Incorporation by Reference; North American Standard Out-of-Service Criteria; Hazardous Materials Safety Permits |
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T.F. Scott Darling, III
Federal Motor Carrier Safety Administration
17 June 2016
[Federal Register Volume 81, Number 117 (Friday, June 17, 2016)]
[Rules and Regulations]
[Pages 39587-39590]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-14245]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
49 CFR Parts 385
[Docket No. FMCSA-2016-0120]
RIN 2126-AB92
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 Commercial Vehicle
Safety Alliance's (CVSA) ``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, 2015,
edition of the out-of-service criteria and, through this final rule,
FMCSA incorporates the April 1, 2016, edition.
DATES: Effective June 17, 2016. 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 17, 2016.
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. Rulemaking Documents
A. Availability of Rulemaking Documents
For access to docket FMCSA-2016-0120 to read background documents
and comments received, go to http://www.regulations.gov at any time, or
to Docket Services at U.S. Department of Transportation, Room W12-140,
1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5
p.m., Monday through Friday, except Federal holidays.
B. Privacy Act
In accordance with 5 U.S.C. 553(c), DOT although this action adopts
a final rule and, thus, comments are not solicited, DOT accepts
comments from the public to better inform its rulemaking process. DOT
posts these comments, without edit, including any personal information
the commenter provides, to www.regulations.gov, as described in the
system of records notice (DOT/ALL-14 FDMS), which can be reviewed at
www.dot.gov/privacy.
[[Page 39588]]
II. 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, 2015, 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, 2016, edition.
Ten actions were completed to update the 2016 edition of the
handbook and distinguish it from the previous edition of the handbook.
The revision does not impose new requirements or substantively amend
the Code of Federal Regulations.
III. 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(d), relating to
inspections of motor vehicles carrying hazardous material, and 49
U.S.C. 5109, relating to motor carrier safety permits, the Secretary of
the Department of Transportation is required 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). As discussed in detail below, this
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.
IV. 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 June 18, 2015 (80 FR
34839), references the April 1, 2015, edition. This final rule amends
Sec. 385.4(b) by replacing the reference to the April 1, 2015, edition
date with the new edition date of April 1, 2016.
FMCSA has reviewed the April 1, 2016, 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 outlined 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 were ten actions taken to update the 2016 edition that
distinguish it from the previous edition of the handbook. 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,
2016, 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 action addresses consistency with 49 CFR 383.25, the out-of-
service condition that prohibits drivers from holding a commercial
driver's learner's permit (CLP) and transporting passengers. (Part I,
Item 3.b.) This action updates the language used in the criteria to
align with the regulatory language and is not a substantive change. The
second and third actions modified the language regarding medical
certificates and how to handle Canadian Class 5 or G licenses. These
updates occur in Part I, Item 4 (Driver Medical/Physical Requirements).
Part I, Item 4.b.(3) is necessary due to recent changes in FMCSA policy
regarding the verification of a valid medical certificate. And, the
note that clarifies how to handle the discrepancy when applying
Canadian and U.S. driver medical requirements was amended in section
4.b., to require Canadian drivers operating a commercial motor vehicle
within the United States with a valid Class 5 or G license to provide
evidence of compliance with medical requirements. FMCSA views these
changes as non-substantive, as they are already found in the relevant
U.S. or Canadian regulations.
The fourth action in Part II, Item 2 (Cargo Securement, Tiedown
Defect Table) involves an adjustment made to the table that would
eliminate the possibility of an inspector declaring a vehicle out-of-
service for a defect-only violation instead of an out-of-service
condition. The Agency does not consider this a substantive change.
The fifth action adds language to (Driveline/Driveshaft)
specifically, Part II, Item 4.b. which indicates that a missing bearing
cap retainer clip is a condition for placing a vehicle out-of-service.
