[Federal Register Volume 89, Number 87 (Friday, May 3, 2024)]
[Proposed Rules]
[Pages 36742-36748]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-09357]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Part 385

[Docket No. FMCSA-2024-0073]
RIN 2126-AC65


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

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

ACTION: Notice of proposed rulemaking.

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SUMMARY: FMCSA proposes amendments to its Hazardous Materials Safety 
Permits (HMSPs) regulations to incorporate by reference the updated 
Commercial Vehicle Safety Alliance (CVSA) handbook containing 
inspection procedures and Out-of-Service Criteria (OOSC) for 
inspections of shipments of transuranic waste and highway route-
controlled quantities (HRCQs) of radioactive material (RAM). The OOSC 
provide enforcement personnel nationwide, including FMCSA's State 
partners, with uniform enforcement tolerances for inspections. 
Currently, the regulations reference the April 1, 2023, edition of the 
handbook. Through this notice, FMCSA proposes to incorporate by 
reference the April 1, 2024, edition.

DATES: Comments must be received on or before June 3, 2024.

ADDRESSES: You may submit comments identified by Docket Number FMCSA-
2024-0073 using any of the following methods:
     Federal eRulemaking Portal: Go to https://www.regulations.gov/docket/FMCSA-2024-0073/document. Follow the online 
instructions for submitting comments.
     Mail: Dockets Operations, U.S. Department of 
Transportation, 1200 New Jersey Avenue SE, West Building, Ground Floor, 
Washington, DC 20590-0001.
     Hand Delivery or Courier: Dockets Operations, U.S. 
Department of Transportation, 1200 New Jersey Avenue SE, West Building, 
Ground Floor, 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.
     Fax: (202) 493-2251.
    Viewing incorporation by reference material: You may inspect the 
material proposed for incorporation by reference at the National 
Transportation Library, DOT, 1200 New Jersey Avenue SE, Washington, DC 
20590-0001 between 8 a.m. and 5 p.m., Monday through Friday, except 
Federal holidays. The telephone number is (202) 366-1812. Copies of the 
material are available as indicated in the ``Incorporation by 
Reference'' section of this preamble.

FOR FURTHER INFORMATION CONTACT: David Sutula, Vehicle and Roadside 
Operations Division, FMCSA, 1200 New Jersey Avenue SE, Washington, DC 
20590-0001, (202) 366-9209, [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 notice of proposed 
rulemaking (NPRM) as follows:

I. Public Participation and Request for Comments
    A. Submitting Comments
    B. Viewing Comments and Documents
    C. Privacy
II. Executive Summary
III. Abbreviations
IV. Legal Basis
V. Background
VI. Discussion of Proposed Rulemaking
VII. Section-by-Section Analysis
VIII. 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. Advance Notice of Proposed Rulemaking
    C. Regulatory Flexibility Act
    D. Assistance for Small Entities
    E. Unfunded Mandates Reform Act of 1995
    F. Paperwork Reduction Act
    G. E.O. 13132 (Federalism)
    H. Privacy
    I. E.O. 13175 (Indian Tribal Governments)
    J. National Environmental Policy Act of 1969
    K. Rulemaking Summary

I. Public Participation and Request for Comments

A. Submitting Comments

    If you submit a comment, please include the docket number for this 
NPRM (FMCSA-2024-0073), indicate the specific section of this document 
to which your comment applies, and provide a reason for each suggestion 
or recommendation. You may submit your comments and material online or 
by fax, mail, or hand delivery, but please use only one of these means. 
FMCSA recommends that you include your name and a mailing address, an 
email address, or a phone number in the body of your document so FMCSA 
can

