Incorporation by Reference; North American Standard Out-of-Service Criteria; Hazardous Materials Safety Permits |
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Jim Mullen
Federal Motor Carrier Safety Administration
24 February 2020
[Federal Register Volume 85, Number 36 (Monday, February 24, 2020)]
[Rules and Regulations]
[Pages 10307-10310]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-03129]
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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: Final rule.
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SUMMARY: FMCSA amends its Hazardous Materials Safety Permit regulations
to incorporate by reference the April 1, 2019, edition 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.'' The Out-of-Service
Criteria provide uniform enforcement tolerances for roadside
inspections to enforcement personnel nationwide, including FMCSA's
State partners.
DATES: This final rule is effective March 25, 2020. The incorporation
by reference of certain publications listed in the regulations is
approved by the Director of the Federal Register as of March 25, 2020.
Petitions for Reconsideration of this final rule must be submitted
to the FMCSA Administrator no later than March 25, 2020.
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,
(202) 366-9209. If you have questions on viewing or submitting material
to the docket, contact Docket Operations, (202) 366-9826.
SUPPLEMENTARY INFORMATION:
Rulemaking Documents
For access to docket FMCSA-2019-0068 to read background documents
and comments received, go to http://www.regulations.gov at any time, or
to Docket Operations 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.
II. Executive Summary
This rulemaking updates an incorporation by reference found at 49
CFR 385.4(b)(1) and referenced at 49 CFR 385.415(b). Section
385.4(b)(1) currently references the April 1, 2018, edition of CVSA's
``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
uniform enforcement tolerances for roadside inspections to enforcement
personnel nationwide, including FMCSA's State partners. In this final
rule, FMCSA incorporates by reference the April 1, 2019, edition.
Thirteen updates distinguish the April 1, 2019, handbook edition
from the 2018 edition. The updates are all described in detail in the
October 2, 2019 notice of proposed rulemaking (NPRM) for this rule (85
FR at 52434-36). 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 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 final rule is applicable.
IV. Background
In 1986, the U.S. Department of Energy 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
[[Page 10308]]
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) requires that motor carriers must 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
``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. Notice of Proposed Rulemaking
FMCSA published an NPRM on October 2, 2019 (84 FR 52432). Whereas
the incorporation by reference found at 49 CFR 385.4(b)(1) and
referenced at 49 CFR 385.415(b) concerns the April 1, 2018, edition of
CVSA's ``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 NPRM proposed to incorporate by reference the April 1,
2019, edition.
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 updates distinguish the April 1, 2019, handbook edition
from the 2018 edition. The updates are all described in detail in the
NPRM (85 FR at 52434-36). The incorporation by reference of the 2019
edition does not impose new regulatory requirements.
VI. Discussion of Comments Received on the Proposed Rule
FMCSA received one comment to the NPRM. CVSA commended FMCSA for
publishing the NPRM, and encouraged FMCSA to finalize the rule and
update the incorporation by reference because ``the current reference
of the April 1, 2018 edition is outdated and does not reflect the most
up to date standard which was published on April 1, 2019.'' In
addition, CVSA stated that the handbook is reviewed and updated
annually, and noted ``that a new edition will be published on April 1,
2020, and encourages the agency to take the necessary actions to update
the regulations accordingly at that time.''
VII. Section-by-Section Analysis
FMCSA revises 385.4(b)(1) to update the reference from the April 1,
2018, edition to the April 1, 2019, edition 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.''
VIII. 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 United States,
Canada, and Mexico. The Out-of-Service Criteria provide uniform
enforcement tolerances for roadside inspections conducted in all three
countries.
IX. Regulatory Analyses
A. 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), Improving Regulation and Regulatory Review. In addition, this
rule is not significant within the meaning of DOT regulations (84 FR
71714, December 27, 2019).The Office of Management and Budget (OMB) did
not, therefore, review this document.
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 a nonsignificant
regulatory action, as defined in section 3(f) of E.O. 12866, and has
zero costs; therefore, it is not subject to the ``2 for 1'' and
budgeting requirements.
