Incorporation by Reference; North American Standard Out-of-Service Criteria; Hazardous Materials Safety Permits |
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Meera Joshi
Federal Motor Carrier Safety Administration
6 July 2021
[Federal Register Volume 86, Number 126 (Tuesday, July 6, 2021)]
[Proposed Rules]
[Pages 35443-35449]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-14039]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
49 CFR Part 385
[Docket No. FMCSA-2021-0063]
RIN 2126-AC40
Incorporation by Reference; North American Standard Out-of-
Service Criteria; Hazardous Materials Safety Permits
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), Department
of Transportation (DOT).
ACTION: Notice of proposed rulemaking.
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SUMMARY: FMCSA proposes amendments to its Hazardous Materials Safety
Permits regulations to incorporate by reference the updated Commercial
Vehicle Safety Alliance (CVSA) handbook containing inspection
procedures and Out-of-Service Criteria (OOSC) for inspections of
shipments of transuranic waste and highway route controlled quantities
of radioactive material. The OOSC provide enforcement personnel
nationwide, including FMCSA's State partners, with uniform enforcement
tolerances for inspections. Currently, the regulations reference the
April 1, 2019, edition of the handbook. Through this document, FMCSA
proposes to incorporate by reference the April 1, 2021 edition.
DATES: Comments on this document must be received on or before August
5, 2021.
ADDRESSES: You may submit comments identified by Docket Number FMCSA
2021-0063 using any of the following methods:
Federal eRulemaking Portal: https://www.regulations.gov/docket/FMCSA-2021-0063/document. Follow the online instructions for
submitting comments.
Mail: Dockets Operations, 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. To be sure
someone is there to help you, please call (202) 366-9317 or (202) 366-
9826 before visiting Dockets Operations.
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.
FOR FURTHER INFORMATION CONTACT: Mr. Jos[eacute] Cestero, Vehicle and
Roadside Operations Division, Federal Motor Carrier Safety
Administration, 1200 New Jersey Avenue SE, Washington, DC 20590-0001,
(202) 366-5541, jose.cestero@dot.gov. If you have questions on viewing
or submitting material to the docket, contact Dockets Operations, (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 Regulations
B. Congressional Review Act
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. Privacy
I. E.O. 13175 (Indian Tribal Governments)
J. National Environmental Policy Act of 1969
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-2021-0063), indicate the specific section of
this document to which your 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 https://www.regulations.gov/docket/FMCSA-2021-0063/document, click on this NPRM, click ``Comment,''
and type your comment into the text box on the following screen.
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.
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 20590-0001. 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 documents mentioned in this preamble as being available in
the
[[Page 35444]]
docket, go to https://www.regulations.gov/docket/FMCSA-2021-0063/document and choose the document to review. To view comments, click
this NPRM, and click ``Browse Comments.'' If you do not have access to
the internet, you may view the docket online by visiting Dockets
Operations 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., Monday through Friday, except Federal holidays. To be
sure someone is there to help you, please call (202) 366-9317 or (202)
366-9826 before visiting Dockets Operations.
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) or proceed with a negotiated
rulemaking, if a proposed rule is likely to lead to the promulgation of
a major rule. As this proposed rule is not likely to result in the
promulgation of a major rule, the Agency is not required to issue an
ANPRM or to proceed with a negotiated rulemaking.
II. Executive Summary
This NPRM proposes to update an incorporation by reference found at
49 CFR 385.4(b)(1) and referenced at Sec. 385.415(b). The provision at
Sec. 385.4(b)(1) currently references 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.'' The CVSA handbook contains inspection procedures
and Out-of-Service Criteria (OOSC) for inspections of shipments of
transuranic waste and highway route controlled quantities of
radioactive material. The OOSC, while not regulations, provide
enforcement personnel nationwide, including FMCSA's State partners,
with uniform enforcement tolerances for inspections. The material is
available, and will continue to be available, for inspection at the
FMCSA, Office of Enforcement and Compliance, 1200 New Jersey Avenue SE,
Washington, DC 20590 (Attention: Chief, Compliance Division) at (202)
366-1812. The document may be purchased from the Commercial Vehicle
Safety Alliance, 6303 Ivy Lane, Suite 310, Greenbelt, MD 20770,
telephone (301) 830-6143, www.cvsa.org.
