[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, [email protected]. 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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