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

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

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

Raymond P. Martinez
Federal Motor Carrier Safety Administration
2 October 2019

[Federal Register Volume 84, Number 191 (Wednesday, October 2, 2019)]
[Proposed Rules]
[Pages 52432-52438]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-20905]

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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Part 385

[Docket No. FMCSA-2019-0068]
RIN 2126-AC28

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

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

ACTION: Notice of proposed rulemaking.

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SUMMARY: FMCSA proposes to amend its Hazardous Materials Safety Permits
regulations to incorporate by reference the updated Commercial Vehicle
Safety Alliance (CVSA) handbook. The Out-of-Service Criteria provide
enforcement personnel nationwide, including FMCSA's State partners,
with uniform enforcement tolerances for roadside inspections.
Currently, the regulations reference the April 1, 2018, edition of the
handbook. Through this document, FMCSA proposes to incorporate by
reference the April 1, 2019, edition.

DATES: Comments on this document must be received on or before November
1, 2019.

ADDRESSES: You may submit comments identified by Docket Number FMCSA-
2019-0068 using any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the online instructions for submitting comments.
Mail: Docket Management Facility, U.S. Department of
Transportation, 1200 New Jersey Avenue SE, West Building, Ground Floor,
Room W12-140, Washington, DC 20590-0001.
Hand Delivery or Courier: West Building, Ground Floor,
Room W12-140, 1200 New Jersey Avenue SE, Washington, DC, between 9 a.m.
and 5 p.m., Monday through Friday, except Federal holidays.
Fax: 202-493-2251.
To avoid duplication, please use only one of these four methods.
See the ``Public Participation and Request for Comments'' portion of
the SUPPLEMENTARY INFORMATION section for instructions on submitting
comments, including collection of information comments for the Office
of Information and Regulatory Affairs, OMB.

FOR FURTHER INFORMATION CONTACT: Mr. Michael Huntley, Chief, Vehicle
and Roadside Operations Division, Federal Motor Carrier Safety
Administration, 1200 New Jersey Avenue SE, Washington, DC 20590-0001 by
telephone at (202) 366-9209 or by email at michael.huntley@dot.gov. If
you have questions on viewing or submitting material to the docket,
contact Docket Services, telephone (202) 366-9826.

SUPPLEMENTARY INFORMATION: This notice of proposed rulemaking (NPRM) is
organized as follows:

I. Public Participation and Request for Comments
A. Submitting Comments
B. Viewing Comments and Documents
C. Privacy Act
D. Advance Notice of Proposed Rulemaking Not Required
II. Executive Summary
III. Legal Basis for the Rulemaking
IV. Background
V. Discussion of Proposed Rulemaking
VI. International Impacts
VII. Section-by-Section Analysis
VIII. Regulatory Analyses
A. E.O. 12866 (Regulatory Planning and Review), E.O. 13563
(Improving Regulation and Regulatory Review), and DOT Regulatory
Policies and Procedures
B. E.O. 13771 Reducing Regulation and Controlling Costs
C. Regulatory Flexibility Act (Small Entities)
D. Assistance for Small Entities
E. Unfunded Mandates Reform Act of 1995
F. Paperwork Reduction Act
G. E.O. 13132 (Federalism)
H. E.O. 12988 (Civil Justice Reform)
I. E.O. 13045 (Protection of Children)
J. E.O. 12630 (Taking of Private Property)
K. Privacy
L. E.O. 12372 (Intergovernmental Review)

[[Page 52433]]

M. E.O. 13211 (Energy Supply, Distribution, or Use)
N. E.O. 13175 (Indian Tribal Governments)
O. National Technology Transfer and Advancement Act (Technical
Standards)
P. Environment (National Environmental Policy Act)

