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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: Vincent G. White Date: 21 August 2024 Subjects: American Government  , Safety, Trucking
Topic: Commercial Vehicle Safety Alliance |
[Federal Register Volume 89, Number 162 (Wednesday, August 21, 2024)]
[Rules and Regulations]
[Pages 67560-67562]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-18749]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
49 CFR Part 385
[Docket No. FMCSA-2024-0073]
RIN 2126-AC65
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 (HMSPs)
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 (HRCQs) of
radioactive material (RAM). The OOSC provide enforcement personnel
nationwide, including FMCSA's State partners, with uniform enforcement
tolerances for inspections. Currently, the regulations reference the
April 1, 2023, edition of the handbook. Through this final rule, FMCSA
incorporates by reference the April 1, 2024, edition.
DATES: Effective September 20, 2024. The incorporation by reference of
certain material listed in this rule is approved by the Director of the
Federal Register as of September 20, 2024.
Petitions for reconsideration of this final rule must be submitted
to the FMCSA Administrator no later than September 20, 2024.
FOR FURTHER INFORMATION CONTACT: David Sutula, Vehicle and Roadside
Operations Division, FMCSA, 1200 New Jersey Avenue SE, Washington, DC
20590-0001, (202) 366-9209, MCPSV@dot.gov.
SUPPLEMENTARY INFORMATION: FMCSA organizes this final rule as follows:
I. Availability of Rulemaking Documents
II. Executive Summary
III. Abbreviations
IV. Legal Basis
V. Discussion of Proposed Rulemaking and Comments
A. Proposed Rulemaking
B. Comments and Responses
VI. Section-by-Section Analysis
VII. Regulatory Analyses
A. E.O. 12866 (Regulatory Planning and Review), E.O. 13563
(Improving Regulation and Regulatory Review), E.O. 14094
(Modernizing Regulatory Review), and DOT Regulatory Policies and
Procedures
B. Congressional Review Act
C. Regulatory Flexibility Act
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-2024-0073/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, 1200 New Jersey Avenue SE,
Washington, DC 20590-0001, between 9 a.m. and 5p.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
Code of Federal Regulations (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, 2023, 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 HRCQs of RAM. 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, Hazardous Materials Division)
at (202) 493-0027. The document may be purchased from the Commercial
Vehicle Safety Alliance, 99 M Street SE, Suite 1025, Washington, DC
20003, 202-998-1002, www.cvsa.org.
Eleven updates distinguish the April 1, 2024, handbook edition from
the April 1, 2023, edition. The updates are all described in detail in
the May 3, 2024, notice of proposed rulemaking (NPRM) for this rule (89
FR 36742). The incorporation by reference of the 2024 edition does not
impose new regulatory requirements.
III. Abbreviations
CE Categorical Exclusion
CFR Code of Federal Regulations
CVSA Commercial Vehicle Safety Alliance
DOT Department of Transportation
FMCSA Federal Motor Carrier Safety Administration
FR Federal Register
HMSP Hazardous Materials Safety Permit
HRCQ Highway Route Controlled Quantity
NPRM Notice of Proposed Rulemaking
OOS Out-of-Service
OOSC Out-of-Service Criteria
PIA Privacy Impact Assessment
PTA Privacy Threshold Assessment
RAM Radioactive Material
RFA Regulatory Flexibility Act
UMRA The Unfunded Mandates Reform Act of 1995
U.S.C. United States Code
IV. Legal Basis
Congress has enacted several statutory provisions to ensure the
safe transportation of hazardous materials in interstate commerce.
Specifically, in provisions codified at 49 United States Code (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 (``HMSPs''), the Secretary of Transportation is required
to promulgate regulations as part of a comprehensive safety program on
HMSPs. The FMCSA Administrator has been delegated authority under 49
U.S.C. 113(f) and 49 CFR 1.87(d)(2) to carry out the functions vested
in the Secretary of Transportation related to HMSPs. Consistent with
that authority, FMCSA has promulgated regulations under 49 CFR part
385, subpart E to address the congressional mandate on HMSPs. Those
regulations are the underlying provisions to which the material
incorporated by reference discussed in this rule is applicable.
Congress authorized DOT by statute to promote safe transportation
of hazardous materials in interstate
[[Page 67561]]
commerce by prescribing, among other things, regulations and minimum
standards for practices, methods, and procedures for inspections and
safety permits for motor vehicles carrying certain hazardous materials
(49 U.S.C. 5105(d); 49 U.S.C. 5109). The purpose of this rule is to
incorporate by reference the 2024 edition of the CVSA handbook
outlining the OOSC and inspection procedures for commercial highway
vehicles transporting RAMs. The provisions within the CVSA handbook are
intended to operate holistically in addressing a range of issues
necessary to ensure the safe transport of hazardous materials. However,
FMCSA recognizes that certain provisions focus on unique topics.