[[Page 36743]]

contact you if there are questions regarding your submission.
    To submit your comment online, go to https://www.regulations.gov/docket/FMCSA-2024-0073/document, click on this NPRM, click ``Comment,'' 
and type your comment into the text box on the following screen.
    If you submit your comments by mail or hand delivery, submit them 
in an unbound format, no larger than 8\1/2\ by 11 inches, suitable for 
copying and electronic filing.
    FMCSA will consider all comments and material received during the 
comment period.
Confidential Business Information (CBI)
    CBI is commercial or financial information that is both customarily 
and actually treated as private by its owner. Under the Freedom of 
Information Act (5 U.S.C. 552), CBI is exempt from public disclosure. 
If your comments responsive to the NPRM contain commercial or financial 
information that is customarily treated as private, that you actually 
treat as private, and that is relevant or responsive to the NPRM, it is 
important that you clearly designate the submitted comments as CBI. 
Please mark each page of your submission that constitutes CBI as 
``PROPIN'' to indicate it contains proprietary information. FMCSA will 
treat such marked submissions as confidential under the Freedom of 
Information Act, and they will not be placed in the public docket of 
the NPRM. Submissions containing CBI should be sent to Brian Dahlin, 
Chief, Regulatory Evaluation Division, Office of Policy, FMCSA, 1200 
New Jersey Avenue SE, Washington, DC 20590-0001 or via email at 
[email protected]. At this time, you need not send a duplicate 
hardcopy of your electronic CBI submissions to FMCSA headquarters. Any 
comments FMCSA receives not specifically designated as CBI will be 
placed in the public docket for this rulemaking.

B. Viewing Comments and Documents

    To view any documents mentioned as being available in the docket, 
go to https://www.regulations.gov/docket/FMCSA-2024-0073/document and 
choose the document to review. To view comments, click this NPRM, then 
click ``Browse Comments.'' If you do not have access to the internet, 
you may view the docket online by visiting Dockets Operations in on the 
ground floor of the DOT West Building, 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.

C. Privacy

    In accordance with 5 U.S.C. 553(c), DOT solicits comments from the 
public to better inform its regulatory process. DOT posts these 
comments, including any personal information the commenter provides, to 
www.regulations.gov, as described in the system of records notice DOT/
ALL 14 (Federal Docket Management System (FDMS)), which can be reviewed 
at https://www.transportation.gov/individuals/privacy/privacy-act-system-records-notices. The comments are posted without edit and are 
searchable by the name of the submitter.

II. Executive Summary

    This NPRM proposes to update an incorporation by reference found at 
49 Code of Federal Regulations (CFR) 385.4(b)(1) and referenced at 
Sec.  385.415(b). The provision at Sec.  385.4(b)(1) currently 
references the April 1, 2023, edition of CVSA's handbook titled ``North 
American Standard Out-of-Service Criteria and Level VI Inspection 
Procedures and Out-of-Service Criteria for Commercial Highway Vehicles 
Transporting Transuranics and Highway Route Controlled Quantities of 
Radioactive Materials as defined in 49 CFR part 173.403.'' The CVSA 
handbook contains inspection procedures and OOSC for inspections of 
shipments of transuranic waste and HRCQs of RAM. The OOSC, while not 
regulations, provide enforcement personnel nationwide, including 
FMCSA's State partners, with uniform enforcement tolerances for 
inspections. The material is available, and will continue to be 
available, for inspection at the FMCSA, Office of Safety, 1200 New 
Jersey Avenue SE, Washington, DC 20590 (Attention: Chief, Hazardous 
Materials Division) at (202) 493-0027. The document may be purchased 
from the Commercial Vehicle Safety Alliance 99 M Street SE, Suite 1025, 
Washington, DC 20003, 202-998-1002, www.cvsa.org.
    In this NPRM, FMCSA proposes to incorporate by reference the April 
1, 2024, edition of the handbook. This NPRM will discuss all updates to 
the currently incorporated 2023 edition of the handbook.
    Eleven updates distinguish the April 1, 2024, handbook edition from 
the April 1, 2023, edition. The incorporation by reference of the 2024 
edition does not impose new regulatory requirements.

III. Abbreviations

ATIS Automatic Tire Inflation Systems
CBI Confidential Business Information
CDL Commercial Driver's License
CE Categorical Exclusion
CFR Code of Federal Regulations
CLP Commercial Learner's Permit
CVSA Commercial Vehicle Safety Alliance
DACH Drug and Alcohol Clearinghouse
DOT Department of Transportation
FMCSA Federal Motor Carrier Safety Administration
FR Federal Register
HM Hazardous Materials
HMSP Hazardous Materials Safety Permit
HRCQ Highway Route Controlled Quantity
MCMIS Motor Carrier Management Information System
OOS Out-of-Service
OOSC Out-of-Service Criteria
PBBT Performance-Based Brake Test
PIA Privacy Impact Assessment
PTA Privacy Threshold Assessment
RAM Radioactive Material
RFA Regulatory Flexibility Act
TSA Transportation Security Administration
UMRA The Unfunded Mandates Reform Act of 1995
U.S.C. United States Code