I. Public Participation and Request for Comments

A. Submitting Comments

If you submit a comment, please include the docket number for this
NPRM (Docket No. FMCSA-2019-0068), indicate the specific section of
this document to which each comment applies and provide a reason for
each suggestion or recommendation. You may submit your comments and
material online or by fax, mail, or hand delivery, but please use only
one of these means. FMCSA recommends that you include your name and a
mailing address, an email address, or a phone number in the body of
your document so that FMCSA can contact you if there are questions
regarding your submission.
To submit your comment online, go to http://www.regulations.gov,
put the docket number, FMCSA-2019-0068, in the keyword box, and click
``Search.'' When the new screen appears, click on the ``Comment Now!''
button and type your comment into the text box on the following screen.
Choose whether you are submitting your comment as an individual or on
behalf of a third party and then submit.
If you submit your comments by mail or hand delivery, submit them
in an unbound format, no larger than 8\1/2\ by 11 inches, suitable for
copying and electronic filing. If you submit comments by mail and would
like to know that they reached the facility, please enclose a stamped,
self-addressed postcard or envelope.
FMCSA will consider all comments and material received during the
comment period and may change this proposed rule based on your
comments. FMCSA may issue a final rule at any time after the close of
the comment period.
Confidential Business Information
Confidential Business Information (CBI) is commercial or financial
information that is both customarily and actually treated as private by
its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552),
CBI is exempt from public disclosure. If your comments responsive to
this NPRM contain commercial or financial information that is
customarily treated as private, that you actually treat as private, and
that is relevant or responsive to this NPRM, it is important that you
clearly designate the submitted comments as CBI. Please mark each page
of your submission that constitutes CBI as ``PROPIN'' to indicate it
contains proprietary information. FMCSA will treat such marked
submissions as confidential under the FOIA, and they will not be placed
in the public docket of this NPRM. Submissions containing CBI should be
sent to Mr. Brian Dahlin, Chief, Regulatory Analysis Division, Federal
Motor Carrier Safety Administration, 1200 New Jersey Avenue SE,
Washington, DC 20590. Any comments FMCSA receives which are not
specifically designated as CBI will be placed in the public docket for
this rulemaking.

B. Viewing Comments and Documents

To view comments, as well as any documents mentioned in this
preamble as being available in the docket, go to http://www.regulations.gov. Insert the docket number, FMCSA-2019-0068, in the
keyword box, and click ``Search.'' Next, click the ``Open Docket
Folder'' button and choose the document to review. If you do not have
access to the internet, you may view the docket online by visiting the
Docket Management Facility in Room W12-140 on the ground floor of the
DOT West Building, 1200 New Jersey Avenue SE, Washington, DC 20590,
between 9 a.m. and 5 p.m., e.t., Monday through Friday, except Federal
holidays.

C. Privacy Act

In accordance with 5 U.S.C. 553(c), DOT solicits 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.

D. Advance Notice of Proposed Rulemaking Not Required

Under 49 U.S.C. 31136(g), FMCSA is required to publish an advance
notice of proposed rulemaking (ANPRM) if a proposed rule is likely to
lead to the promulgation of a major rule, unless the Agency either
develops the proposed rule through a negotiated rulemaking process or
finds good cause that an ANPRM is impracticable, unnecessary, or
contrary to the public interest. To be a major rule, a rule must result
in or be likely to result in: (1) ``an annual effect on the economy of
$100,000,000 or more;'' (2) ``a major increase in costs or prices for
consumers, individual industries, Federal, State, or local government
agencies, or geographic regions;'' or (3) ``significant adverse effects
on competition, employment, investment, productivity, innovation, or on
the ability of United States-based enterprises to compete with foreign-
based enterprises in domestic and export markets.'' 5 U.S.C. 804(2).
This proposed rule does not meet the criteria of a major rule because
it simply incorporates by reference updates to the 2018 CVSA handbook
edition made on April 1, 2019, which, as described below, are largely
editorial and provide clarity and guidance to inspectors and motor
carriers transporting transuranics. Therefore, this proposed rule is
not likely to lead to the promulgation of a major rule and does not
require an ANPRM.

