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Incorporation by Reference; North American Standard Out-of-Service Criteria; Hazardous Materials Safety Permits Publication: Federal Register Signing Official: Robin Hutcheson Agency: Federal Motor Carrier Safety Administration Date: 8 August 2022  
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[Federal Register Volume 87, Number 151 (Monday, August 8, 2022)]
[Proposed Rules]
[Pages 48141-48146]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-16510]
[[Page 48141]]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
49 CFR Part 385
[Docket No. FMCSA-2022-0128]
RIN 2126-AC48
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, 2021, edition of the handbook. Through this notice, FMCSA
proposes to incorporate by reference the April 1, 2022, edition.
DATES: Comments must be received on or before September 7, 2022.
ADDRESSES: You may submit comments identified by Docket Number FMCSA-
2022-0128 using any of the following methods:
Federal eRulemaking Portal: Go to https://www.regulations.gov/docket/FMCSA-2022-0128/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: Dockets Operations, U.S.
Department of Transportation, 1200 New Jersey Avenue SE, West Building,
Ground Floor, Room W12-140, Washington, DC 20590-0001, 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.
Viewing incorporation by reference material: You may inspect the
material proposed for incorporation by reference at U.S. Department of
Transportation, 1200 New Jersey Avenue SE, Washington, DC 20590-0001
between 8 a.m. and 5 p.m., Monday through Friday, except Federal
holidays. The telephone number is (202) 366-1812. Copies of the
material are available as indicated in the ``EXECUTIVE SUMMARY AND 1
CFR 51'' section of this preamble.
FOR FURTHER INFORMATION CONTACT: Mr. Jos[eacute] Cestero, Vehicle and
Roadside Operations Division, FMCSA, 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: FMCSA organizes this notice of proposed
rulemaking (NPRM) as follows:
I. Public Participation and Request for Comments
A. Submitting Comments
B. Viewing Comments and Documents
C. Privacy
II. Executive Summary
III. Abbreviations
IV. Legal Basis
V. Background
VI. Discussion of Proposed Rulemaking
VII. International Impacts
VIII. Section-by-Section Analysis
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
B. Congressional Review Act
C. Advance Notice of Proposed Rulemaking
D. Regulatory Flexibility Act (Small Entities)
E. Assistance for Small Entities
F. Unfunded Mandates Reform Act of 1995
G. Paperwork Reduction Act
H. E.O. 13132 (Federalism)
I. Privacy
J. E.O. 13175 (Indian Tribal Governments)
K. 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 (FMCSA-2022-0128), 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 FMCSA
can contact you if there are questions regarding your submission.
To submit your comment online, go to https://www.regulations.gov/docket/FMCSA-2022-0128/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 (CBI)
CBI is commercial or financial information that is both customarily
and actually treated as private by its owner. Under the Freedom of
Information Act (5 U.S.C. 552), CBI is exempt from public disclosure.
If your comments responsive to the 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 the 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 Freedom of
Information Act, and they will not be placed in the public docket of
the NPRM. Submissions containing CBI should be sent to Mr. Brian
Dahlin, Chief, Regulatory Analysis Division, Office of Policy, FMCSA,
1200 New Jersey Avenue SE, Washington DC 20590-0001. Any comments FMCSA
receives not specifically designated as CBI will be placed in the
public docket for this rulemaking.
B. Viewing Comments and Documents
To view any documents mentioned as being available in the docket,
go to https://www.regulations.gov/docket/FMCSA-2022-0128/document and
choose the document to review. To view comments, click this NPRM, then
click ``Browse Comments.'' If you do not have access to the internet,
you may view the docket online by visiting Dockets
[[Page 48142]]
Operations in Room W12-140 on the ground floor of the DOT West
Building, 1200 New Jersey Avenue SE, Washington, DC 20590-0001, 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
DOT solicits comments from the public to better inform its
regulatory process, in accordance with 5 U.S.C. 553(c). 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--Federal Docket Management System
(FDMS)), which can be reviewed at www.transportation.gov/privacy.
