacy impact assessment (PIA) of a regulation that will 
affect the privacy of individuals. This rule does not require the 
collection of personally identifiable information (PII).

Intergovernmental Review (E.O. 12372)

    The regulations implementing E.O. 12372 regarding intergovernmental 
consultation on Federal programs and activities do not apply to this 
rule.

Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et 
seq.), Federal agencies must obtain approval from the OMB for each 
collection of information they conduct, sponsor, or require through 
regulations. FMCSA determined that no new information collection 
requirements are associated with this final rule.

[[Page 34841]]

National Environmental Policy and Clean Air Act

    FMCSA analyzed this final rule for the purpose of ascertaining the 
applicability of the National Environmental Policy Act of 1969 (42 
U.S.C. 4321 et seq.) and our Environmental Procedures Order 5610.1, 
issued March 1, 2004 (69 FR 9680). This final rule is categorically 
excluded from further analysis and documentation under the Categorical 
Exclusion (CE) in paragraph 6(b) of Appendix 2 of FMCSA Order 5610.1. 
This CE addresses minor revisions such as found in this rulemaking; 
therefore preparation of an environmental assessment or environmental 
impact statement is not necessary.
    The FMCSA 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 will have no effect on air emissions.

Environmental Justice (E.O. 12898)

    FMCSA evaluated the environmental effects of this final rule in 
accordance with E.O. 12898 and determined that there are no 
environmental justice issues associated with its provisions nor any 
collective environmental impacts resulting from its promulgation. 
Environmental justice issues would be raised if there were a 
``disproportionate'' and ``high and adverse impact'' on minority or 
low-income populations. FMCSA analyzed this action under NEPA and found 
the action to be categorically excluded from analysis due to the lack 
of impact to the environment. This final rule simply updates an 
incorporation by reference and would not result in high and adverse 
environmental impacts.

Energy Supply, Distribution, or Use (E.O. 13211)

    FMCSA has analyzed this rule under E.O. 13211, Actions Concerning 
Regulations That Significantly Affect Energy Supply, Distribution, or 
Use. FMCSA has determined that it is not a ``significant energy 
action'' under that E.O. because it is not a ``significant regulatory 
action'' under E.O. 12866 and is not likely to have a significant 
adverse effect on the supply, distribution, or use of energy. 
Therefore, the rule does not require a Statement of Energy Effects 
under E.O. 13211.

Indian Tribal Governments (E.O. 13175)

    This rule does not have tribal implications under E.O. 13175, 
Consultation and Coordination with Indian Tribal Governments, because 
it would not have a substantial direct effect on one or more Indian 
tribes, on the relationship between the Federal Government and Indian 
tribes, or on the distribution of power and responsibilities between 
the Federal Government and Indian tribes.

National Technology Transfer and Advancement Act (Technical Standards) 
and 1 CFR Part 51

    The National Technology Transfer and Advancement Act (NTTAA) (15 
U.S.C. 272 note) requires Federal agencies proposing to adopt technical 
standards to consider whether voluntary consensus standards are 
available. If the Agency chooses to adopt its own standards in place of 
existing voluntary consensus standards, it must explain its decision in 
a separate statement to OMB. Because FMCSA does not intend to adopt its 
own technical standards, there is no need to submit a separate 
statement to OMB on this matter. The standard incorporated by reference 
is discussed in detail in section III. Background and is reasonably 
available through the CSVA Web site.

E-Government Act of 2002

    The E-Government Act of 2002, Public Law 107-347, section 208, 116 
Stat. 2899, 2921 (Dec. 17, 2002), requires Federal agencies to conduct 
a privacy impact assessment for new or substantially changed technology 
that collects, maintains, or disseminates information in an 
identifiable form. No new or substantially changed technology would 
collect, maintain, or disseminate information as a result of this rule. 
Accordingly, FMCSA has not conducted a privacy impact assessment.

List of Subjects in 49 CFR Part 385

    Administrative practice and procedure, Highway safety, 
Incorporation by reference, Mexico, Motor carriers, Motor vehicle 
safety, Reporting and recordkeeping requirements.

    In consideration of the foregoing, FMCSA is amending 49 CFR chapter 
III, part 385 as set forth below:

PART 385--SAFETY FITNESS PROCEDURES

0
1. The authority citation for part 385 continues to read as follows:

    Authority:  49 U.S.C. 113, 504, 521(b), 5105(e), 5109, 13901-
13905, 31133, 31135, 31136, 31137(a), 31144, 31148, and 31502; Sec. 
113(a), Pub. L. 103-311; Sec. 408, Pub. L. 104-88; Sec. 350 of Pub. 
L. 107-87; and 49 CFR 1.87.


0
2. Revise Sec.  385.4(b)(1) to read as follows:


Sec.  385.4  Matter incorporated by reference.

* * * * *
    (b) * * *
    (1) ``North American Standard Out-of-Service Criteria and Level VI 
Inspection Procedures and Out-of-Service Criteria for Commercial 
Highway Vehicles Transporting Transuranics and Highway Route Controlled 
Quantities of Radioactive Materials as defined in 49 CFR part 
173.403,'' April 1, 2015; incorporation by reference approved for Sec.  
385.415(b).
* * * * *

    Issued under the authority of delegation in 49 CFR 1.87 on: June 
5, 2015.
T. F. Scott Darling, III,
Chief Counsel.
[FR Doc. 2015-14961 Filed 6-17-15; 8:45 am]
 BILLING CODE 4910-EX-P

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