II. Executive Summary

This rulemaking proposes to update an incorporation by reference
found at 49 CFR 385.4 and referenced at 49 CFR 385.415(b). The
provision at Sec. 385.4(b) currently references the April 1, 2018,
edition of CVSA's handbook titled ``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 Out-of-Service Criteria, while not
regulations, provide enforcement personnel nationwide, including
FMCSA's State partners, with uniform enforcement tolerances for
roadside inspections. In this rulemaking, FMCSA proposes to incorporate
by reference the April 1, 2019 edition of the handbook.
Thirteen (13) updates distinguish the April 1, 2019, handbook
edition from the 2018 edition. The incorporation by reference of the
2019 edition does not impose new regulatory requirements.

III. Legal Basis for the Rulemaking

Congress has enacted several statutory provisions to ensure the
safe transportation of hazardous materials in interstate commerce.
Specifically, in provisions codified at 49 U.S.C. 5105(d), relating to
inspections of motor vehicles carrying certain hazardous material, and
49 U.S.C. 5109, relating to motor carrier safety permits, the Secretary
of Transportation is required to promulgate regulations as part of a
comprehensive safety program on hazardous materials safety permits. The
FMCSA Administrator has been delegated authority under 49 CFR
1.87(d)(2) to carry out the rulemaking functions vested in the
Secretary of Transportation. Consistent with that authority, FMCSA has
promulgated

[[Page 52434]]

regulations to address the congressional mandate on hazardous
materials. Those regulations on hazardous materials are the underlying
provisions to which the material incorporated by reference discussed in
this NPRM is applicable.

IV. Background

In 1986, the U.S. Department of Energy (DOE) and CVSA entered into
a cooperative agreement to develop a higher level of inspection
procedures, out-of-service conditions and/or criteria, an inspection
decal, and a training and certification program for inspectors to
conduct inspections on shipments of transuranic waste and highway route
controlled quantities of radioactive material. CVSA developed the North
American Standard Level VI Inspection Program for Transuranic Waste and
Highway Route Controlled Quantities of Radioactive Material. This
inspection program for select radiological shipments includes
inspection procedures, enhancements to the North American Standard
Level I Inspection, radiological surveys, CVSA Level VI decal
requirements, and 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.'' As of January 1, 2005, all vehicles and carriers
transporting highway route controlled quantities of radioactive
material are regulated by the U.S. Department of Transportation. All
highway route controlled quantities of radioactive material must pass
the North American Standard Level VI Inspection prior to the shipment
being allowed to travel in the U.S. All highway route controlled
quantities of radioactive material shipments entering the U.S. must
also pass the North American Standard Level VI Inspection either at the
shipment's point of origin or when the shipment enters the U.S.
Section 385.415 of title 49, Code of Federal Regulations,
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 ensure a
pre-trip inspection is 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 CVSA's
handbook titled ``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.''
According to 2012-2017 data from FMCSA's Motor Carrier Management
Information System (MCMIS), approximately 3.5 million Level I--Level VI
roadside inspections were performed annually. Nearly 97 percent of
these were Level I,\1\ Level II,\2\ and Level III \3\ inspections.
During the same period, an average of 842 Level VI inspections were
performed annually, comprising only 0.024 percent of all roadside
inspections. On average, out-of-service violations were cited in only
10 Level VI inspections annually (1.19 percent), whereas on average,
out-of-service violations were cited in 269,024 Level I inspections
(25.3 percent), 266,122 Level II inspections (22.2 percent), and 66,489
Level III inspections (6.2 percent) annually. Based on these
statistics, CMVs transporting transuranics and highway route controlled
quantities of radioactive materials are clearly among the best
maintained and safest CMVs on the highways today, due largely to the
enhanced oversight and inspection of these vehicles because of the
sensitive nature of the cargo being transported.
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\1\ Level I is a 37-step inspection procedure that involves
examination of the motor carrier's and driver's credentials, record
of duty status, the mechanical condition of the vehicle, and any
hazardous materials/dangerous goods that may be present.
\2\ Level II is a driver and walk-around vehicle inspection,
involving the inspection of items that can be checked without
physically getting under the vehicle.
\3\ Level III is a driver-only inspection that includes
examination of the driver's credentials and documents.
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V. Discussion of Proposed Rulemaking