This addition is not considered substantive, as it acknowledges that
light duty vehicles may use retainer clips as opposed to bolts to
secure the bearing cap. Because a missing bolt had previously been
determined to be an out-of-service condition, it was determined that a
missing bearing cap retainer clip should similarly be considered an
out-of-service condition. Modification of language in Part II, Item 7
(Fuel Systems) is the sixth action taken to address the criteria and it
consolidates and clarifies the section on the measurement of gaseous
fuels. Again, this change is not considered substantive as it
clarifies, based on consultation and input from industry experts, that
a leak measured to be below 5,000 parts per million is not an imminent
hazard and, therefore, not an out-of-service condition.
The seventh action, Part II (Lighting Devices), Item 8 involves the
creation of new out-of-service criteria that resolves situations where
a trailer light cord is either left unplugged, had become unplugged in
transit, or there was a
[[Page 39589]]
defect in the cord or connector that causes all or many of the trailer
lamps to become inoperative. It was determined that in these
situations, a single out-of-service condition would be recorded rather
than multiple out-of-service conditions listed for the single defect,
the cord or connector. Because inoperable lamps on the rear of trailers
are already an out-of-service condition, this is not a substantive
change.
In the eighth action, language was amended to the out-of-service
criteria from Part II, Item 9.f. Steering Mechanisms that would
quantify how loose a power assist cylinder must be in order to warrant
placing the CMV out-of-service. The revision clarifies the existing
language and is not a substantive change.
The ninth action required in Part II, Item 10.b. Suspensions adds a
clarifying note and reference to an existing operational policy that
explains what a secondary air bag is. FMCSA does not consider this to
be a substantive change.
The final action establishes a new out-of-service condition for
debris between tires in a dual set. This is not considered to be a
substantive change, as the change was established to account for the
infrequent event in which a solid object can become a projectile and
impact a trailing vehicle when dislodged from between the tires of a
dual tire set. In reality, these solid objects, when noticed, will be
remedied on the spot with an inspector, so the likelihood of an ensuing
out-of-service order is very low.
V. Regulatory Analyses
E.O. 12866 (Regulatory Planning and Review and DOT Regulatory Policies
and Procedures as Supplemented by E.O. 13563)
FMCSA has determined that this action is not a significant
regulatory action under section 3(f) of Executive Order 12866,
Regulatory Planning and Review, as supplemented by E.O. 13563 (76 FR
3821, January 21, 2011), and is also not significant within the meaning
of DOT regulatory policies and procedures (DOT Order 2100.5 dated May
22, 1980; 44 FR 11034, February 26, 1979) and does not require an
assessment of potential costs and benefits under section 6(a)(3) of
that Order. The Office of Management and Budget (OMB) did not,
therefore, review this document.
Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.)
requires Federal agencies to consider the effects of the regulatory
action on small business and other small entities and to minimize any
significant economic impact. The term ``small entities'' comprises
small businesses and not-for-profit organizations that are
independently owned and operated and are not dominant in their fields,
and governmental jurisdictions with populations of less than 50,000.\1\
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\1\ Regulatory Flexibility Act (5 U.S.C. 601 et seq.) see
National Archives at http://www.archives.gov/federal-register/laws/regulatory-flexibility/601.html.
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Under the Regulatory Flexibility Act of 1980 (5 U.S.C. 601-612),
FMCSA is not required to complete a regulatory flexibility analysis,
because, as discussed earlier in the legal basis section, this action
is not subject to notice and comment under section 553(b) of the
Administrative Procedure Act.
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. If the rule will affect your small business, organization, or
governmental jurisdiction and you have questions concerning its
provisions, 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 Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538)
requires Federal agencies to assess the effects of their discretionary
regulatory actions. In particular, the Act addresses actions that may
result in the expenditure by a State, local, or tribal government, in
the aggregate, or by the private sector of $155 million (which is the
value equivalent to $100,000,000 in 1995, adjusted for inflation to
2014 levels) or more in any one year. This final rule will not result
in such an expenditure.
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.
E.O. 13132 Federalism
A rule has implications for Federalism under Section 1(a) of
Executive Order 13132 if it has ``substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government.''
FMCSA analyzed this rule under that Order and determined that it
does not have implications for federalism.
E.O. 12988 Civil Justice Reform
This final rule 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.