In this NPRM, FMCSA proposes to incorporate by reference the April
1, 2021, edition of the handbook. FMCSA did not update Sec. 385.4(b)
to incorporate by reference the April 1, 2020, edition of the handbook.
This NPRM will discuss all updates to the currently incorporated 2019
edition of the handbook, including the updates made in the April 1,
2020, edition of the handbook.
Twenty-one updates distinguish the April 1, 2021, handbook edition
from the 2019 edition. The incorporation by reference of the 2021
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 under 49 CFR part 385, subpart E to address the
congressional mandate on hazardous materials safety permits. Those
regulations are the underlying provisions to which the material
incorporated by reference discussed in this document 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 (OOS) 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 United States. All highway route
controlled quantities of radioactive material shipments entering the
United States must also pass the North American Standard Level VI
Inspection either at the shipment's point of origin or when the
shipment enters the United States.
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 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 2015-2019 data from FMCSA's Motor Carrier Management
Information System (MCMIS), approximately 3.34 million Level I-Level VI
inspections were performed annually. Nearly 97 percent of these
[[Page 35445]]
were Level I,\1\ Level II,\2\ and Level III \3\ inspections. During the
same period, an average of 611 Level VI inspections were performed
annually, comprising only 0.02 percent of all inspections. On average,
OOS violations were cited in only 7.8 Level VI inspections annually (2
percent), whereas on average, OOS violations were cited in 266,025
Level I inspections (25 percent), 275,840 Level II inspections (23
percent), and 61,201 Level III inspections (6 percent) annually. As
these statistics demonstrate, OOS violations are cited in a far lower
percentage of Level VI inspections than Level I, II, and III
inspections, 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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The changes to the 2021 and 2020 editions of the CVSA handbook are
intended to ensure clarity in the presentation of the OOS conditions
and are generally editorial or ministerial. As discussed below, FMCSA
does not expect the changes made in the 2021 edition of the CVSA
handbook to affect the number of OOS violations cited during Level VI
inspections.
V. Discussion of Proposed Rulemaking
Section 385.4(b)(1), as amended on February 24, 2020 (85 FR 10307),
references the April 1, 2019, edition of the CVSA handbook. This NPRM
proposes to amend Sec. 385.4(b)(1) by replacing the reference to the
April 1, 2019, edition date with a reference to the new edition date of
April 1, 2021.
CVSA also published a 2020 edition of the handbook in the period
between the February 24, 2020, final rule and the publishing of the
2021 edition. FMCSA did not publish an update to the incorporation by
reference in Sec. 385.4(b)(1) with the April 1, 2020, edition of the
handbook. This NPRM will therefore discuss the updates included in the
2020 and 2021 editions of the handbook. The changes made based on the
2020 and 2021 editions 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.
April 1, 2020, Changes
Seventeen changes in the 2020 edition of the CVSA handbook
distinguish it from the April 1, 2019 edition:
(1) The title of Part I, Item 2.a. was amended to clarify that ``.
. . vehicles that, regardless of GVWR, do not require a commercial
driver's license (CDL) (e.g., exempt farm vehicles or fire apparatuses,
etc.)'' (2020 CVSA handbook, page 11) are included in this section of
the OOSC. Currently, this section applies only to vehicles with a gross
vehicle weight rating (GVWR) of 26,000 lbs. or less, not designed to
transport 16 or more passengers or placarded loads of hazardous
materials. Under the current wording, a driver cannot be placed OOS for
not having the proper class of driver's license, for having a
suspended/revoked license, or for being unlicensed when operating a
vehicle over 26,000 pounds GVWR and exempt from the requirements to
have a CDL. However, and because the FMCSRs include a number of
regulatory exceptions to the CDL requirements, there are numerous other
vehicle types over 26,000 pounds GVWR that may have non-CDL drivers
(e.g., covered farm vehicles, intrastate farm vehicles, emergency
vehicles, etc.). This clarification will not have any effect on the
number of OOS violations cited during Level VI inspections, as all
drivers transporting hazardous materials are required to have a CDL.
