[Federal Register Volume 87, Number 245 (Thursday, December 22, 2022)]
[Rules and Regulations]
[Pages 78579-78582]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-27774]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Part 385

[Docket No. FMCSA-2022-0128]
RIN 2126-AC48


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

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

ACTION: Final rule.

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SUMMARY: FMCSA amends its Hazardous Materials Safety Permits 
regulations to incorporate by reference the April 1, 2022, edition of 
the Commercial Vehicle Safety Alliance's (CVSA) handbook (the handbook) 
containing inspection procedures and Out-of-Service Criteria (OOSC) for 
the inspection of commercial motor vehicles used in the transportation 
of transuranic waste and highway route-controlled quantities of 
radioactive material. The OOSC provide enforcement personnel 
nationwide, including FMCSA's State partners, with uniform enforcement 
tolerances for these inspections. Through this rule, FMCSA incorporates 
by reference the April 1, 2022, edition of the handbook.

DATES: Effective January 23, 2023. The incorporation by reference of 
the material described in the rule is approved by the Director of the 
Federal Register as of January 23, 2023.

FOR FURTHER INFORMATION CONTACT: Mr. Jos[eacute] Cestero, Vehicle and 
Roadside Operations Division, FMCSA, 1200 New Jersey Avenue SE, 
Washington, DC 20590-0001, (202) 366-5541, [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. Abbreviations
IV. Legal Basis for the Rulemaking
V. Background
VI. Discussion of Proposed Rulemaking and Comments
    A. Proposed Rulemaking
    B. Comments and Responses
VII. International Impacts
VIII. Section-by-Section Analysis
IX. Regulatory Analyses
    A. E.O. 12866 (Regulatory Planning and Review), E.O. 13563 
(Improving Regulation and Regulatory Review), and DOT Regulations
    B. Congressional Review Act
    C. Regulatory Flexibility Act (Small Entities)
    D. Assistance for Small Entities
    E. Unfunded Mandates Reform Act of 1995
    F. Paperwork Reduction Act
    G. E.O. 13132 (Federalism)
    H. Privacy
    I. E.O. 13175 (Indian Tribal Governments)
    J. National Environmental Policy Act of 1969

I. Availability of Rulemaking Documents

    To view any documents mentioned as being available in the docket, 
go to https://www.regulations.gov/docket/FMCSA-2022-0128/document and 
choose the document to review. To view comments, click this final rule, 
then click ``Browse Comments.'' If you do not have access to the 
internet, you may view the docket online by visiting Dockets Operations 
at U.S. Department of Transportation, Room W12-140, 1200 New Jersey 
Avenue SE, Washington, DC 20590-0001, between 9 a.m. and 5 p.m., Monday 
through Friday, except Federal holidays. To be sure someone is there to 
help you, please call (202) 366-9317 or (202) 366-9826 before visiting 
Dockets Operations.

II. Executive Summary and 1 CFR 51

    This final rule updates an incorporation by reference found at 49 
CFR 385.4(b)(1) and referenced at Sec.  385.415(b). The provision at 
Sec.  385.4(b)(1) currently references the April 1, 2021, edition of 
CVSA's handbook titled ``North American Standard Out-of-Service 
Criteria and Level VI Inspection Procedures and Out-of-Service Criteria 
for Commercial Highway Vehicles Transporting Transuranics and Highway 
Route Controlled Quantities of Radioactive Materials as defined in 49 
CFR part 173.403.'' The CVSA handbook contains inspection procedures 
and OOSC for inspections of shipments of transuranic waste and highway 
route-controlled quantities of radioactive material. The

[[Page 78580]]

OOSC, while not regulations, provide enforcement personnel nationwide, 
including FMCSA's State partners, with uniform enforcement tolerances 
for inspections. The material is available, and will continue to be 
available, for inspection at the FMCSA, Office of Safety, 1200 New 
Jersey Avenue SE, Washington, DC 20590 (Attention: Chief, Compliance 
Division) at (202) 366-1812. The document may be purchased from the 
Commercial Vehicle Safety Alliance, 99 M Street SE, Suite 1025, 
Washington, DC 20003, (202) 998-1002, [email protected].
    Fourteen updates distinguish the April 1, 2022, handbook edition 
from the 2021 edition. The updates are all described in detail in the 
September 7, 2022, notice of proposed rulemaking (NPRM) for this rule 
(87 FR at 48141). The incorporation by reference of the 2022 edition 
does not impose new regulatory requirements.