II. Executive Summary and 1 CFR 51
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, 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.'' 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 Safety, 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, (301) 830-6143,
www.cvsa.org.
In this NPRM, FMCSA proposes to incorporate by reference the April
1, 2022, edition of the handbook. This NPRM will discuss all updates to
the currently incorporated 2021 edition of the handbook.
Fourteen updates distinguish the April 1, 2022, handbook edition
from the 2021 edition. The incorporation by reference of the 2022
edition does not impose new regulatory requirements.
III. Abbreviations
CDL Commercial Driver's License
CVSA Commercial Vehicle Safety Alliance
DOT Department of Transportation
FMCSA Federal Motor Carrier Safety Administration
FMCSRs Federal Motor Carrier Safety Regulations
FR Federal Register
MCMIS Motor Carrier Management Information System
OOS Out-of-Service
OOSC Out-of-Service Criteria
RFA Regulatory Flexibility Act
UMRA The Unfunded Mandates Reform Act of 1995
U.S.C. United States Code
IV. 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 notice is applicable.
V. 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 2018-2021 data from FMCSA's Motor Carrier Management
Information System (MCMIS), approximately 2.86 million Level I-Level VI
inspections were performed annually. Nearly 96 percent of these were
Level I,\1\ Level II,\2\ and Level III \3\ inspections. During the same
period, an average of 670 Level VI inspections were performed annually,
comprising only 0.02 percent of all inspections. On average, OOS
violations were cited in
[[Page 48143]]
only 4 Level VI inspections annually (0.6 percent), whereas on average,
OOS violations were cited in 212,603 Level I inspections (26 percent),
249,550 Level II inspections (25 percent), and 52,911 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 2022 edition 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 2022 edition of the CVSA handbook to
affect the number of OOS violations cited during Level VI inspections.
VI. Discussion of Proposed Rulemaking
Section 385.4(b)(1), as amended on December 23, 2021 (86 FR 72854),
references the April 1, 2021, edition of the CVSA handbook. This NPRM
proposes to amend Sec. 385.4(b)(1) by replacing the reference to the
April 1, 2021, edition date with a reference to the new edition date of
April 1, 2022.
The changes made based on the 2022 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.
April 1, 2022, Changes
Fourteen changes in the 2022 edition of the CVSA handbook
distinguish it from the April 1, 2021, edition:
(1) The Policy Statement of Part I was amended to provide a clear
definition of OOSC and define the term ``imminent hazard.'' CVSA
determined that the term ``imminent hazard'' should be used to describe
an OOSC. As such, wording was used to provide consistency between the
OOSC and the Federal Motor Carrier Safety Regulations (FMCSRs). A note
was also added to clarify that the OOSC in Part I does not apply to a
co-driver. This clarification is not expected to have any effect on the
number of OOS violations cited during Level VI inspections in the
United States.
(2) Part I, Item 2.a. and Item 3.a., was amended to add a note
clarifying that information received from the National Law Enforcement
Telecommunication System or the Commercial Driver's License Information
System may be used for U.S. home jurisdiction license verification
without the need of additional confirmation. 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 in the United States.
(3) Part I, Item 2.b. and Item 3.c., were amended to clarify in the
note on Mexico's ``Licencia Federal de Conductor'' (LFC) that only
Class E requires an endorsement. Prior to February 25, 2016, a driver
with Mexico's Class B license could operate a commercial motor vehicle
combination that included double trailers. The ``Observaciones''
section on the back of the license did not include an explicit doubles
endorsement. Similarly, a driver could obtain Mexico's Class E license
and the ``Observaciones'' section on the back of the license did not
include an explicit hazardous materials endorsement. After February 25,
2016, Mexico's Direccion General de Autotransporte Federal,
Secretar[iacute]a de Infraestructura, Comunicaciones, y Transportes
required a new Class E license for drivers that wish and are qualified
to operate doubles and/or transport hazardous materials. Additionally,
the ``Observaciones'' section on the back of the license has an
explicit endorsement specifying whether the driver is authorized to use
doubles or transport hazardous materials or both. However, a
clarification was needed to specify that the endorsement on the back of
the license is for the Class E license, not the Class B license. This
information had already been updated in the LFC Inspection Schematic
issued in April 2021. This amendment is applicable only to the
enforcement of Mexican regulations and will not have any effect on the
number of OOS violations cited during Level VI inspections in the
United States.