Section 385.4(b)(1), as amended on July 8, 2019, references the
April 1, 2018, edition of the CVSA handbook. This rule proposes to
amend Sec. 385.4(b)(1) by replacing the reference to the April 1,
2018, edition date with a reference to the new edition date of April 1,
2019.
The changes made in the 2019 edition of the handbook are outlined
below. It is necessary to update the materials incorporated by
reference to ensure motor carriers and enforcement officials have
convenient access to the correctly identified inspection criteria
referenced in the rules. Amending Sec. 385.4(b), ensures that the
publication is available for interested parties to view at the FMCSA's
Washington, DC office and that the publication may be purchased from
the CVSA's website address, mail address, and phone.

April 1, 2019, Changes

The 2019 edition identifies (1) driver-related violations of the
FMCSRs that are so severe as to warrant placing the CMV driver out of
service, (2) vehicle equipment-related violations of the FMCSRs that
are so severe as to warrant placing the CMV out of service, and (3)
unsafe conditions in the transportation of hazardous materials. The
purpose of the publication is to provide inspection criteria for
Federal and State motor carrier safety enforcement personnel to promote
uniform and consistent inspection procedures of CMVs operated in
commerce.
Thirteen changes to the 2019 edition of the CVSA handbook
distinguish it from the April 1, 2018 edition. The first change amended
Part I, Item 4(a) to clarify that a driver operating a CMV without
complying with the requirements indicated on a Skill Performance
Evaluation (SPE) Certificate shall be declared out of service.
Currently, the Out-of-Service Criteria state that a driver will be
placed out of service for ``No skill performance evaluation in
possession, when required.'' The CVSA Driver-Traffic Enforcement
Committee agreed that operating a CMV without complying with the
requirements indicated on the SPE (e.g., the driver possesses an SPE
requiring a prosthetic limb, but is not using the prosthetic limb while
driving) is as serious as not having the SPE in possession when
required. Part I, Item 4(a) was amended to read ``No skill performance
evaluation in possession, when required, or when operating a commercial
motor vehicle without complying with the requirements indicated on the
skill performance evaluation.'' This clarification is not expected to
have any effect on the number of out-of-service violations cited during
Level VI inspections.
The second change amended the Out-of-Service Criteria Part II
Policy Statement to address a discrepancy between language in CVSA
Operational Policy 5 and the Out-of-Service Criteria Part II Policy
Statement regarding removing or replacing a CVSA decal. Operational
Policy 5 states that any expired CVSA decal shall be removed before a
new CVSA decal is affixed. However, prior to the amendment, the Policy
Statement in Part II of the Out-of-Service Criteria stated that ``a
current CVSA decal shall be affixed and no other CVSA decals shall be
visible.'' As such, the language in the Out-of-Service Criteria allowed
an existing decal to be covered up rather than removed, while

[[Page 52435]]