(2) The note in Part I, Item 2.b., and Part I, Item 3.c., was
amended to clarify that in Canada, a ``valid'' Canadian Transportation
of Dangerous Goods (TDG) training certificate is required. Canadian TDG
training certificates require certain informational items be
identified; language was added to the note to clarify that a training
certificate is considered invalid and the driver should be placed OOS
if it is missing that required information. This update will ensure a
uniform approach to Canadian TDG training certificate validity. This
clarification is not expected to have any effect on the number of OOS
violations cited during Level VI inspections in the U.S.
(3) The title of Part I, Item 7., was amended by removing the
language ``AS IDENTIFIED UNDER SECTION 392.4(a)'' because the OOS
violations now listed in this section are not all located in Sec.
392.4(a). In addition, CVSA added a new OOS item to address drivers who
are recorded in the Drug and Alcohol Clearinghouse as prohibited from
performing safety-sensitive functions per Sec. 382.501(a) as a result
of failing an alcohol or drug test. FMCSA records indicate that no
driver-related OOS violations have been issued as a result of a Level
VI inspection in the past 3 years. The changes are intended to ensure
clarity in the presentation of the OOS conditions and are not expected
to affect the number of OOS violations cited during Level VI
inspections.
(4) Footnote 14 to Part I, Item 9., was amended to remove the
reference to automatic on-board recording devices (AOBRDs), and a note
was added to Footnotes 11-14 of the same section. The reference to
AOBRDs in Footnote 14 was removed because the grandfather clause
permitting use of AOBRDs expired on December 16, 2019, and therefore
the reference to AOBRDs in Footnote 14 is no longer relevant. Since
December 2017, the information in the `NOTE' outlines the policy that
CVSA has used for placing drivers out of service for electronic logging
device (ELD) violations. Similar information is listed in FMCSA's
Frequently Asked Questions document on ELDs. The CVSA Driver-Traffic
Enforcement Committee voted to add this information as a note relative
to Footnotes 11-14. The changes are intended to ensure clarity in the
presentation of the OOS conditions and are not expected to affect the
number of OOS violations cited during Level VI inspections.
(5) Part I, Item 10.h., regarding records of duty status (RODS) in
Canada was amended to remove the provision for a driver to be placed
OOS for a period of 72 hours for not producing a daily log. Recent
changes to the Canadian federal hours-of-service (HOS) regulations have
eliminated the ability of an officer/inspector to place a driver OOS
for 72 hours for not producing a daily log. Under the new regulations,
a driver is placed OOS only for the number of hours required to have
the driver provide a compliant daily log. This amendment is applicable
only to the enforcement of Canadian HOS regulations and will not have
any effect on the number of OOS violations cited during Level VI
inspections in the United States.
(6) Footnote 2 to Part I, Item 10., regarding RODS in Canada was
amended to reduce the time a driver can be behind on his/her daily log
and not be declared OOS. Given the recent changes to the Canadian
federal HOS regulations as discussed above, and because the 72-hour
timeframe to place a driver OOS for no production of a log book was
removed, it was deemed appropriate to reduce the time a driver can be
behind on his/her log before
[[Page 35446]]
being placed OOS. The timeframe was reduced from the current day plus
the previous day to the current day only. This amendment is applicable
only to the enforcement of Canadian HOS regulations and will not have
any effect on the number of OOS violations cited during Level VI
inspections in the United States.
(7) Part I, Item 11., was amended by (1) replacing the OOSC for
Mexico to reflect the requirements in NOM-087-SCT-2-2017, and (2)
adding footnotes to that section. NOM-087-SCT-2-2017 are Mexico's CMV
regulatory requirements. Mexico recently updated its HOS Official
Mexican Standards (Norma Oficial Mexicana) (NOMs), and this update
required changes to the OOSC. CVSA worked with Mexico to make these
updates, and Mexico approved the amendments as written for use in
Mexico for OOS conditions. This amendment is applicable only to the
enforcement of Mexican HOS regulations and will not have any effect on
the number of OOS violations cited during Level VI inspections in the
United States.
