[Federal Register Volume 84, Number 130 (Monday, July 8, 2019)]
[Rules and Regulations]
[Pages 32323-32326]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-14226]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Part 385

[Docket No. FMCSA-2018-0165]
RIN 2126-AC01


Incorporation by Reference; North American Standard Out-of-
Service Criteria; Hazardous Materials Safety Permits

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION: Final rule.

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SUMMARY: FMCSA amends its Hazardous Materials Safety Permit regulations 
to incorporate by reference the April 1, 2018, edition of the 
Commercial Vehicle Safety Alliance's (CVSA) ``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 Out-of-Service 
Criteria provide uniform enforcement tolerances for roadside 
inspections to enforcement personnel nationwide, including FMCSA's 
State partners.

DATES: This final rule is effective July 8, 2019. The incorporation by 
reference of certain publications listed in the regulations is approved 
by the Director of the Federal Register in accordance with 5 U.S.C. 
552(a) and 1 CFR part 51 as of July 8, 2019.
    Petitions for Reconsideration of this final rule must be submitted 
to the FMCSA Administrator no later than August 7, 2019.

ADDRESSES: Petitions for reconsideration must be written in English and 
mailed or delivered to: Administrator, Federal Motor Carrier Safety 
Administration, 1200 New Jersey Avenue SE, Washington, DC 20590-0001.

FOR FURTHER INFORMATION CONTACT: Mr. Michael Huntley, Chief, Vehicle 
and Roadside Operations Division, Federal Motor Carrier Safety 
Administration, 1200 New Jersey Avenue SE, Washington, DC 20590-0001 or 
by telephone at 202-366-9209. If you have questions on viewing or 
submitting material to the docket, contact Docket Services, telephone 
(202) 366-9826.

SUPPLEMENTARY INFORMATION:

I. Rulemaking Documents

A. Availability of Rulemaking Documents

    For access to docket FMCSA-2018-0165 to read background documents 
and comments received, go to http://www.regulations.gov at any time, or 
to Docket Services at U.S. Department of Transportation, Room W12-140, 
1200 New Jersey Avenue SE, Washington, DC 20590, between 9 a.m. and 5 
p.m., Monday through Friday, except Federal holidays.

B. Privacy Act

    In accordance with 5 U.S.C. 553(c), DOT solicits comments from the 
public to better inform its rulemaking process. DOT posts these 
comments, without edit, including any personal information the 
commenter provides, to www.regulations.gov, as described in the system 
of records notice (DOT/ALL-14 FDMS), which can be reviewed at 
www.dot.gov/privacy.

II. Executive Summary

    This rulemaking updates an incorporation by reference found at 49 
CFR 385.4 and referenced at 49 CFR 385.415(b). Section 385.4(b) 
currently references the April 1, 2016, 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 Out-of-
Service Criteria, while not regulations, provide uniform enforcement 
tolerances for roadside inspections to enforcement personnel 
nationwide, including FMCSA's State partners. In this final rule, FMCSA 
incorporates by reference the April 1, 2018, edition, which includes 
changes adopted in the April 1, 2017 edition.

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 to address the congressional mandate on 
hazardous materials. Those regulations on hazardous materials 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 (DOE) and CVSA entered into 
a cooperative agreement to develop a higher level of inspection 
procedures, out-of-service 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

[[Page 32324]]

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 U.S. 
All highway route controlled quantities of radioactive material 
shipments entering the U.S. must also pass the North American Standard 
Level VI Inspection either at the shipment's point of origin or when 
the shipment enters the U.S.
    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)(1) requires that motor carriers must 
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 
``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.'' It is necessary to update the reference to ensure that motor 
carriers and enforcement officials have convenient access to the 
correctly identified inspection criteria that are referenced in the 
rules. Copies of the reference are available to the public from CVSA 
either through its website, or by contacting CVSA at the address, and 
phone number provided, and from additional sources of information 
associated with future incorporations by reference.
    According to 2012-2017 data from FMCSA's Motor Carrier Management 
Information System (MCMIS), approximately 3.5 million Level I-Level VI 
roadside 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 842 Level VI inspections were 
performed annually, comprising only 0.024 percent of all roadside 
inspections. On average, out-of-service violations were cited in only 
10 Level VI inspections annually (1.19 percent), whereas on average, 
out-of-service violations were cited in 269,024 Level I inspections 
(25.3 percent), 266,122 Level II inspections (22.2 percent), and 66,489 
Level III inspections (6.2 percent) annually. Based on these 
statistics, CMVs transporting transuranics and highway route controlled 
quantities of radioactive materials are clearly among the best 
maintained and safest CMVs on the highways today, 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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V. Notice of Proposed Rulemaking

    FMCSA published a notice of proposed rulemaking (NPRM) on December 
31, 2018 (83 FR 67705). Whereas the incorporation by reference found at 
49 CFR 385.4 and referenced at 49 CFR 385.415(b) references the April 
1, 2016, 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, 2018, edition, which also captures changes adopted in the 
April 1, 2017 edition. Cumulatively, 15 updates distinguish the April 
1, 2018, edition from the 2016 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 2018 edition did not change what constitutes a violation of FMCSA 
regulations.