IV. Legal Basis

    Congress has enacted several statutory provisions to ensure the 
safe transportation of hazardous materials in interstate commerce. 
Specifically, in provisions codified at 49 U.S.C. 5105(d), relating to 
inspections of motor vehicles carrying certain hazardous material, and 
49 U.S.C. 5109, relating to motor carrier safety permits (``HMSPs''), 
the Secretary of Transportation is required to promulgate regulations 
as part of a comprehensive safety program on HMSPs. The FMCSA 
Administrator has been delegated authority under 49 U.S.C. 113(f) and 
49 CFR 1.87(d)(2) to carry out the functions vested in the Secretary of 
Transportation related to HMSPs. Consistent with that authority, FMCSA 
has promulgated regulations under 49 CFR part 385, subpart E to address 
the congressional mandate on HMSPs. Those regulations are the 
underlying provisions to which the material incorporated by reference 
discussed in this notice is applicable.
    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 2024 
edition of the CVSA handbook outlining the OOSC and inspection 
procedures for commercial highway

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vehicles transporting RAMs. The provisions within the CVSA handbook are 
intended to operate holistically in addressing a range of issues 
necessary to ensure the safe transport of hazardous materials. However, 
FMCSA recognizes that certain provisions focus on unique topics. 
Therefore, FMCSA finds that the various provisions within the CVSA 
handbook would be severable and the remaining provision or provisions 
within the handbook would continue to operate functionally if any one 
or more provisions were invalidated and any other provision(s) 
remained.

V. 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 covered by the 
U.S. Department of Transportation's HM Safety Permit rules (June 30, 
2004; 69 FR 39350). 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 HRCQs 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 2020 through 2023 data from FMCSA's Motor Carrier 
Management Information System (MCMIS), approximately 2.9 million Level 
I through Level VI inspections were performed annually. Nearly 96.2 
percent of these were Level I,\1\ Level II,\2\ and Level III \3\ 
inspections. During the same period, an average of 876 Level VI 
inspections were performed annually, comprising only 0.03 percent of 
all inspections. On average, OOS violations were cited in only 5 Level 
VI inspections annually (0.6 percent), whereas on average, OOS 
violations were cited in 223,679 Level I inspections (27 percent), 
265,132 Level II inspections (27 percent), and 59,179 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 2024 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 2024 edition of the CVSA handbook to 
significantly affect the number of OOS violations cited during Level VI 
inspections.

VI. Discussion of Proposed Rulemaking

    Section 385.4(b)(1), as amended on November 8, 2023 (88 FR 77010), 
references the April 1, 2023, edition of the CVSA handbook. This NPRM 
proposes to amend Sec.  385.4(b)(1) by replacing the reference to the 
April 1, 2023, edition date with a reference to the new edition date of 
April 1, 2024.
    The changes made based on the 2024 edition of the handbook are 
outlined below. It is necessary to update the materials incorporated by 
reference to ensure motor carriers and enforcement officials have 
convenient access to the correctly identified inspection criteria 
referenced in the rules.
    In preparing this NPRM, FMCSA obtained clarification from CVSA on 
various aspects of the 2024 edition of the handbook. FMCSA contacted 
CVSA on February 28, 2024, regarding why CVSA released a version in 
February 2024 before the changes were effective. Following this, on 
March 8, 2024, FMCSA contacted CVSA again to highlight a minor 
typographical error in the OOSC handbook. Finally, on April 3, 2024, 
FMCSA contacted CVSA regarding the change relating to the distinction 
between vehicles equipped with automatic tire inflation systems (ATIS) 
and vehicles not equipped with ATIS in the North American Standard OOSC 
Part II, Item 12(b)(1) and 12(b)(2). CVSA explained how the tires are 
treated differently. In each instance, CVSA provided clarifying 
information that aided the Agency with drafting the NPRM. FMCSA has 
placed a memorandum in the rulemaking docket documenting these 
communications.