III. Abbreviations

CDL Commercial Driver's License
CVSA Commercial Vehicle Safety Alliance
DOT Department of Transportation
FMCSA Federal Motor Carrier Safety Administration
FMCSRs Federal Motor Carrier Safety Regulations
FR Federal Register
MCMIS Motor Carrier Management Information System
OOS Out-of-Service
OOSC Out-of-Service Criteria
RFA Regulatory Flexibility Act
UMRA The Unfunded Mandates Reform Act of 1995
U.S.C. United States Code

IV. Legal Basis for the Rulemaking

    Congress has enacted several statutory provisions to ensure the 
safe transportation of hazardous materials in interstate commerce. 
Specifically, in provisions codified at 49 U.S.C. 5105(d), relating to 
inspections of motor vehicles carrying certain hazardous material, and 
49 U.S.C. 5109, relating to motor carrier safety permits, the Secretary 
of Transportation is required to promulgate regulations as part of a 
comprehensive safety program on hazardous materials safety permits. The 
FMCSA Administrator has been delegated authority under 49 CFR 
1.87(d)(2) to carry out the rulemaking functions vested in the 
Secretary of Transportation. Consistent with that authority, FMCSA has 
promulgated regulations under 49 CFR part 385, subpart E to address the 
congressional mandate on hazardous materials safety permits. Those 
regulations are the underlying provisions to which the material 
incorporated by reference discussed in this final rule is applicable.

V. Background

    In 1986, the U.S. Department of Energy and CVSA entered into a 
cooperative agreement to develop a higher level of inspection 
procedures, out-of-service (OOS) conditions and/or criteria, an 
inspection decal, and a training and certification program for 
inspectors to conduct inspections on shipments of transuranic waste and 
highway route-controlled quantities of radioactive material. 
Thereafter, CVSA developed the North American Standard Level VI 
Inspection Program for Transuranic Waste and Highway Route Controlled 
Quantities of Radioactive Material. This inspection program for select 
radiological shipments includes inspection procedures, enhancements to 
the North American Standard Level I Inspection, radiological surveys, 
CVSA Level VI decal requirements, and the ``North American Standard 
Out-of-Service Criteria and Level VI Inspection Procedures and Out-of-
Service Criteria for Commercial Highway Vehicles Transporting 
Transuranics and Highway Route Controlled Quantities of Radioactive 
Materials as defined in 49 CFR part 173.403.'' As of January 1, 2005, 
all vehicles and carriers transporting highway route-controlled 
quantities of radioactive material must pass the North American 
Standard Level VI Inspection prior to the shipment being allowed to 
travel in the United States. All CMVs transporting highway route-
controlled quantities of radioactive material shipments into the United 
States must also pass the North American Standard Level VI Inspection 
either at the shipment's point of origin or when the shipment enters 
the United States.
    Section 385.415 of title 49, Code of Federal Regulations, 
prescribes operational requirements for motor carriers transporting 
hazardous materials for which a hazardous materials safety permit is 
required. Section 385.415(b) requires that motor carriers ensure a pre-
trip inspection is performed on each motor vehicle to be used to 
transport a highway route-controlled quantity of a Class 7 
(radioactive) material, in accordance with the requirements of CVSA's 
handbook titled ``North American Standard Out-of-Service Criteria and 
Level VI Inspection Procedures and Out-of-Service Criteria for 
Commercial Highway Vehicles Transporting Transuranics and Highway Route 
Controlled Quantities of Radioactive Materials as defined in 49 CFR 
part 173.403.''
    Covid-19 affected the number of roadside inspections for Level I-
Level VI primarily during 2020 and 2021. In 2018-2019 approximately 3.5 
million Level I-Level VI inspections were performed annually, as 
compared to 2020-2021 where approximately 2.7 million Level I-Level VI 
inspections were performed annually. Across all years, nearly 96 
percent of these inspections in each year were Level I, Level II, and 
Level III inspections. During 2018-2019 an average of 1,010 Level VI 
inspections were performed annually which dropped to an average of 600 
annually during 2020-2021 due to Covid-19. On an annual basis Level VI 
inspections comprise only 0.02 percent of all inspections and, on 
average, OOS violations were cited in only 6 Level VI inspections 
annually (0.6 percent). In comparison, on average, OOS violations were 
cited in 26 percent of all Level I, 25 percent of all Level II, and 6 
percent of all Level III inspections annually across 2018-2021 
irrespective of Covid-19. As these statistics demonstrate, OOS 
violations are cited in a far lower percentage of Level VI inspections 
than Level I, II, and III inspections, due largely to the enhanced 
oversight and inspection of these vehicles because of the sensitive 
nature of the cargo being transported.
    The changes to the 2022 edition of the CVSA handbook are intended 
to ensure clarity in the presentation of the OOS conditions and are 
generally editorial or ministerial. As discussed below, FMCSA does not 
expect the changes made in the 2022 edition of the CVSA handbook to 
affect the number of OOS violations cited during Level VI inspections.