(8) The charts for ``Clamp Type Brake Chamber Data'' and ``Long
Stroke Clamp Type Brake Chamber Data'' in Part II, Item 1.a., were
amended to add a new column listing the SAE J2899 markings found on
brake chambers. SAE J2899, ``Brake Adjustment Limit for Air Brake
Actuators,'' was issued in December 2013 and revised in June 2017, and
was developed to provide an alternative way of determining the size and
allowable stroke of a brake chamber. Manufacturers have the option to
cast a marking permanently onto the center section of the brake chamber
using the letters ``A'' through ``H.'' The markings are easy to see and
indicate the rated stroke and pushrod stroke of the chamber without the
need to measure the diameter or determine if it is long or short
stroke. This marking method reduces the likelihood that an inspector
will either (1) pass a vehicle that should be OOS, or (2) place a
vehicle OOS that is within acceptable operating conditions. The CVSA
Vehicle Committee voted unanimously to add a column in the charts in
Part II, Item 1.a. that lists the SAE J2899 markings found on brake
chambers. FMCSA records indicate that no violations or OOS violations
have been issued regarding brakes being out of adjustment as a result
of a Level VI inspection in the past 3 years. The changes are intended
to ensure clarity in the presentation of the OOS conditions and are not
expected to affect the number of OOS violations cited during Level VI
inspections.
(9) Part II, Item 1., was amended to add a clarification that a
parking brake needs to be held by mechanical means. Clarification was
necessary regarding whether (1) the mechanical holding of the parking
brake should be required, or (2) applying the parking brake with hand
pressure and holding it with hand pressure is adequate. Specifically,
in cases where the actuator cannot hold the parking brake in the
applied position, it was unclear whether the vehicle should be placed
OOS. Following discussion with brake industry experts, the CVSA Vehicle
Committee confirmed that Federal Motor Vehicle Safety Standard Nos. 105
and 121 require the parking brake to be held by a mechanical means.
FMCSA records indicate that no OOS violations have been issued
regarding parking brakes as a result of a Level VI inspection in the
past 3 years. The changes are intended to ensure clarity in the
presentation of the OOS conditions and are not expected to affect the
number of OOS violations cited during Level VI inspections.
(10) The title of Part II, Item 11.d., was amended to remove sway
bars from the OOSC. The CVSA Vehicle Committee determined that sway
bars provide comfort, not stability, and that they are not a critical
vehicle inspection item. As such, the CVSA Vehicle Committee determined
that missing or loose sway bars should not be an OOS condition. This
amendment also requires a supporting edit to Note 2 in Part II, Item
11.b., that references the title to Part II, Item 11.d. FMCSA records
indicate that no OOS violations have been issued regarding sway bars as
a result of a Level VI inspection in the past 3 years. As such, and
because the changes eliminate an existing OOS condition, the changes
will not affect the number of OOS violations cited during Level VI
inspections.
(11) Part II, Item 12.a.9., and Part II, Item 12.b.4., were amended
to clarify that the OOS condition refers to a wheel end on an axle. In
response to questions regarding whether the tire loading restriction in
Sec. 393.75(g) of the FMCSRs applies to (1) a wheel end on an axle, or
(2) a single tire on an axle, or (3) whether the entire axle must
exceed the tire weight rating in order to constitute an OOS condition,
the CVSA Vehicle Committee determined that exceeding the tire load
limits should apply to the wheel end. The OOS condition applies when
the tire or dual set exceeds the applicable load rating on the sidewall
of the tire(s), and the language was amended to reflect this condition.
FMCSA records indicate that no OOS violations have been issued
regarding tire loading restrictions as a result of a Level VI
inspection in the past 3 years. The changes are intended to ensure
clarity in the presentation of the OOS conditions and are not expected
to affect the number of OOS violations cited during Level VI
inspections.
(12) Part II, Item 16.a., was amended to add new OOS conditions for
emergency exits on passenger-carrying vehicles that are marked as such,
but that are not necessarily required to be installed by regulation.
