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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: Meera Joshi Date: 23 December 2021 Subjects: American Government  , Safety, Trucking
Topic: Commercial Vehicle Safety Alliance |
[Federal Register Volume 86, Number 244 (Thursday, December 23, 2021)]
[Rules and Regulations]
[Pages 72851-72854]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-27851]
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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: Final rule.
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SUMMARY: FMCSA amends 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. Through this rule, FMCSA incorporates by
reference the April 1, 2021, edition of the handbook.
DATES: Effective February 22, 2022. The incorporation by reference of
the material described in the rule is approved by the Director of the
Federal Register as of February 22, 2022.
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 final rule is organized as follows:
I. Availability of Rulemaking Documents
II. Executive Summary
III. Legal Basis for the Rulemaking
IV. Background
V. Discussion of Proposed Rulemaking and Comments
A. Proposed Rulemaking
B. Comments and Responses
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. Availability of Rulemaking Documents
To view any documents mentioned as being available in the docket,
go to https://www.regulations.gov/docket/FMCSA-2021-0063/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
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, 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.
Twenty-one updates distinguish the April 1, 2021, handbook edition
from the 2019 edition. The updates are all
[[Page 72852]]
described in detail in the July 6, 2021, notice of proposed rulemaking
(NPRM) for this rule (86 FR 35445-47). 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 final rule is applicable.
IV. Background
In 1986, the U.S. Department of Energy and CVSA entered into a
cooperative agreement to develop a higher level of inspection
procedures, out-of-service (OOS) conditions and/or criteria, an
inspection decal, and a training and certification program for
inspectors to conduct inspections of 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.[FEDREG][VOL]*[/VOL][NO]*[/
NO][DATE]*[/DATE][RULES][RULE][PREAMB][AGENCY]*[/AGENCY][SUBJECT]*[/
SUBJECT][/PREAMB][SUPLINF][HED]*[/HED]
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 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
vehicles involved in Level VI inspections 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 from the 2019 edition of the CVSA handbook to the 2021
edition, which includes changes adopted in the 2020 edition, 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 and Comments
A. Proposed Rulemaking
FMCSA published a notice of proposed rulemaking (NPRM) on July 6,
2021 (86 FR 35443). Whereas the incorporation by reference found at 49
CFR 385.4 and referenced at 49 CFR 385.415(b) references the April 1,
2019, edition of CVSA's ``North American Standard Out-of-Service
Criteria and Level VI Inspection Procedures and Out-of-Service Criteria
for Commercial Highway Vehicles Transporting Transuranics and Highway
Route Controlled Quantities of Radioactive Materials as defined in 49
CFR part 173.403,'' the NPRM proposed to incorporate by reference the
April 1, 2021, edition, which also captures changes adopted in the
April 1, 2020, edition. Cumulatively, twenty-one updates distinguish
the April 1, 2021, edition from the 2019 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
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 2021 edition does not change what constitutes a
violation of FMCSA regulations.
B. Comments and Responses
FMCSA solicited comments concerning the NPRM for 30 days ending
August 5, 2021. By that date, three comments were received, from CVSA
and two private citizens. CVSA commended FMCSA for publishing the NPRM,
and encouraged FMCSA to finalize the rule and update the incorporation
by reference because ``the current reference of the April 1, 2019
edition is outdated and does not reflect
[[Page 72853]]
the most up to date Standard, which was published on April 1, 2021.''
One comment from a private citizen was outside the scope of this
rulemaking.
One comment from a private citizen recommended that FMCSA not
include the date of the handbook in the regulations so that updating
the date through rulemakings would not be necessary.
Response: FMCSA must specify which version of a document is being
incorporated by reference under the requirements of 1 CFR part 51.
Therefore, in order to ensure that the most recent version of the
handbook is incorporated by reference at 49 CFR 385.415(b), FMCSA must
publish a new rulemaking for each updated version.
VI. International Impacts
The Federal Motor Carrier Safety Regulations (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.
VII. Section-by-Section Analysis
Section 385.4 Matter Incorporated by Reference[FEDREG][VOL]*[/
VOL][NO]*[/NO][DATE]*[/DATE][RULES][RULE][PREAMB][AGENCY]*[/
AGENCY][SUBJECT]*[/SUBJECT][/PREAMB][SUPLINF][HED]*[/HED]
Section 385.4(b)(1), is amended by replacing 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 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 (OIRA) 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, the Office of Management and Budget (OMB) has
not reviewed it under these orders.
The final rule updates 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 final rule's impact would be de minimis.
B. Congressional Review Act
Pursuant to the Congressional Review Act (5 U.S.C. 801, et seq.),
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
final rule is not expected to impact a substantial number of small
entities. This final rule updates an incorporation by reference found
at 49 CFR 385.4(b)(1) and referenced at 49 CFR 385.415(b), and
incorporates 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 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, 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.
[[Page 72854]]
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 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,\5\ requires the Agency
to conduct a privacy impact assessment (PIA) of a regulation that will
affect the privacy of individuals. This rulemaking does not require the
collection of personally identifiable information, and therefore a PIA
is not necessary.
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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)[FEDREG][VOL]*[/VOL][NO]*[/
NO][DATE]*[/DATE][RULES][RULE][PREAMB][AGENCY]*[/AGENCY][SUBJECT]*[/
SUBJECT][/PREAMB][SUPLINF][HED]*[/HED]
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 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 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(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. 2021-27851 Filed 12-22-21; 8:45 am]
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