VI. Discussion of Proposed Rulemaking and Comments

A. Proposed Rulemaking

    FMCSA published a NPRM on August 8, 2022 (87 FR 48141). Whereas the 
incorporation by reference found at 49 CFR 385.4 and referenced at 49 
CFR 385.415(b) references the April 1, 2021, edition of CVSA's ``North 
American Standard Out-of-Service Criteria and Level VI Inspection 
Procedures and Out-of-Service Criteria for Commercial Highway Vehicles 
Transporting Transuranics and Highway Route-Controlled Quantities of 
Radioactive Materials as defined in 49 CFR part 173.403,'' the NPRM 
proposed to incorporate by reference the April 1, 2022, edition. 
Fourteen updates distinguish the April 1, 2022, edition from the 2021 
edition. Each of the changes was described and discussed in detail in 
the NPRM. Generally, the changes serve to clarify or provide additional 
guidance to inspectors

[[Page 78581]]

regarding uniform implementation and application of the out-of-service 
criteria, and none is expected to affect the number of out-of-service 
violations cited during Level VI inspections. The incorporation by 
reference of the 2022 edition does not change what constitutes a 
violation of FMCSA regulations.

B. Comments to the NPRM

    FMCSA solicited comments concerning the NPRM for 30 days ending 
September 7, 2022. By that date, one comment was received from CVSA, 
which commended FMCSA for publishing the NPRM and encouraged FMCSA to 
finalize the rule and update the incorporation by reference.

C. Changes From the NPRM

    FMCSA makes an additional revision to 49 CFR 385.4(b) in this final 
rule to update the address for CVSA. This change is non-substantive and 
ensures that the incorporation by reference information in Sec.  385.4 
is accurate and up-to-date.

VII. Section-by-Section Analysis

Section 385.4 Matter Incorporated by Reference

    Paragraph (a) of Sec.  385.4 is amended to conform with Office of 
Federal Register requirements for incorporation by reference paragraphs 
in regulatory text. The introductory text to paragraph (b) is amended 
by updating the address for CVSA. Paragraph (b)(1) is amended by 
replacing the reference to the April 1, 2021, edition date with a 
reference to the new edition date of April 1, 2022.

VII. Regulatory Analyses

A. Executive Order (E.O.) 12866 (Regulatory Planning and Review), E.O. 
13563 (Improving Regulation and Regulatory Review), and DOT Regulatory 
Policies and Procedures

    FMCSA has considered the impact of this final rule under E.O. 12866 
(58 FR 51735, Oct. 4, 1993), Regulatory Planning and Review, E.O. 13563 
(76 FR 3821, Jan. 21, 2011), Improving Regulation and Regulatory 
Review, and DOT's regulatory policies and procedures. The Office of 
Information and Regulatory Affairs within the Office of Management and 
Budget (OMB) determined that this final rule is not a significant 
regulatory action under section 3(f) of E.O. 12866, as supplemented by 
E.O. 13563, and does not require an assessment of potential costs and 
benefits under section 6(a)(3) of that order. Accordingly, OMB has not 
reviewed it under that E.O.
    The final rule updates an incorporation by reference from the April 
1, 2021, edition to the April 1, 2022, edition of CVSA's handbook 
titled ``North American Standard Out-of-Service Criteria and Level VI 
Inspection Procedures and Out-of-Service Criteria for Commercial 
Highway Vehicles Transporting Transuranics and Highway Route Controlled 
Quantities of Radioactive Materials as defined in 49 CFR part 
173.403.'' FMCSA reviewed its MCMIS data on inspections performed from 
2018 to 2021 and does not expect the handbook updates to have any 
effect on the number of OOS violations cited during Level VI 
inspections. Therefore, the final rule's impact would be de minimis.