Language was added to this section to clarify that passenger-carrying
vehicles with marked emergency exits that are obstructed should be
declared OOS, whether such exits are required to be installed or not.
The new criteria were also separated to reference marked required
exits, versus other marked exits, and the revised criteria clearly
articulate the items/conditions that constitute an OOS condition. As
this change applies only to passenger-carrying vehicles, it will not
have any effect on the number of OOS violations cited during Level VI
inspections, which are applicable to carriers transporting transuranics
and highway route controlled quantities of radioactive materials.
(13) Part III, Item 3.c., was amended to modify: (1) The title of
this section; and (2) the OOS condition to include terminology adopted
in Canada's TDG Regulations. While the previous title of this section
referred only to ``Bulk Package Authorization,'' Canada's TDG
Regulations do not reference bulk packages, but instead reference and
define the term ``large means of containment.'' The Canadian Education
Quality Assurance Team (EQAT)--Dangerous Goods Working Group requested
addition of the Canadian terminology in the OOSC to improve uniform
application of the OOS condition. Adding ``large means of containment''
to the OOSC will make it easier for Canadian inspectors to interpret
the criteria. The changes are intended to ensure clarity in the
presentation of the OOS conditions and are not expected to affect the
number of OOS violations cited during Level VI inspections.
(14) Part III, Item 3.d., was amended by adding a note regarding
manhole covers. The CVSA Hazardous Materials Committee contacted the
Truck Trailer Manufacturers Association to discuss manhole securement
with the Tank Engineering Committee. The committee agreed that all
fasteners on the dome need to be engaged and hand tightened to be
considered closed and secured. Based on this information, the committee
voted to add a note to the
[[Page 35447]]
OOSC to clarify that an OOS condition exists when any manhole cover
securement device is missing or unsecured. The change is intended to
ensure clarity in the presentation of the OOS condition and is not
expected to affect the number of OOS violations cited during Level VI
inspections.
(15) The title of Part III, Item 6., was amended to include
terminology adopted in Canada's TDG Regulations. While the previous
title of this section referred only to ``Non-Bulk Packaging,'' Canada's
TDG Regulations do not reference non-bulk packaging, but instead
reference and define the term ``small means of containment.'' The
Canadian EQAT--Dangerous Goods Working Group requested the addition of
Canadian terminology in the title to improve uniform application of the
OOS condition. Adding ``small means of containment'' to the OOSC will
make it easier for Canadian inspectors to interpret the criteria. The
change is intended to ensure clarity in the presentation of the OOS
conditions and is not expected to affect the number of OOS violations
cited during Level VI inspections.
(16) Part III, Item 10.a., regarding requirements pertaining to
Canada's Emergency Response Assistance Plan (ERAP) was amended to
specify that certain ERAP information must be on the shipping document.
The Canadian EQAT--Dangerous Goods Working Group indicated that for
first responders to activate an ERAP, the ERAP reference number and
implementation telephone number must be listed on the shipping
document. Currently, the OOSC only allows inspectors to place a
shipment OOS if the carrier/consignor does not have an approved ERAP at
all. Situations have arisen where the ERAP reference number/activation
telephone number was not listed on the shipping document, and
inspectors were not able to place the dangerous goods shipment OOS as
intended. This additional language specifies that this information is
required. This amendment is applicable only to Canada's ERAP, and will
not have any effect on the number of OOS violations cited during Level
VI inspections in the United States.
(17) The Level VI Inspection Procedures were amended by adding Step
36, ``Proof of Periodic (Annual) Inspection.'' Currently, there is no
language in the Level VI Inspection Procedures addressing the required
periodic (annual) inspection. Adding this item will require each unit
to have evidence that a periodic inspection was conducted and
satisfactorily completed before a CVSA Level VI decal can be applied by
the inspector during a point of origin inspection only. As this is not
an OOS condition for the Level VI Inspection, this amendment will not
have any effect on the number of OOS violations cited during Level VI
inspections.