the language in the Operation Policy does not. CVSA noted that covering
up expired decals is problematic because colors can show on the corners
and new decals layered on the vehicle can be easily removed. It was
determined that removing old decals first is most appropriate, and the
Policy Statement in Part II of the Out-of-Service Criteria was amended
to reflect the same guidance that is in Operational Policy 5. This
amendment will not have any effect on the number of out-of-service
violations cited during Level VI inspections.
The third change amended Part II, Item 1(g)(2) to clarify that a
vehicle should be placed out of service if any rotor (disc) has a crack
in length of more than 75 percent of the friction surface and passes
completely through a structural support connecting the rotor friction
surfaces. The CVSA Vehicle Committee received information from a
Society of Engineers workgroup indicating that a collapse of the rotor
is imminent if there is a crack through the vents, and the vehicle
should be placed out of service. Part II, Item 1(g)(2) was amended to
clarify that a vehicle should be placed out of service if any rotor
(disc) has ``a crack in length of more than 75 percent of the friction
surface and passes completely through the rotor to the center vent from
either side, or completely through a solid rotor, or completely through
a structural support connecting the rotor friction surfaces.'' A
picture was added to clearly outline the condition of the rotor. FMCSA
records indicate that no out-of-service violations have been issued
regarding brake drums and rotors (discs) as a result of a Level VI
inspection in the past 3 years, demonstrating that motor carriers
transporting transuranics and highway route controlled quantities of
radioactive materials ensure that this component is well maintained and
in safe and proper operating condition at all times. The changes are
intended to ensure clarity in the presentation of the out-of-service
conditions and are not expected to affect the number of out-of-service
violations cited during Level VI inspections.
The fourth change amended the Cargo Securement section of the Out-
of-Service Criteria (Part II, Item 2) to add headings to subparagraphs
(a)-(f), consistent with the other sections of the Out-of-Service
Criteria. The new headings are intended to help with the uniformity of
content, as well as to make it easier to distinguish between the
different sections of the Out-of-Service Criteria. This amendment is
editorial in nature and will not have any effect on the number of out-
of-service violations cited during Level VI inspections.
The fifth change amended the Out-of-Service Criteria Tiedown Defect
Table by adding language to address a new type of tiedown used in cargo
securement applications. Doleco USA has developed a new cargo and
equipment securement tiedown assembly comprised of synthetic chain
links of Ultra High Molecular Weight Poly Ethylene (UHMWPE)
Dyneema[supreg] webbing with specialized hooks and binders. The high-
performance webbing is as strong as steel chain link but weighs up to
85 percent less. Due to the unique nature of its synthetic links, the
manufacturer also provides product specific hooks/fittings for securing
the tiedown ends and a specialized load tensioner for tightening. CVSA
developed an Inspection Bulletin outlining the characteristics and use
of the Doleco USA textile link system. The Out-of-Service Criteria
Tiedown Defect Table was amended, consistent with the information
provided in the CVSA Inspection Bulletin, to ensure that an inspector
can adequately determine if the tiedown is defective once it is in use.
Because of the sensitive nature of the cargo being transported, motor
carriers transporting transuranics and highway route controlled
quantities of radioactive materials are especially diligent regarding
use of tiedowns that do not have any defects, as evidenced by the lack
of any out-of-service violations cited for defective tiedowns during
inspections conducted between 2012-2017. As such, this amendment is not
expected to have any effect on the number of out-of-service violations
cited during Level VI inspections.
The sixth change amended Part II, Item 4(b)(3) to clarify that any
broken bearing strap on a universal joint of a driveline/driveshaft
would constitute the same imminent hazard as a missing, broken, or
loose retainer bolt, and a vehicle with this condition should be placed
out of service. Part II, Item 4(b)(3) was amended to read ``Any
missing, broken or loose universal joint bearing cap bolt, bearing
strap or retainer bolt,'' and a descriptive label was added to the
current picture of a universal joint in the Out-of-Service Criteria to
help identify and clarify a bearing strap. FMCSA records indicate that
no out-of-service violations have been issued regarding universal
joints as a result of a Level VI inspection in the past 3 years,
demonstrating that motor carriers transporting transuranics and highway
route controlled quantities of radioactive materials ensure that this
component is well maintained and in safe and proper operating condition
at all times. The changes are intended to ensure clarity in the
presentation of the out-of-service conditions and are not expected to
affect the number of out-of-service violations cited during Level VI
inspections.
The seventh change amended Part II of the Out-of-Service Criteria
to add a new section regarding temporary driver seats. The CVSA Vehicle
Committee approved the addition of a new out of service condition for
vehicles using any temporary seating for the driver, as opposed to a
permanent seat that is secured to the vehicle in a workmanlike manner.
Temporary seating includes, but is not limited to, a milk crate, lawn
chair, patio chair, folding chair, plastic step-stool, or a cooler. The
Out-of-Service Criteria were amended to include a new item, Part II,
Item 4. DRIVER'S SEAT, a. Temporary Seating, to read ``Any vehicle that
has temporary seating for the driver.'' \4\ A note was also added to
this section to provide the list of things that may constitute
temporary seating. As noted above, CMVs transporting transuranics and
highway route controlled quantities of radioactive materials are among
the best maintained and safest CMVs on the highways today, due largely
to the enhanced oversight and inspection of these vehicles because of
the sensitive nature of the cargo being transported. FMCSA believes
that it is highly unlikely that the CMVs transporting these sensitive
commodities will be equipped with temporary seating for the driver, and
as such, the Agency does not expect the addition of this item to the
Out-of-Service Criteria to affect the number of out-of-service
violations cited during Level VI inspections.
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\4\ This addition results in the renumbering of all the Critical
Vehicle Inspection Items in the Out-of-Service Criteria from
Driveline/Driveshaft forward.
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The eighth change amended the Exhaust Systems section of the Out-
of-Service Criteria (Part II, Item 5) to add headings to subparagraphs
(a)-(d), consistent with the other sections of the Out-of-Service
Criteria. The new headings are intended to help with the uniformity of
content, as well as to make it easier to distinguish between the
different sections of the Out-of-Service Criteria. This amendment is
editorial in nature and will not have any effect on the number of out-
of-service violations cited during Level VI inspections.
The ninth change amended Part II, Item 6 to include subsection (5)
in the note that was already contained in the Out-of-Service Criteria.
The CVSA Passenger Carrier Committee, in consultation with
manufacturers,