B. Congressional Review Act

    This rule is not a major rule as defined under the Congressional 
Review Act (5 U.S.C. 801-808).\1\
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    \1\ A ``major rule'' means any rule that OMB finds has resulted 
in or is likely to result in (a) an annual effect on the economy of 
$100 million or more; (b) a major increase in costs or prices for 
consumers, individual industries, geographic regions, Federal, 
State, or local government agencies; or (c) significant adverse 
effects on competition, employment, investment, productivity, 
innovation, or on the ability of United States-based enterprises to 
compete with foreign-based enterprises in domestic and export 
markets (49 CFR 389.3).
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C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601, et seq.) (RFA), as 
amended by the Small Business Regulatory Enforcement Fairness Act of 
1996 (Pub. L. 104-121, 110 Stat. 857), requires Federal agencies to 
consider the effects of the regulatory action on small business and 
other small entities and to minimize any significant economic impact. 
The term small entities comprises small businesses and not-for-profit 
organizations that are independently owned and operated and are not 
dominant in their fields, and governmental jurisdictions with 
populations of less than 50,000 (5 U.S.C. 601(6)). Accordingly, DOT 
policy requires an analysis of the impact of all regulations on small 
entities, and mandates that agencies strive to lessen any adverse 
effects on these businesses. None of the updates from the 2022 edition 
impose new requirements or make substantive changes to the FMCSRs.
    When an Agency issues a rulemaking proposal, the RFA requires the 
Agency to ``prepare and make available an initial regulatory 
flexibility analysis'' that will describe the impact of the proposed 
rule on small entities (5 U.S.C. 603(a)). Section 605 of the RFA allows 
an agency to certify a rule, instead of preparing an analysis, if the 
final rule is not expected to impact a substantial number of small 
entities. FMCSA received no comments in response to the NPRM that would 
cause the Agency to reconsider the initial determination that this 
rulemaking is not expected to impact a substantial number of small 
entities. This final rule updates an incorporation by reference found 
at Sec.  385.4(b)(1) and referenced at Sec.  385.415(b), and 
incorporates by reference the April 1, 2022, edition of the CVSA 
handbook. The changes to the 2022 edition of the CVSA handbook from the 
2021 edition are intended to ensure clarity in the presentation of the 
OOS conditions and are generally editorial or ministerial. As noted 
above, FMCSA does not expect the changes made in the 2022 edition of 
the CVSA handbook to affect the number of OOS violations cited during 
Level VI inspections in the United States. Accordingly, I certify that 
this final rule will not have a significant economic impact on a 
substantial number of small entities.

D. Assistance for Small Entities

    In accordance with section 213(a) of the Small Business Regulatory 
Enforcement Fairness Act of 1996,\2\ FMCSA wants to assist small 
entities in understanding this rulemaking so they can better evaluate 
its effects on themselves and participate in the rulemaking initiative. 
If the final rule affects your small business, organization, or 
governmental jurisdiction and you have questions concerning its 
provisions or options for compliance, please consult the person listed 
under FOR FURTHER INFORMATION CONTACT.
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    \2\ Public Law 104-121, 110 Stat. 857, (Mar. 29, 1996).
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    Small businesses may send comments on the actions of Federal 
employees who enforce or otherwise determine compliance with Federal 
regulations to the Small Business Administration's Small Business and 
Agriculture Regulatory Enforcement Ombudsman (Office of the National 
Ombudsman, see https://www.sba.gov/about-sba/oversight-advocacy/office-national-ombudsman) and the Regional Small Business Regulatory Fairness 
Boards. The Ombudsman evaluates these actions annually and rates each 
agency's responsiveness to small business. If you wish to comment on 
actions by employees of FMCSA, call 1-888-REG-FAIR (1-888-734-3247). 
DOT has a policy regarding the rights of small entities to regulatory 
enforcement

[[Page 78582]]

fairness and an explicit policy against retaliation for exercising 
these rights.

E. Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) 
(UMRA) requires Federal agencies to assess the effects of their 
discretionary regulatory actions. The Act addresses actions that may 
result in the expenditure by a State, local, or Tribal government, in 
the aggregate, or by the private sector of $178 million (which is the 
value equivalent of $100 million in 1995, adjusted for inflation to 
2021 levels) or more in any 1 year. Though this rulemaking would not 
result in such an expenditure, and the analytical requirements of UMRA 
do not apply as a result, the Agency discusses the effects of this rule 
elsewhere in this preamble.

