[Federal Register Volume 88, Number 215 (Wednesday, November 8, 2023)]
[Rules and Regulations]
[Pages 77010-77014]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-24448]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Part 385

[Docket No. FMCSA-2023-0122]
RIN 2126-AC61


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 Permit (HMSP) 
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, 2022, edition of the handbook. Through this rule, FMCSA 
incorporates by reference the April 1, 2023, edition.

DATES: Effective December 8, 2023. The incorporation by reference of 
the material described in the rule is approved by the Director of the 
Federal Register as of December 8, 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: FMCSA organizes this final rule 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. Severability

[[Page 77011]]

VIII. Section-by-Section Analysis
IX. 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 (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-2023-0122/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 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, 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.'' 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, 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, (301) 830-6143, www.cvsa.org.
    Nine updates distinguish the April 1, 2023, handbook edition from 
the 2022 edition. The updates are all described in detail in the July 
24, 2023, notice of proposed rulemaking (NPRM) for this rule (88 FR 
47437). The incorporation by reference of the 2023 edition does not 
impose new regulatory requirements.

III. Abbreviations

CDL Commercial Driver's License
CFR Code of Federal Regulations
CVSA Commercial Vehicle Safety Alliance
DOT Department of Transportation
FMCSA Federal Motor Carrier Safety Administration
FMCSRs Federal Motor Carrier Safety Regulations
FR Federal Register
HMSP Hazardous Materials Safety Permit
HRCQs Highway route-controlled quantities
MCMIS Motor Carrier Management Information System
OOS Out-of-Service
OOSC Out-of-Service Criteria
RAM Radioactive material
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 (hereinafter 
``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 Code of Federal Regulations (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.

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 
HRCQs of RAM. 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 HRCQs of RAM are regulated by 
the U.S. Department of Transportation. All HRCQs of RAM 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 RAM 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.
    Operational requirements for motor carriers transporting hazardous 
materials for which a HMSP is required are prescribed by Sec.  385.415. 
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 
HRCQ 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 2019 through 2022 data from FMCSA's Motor Carrier 
Management Information System (MCMIS), approximately 3 million Level I 
through Level VI inspections were performed annually. Nearly 96.3 
percent

[[Page 77012]]

of these were Level I,\1\ Level II,\2\ and Level III \3\ inspections. 
During the same period, an average of 756 Level VI inspections were 
performed annually, comprising only 0.03 percent of all inspections. On 
average, OOS violations were cited in only 6 Level VI inspections 
annually (0.8 percent), whereas on average, OOS violations were cited 
in 233,259 Level I inspections (26 percent), 264,926 Level II 
inspections (26 percent), and 57,990 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 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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    The changes to the 2023 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 2023 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 an NPRM on July 24, 2023 (88 FR 47437). Because the 
incorporation by reference found at Sec.  385.4(b)(1) and referenced at 
Sec.  385.415(b) references the outdated April 1, 2022, 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, 2023, edition. Nine updates distinguish the April 1, 2023, 
edition from the 2022 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 2023 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 
August 23, 2023. By that date, two comments were received: one from a 
private citizen supporting the NPRM, and one from CVSA, which commended 
FMCSA for publishing the NPRM and encouraged the Agency to finalize the 
rule and update the incorporation by reference.

VII. Severability

    Congress authorized DOT by statute to promote safe transportation 
of hazardous materials in interstate 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 2023 
edition of the CVSA handbook outlining the OOSC and inspection 
procedures for commercial highway vehicles transporting RAM. 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 are severable and able 
to operate functionally if one or more provisions were rendered null or 
otherwise eliminated. The remaining provision or provisions within the 
handbook will continue to operate functionally if any one or more 
provisions were invalidated and any other provision(s) remained. In the 
event a court were to invalidate one or more of the CVSA handbook's 
unique provisions, the remaining provisions should stand, thus allowing 
this congressionally mandated program to continue to operate.

VIII. Section-by-Section Analysis

Section 385.4 Matter Incorporated by Reference

    Section 385.4(b)(1), as amended on December 22, 2022, references 
the April 1, 2022, edition of the CVSA handbook. This final rule 
replaces the reference to the April 1, 2022, edition date with a 
reference to the new edition date of April 1, 2023.

X. 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.
    The final rule updates an incorporation by reference from the April 
1, 2022, edition to 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.'' FMCSA reviewed its MCMIS data on inspections performed from 
2019 to 2022 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 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).\4\
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    \4\ 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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[[Page 77013]]

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,\5\ 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 2023 edition impose new requirements or make 
substantive changes to the FMCSRs.
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    \5\ 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 a final regulatory flexibility analysis'' that will describe 
the impact of the final rule on small entities (5 U.S.C. 604(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 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, 2023, 
edition of the CVSA handbook. The changes to the 2023 edition of the 
CVSA handbook from the 2022 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 2023 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 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 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.
    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 $192 million (which is the value equivalent of $100 million 
in 1995, adjusted for inflation to 2022 levels) or more in any 1 year. 
Though this rulemaking 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 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,\6\ 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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    \6\ 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,

[[Page 77014]]

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, 2023; incorporation by reference approved for Sec.  
385.415(b).
* * * * *

    Issued under authority delegated in 49 CFR 1.87.
Robin Hutcheson,
Administrator.
[FR Doc. 2023-24448 Filed 11-7-23; 8:45 am]
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