[[Page 52436]]

determined that subsection (5) should not pertain to buses having
monocoque-style frames. The note to Part II, Item 6 was amended to read
``Items (1) and (2) apply to all buses, including those having unitized
(monocoque) construction. Items (3), (4) and (5) apply only to buses
having a body-on-chassis design, such as most school buses.'' As this
change applies only to buses, it will not have any effect on the number
of out-of-service violations cited during Level VI inspections, which
are applicable to carriers transporting transuranics and highway route
controlled quantities of radioactive materials.
The tenth change amended Part II, Item 9 to add language to address
non-manufactured holes in the drag link of the steering system.
Following a recommendation from industry partners, the CVSA Vehicle
Committee determined that when a drag link is sufficiently worn to
cause a non-manufactured hole, the link could buckle and lead to the
loss of steering control. Based on the above, if a vehicle is found to
have a non-manufactured hole in a drag link, the vehicle should be
placed out of service, and the Out-of-Service Criteria were amended to
add a new subparagraph (3) to Part II, Item 9(h) to read ``When a drag
link is so worn to cause a non-manufactured hole.'' FMCSA records
indicate that no out-of-service violations have been issued regarding
steering systems as a result of a Level VI inspection in the past 3
years, demonstrating that motor carriers transporting transuranics and
highway route controlled quantities of radioactive materials ensure
that this component is well maintained and in safe and proper operating
condition at all times. The changes are intended to ensure clarity in
the presentation of the out-of-service conditions and are not expected
to affect the number of out-of-service violations cited during Level VI
inspections.
The eleventh change amended the title of Part II, Item 15,
applicable to buses, motorcoaches, passenger vans, or other passenger-
carrying vehicles, to clarify that the seating requirements in
subparagraph (c) of that item apply to temporary and aisle seats only.
As this change applies only to passenger-carrying vehicles, it will not
have any effect on the number of out-of-service violations cited during
Level VI inspections, which are applicable to carriers transporting
transuranics and highway route controlled quantities of radioactive
materials.
The twelfth change amended Part III, Items (1)-(10) to make the
formatting of this section consistent with the remainder of the Out-of-
Service Criteria, and to remove redundant language related to hazardous
and dangerous materials inspection standards. This amendment is
editorial in nature and will not have any effect on the number of out-
of-service violations cited during Level VI inspections.
The thirteenth change amended the North American Standard Out-of-
Service Criteria and Level VI Inspection Procedures to add a note to
Item 30, Trupact II Package Tiedown Assemblies. The CVSA Level VI
Inspection Program Committee added a note to address empty packages
that may be transported with loaded packages during a Level VI
inspection, noting that an empty package (TRUPACT II/HALFPACT) shall be
subject to the same tiedown requirements as those applicable to a
loaded package when transported and inspected during a Level VI
inspection. FMCSA records indicate that no out-of-service violations
have been issued regarding securement of packages as a result of a
Level VI inspection in the past 3 years, demonstrating that motor
carriers transporting transuranics and highway route controlled
quantities of radioactive materials ensure that packages are properly
secured at all times. The changes are intended to ensure clarity in the
presentation of the out-of-service conditions, and are not expected to
affect the number of out-of-service violations cited during Level VI
inspections.