VI. Discussion of Comments Received on the Proposed Rule

    FMCSA received one comment to the NPRM. The Commercial Vehicle 
Safety Alliance (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, 2016 edition 
is outdated and does not reflect the most up to date standard.'' In 
addition, CVSA noted that 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'' is updated annually, and encouraged FMCSA to take 
the necessary action to update the regulations accordingly at that 
time.

VII. Section-by-Section Analysis

    FMCSA revises Sec. Sec.  385.4 (a) and 385.415 (b) to conform to 
formatting requirements of the Office of the Federal Register; to 
update the reference in Sec.  385.4(b) from the April 1, 2016, edition 
to the April 1, 2018, edition of 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;'' and to clarify that copies are available to 
the public from CVSA either through its website, or by contacting CVSA 
at the address, and phone number provided, and from additional sources 
of information associated with future incorporations by reference.

VIII. International Impacts

    The FMCSRs, and any exceptions to the FMCSRs, apply only within the 
United States (and, in some cases, United States territories). Motor 
carriers and drivers are subject to the laws and regulations of the 
countries in which they operate, unless an international agreement 
states otherwise. Drivers and carriers should be aware of the 
regulatory differences among nations.
    The CVSA is an organization representing Federal, State and 
Provincial motor carrier safety enforcement agencies in United States, 
Canada and Mexico. The Out-of-Service Criteria provide uniform 
enforcement tolerances for roadside inspections conducted in all three 
countries.

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

    FMCSA has determined that this action is not a significant 
regulatory action under section 3(f) of E.O. 12866, Regulatory Planning 
and Review, as supplemented by E.O. 13563 (76 FR 3821, January 21, 
2011), Improving Regulation and Regulatory Review. Accordingly, the 
Office of Management and Budget (OMB) has not reviewed it

[[Page 32325]]

under that Order. It is also not significant within the meaning of DOT 
regulatory policies and procedures (DOT Order 2100.6 dated Dec. 20, 
2018).

B. E.O. 13771 Reducing Regulation and Controlling Regulatory Costs

    E.O. 13771, ``Reducing Regulation and Controlling Regulatory 
Costs,'' does not apply to this action because it is a nonsignificant 
regulatory action, as defined in section 3(f) of E.O. 12866, and has 
zero costs; therefore, it is not subject to the ``2 for 1'' and 
budgeting requirements.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 (RFA), Public Law 96-354, 94 
Stat. 864 (1980), as amended by the Small Business Regulatory 
Enforcement Fairness Act of 1996 (SBREFA) (5 U.S.C. 601 et seq.), 
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.\4\ 
In compliance with the RFA, FMCSA evaluated the effects of the proposed 
rule on small entities. The rule incorporates by reference the April 1, 
2018, 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.'' 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 entities.
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    \4\ 5 U.S.C. 601.
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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 
final rule is not expected to impact a substantial number of small 
entities. The final rule is largely editorial and provides guidance to 
inspectors and motor carriers transporting transuranics in interstate 
commerce. Accordingly, I hereby 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 rule so that they can better evaluate its 
effects. If the rule will affect your small business, organization, or 
governmental jurisdiction and you have questions concerning its 
provisions, please consult the FMCSA point of contact, Michael Huntley, 
listed in the FOR FURTHER INFORMATION CONTACT section of this rule.
    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.\5\
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    \5\ U.S. Department of Transportation (DOT). ``The Rights of 
Small Entities to Enforcement Fairness and Policy Against 
Retaliation.'' Available at: https://www.transportation.gov/sites/dot.gov/files/docs/SBREFAnotice2.pdf (accessed April 20, 2018).
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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. 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 $161 million (which is the value 
equivalent to $100,000,000 in 1995, adjusted for inflation to 2017 
levels) or more in any one year. This final rule will not result in 
such an expenditure.

F. Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.), 
Federal agencies must obtain approval from the OMB for each collection 
of information they conduct, sponsor, or require through regulations. 
FMCSA determined that no new information collection requirements are 
associated with this final rule.

G. E.O. 13132 (Federalism)

    A rule has implications for federalism under section 1(a) of 
Executive Order 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 
will not have substantial direct costs on or for States, nor will 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.

H. E.O. 12988 (Civil Justice Reform)

    This final rule meets applicable standards in sections 3(a) and 
3(b) (2) of E.O. 12988, Civil Justice Reform, to minimize litigation, 
eliminate ambiguity, and reduce burden.