(4) Part I, Item 7.c., was amended to add a table clarifying the
Commercial Driver's License (CDL) and non-CDL drivers prohibited in the
Drug and Alcohol Clearinghouse. Currently, this section details the OOS
actions that are required to be taken when a driver is recorded in the
Drug and Alcohol Clearinghouse as prohibited from performing safety-
sensitive functions per 382.501(a). However, CVSA noted that the
current FMCSRs, specifically Sec. 382.501, do not state that a driver
operating a non-CDL required vehicle and engaged in intrastate commerce
be placed OOS. Therefore, a guidance table was provided to clarify the
OOSC for CDL and non-CDL drivers prohibited from performing safety
sensitive functions during intrastate and interstate commerce. A note
was also added explaining the applicability of the table. 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 in the United States.
(5) The Policy Statement of Part II was amended to provide a clear
definition of OOSC and define the term ``imminent hazard.'' CVSA
determined that the term ``imminent hazard'' should be used to describe
an OOSC. As such, wording was used to provide consistency between the
OOSC and the FMCSRs. A note was also added to clarify that the OOSC in
Part I does not apply to a co-driver. This clarification is not
expected to have any effect on the number of OOS violations cited
during Level VI inspections in the United States.
(6) The chart for ``Defective Brakes'' in Part II, Item 1.a., was
amended to add a note to clarify that brakes on wheels required or not
shall be used in the 20 percent calculation for the total number of
brakes. Clarification was necessary specifically in driveaway/towaway
combination cases where brakes are not required on the towed unit. The
20 percent calculation is only used to determine if the vehicle or
combination is OOS based on the number of defective brakes versus the
number of operational brakes. Therefore, CVSA determined that all
brakes must be considered for the purpose of imminent hazard, whether
they are required or not. This clarification is not expected to have
any effect on the number of OOS violations cited during Level VI
inspections in the United States.
(7) Part II, Item 1.d.2., was amended to add language to specify
that a breakaway device can be attached to a permanently mounted hitch.
Clarification was needed to specify that a hitch that is bolted to the
towing vehicle should be considered permanently attached to the
vehicle. Thus, a breakaway device like a cable attached to a permanent
hitch is acceptable. This clarification is not expected to have any
effect on the number of OOS violations cited during Level VI
inspections in the United States.
(8) Reference table Part II, Item 1.h.1. was amended to clarify
when an air hose should be placed OOS. CVSA contacted the industry to
discuss air brake hose failure modes and OOS conditions. Brake hose
manufacturers provided information indicating that when the
reinforcement ply layer is frayed the integrity of the brake hose is
compromised and thus, to prevent a
[[Page 48144]]
failure, the brake hose should be placed OOS. According to this
information, The Society of Automotive Engineers provided updated
language and guidance to the OOS condition. As such, CVSA added
language to the OOS reference table and updated the diagram for air
hoses/tubing. In addition, a note was also added to define the term
``reinforcement ply.'' 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 in the
United States.
(9) Part II, Item 1.o., was amended to add an OOS condition to
address a situation where the entire master cylinder assembly is found
loose. In response to a video that shows an inspection where the entire
master cylinder assembly, including the backup system, was loose on the
firewall, CVSA determined that this condition, although rare, would
cause a severe reduction in braking action and, in other cases, brake
failure if the assembly is completely detached from the firewall. Part
II, Item 1.o. was amended to add an OOS condition that a vehicle should
be placed OOS when the master cylinder assembly including the backup
system, power assist, or power brake unit has loose or missing mounting
bolts. 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 in the United States.