VI. International Impacts

The FMCSRs, and any exceptions to the FMCSRs, apply only within the
United States (and, in some cases, United States territories). Motor
carriers and drivers are subject to the laws and regulations of the
countries in which they operate, unless an international agreement
states otherwise. Drivers and carriers should be aware of the
regulatory differences among nations.
The CVSA is an organization representing Federal, State and
Provincial motor carrier safety enforcement agencies in the United
States, Canada and Mexico. The Out-of-Service Criteria provide uniform
enforcement tolerances for roadside inspections conducted in all three
countries.

VII. Section-by-Section Analysis

Section 385.4 Matter Incorporated by Reference

Section 385.4(b), as amended on July 8, 2019, references the April
1, 2018, edition of the CVSA handbook. This proposed rule would replace
the reference to the April 1, 2018, edition date with a reference to
the new edition date of April 1, 2019.

VIII. Regulatory Analyses

A. Executive Order (E.O.) 12866 (Regulatory Planning and Review), E.O.
13563 (Improving Regulation and Regulatory Review), and DOT Regulatory
Policies and Procedures

FMCSA has determined that this action is not a significant
regulatory action under section 3(f) of E.O. 12866, Regulatory Planning
and Review, as supplemented by E.O. 13563 (76 FR 3821, January 21,
2011). The Office of Management and Budget (OMB) did not, therefore,
review this document.
FMCSA also determined that the proposed rule does not warrant
formal analysis of costs and benefits under DOT Policies and Procedures
for Rulemaking [DOT Order 2100.6 dated December 20, 2018, section
11(e)(1)]. The proposed rule, if finalized, would update an
incorporation by reference from the April 1, 2018, edition to the April
1, 2019, edition of CVSA's handbook titled ``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.'' FMCSA reviewed its MCMIS
data on roadside inspections performed from 2012 to 2017 and determined
that the handbook updates would not have any effect on the number of
out-of-service violations cited during Level VI inspections. Therefore,
the impact of a final rule would be de minimis.

B. E.O. 13771 Reducing Regulation and Controlling Regulatory Costs

E.O. 13771, ``Reducing Regulation and Controlling Regulatory
Costs,'' does not apply to this action because it is not a significant
regulatory action, as defined in section 3(f) of E.O. 12866.