C. Congressional Review Act
Pursuant to the Congressional Review Act (5 U.S.C. 801, et seq.),
the Office of Information and Regulatory Affairs designated this rule
as not a ``major rule,'' as defined by 5 U.S.C. 804(2).\4\
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\4\ A ``major rule'' means any rule that the Administrator of
the Office of Information and Regulatory Affairs at the Office of
Management and Budget finds has resulted in or is likely to result
in (a) an annual effect on the economy of $100 million or more; (b)
a major increase in costs or prices for consumers, individual
industries, Federal agencies, State agencies, local government
agencies, or geographic regions; or (c) significant adverse effects
on competition, employment, investment, productivity, innovation, or
the ability of United States-based enterprises to compete with
foreign-based enterprises in domestic and export markets (5 U.S.C.
804(2)).
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[[Page 10309]]
D. Regulatory Flexibility Act
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 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 rule on
small entities. The rule incorporates by reference the April 1, 2019,
edition of CVSA's ``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.'' 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.
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\5\ 5 U.S.C. 601.
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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
final rule is not expected to impact a substantial number of small
entities. The final rule is largely editorial and provides guidance to
inspectors and motor carriers transporting transuranics in interstate
commerce. Accordingly, I hereby certify that this final rule will not
have a significant economic impact on a substantial number of small
entities.
E. 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.
Small businesses may send comments on the actions of Federal
employees who enforce or otherwise determine compliance with Federal
regulations to the Small Business Administration's Small Business and
Agriculture Regulatory Enforcement Ombudsman and the Regional Small
Business Regulatory Fairness Boards. The Ombudsman evaluates these
actions annually and rates each agency's responsiveness to small
business. If you wish to comment on actions by employees of FMCSA, call
1-888-REG-FAIR (1-888-734-3247). DOT has a policy regarding the rights
of small entities to regulatory enforcement fairness and an explicit
policy against retaliation for exercising these rights.\6\
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\6\ U.S. Department of Transportation (DOT). ``The Rights of
Small Entities to Enforcement Fairness and Policy Against
Retaliation.'' Available at: https://www.transportation.gov/sites/dot.gov/files/docs/SBREFAnotice2.pdf (accessed April 20, 2018).
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F. 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 final rule will not result in
such an expenditure.
G. 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 final rule.
H. 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 has determined that this rule
will not have substantial direct costs on or for States, nor will it
limit the policymaking discretion of States. Nothing in this document
preempts any State law or regulation. Therefore, this rule does not
have sufficient federalism implications to warrant the preparation of a
Federalism Impact Statement.
I. 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) and will not
affect the privacy of individuals.
J. E.O. 13175 (Indian Tribal Governments)
This final 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.
K. National Technology Transfer and Advancement Act (Technical
Standards) and 1 CFR Part 51
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 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 sections IV, V, and VII
[[Page 10310]]
above, and is reasonably available at FMCSA and through the CVSA
website.
L. Environment (NEPA)
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, paragraphs (6)(b)
and (6)(t)(2). The Categorical Exclusion (CE) in paragraph (6)(b)
covers regulations which are editorial or procedural, including
technical or other minor amendments to existing FMCSA regulations,
while the CE in paragraph (6)(t)(2) includes regulations to ensure that
the States comply with the provisions of the Commercial Motor Vehicle
Safety Act of 1986. The content in this rule is covered by these CEs,
there are no extraordinary circumstances present, and the final action
does not have any effect on the quality of the environment.
M. E.O. 13783 (Promoting Energy Independence and Economic Growth)
E.O. 13783 directs executive departments and agencies to review
existing regulations that potentially burden the development or use of
domestically produced energy resources, and to appropriately suspend,
revise, or rescind those that unduly burden the development of domestic
energy resources. In accordance with E.O. 13783, DOT prepared and
submitted a report to the Director of OMB that provides specific
recommendations that, to the extent permitted by law, could alleviate
or eliminate aspects of agency action that burden domestic energy
production. This rule has not been identified by DOT under E.O. 13783
as potentially alleviating unnecessary burdens on domestic energy
production.
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 amends 49 CFR 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; 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. Amend Sec. 385.4:
0
a. In paragraph (a), by removing the words ``call (202) 741-6030'' and
adding in their place ``email fedreg.legal@nara.gov''; and
0
b. By revising paragraph (b)(1).
The revision reads 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.
Dated: February 11, 2020.
Jim Mullen,
Acting Administrator.
[FR Doc. 2020-03129 Filed 2-21-20; 8:45 am]
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