E.O. 13045 Protection of Children
E.O. 13045, Protection of Children from Environmental Health Risks
and Safety Risks (62 FR 19885, Apr. 23, 1997), requires agencies
issuing ``economically significant'' rules, to include an evaluation of
their environmental health and safety effects on children, if the
agency has reason to believe that the rule may disproportionately
affect children. The Agency determined this final rule is not
economically significant. Therefore, no analysis of the impacts on
children is required. In any event, the Agency does not anticipate that
this regulatory action could pose an environmental or safety risk that
could disproportionately affect children.
E.O. 12630 Taking of Private Property
FMCSA reviewed this final rule in accordance with E.O. 12630,
Governmental Actions and Interference with Constitutionally Protected
Property Rights, and has determined it will not effect a taking of
private property or otherwise have taking implications.
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) or affect the
privacy of individuals.
E.O. 12372 Intergovernmental Review
The regulations implementing E.O. 12372 regarding intergovernmental
consultation on Federal programs and activities do not apply to this
rule.
E.O. 13211 (Energy Supply, Distribution, or Use)
FMCSA has analyzed this rule under E.O. 13211, Actions Concerning
Regulations That Significantly Affect Energy Supply, Distribution, or
Use.
[[Page 39590]]
The Agency has determined that it is not a ``significant energy
action'' under that order because it is not a ``significant regulatory
action'' likely to have a significant adverse effect on the supply,
distribution, or use of energy. Therefore, it does not require a
Statement of Energy Effects.
E.O. 13175 (Indian Tribal Governments)
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)
The National Technology Transfer and Advancement Act (NTTAA) (15
U.S.C. 272 note) directs agencies to use voluntary consensus standards
in their regulatory activities unless the agency provides Congress,
through OMB, with an explanation of why using these standards would be
inconsistent with applicable law or otherwise impractical. Voluntary
consensus standards (e.g., specifications of materials, performance,
design, or operation; test methods; sampling procedures; and related
management systems practices) are standards that are developed or
adopted by voluntary consensus standards bodies. FMCSA does not intend
to adopt its own technical standard, thus there is no need to submit a
separate statement to OMB on this matter. The standard being
incorporated in this final rule is discussed in detail in section IV,
Background, and is reasonably available through the CVSA Web site.
Environment (NEPA, CAA, Environmental Justice)
FMCSA analyzed this rule for the purpose of the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and
determined this action is categorically excluded from further analysis
and documentation in an environmental assessment or environmental
impact statement under FMCSA Order 5610.1(69 FR 9680, March 1, 2004),
Appendix 2, paragraph (6)(b). This Categorical Exclusion (CE) covers
minor revisions to regulations. The content in this rule is covered by
this CE and the final action does not have any effect on the quality of
the environment. The CE determination is available for inspection or
copying in the Regulations.gov Web site listed under ADDRESSES.
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 does not affect direct or indirect emissions of
criteria pollutants.
Under E.O. 12898, each Federal agency must identify and address, as
appropriate, ``disproportionately high and adverse human health or
environmental effects of its programs, policies, and activities on
minority populations and low-income populations'' in the United States,
its possessions, and territories. FMCSA has determined that this rule
has no environmental justice implications, nor does its promulgation
cause any collective environmental impact.
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 is revised to read as follows:
Authority: 49 U.S.C. 113, 504, 521(b), 5105(d), 5109, 13901-
13905, 31133, 31135, 31136, 31137, 31144, 31148, and 31502; Sec.
113(a), Pub. L. 103-311; Sec. 408, Pub. L. 104-88 109 Stat. 803, 958
Sec. 350 of Pub. L. 107-87; and 49 CFR 1.87.
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2. Revise Sec. 385.4(b) to read as follows:
Sec. 385.4 Matter incorporated by reference.
* * * * *
(b) ``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, 2016; incorporation by reference approved for Sec.
385.415(b).
* * * * *
Issued under authority delegated in 49 CFR 1.87 on: June 10,
2016.
T.F. Scott Darling, III,
Acting Administrator.
[FR Doc. 2016-14245 Filed 6-16-16; 8:45 am]
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