C. Regulatory Flexibility Act (Small Entities)

The Regulatory Flexibility Act of 1980 (RFA), Public Law 96-354, 94
Stat. 864 (1980), as amended by the Small Business Regulatory
Enforcement Fairness Act of 1996 (SBREFA) (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

[[Page 52437]]

dominant in their fields, and governmental jurisdictions with
populations of less than 50,000.\5\ In compliance with the RFA, FMCSA
evaluated the effects of the proposed rule on small entities. The
proposed rule incorporates by reference updates to the 2018 CVSA
handbook edition made on April 1, 2019, which, as described above, are
largely editorial and provide clarity and guidance to inspectors and
motor carriers transporting transuranics. DOT policy requires an
analysis of the impact of all regulations on small entities, and
mandates that agencies strive to lessen any adverse effects on these
entities. None of the updates from the 2018 edition imposes new
requirements or makes substantive changes to the FMCSRs.
---------------------------------------------------------------------------

\5\ 5 U.S.C. 601.
---------------------------------------------------------------------------

When an Agency issues a rulemaking proposal, the RFA requires the
Agency to ``prepare and make available an initial regulatory
flexibility analysis'' that will describe the impact of the proposed
rule on small entities (5 U.S.C 603(a)). Section 605 of the RFA allows
an agency to certify a rule, instead of preparing an analysis, if the
proposed rule is not expected to impact a substantial number of small
entities. The proposed rule is largely editorial and provides guidance
to inspectors and motor carriers transporting transuranics in
interstate commerce. Accordingly, I hereby certify that if promulgated,
this proposed rule will not have a significant economic impact on a
substantial number of small entities. FMCSA invites comments from
anyone who believes there will be a significant impact on small
entities from this action.

D. 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.

E. 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. 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 $165 million (which is the value
equivalent to $100,000,000 in 1995, adjusted for inflation to 2018
levels) or more in any one year. This proposed rule will not result in
such an expenditure.

F. Paperwork Reduction Act

Under the Paperwork Reduction Act of 1995 (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 proposed rule.

G. 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 proposed rule and determined that it does not
have implications for federalism.

H. E.O. 12988 (Civil Justice Reform)

This proposed 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.

I. E.O. 13045 (Protection of Children)

E.O. 13045, Protection of Children from Environmental Health Risks
and Safety Risks (62 FR 19885, April 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 proposed 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 affect children disproportionately.

J. E.O. 12630 (Taking of Private Property)

FMCSA reviewed this proposed 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.

K. Privacy

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 of a regulation that will affect
the privacy of individuals. This proposed rule does not require the
collection of personally identifiable information or affect the privacy
of individuals.

L. E.O. 12372 (Intergovernmental Review)

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

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

FMCSA has analyzed this proposed rule under E.O. 13211, Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use. The Agency has determined that it is not a
``significant energy action'' under that order because it is not a
``significant regulatory action'' 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.

N. E.O. 13175 (Indian Tribal Governments)

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

O. National Technology Transfer and Advancement Act (Technical
Standards)

The National Technology Transfer and Advancement Act (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

[[Page 52438]]

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 proposed rule is discussed in detail in sections
V, Discussion of Proposed Rulemaking, and VII, Section by Section
Analysis, and is reasonably available at FMCSA and through the CVSA
website.

P. Environment (National Environmental Policy Act)

FMCSA analyzed this rule consistent with 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 proposed rule is covered by this CE, there are no
extraordinary circumstances present, and the proposed 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 website
listed under ADDRESSES.

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 proposes to amend 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, 5113
13901-13905, 13908, 31135, 31136, 31144, 31148, and 31502; Sec.
113(a), Pub. L. 103-311, 108 Stat. 1673, 1676; Sec. 408, Pub. L.
104-88, 109 Stat. 803, 958; Sec. 350 of Pub. L. 107-87, 115 Stat.
833, 864; 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, 2019, incorporation by reference approved for Sec.
385.415(b).
* * * * *

Issued under authority delegated in 49 CFR 1.87 on:

Dated: September 19, 2019.
Raymond P. Martinez,
Administrator.
[FR Doc. 2019-20905 Filed 10-1-19; 8:45 am]
BILLING CODE 4910-EX-P