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Incorporation by Reference; North American Standard Out-of-Service Criteria; Hazardous Materials Safety Permits Publication: Federal Register Agency: Federal Motor Carrier Safety Administration Byline: Robin Hutcheson Date: 22 December 2022 Subjects: American Government  , Safety, Trucking
Topic: Commercial Vehicle Safety Alliance |
[Federal Register Volume 87, Number 245 (Thursday, December 22, 2022)]
[Rules and Regulations]
[Pages 78579-78582]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-27774]
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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: Final rule.
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SUMMARY: FMCSA amends its Hazardous Materials Safety Permits
regulations to incorporate by reference the April 1, 2022, edition of
the Commercial Vehicle Safety Alliance's (CVSA) handbook (the handbook)
containing inspection procedures and Out-of-Service Criteria (OOSC) for
the inspection of commercial motor vehicles used in the transportation
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 these inspections. Through this rule, FMCSA incorporates
by reference the April 1, 2022, edition of the handbook.
DATES: Effective January 23, 2023. The incorporation by reference of
the material described in the rule is approved by the Director of the
Federal Register as of January 23, 2023.
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: This final rule is organized as follows:
I. Availability of Rulemaking Documents
II. Executive Summary
III. Abbreviations
IV. Legal Basis for the Rulemaking
V. Background
VI. Discussion of Proposed Rulemaking and Comments
A. Proposed Rulemaking
B. Comments and Responses
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 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. Availability of Rulemaking 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 final rule,
then click ``Browse Comments.'' If you do not have access to the
internet, you may view the docket online by visiting Dockets Operations
at U.S. Department of Transportation, Room W12-140, 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.
II. Executive Summary and 1 CFR 51
This final rule updates 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 OOSC for inspections of shipments of transuranic waste and highway
route-controlled quantities of radioactive material. The
[[Page 78580]]
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, 99 M Street SE, Suite 1025,
Washington, DC 20003, (202) 998-1002, cvsahq@cvsa.org.
Fourteen updates distinguish the April 1, 2022, handbook edition
from the 2021 edition. The updates are all described in detail in the
September 7, 2022, notice of proposed rulemaking (NPRM) for this rule
(87 FR at 48141). 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 final rule 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.
Thereafter, 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 must pass the North American
Standard Level VI Inspection prior to the shipment being allowed to
travel in the United States. All CMVs transporting highway route-
controlled quantities of radioactive material shipments into 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.''
Covid-19 affected the number of roadside inspections for Level I-
Level VI primarily during 2020 and 2021. In 2018-2019 approximately 3.5
million Level I-Level VI inspections were performed annually, as
compared to 2020-2021 where approximately 2.7 million Level I-Level VI
inspections were performed annually. Across all years, nearly 96
percent of these inspections in each year were Level I, Level II, and
Level III inspections. During 2018-2019 an average of 1,010 Level VI
inspections were performed annually which dropped to an average of 600
annually during 2020-2021 due to Covid-19. On an annual basis Level VI
inspections comprise only 0.02 percent of all inspections and, on
average, OOS violations were cited in only 6 Level VI inspections
annually (0.6 percent). In comparison, on average, OOS violations were
cited in 26 percent of all Level I, 25 percent of all Level II, and 6
percent of all Level III inspections annually across 2018-2021
irrespective of Covid-19. 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.
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 and Comments
A. Proposed Rulemaking
FMCSA published a NPRM on August 8, 2022 (87 FR 48141). Whereas the
incorporation by reference found at 49 CFR 385.4 and referenced at 49
CFR 385.415(b) references the April 1, 2021, 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, 2022, edition.
Fourteen updates distinguish the April 1, 2022, edition from the 2021
edition. Each of the changes was described and discussed in detail in
the NPRM. Generally, the changes serve to clarify or provide additional
guidance to inspectors
[[Page 78581]]
regarding uniform implementation and application of the out-of-service
criteria, and none is expected to affect the number of out-of-service
violations cited during Level VI inspections. The incorporation by
reference of the 2022 edition does not change what constitutes a
violation of FMCSA regulations.
B. Comments to the NPRM
FMCSA solicited comments concerning the NPRM for 30 days ending
September 7, 2022. By that date, one comment was received from CVSA,
which commended FMCSA for publishing the NPRM and encouraged FMCSA to
finalize the rule and update the incorporation by reference.
C. Changes From the NPRM
FMCSA makes an additional revision to 49 CFR 385.4(b) in this final
rule to update the address for CVSA. This change is non-substantive and
ensures that the incorporation by reference information in Sec. 385.4
is accurate and up-to-date.
VII. Section-by-Section Analysis
Section 385.4 Matter Incorporated by Reference
Paragraph (a) of Sec. 385.4 is amended to conform with Office of
Federal Register requirements for incorporation by reference paragraphs
in regulatory text. The introductory text to paragraph (b) is amended
by updating the address for CVSA. Paragraph (b)(1) is amended by
replacing the reference to the April 1, 2021, edition date with a
reference to the new edition date of April 1, 2022.
VII. 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 final 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. The Office of
Information and Regulatory Affairs within the Office of Management and
Budget (OMB) determined that this final 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 that E.O.
The final rule updates 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-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 final 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).\1\
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\1\ 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. 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 (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 2022 edition
impose new requirements or make 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
final rule is not expected to impact a substantial number of small
entities. FMCSA received no comments in response to the NPRM that would
cause the Agency to reconsider the initial determination that this
rulemaking is not expected to impact a substantial number of small
entities. This final rule updates an incorporation by reference found
at Sec. 385.4(b)(1) and referenced at Sec. 385.415(b), and
incorporates 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
this final rule will not have a significant economic impact on a
substantial number of small entities.
D. Assistance for Small Entities
In accordance with section 213(a) of the Small Business Regulatory
Enforcement Fairness Act of 1996,\2\ 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 final rule affects 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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\2\ 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
[[Page 78582]]
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)
(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 rulemaking 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.
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 responsibilities among the various levels of
government.''
FMCSA has determined that this rulemaking does not have substantial
direct costs on or for States, nor does 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,\3\ requires the Agency
to assess the privacy impact of a regulation that will affect the
privacy of individuals. This rulemaking does not require the collection
of personally identifiable information.
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\3\ Public Law 108-447, 118 Stat. 2809, 3268, note following 5
U.S.C. 552a (Dec. 4, 2014).
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I. 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 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 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 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 amends 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. Revise Sec. 385.4 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 inspection at NARA, visit www.archives.gov/federal-register/cfr/ibr-locations.html or email fr.inspection@nara.gov. The
material may be obtained from the source in the following paragraph of
this section.
(b) Commercial Vehicle Safety Alliance (CVSA), 99 M Street SE,
Suite 1025, Washington, DC 20003, telephone (202) 998-1002,
www.cvsa.org.
(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).
(2) ``Operational Policy 4: Inspector Training and Certification'',
Revised April 29, 2021 (CVSA Operational Policy 4); incorporation by
reference approved for Sec. 385.207. (Also available at
www.fmcsa.dot.gov/certification).
Issued under authority delegated in 49 CFR 1.87.
Robin Hutcheson,
Administrator.
[FR Doc. 2022-27774 Filed 12-21-22; 8:45 am]
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