F. Paperwork Reduction Act

    This rulemaking contains no new information collection requirements 
under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

G. E.O. 13132 (Federalism)

    A rule has implications for federalism under section 1(a) of E.O. 
13132 if it has ``substantial direct effects on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government.''
    FMCSA has determined that this rulemaking does not have substantial 
direct costs on or for States, nor does it limit the policymaking 
discretion of States. Nothing in this document preempts any State law 
or regulation. Therefore, this rulemaking does not have sufficient 
federalism implications to warrant the preparation of a Federalism 
Impact Statement.

H. Privacy

    The Consolidated Appropriations Act, 2005,\3\ requires the Agency 
to assess the privacy impact of a regulation that will affect the 
privacy of individuals. This rulemaking does not require the collection 
of personally identifiable information.
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    \3\ Public Law 108-447, 118 Stat. 2809, 3268, note following 5 
U.S.C. 552a (Dec. 4, 2014).
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I. E.O. 13175 (Indian Tribal Governments)

    This rule does not have Tribal implications under E.O. 13175, 
Consultation and Coordination with Indian Tribal Governments, because 
it does not have a substantial direct effect on one or more Indian 
Tribes, on the relationship between the Federal Government and Indian 
Tribes, or on the distribution of power and responsibilities between 
the Federal Government and Indian Tribes.

J. National Environmental Policy Act of 1969

    FMCSA analyzed this rule pursuant to the National Environmental 
Policy Act of 1969 (42 U.S.C. 4321, et seq.) and determined this action 
is categorically excluded from further analysis and documentation in an 
environmental assessment or environmental impact statement under FMCSA 
Order 5610.1 (69 FR 9680), Appendix 2, paragraph 6(b). This Categorical 
Exclusion (CE) covers minor revisions to regulations. The requirements 
in this rulemaking are covered by this CE.

List of Subjects in 49 CFR 385

    Administrative practice and procedure, Highway safety, 
Incorporation by reference, Mexico, Motor carriers, Motor vehicle 
safety, Reporting and recordkeeping requirements.

    In consideration of the foregoing, FMCSA amends 49 CFR chapter III, 
part 385, as set forth below:

PART 385--SAFETY FITNESS PROCEDURES

0
1. The authority citation for part 385 continues to read as follows:

    Authority: 49 U.S.C. 113, 504, 521(b), 5105(d), 5109, 5113, 
13901-13905, 13908, 31135, 31136, 31144, 31148, 31151, 31502; Sec. 
113(a), Pub. L. 103-311, 108 Stat. 1673, 1676; Sec. 408, Pub. L. 
104-88, 109 Stat. 803, 958; Sec. 350, Pub. L. 107-87, 115 Stat. 833, 
864; sec. 5205, Pub. L. 114-94, 129 Stat. 1312, 1537; and 49 CFR 
1.87.


0
2. Revise Sec.  385.4 to read as follows:


Sec.  385.4   Matter incorporated by reference.

    (a) Certain material is incorporated by reference into this part 
with the approval of the Director of the Federal Register in accordance 
with 5 U.S.C. 552(a) and 1 CFR part 51. All approved incorporation by 
reference (IBR) material is available for inspection at the FMCSA and 
at the National Archives and Records Administration (NARA). Contact 
FMCSA at: Federal Motor Carrier Safety Administration, Office of 
Enforcement and Compliance, 1200 New Jersey Ave. SE, Washington, DC 
20590; Attention: Chief, Compliance Division at (202) 366-1812. For 
information on inspection at NARA, visit www.archives.gov/federal-register/cfr/ibr-locations.html or email [email protected]. The 
material may be obtained from the source in the following paragraph of 
this section.
    (b) Commercial Vehicle Safety Alliance (CVSA), 99 M Street SE, 
Suite 1025, Washington, DC 20003, telephone (202) 998-1002, 
www.cvsa.org.
    (1) ``North American Standard Out-of-Service Criteria and Level VI 
Inspection Procedures and Out-of-Service Criteria for Commercial 
Highway Vehicles Transporting Transuranics and Highway Route Controlled 
Quantities of Radioactive Materials as defined in 49 CFR part 
173.403,'' April 1, 2022, incorporation by reference approved for Sec.  
385.415(b).
    (2) ``Operational Policy 4: Inspector Training and Certification'', 
Revised April 29, 2021 (CVSA Operational Policy 4); incorporation by 
reference approved for Sec.  385.207. (Also available at 
www.fmcsa.dot.gov/certification).

    Issued under authority delegated in 49 CFR 1.87.
Robin Hutcheson,
Administrator.
[FR Doc. 2022-27774 Filed 12-21-22; 8:45 am]
BILLING CODE 4910-EX-P