I. E.O. 13045 (Protection of Children)

    E.O. 13045, Protection of Children from Environmental Health Risks 
and Safety Risks, requires agencies issuing ``economically 
significant'' rules, if the regulation also concerns an environmental 
health or safety risk that an agency has reason to believe may 
disproportionately affect children, to include an evaluation of the 
regulation's environmental health and safety effects on children. The 
Agency determined this final rule is not economically significant. 
Therefore, no analysis of the impacts on children is required. In any 
event, the Agency does not anticipate that this regulatory action could 
in any respect present an environmental or safety risk that could 
disproportionately affect children.

J. E.O. 12630 (Taking of Private Property)

    FMCSA reviewed this final rule in accordance with E.O. 12630, 
Governmental Actions and Interference with Constitutionally Protected 
Property Rights, and has determined it will not effect a taking of 
private property or otherwise have taking implications.

K. Privacy Impact Assessment

    Section 522 of title I of division H of the Consolidated 
Appropriations Act, 2005, enacted December 8, 2004 (Pub. L. 108-447, 
118 Stat. 2809, 3268, 5 U.S.C. 552a note), requires the Agency to 
conduct a privacy impact assessment (PIA) of a regulation that will 
affect the privacy of individuals. This rule does not require the 
collection of personally identifiable information (PII).

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    The Privacy Act (5 U.S.C. 552a) applies only to Federal agencies 
and any non-Federal agency which receives records contained in a system 
of records from a Federal agency for use in a matching program.
    The E-Government Act of 2002, Public Law 107-347, section 208, 116 
Stat. 2899, 2921 (Dec. 17, 2002), requires Federal agencies to conduct 
a 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. Therefore, FMCSA has 
not conducted a PIA.

L. E.O. 12372 (Intergovernmental Review)

    The regulations implementing E.O. 12372 regarding intergovernmental 
consultation on Federal programs and activities do not apply to this 
program.

M. E.O. 13211 (Energy Supply, Distribution, or Use)

    FMCSA has analyzed this final rule under E.O. 13211, Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. The Agency has determined that it is not a 
``significant energy action'' under that order because it is not a 
``significant regulatory action'' likely to have a significant adverse 
effect on the supply, distribution, or use of energy. Therefore, it 
does not require a Statement of Energy Effects under E.O. 13211.

N. 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.

O. National Technology Transfer and Advancement Act (Technical 
Standards)

    The National Technology Transfer and Advancement Act (15 U.S.C. 272 
note) directs agencies to use voluntary consensus standards in their 
regulatory activities unless the agency provides Congress, through OMB, 
with an explanation of why using these standards would be inconsistent 
with applicable law or otherwise impractical. Voluntary consensus 
standards (e.g., specifications of materials, performance, design, or 
operation; test methods; sampling procedures; and related management 
systems practices) are standards that are developed or adopted by 
voluntary consensus standards bodies. FMCSA does not intend to adopt 
its own technical standard, thus there is no need to submit a separate 
statement to OMB on this matter. The standard being incorporated in 
this final rule is discussed in greater detail in sections IV, V and 
VII above, and is reasonably available at FMCSA and through the CVSA 
website.

P. Environment (NEPA)

    FMCSA analyzed this rule consistent with 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). 
The Categorical Exclusion (CE) in paragraph 6.t.(2) includes 
regulations to ensure that the States comply with the provisions of the 
Commercial Motor Vehicle Safety Act of 1986. The content in this rule 
is covered by this CE, there are no extraordinary circumstances 
present, and the final action does not have any effect on the quality 
of the environment. The CE determination is available for inspection or 
copying in the Regulations.gov website listed under ADDRESSES.

List of Subjects in 49 CFR Part 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 is revised 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 and 31502; 
Sec. 350, Pub. L. 107-87, 115 Stat. 833, 864; 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 under 5 
U.S.C. 552(a) and 1 CFR part 51. To enforce any edition other than that 
specified in this section, FMCSA must publish notification of the 
change in the Federal Register and the material must be available to 
the public. All approved material is available for inspection 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, and is available from the 
sources listed in paragraph (b) of this section. It is also available 
for inspection at the National Archives and Records Administration 
(NARA). For information on the availability of this material at NARA, 
call (202) 741-6030 or go to http://www.archives.gov/federal-register/cfr/ibr-locations.html.
    (b) Commercial Vehicle Safety Alliance, 6303 Ivy Lane, Suite 310, 
Greenbelt, MD 20770, telephone (301) 830-6143, 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, 2018, incorporation by reference approved for Sec.  
385.415(b).
    (2) [Reserved]

0
3. In Sec.  385.415, remove paragraph (b)(2), redesignate paragraph 
(b)(1) as paragraph (b), and add a heading for newly redesignated 
paragraph (b) to read as follows:


Sec.  385.415  What operational requirements apply to the 
transportation of a hazardous material for which a permit is required?

* * * * *
    (b) Inspection of vehicle transporting Class 7 (radioactive) 
materials. * * *
* * * * *

    Issued under authority delegated in 49 CFR 1.87 on June 27, 
2019.
Raymond P. Martinez,
Administrator.
[FR Doc. 2019-14226 Filed 7-5-19; 8:45 am]
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