April 1, 2024, Changes

    Eleven changes in the 2024 edition of the CVSA handbook distinguish 
it from the April 1, 2023, edition:
    1. Part I, Item 2.b (``Endorsements and Restrictions''), was 
amended to add a note clarifying the status of a Hazardous Materials 
(HM) endorsement in cases where a U.S. driver's Transportation Security 
Administration (TSA) screening/HM determination is expired, and the 
driver requires renewal. The HM endorsement threat assessment program 
is administered by TSA, which conducts security threat assessments for 
drivers seeking to obtain, renew, or transfer an HM endorsement on a 
State-issued commercial driver's license (CDL). A note was added to 
clarify that if a driver possesses a State-issued CDL and transports HM 
but fails to renew their HM endorsement, typically required to be 
renewed every 5 years, the HM endorsement becomes invalid, irrespective 
of the license's expiration date. Additionally, the note specifies that 
a driver will be placed OOS if transporting HM in a quantity 
necessitating placards. The changes are intended to ensure clarity in 
the presentation of the OOS conditions and are not expected to 
significantly affect the number of OOS violations cited during Level VI 
inspections.

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    2. Part I, Item 4.b (``Medical Certificate'') was amended by 
removing language in the note regarding the requirement that Class D 
license-holders in Ontario, Canada provide additional evidence of 
compliance with medical prerequisites. The language was removed because 
a cyclical renewal of driver medical certification is now mandatory and 
integrated into this class of license. This amendment is applicable 
only to the enforcement of Canadian regulations and will not have any 
effect on the number of OOS violations cited during Level VI 
inspections in the United States.
    3. Part I, Item 7.c (``Prohibited from performing safety-sensitive 
functions'') was amended by adding a new regulation code and a note 
addressing the use of this new regulation code for drivers prohibited 
from performing safety-sensitive functions. FMCSA agrees with CVSA's 
determination that the language was needed for instances where drivers 
are found operating a CMV while in prohibited status in the Drug and 
Alcohol Clearinghouse (DACH or Clearinghouse) under Sec.  392.15. 
However, because Sec.  392.15 is presently unavailable in the 
inspection software, a note was added stating that a citation to Sec.  
390.3(e) may be used until November 18, 2024,\4\ prior to the addition 
of the updated regulatory code into the inspection software and to 
provide U.S. jurisdictions a means of achieving early compliance with 
the requirement. The changes are intended to ensure clarity in the 
presentation of the OOS conditions and are not expected to 
significantly affect the number of OOS violations cited during Level VI 
inspections.
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    \4\ On October 7, 2021, FMCSA published a final rule in the 
Federal Register (86 FR 55718) establishing requirements for State 
driver's licensing agencies to access and use information obtained 
through the DACH, an FMCSA-administered database containing driver-
specific controlled substance (drug) and alcohol records. Among 
other actions, the final rule added a new Sec.  392.15 to prohibit 
any driver subject to the CMV driving prohibition in Sec.  
382.501(a) from operating a CMV. The deadline for States to come 
into compliance with that requirement is November 18, 2024.
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    4. Part I, Item 7.c (``Prohibited from performing safety-sensitive 
functions'') was also amended by adding language in the applicability 
table regarding the prohibition against commercial learner's permit 
(CLP) holders performing safety-sensitive functions after engaging in 
prohibited use of drugs or alcohol, until the CLP holder has completed 
the return to duty requirements established by 49 CFR part 40, subpart 
O.\5\ CVSA concluded that the table should also refer to CLP holders in 
the ``Current CDL Holder'' section. CLP holders were not added to the 
``Former CDL Holder'' section because a former CDL holder would possess 
a non-CDL license not subject to the Clearinghouse requirements. The 
changes are intended to ensure clarity in the presentation of the OOS 
conditions and are not expected to significantly affect the number of 
OOS violations cited during Level VI inspections.
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    \5\ Similar to the previous change, this is necessary to meet 
the November 2024 compliance date for the October 2021 DACH final 
rule.
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    5. Part II, Item 1.a.5.a (``Drum (Cam-Type and Wedge) Air Brakes'') 