April 1, 2021, Changes
Four changes in the 2021 edition of the CVSA handbook distinguish
it from the April 1, 2020 edition:
(1) Footnotes 5-8 to Part I, Item 9., were amended to remove
language that repeats the FMCSRs. The CVSA Driver-Traffic Enforcement
Committee determined that there is no reason to repeat information in
the OOSC that is contained in Sec. Sec. 395.1 and 395.3. Quoting the
FMCSRs in the footnotes could potentially confuse an inspector as there
are other applicable exemptions that are not addressed in the
footnotes. The footnotes, 5-8, were removed and reserved because other
documents refer to these notes and renumbering them could cause
confusion. The changes are intended to ensure clarity in the
presentation of the OOS conditions and are not expected to affect the
number of OOS violations cited during Level VI inspections.
Footnote 10 to Part I, Item 9., was amended to clarify that AOBRDs
cannot be used in place of a compliant ELD. However, some carriers are
exempt from using ELDs and they may still use AOBRDs. Language was
added to this footnote to clarify that drivers who are not required to
have an ELD that complies with Sec. 395.22(a), but who utilize an
electronic device other than those described in the regulations, shall
not be declared OOS. The amendment is intended to ensure clarity in the
presentation of the OOS conditions and is not expected to affect the
number of OOS violations cited during Level VI inspections.
(2) In Part I, Items 10.h. and 10.i., regarding RODS in Canada,
were amended to include terminology based on the pending implementation
of the ELD requirement, effective June 12, 2021. A note was also added
to Footnotes 1-2 of the same section. The terminology in Canada's
regulation will change from ``daily log'' to ``RODS.'' However, there
will be some Provinces/Territories that will continue to use the daily
log terminology in their Provincial/Territorial regulations. The
Driver-Traffic Enforcement Committee determined that the appropriate
action would be to refer to both terms to make the OOSC applicable to
all drivers. These amendments are applicable only to Canada's RODS, and
will not have any effect on the number of OOS violations cited during
Level VI inspections in the United States.
(3) Part I, Item 10., regarding RODS in Canada was amended by
adding a footnote 6 to indicate that a driver who is found without an
ELD but is still completing another form of a RODS will currently not
be placed OOS. This enforcement action is different from that
applicable in the U.S., so the note was added for Canadian inspectors
to reference, similar to the note for the U.S (Footnote 10, Part I,
Item 9. United States). The amendment is applicable only to Canada's
RODS, and will not have any effect on the number of OOS violations
cited during Level VI inspections in the United States.
(4) Part II, Item 9.b., was amended to clarify that an inoperative
center high-mounted stop lamp(s) that is required by regulation is
considered a critical vehicle inspection item, but not considered for
OOS purposes. The CVSA-critical vehicle inspection item list and the
OOSC include ``Lighting devices (headlamps, tail lamps, stop lamps,
turn signals, and lamps/flags on projecting loads).'' In both the
United States and Canada, there are regulations requiring some smaller
vehicles to be equipped with center high-mounted stop lamp(s) and they
must be maintained and operational; however, on larger vehicles, they
are optional. Therefore, in those cases where center high-mounted stop
lamp(s) are required, the vehicle will still require at least one brake
light in addition to the center high-mounted stop lamp(s) to avoid
being placed OOS. The amendment is intended to ensure clarity in the
presentation of the OOS conditions and is not expected to affect the
number of OOS 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 OOSC provide uniform enforcement
tolerances for inspections conducted in all three countries.
[[Page 35448]]
VII. Section-by-Section Analysis
Section 385.4 Matter Incorporated by Reference
Section 385.4(b)(1), as amended on February 24, 2020, references
the April 1, 2019, edition of the CVSA handbook. This NPRM would
replace the reference to the April 1, 2019, edition date with a
reference to the new edition date of April 1, 2021.
VIII. Regulatory Analyses
A. Executive Order (E.O.) 12866 (Regulatory Planning and Review), E.O.
13563 (Improving Regulation and Regulatory Review), and DOT Regulations
FMCSA has considered the impact of this proposed rule under E.O.
12866 (58 FR 51735, Oct. 4, 1993), Regulatory Planning and Review, E.O.