Therefore, FMCSA finds that the various provisions within the CVSA
handbook would be severable and the remaining provision or provisions
within the handbook would continue to operate functionally if any one
or more provisions were invalidated and any other provision(s)
remained.
V. Discussion of Proposed Rulemaking and Comments
A. Proposed Rulemaking
FMCSA published an NPRM on May 3, 2024 (89 FR 36742). Because the
incorporation by reference found at Sec. 385.4(b)(1) and referenced at
Sec. 385.415(b) references the outdated April 1, 2023, 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 current
April 1, 2024, edition. Eleven updates distinguish the April 1, 2024,
edition from the 2023 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 OOSC, and none is expected to
affect the number of OOS violations cited during Level VI inspections.
The incorporation by reference of the 2024 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
June 3, 2024. No comments were submitted.
C. Final Rule
As FMCSA received no comments on the NPRM, the Agency finalizes the
incorporation by reference of the April 1, 2024, edition of the CVSA
handbook without modification.
VI. Section-by-Section Analysis
Section 385.4 Matter Incorporated by Reference
Section 385.4(b)(1), as amended on November 8, 2023, references the
April 1, 2023, edition of the CVSA handbook. This final rule replaces
the reference to the April 1, 2023, edition date with a reference to
the new edition date of April 1, 2024.
VII. Regulatory Analyses
A. Executive Order (E.O.) 12866 (Regulatory Planning and Review), E.O.
13563 (Improving Regulation and Regulatory Review), E.O. 14094
(Modernizing 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, E.O. 14094 (88 FR 21879, Apr. 11, 2023), Modernizing 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 E.O. 14094, 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.
This final rule will update an incorporation by reference from the
April 1, 2023, edition to the April 1, 2024, 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 Motor Carrier Management Information
System (MCMIS) data on inspections performed from 2020 to 2023 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 will 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 (5 U.S.C. 802(4)).
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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,\2\ 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 2024 edition impose new requirements or make
substantive changes to the Federal Motor Carrier Safety Regulations.
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\2\ Public Law 104-121, 110 Stat. 857, (Mar. 29, 1996).
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When an Agency issues a final rule, the RFA requires the Agency to
``prepare and make available an initial regulatory flexibility
analysis'' that will describe the impact of the final rule on small
entities (5 U.S.C. 603(a)). Section 605 of the RFA allows an agency to
certify a rule, instead of preparing an analysis, if the final rule is
not expected to impact a substantial number of small entities. The
final rule will update an incorporation by reference found at Sec.
385.4(b)(1) and referenced at Sec. 385.415(b), and will incorporate by
reference the April 1, 2024, edition of the CVSA handbook. The changes
to the 2024 edition of the CVSA handbook from the 2023 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 2024 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
[[Page 67562]]
action 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 (Pub. L. 104-121, 110 Stat. 857),
FMCSA wants to assist small entities in understanding this final rule
so they can better evaluate its effects on themselves and participate
in the rulemaking initiative. If the final rule will 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 (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.
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 $200 million (which is the value equivalent of $100 million
in 1995, adjusted for inflation to 2023 levels) or more in any 1 year.
Though this final rule will 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 final rule 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 final rule will 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 final rule 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 final rule will 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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The Privacy Act (5 U.S.C. 552a) applies only to Federal agencies
and any non-Federal agency that receives records contained in a system
of records from a Federal agency for use in a matching program.
The E-Government Act of 2002,\4\ requires Federal agencies to
conduct a Privacy Impact Assessment (PIA) for new or substantially
changed technology that collects, maintains, or disseminates
information in an identifiable form. No new or substantially changed
technology will collect, maintain, or disseminate information as a
result of this rule. Accordingly, FMCSA has not conducted a PIA.
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\4\ Public Law 107-347, sec. 208, 116 Stat. 2899, 2921 (Dec. 17,
2002).
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In addition, the Agency submitted a Privacy Threshold Assessment
(PTA) to evaluate the risks and effects the proposed rulemaking might
have on collecting, storing, and sharing personally identifiable
information. The PTA was adjudicated by DOT's Chief Privacy Officer on
March 26, 2024.
I. E.O. 13175 (Indian Tribal Governments)
This final rule does not have Tribal implications under E.O. 13175,
Consultation and Coordination with Indian Tribal Governments, because
it does not have a substantial direct effect on one or more Indian
Tribes, on the relationship between the Federal Government and Indian
Tribes, or on the distribution of power and responsibilities between
the Federal Government and Indian Tribes.
J. National Environmental Policy Act of 1969
FMCSA analyzed this final 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 rule 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. Amend Sec. 385.4 by revising paragraph (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, 2024; incorporation by reference approved for Sec.
385.415(b).
* * * * *
Issued under authority delegated in 49 CFR 1.87.
Vincent G. White,
Acting Administrator.
[FR Doc. 2024-18749 Filed 8-20-24; 8:45 am]
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