(10) Part II, Item 9.b. was amended to clarify that this section
only applies to lighting systems and no other electrical systems. There
have been instances where inspectors have been using this section and
applying it incorrectly to electric brakes. The purpose of the OOS
condition in the ``Lighting Devices'' section was to only address
lighting. However, for further clarity, CVSA determined that the term
``lighting'' should be added to the existing language to clarify that
this condition only applies to the lights. 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 in the United States.
(11) Part II, Item 12.a.2., was amended to remove the reference to
``breaker strip'' in a steering tire. The term ``breaker strip'' in the
OOSC is outdated nomenclature that is no longer used in reference
materials describing radial truck tires. Enforcement personnel
therefore have trouble identifying and finding the area of the
``breaker strip'' in supporting documentation. Also, the sidewall and
tread area OOS conditions cover the same area of the tire rendering the
term redundant. As such, CVSA determined that the term ``breaker
strip'' should be removed from the section. 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 in the United States.
(12) The Policy Statement of Part III was amended to provide a
clear definition of OOSC and define the term ``imminent hazard.'' CVSA
determined that the term ``imminent hazard'' should be used to describe
an OOSC. As such, wording was used to provide consistency between the
OOSC and the FMCSRs. A note was also added to clarify that the OOSC in
Part III does not apply to a co-driver. This clarification is not
expected to have any effect on the number of OOS violations cited
during Level VI inspections in the United States.
(13) Part III, Item 4.a., was amended to clarify in the notes that
the identification number is not required on the transport vehicle if
it is visible on the bulk packaging. CVSA determined that if there is
no identification number on the transport vehicle, the identification
number displayed on an orange panel or incorporated with a placard (in
the United States and Canada), or on a white square-on-point (United
States only) that is visible on a bulk package is sufficient to satisfy
the requirement. 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 in the
United States.
(14) The Policy Statement of Part IV was amended to provide a
better description of OOSC and define the term ``imminent hazard.'' The
former policy statement stated that an ``Out of Service Violation''
preclude a driver from further operation of a commercial motor vehicle
for a specified period of time or for some violations until a required
condition is met. CVSA found that the language in the OOSC description
needed consistency with the FMCSRs and determined that a driver that
presents an ``imminent hazard'' precluding safe operation of a
commercial motor vehicle should be used to describe OOSC. Specifically,
383.5 defines imminent hazard as the existence of any condition of a
driver that substantially increases the likelihood of serious injury or
death if not discontinued immediately. As such, CVSA updated the
language in the OOSC and defined ``imminent hazard'' as described in
the FMCSRs. A note was also added to clarify that the OOSC in Part IV
does not apply to a co-driver. This clarification is not expected to
have any effect on the number of OOS violations cited during Level VI
inspections in the United States.
VII. International Impacts
Motor carriers and drivers are subject to the laws and regulations
of the countries that they operate in, unless an international
agreement states otherwise. Drivers and carriers should be aware of the
regulatory differences between 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.
VIII. Section-By-Section Analysis
Section 385.4 Matter Incorporated by Reference
Section 385.4(b)(1), as amended on December 23, 2021, references
the April 1, 2021, edition of the CVSA handbook. This NPRM would
replace the reference to the April 1, 2021, edition date with a
reference to the new edition date of April 1, 2022.
IX. 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 considered the impact of this notice of proposed
rulemaking 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. The Office of Information and Regulatory Affairs within the
Office of Management and Budget (OMB) determined that this notice of
proposed rulemaking 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 that
E.O.
The proposed rule, if finalized, would update an incorporation by
reference from the April 1, 2021, edition to the April 1, 2022, edition
of CVSA's handbook titled ``North American Standard Out-of-Service
Criteria and Level VI Inspection Procedures and Out-
[[Page 48145]]
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 2018 to 2021 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
This rule is not a major rule as defined under the Congressional
Review Act (5 U.S.C. 801-808).\4\
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\4\ A ``major rule'' means any rule that 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, geographic regions, Federal,
State, or local government agencies; 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 (49 CFR 389.3).
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C. Advance Notice of Proposed Rulemaking
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.
D. Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601, et seq.) (RFA), as
amended by the Small Business Regulatory Enforcement Fairness Act of
1996,\5\ 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 2022 edition impose new requirements or make
substantive changes to the FMCSRs.
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\5\ Public Law 104-121, 110 Stat. 857, (Mar. 29, 1996).
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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
proposed rule is not expected to impact a substantial number of small
entities. The proposed rule would update an incorporation by reference
found at Sec. 385.4(b)(1) and referenced at Sec. 385.415(b), and
would incorporate by reference the April 1, 2022, edition of the CVSA
handbook. The changes to the 2022 edition of the CVSA handbook from the
2021 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 2022 edition of
the CVSA handbook to affect the number of OOS violations cited during
Level VI inspections in the United States. Accordingly, I certify that
the proposed action would 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,\6\ FMCSA wants to assist small
entities in understanding this proposed rule so they can better
evaluate its effects on themselves and participate in the rulemaking
initiative. If the proposed rule 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.
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\6\ Public Law 104-121, 110 Stat. 857, (Mar. 29, 1996).
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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 (Office of the National
Ombudsman, see https://www.sba.gov/about-sba/oversight-advocacy/office-national-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.
F. Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538)
(UMRA) 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 $178 million (which is the
value equivalent of $100 million in 1995, adjusted for inflation to
2021 levels) or more in any 1 year. Though this NPRM would not result
in such an expenditure, and the analytical requirements of UMRA do not
apply as a result, the Agency discusses the effects of this rule
elsewhere in this preamble.
G. Paperwork Reduction Act
This proposed rule contains no new information collection
requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
3520).
H. 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 responsibilities among the various levels of
government.''
FMCSA has determined that this rule 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 rule does not have sufficient federalism
implications to warrant the preparation of a Federalism Impact
Statement.
I. Privacy
The Consolidated Appropriations Act, 2005,\7\ requires the Agency
to assess the privacy impact of a regulation that will affect the
privacy of individuals. This NPRM would not require the collection of
personally identifiable information.
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\7\ Public Law 108-447, 118 Stat. 2809, 3268, note following 5
U.S.C. 552a (Dec. 4, 2014).
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J. E.O. 13175 (Indian Tribal Governments)
This rule does not have Tribal implications under E.O. 13175,
Consultation and Coordination with Indian Tribal Governments, because
it
[[Page 48146]]
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 Environmental Policy Act of 1969
FMCSA analyzed this proposed rule pursuant to 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), 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.
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, 31151, 31502; sec.
113(a), Pub. L. 103-311, 108 Stat. 1673, 1676; sec. 408, Pub. L.
104-88, 109 Stat. 803, 958; sec. 350, Pub. L. 107-87, 115 Stat. 833,
864; sec. 5205, Pub. L. 114-94, 129 Stat. 1312, 1537; and 49 CFR
1.87.
0
2. Amend Sec. 385.4 by revising paragraphs (a) and (b)(1) to read as
follows:
Sec. 385.4 Matter incorporated by reference.
(a) Certain material is incorporated by reference into this part
with the approval of the Director of the Federal Register in accordance
with 5 U.S.C. 552(a) and 1 CFR part 51. All approved incorporation by
reference (IBR) material is available for inspection at the FMCSA and
at the National Archives and Records Administration (NARA). Contact
FMCSA at: Federal Motor Carrier Safety Administration, Office of
Enforcement and Compliance, 1200 New Jersey Ave. SE, Washington, DC
20590; Attention: Chief, Compliance Division at (202) 366-1812. For
information on the availability of this material at NARA, email:
fr.inspection@nara.gov, or go to: www.archives.gov/federal-register/cfr/ibr-locations.html. The material may be obtained from the source in
the following paragraph of this section.
(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, 2022, incorporation by reference approved for Sec.
385.415(b).
* * * * *
Issued under authority delegated in 49 CFR 1.87.
Robin Hutcheson,
Deputy Administrator.
[FR Doc. 2022-16510 Filed 8-5-22; 8:45 am]
BILLING CODE 4910-EX-P