13563 (76 FR 3821, Jan. 21, 2011), Improving Regulation and Regulatory
Review, and DOT's regulatory policies and procedures. OIRA determined
that this proposed rule is not a significant regulatory action under
section 3(f) of E.O. 12866, as supplemented by E.O. 13563, and does not
require an assessment of potential costs and benefits under section
6(a)(3) of that Order. Accordingly, OMB has not reviewed it under these
Orders.
The proposed rule, if finalized, would update an incorporation by
reference from the April 1, 2019, edition to the April 1, 2021, 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 inspections
performed from 2015 to 2019 and does not expect the handbook updates to
have any effect on the number of OOS violations cited during Level VI
inspections. Therefore, the proposed rule's impact would be de minimis.
B. Congressional Review Act
Pursuant to the Congressional Review Act (5 U.S.C. 801, et seq.),
the Office of Information and Regulatory Affairs (OIRA) designated this
rulemaking 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
OIRA at OMB 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 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)).
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C. Regulatory Flexibility Act (Small Entities)
The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.)
(RFA), as amended by the Small Business Regulatory Enforcement Fairness
Act of 1996 (Pub. L. 104-121, 110 Stat. 857), 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 U.S.C. 601(6)). Accordingly, 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 businesses. None of the updates from the 2021 edition
imposes new requirements or makes substantive changes to the FMCSRs.
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 would update an incorporation by reference
found at 49 CFR 385.4(b)(1) and referenced at 49 CFR 385.415(b), and
would incorporate by reference the April 1, 2021, edition of the CVSA
handbook. The changes to the 2021 edition of the CVSA handbook from the
2019 edition are intended to ensure clarity in the presentation of the
OOS conditions, and are generally editorial or ministerial. As noted
above, FMCSA does not expect the changes made in the 2021 edition of
the CVSA handbook to affect the number of OOS violations cited during
Level VI inspections. Accordingly, I 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 rulemaking so they can better evaluate its
effects on themselves and participate in the rulemaking initiative. If
the rulemaking would affect your small business, organization, or
governmental jurisdiction and you have questions concerning its
provisions or options for compliance, please consult the person listed
under FOR FURTHER INFORMATION CONTACT.
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.
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. 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 $170 million (which is the
value equivalent of $100 million in 1995, adjusted for inflation to
2020 levels) or more in any one year. Though this rulemaking would not
result in such an expenditure, the Agency does discuss the effects of
this rulemaking elsewhere in this preamble.
F. Paperwork Reduction Act
This rulemaking contains no new information collection requirements
under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
G. E.O. 13132 (Federalism)
A rule has implications for federalism under Section 1(a) of E.O.
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
[[Page 35449]]
responsibilities among the various levels of government.''
FMCSA has determined that this rulemaking would not have
substantial direct costs on or for States, nor would it limit the
policymaking discretion of States. Nothing in this document preempts
any State law or regulation. Therefore, this rulemaking does not have
sufficient federalism implications to warrant the preparation of a
Federalism Impact Statement.
H. Privacy
The Consolidated Appropriations Act, 2005,\5\ requires the Agency
to conduct a privacy impact assessment of a regulation that will affect
the privacy of individuals. This rulemaking would not require the
collection of personally identifiable information.
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\5\ Public Law 108-447, 118 Stat. 2809, 3268, 5 U.S.C. 552a note
(Dec. 8, 2004).
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I. E.O. 13175 (Indian Tribal Governments)
This rulemaking 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.
J. National Environmental Policy Act of 1969
FMCSA analyzed this rulemaking 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 proposed requirements in this
rulemaking are covered by this CE and the rulemaking does not have any
effect on the quality of the environment.
List of Subjects in 49 CFR 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 continues 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. 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, 2021, incorporation by reference approved for Sec.
385.415(b).
* * * * *
Issued under authority delegated in 49 CFR 1.87.
Meera Joshi,
Deputy Administrator.
[FR Doc. 2021-14039 Filed 7-2-21; 8:45 am]
BILLING CODE 4910-EX-P