was amended to include language specifying that missing camshaft 
bushings must be included in the 20 percent brake criterion. The 20 
percent criterion relates to the proportion of brakes on a vehicle or 
combination that are found to be defective during an inspection. 
Specifically, if 20 percent or more of the total number of brakes on 
the vehicle are found to be defective, the vehicle is considered OOS. 
During a roadside inspection, CVSA found a missing camshaft bushing in 
the drum brake system of a CMV. However, due to the positioning of the 
camshaft within the spider casting, the brake was not out of adjustment 
and was still partially operative. Subsequently, FMCSA agrees with 
CVSA's determination it was appropriate to include missing camshaft 
bushings in the 20 percent brake criterion. With this update, CVSA 
added language clarifying that a brake can be considered defective if 
it has a missing camshaft bushing. The change is intended to ensure 
clarity in the presentation of the OOS conditions and is not expected 
to significantly affect the number of OOS violations cited during Level 
VI inspections.
    6. Part II, Item 1 (``Brake Systems'') was amended by adding 
language that more clearly identifies which violations are to be 
included in the 20 percent criterion calculation for defective brakes. 
Previously, this specification was only found at the end of the list of 
brake violations. CVSA has added standard language to the side of each 
criterion as a visual indicator for Items 1.a. (``Defective Brakes'') 
and 1.b (``Front Steering Axle(s) Brakes''), to facilitate 
identification of the violations included in the 20 percent criterion. 
Additionally, language was added at the end of the list of violations 
to clarify that the remaining OOS conditions are not part of the 20 
percent criterion but are standalone OOS violations. The changes are 
intended to ensure clarity in the presentation of the OOS conditions 
and are not expected to significantly affect the number of OOS 
violations cited during Level VI inspections.
    7. Part II, Item 1.q (``Performance-Based Brake Test'') was amended 
by changing the language in the note from ``shall'' to ``may,'' 
providing inspectors discretion regarding retesting the vehicle on an 
approved Performance-Based Brake Test (PBBT). The previous OOSC noted 
that, if a PBBT was accessible, the vehicle had to undergo retesting on 
the PBBT. However, this requirement for a vehicle to return for re-
inspection posed a traffic hazard at certain inspection locations, 
particularly due to the layout of some inspection pull-off locations. 
While it is still advisable to conduct the retest whenever feasible, 
there may be circumstances where it cannot be carried out. Changing the 
language in the note from ``shall'' to ``may'' will allow inspector 
discretion during the vehicle retest, ensuring the safety of the 
motoring public. The change is intended to ensure clarity in the 
presentation of the OOS conditions and is not expected to significantly 
affect the number of OOS violations cited during Level VI inspections.
    8. Part II, Item 3.c.1 (``Pintle Hooks: Mounting and Integrity'') 
and 3.g.1 (``Hitch Systems (Excluding Fifth Wheels and Pintle Hooks): 
Mounting and Integrity'') were amended by adding language that 
specifies an OOSC for latches that are not in use and ball hitches that 
are mismatched with the receiver, respectively. Roadside inspectors 
encountered a situation where a CMV had a pintle hook disconnected from 
the trailer, with the full trailer only connected by the safety chains 
and wedged under the bumper. Additionally, during inspections, ball and 
coupler type connections were found with mismatched components, such as 
the wrong size ball or receiver hitch. Adding language to specify the 
OOSC if latches are not in use and for mismatched ball hitches with the 
receiver will help cover such occurrences. The changes are intended to 
ensure clarity in the presentation of the OOS conditions and are not 
expected to significantly affect the number of OOS violations cited 
during Level VI inspections.
    9. Part II, Item 9.a was amended by changing the title for the part 
from ``When Lights Are Required To Be On'' to ``When Lights Are 
Required To Be On (does not include lamps that are not turned on).'' 
The added language is intended to indicate that the absence of 
activated lights does not constitute an OOS condition. FMCSA agrees 
with CVSA's determination that if the lights are operational upon 
inspection and no mechanical issues are identified with the vehicle, it 
would be unreasonable to

[[Page 36746]]

declare the vehicle OOS when operational lights are not turned on. Each 
State, Province, and Territory has regulatory provisions regarding 
drivers operating vehicles without activating necessary lights. In such 
instances, the driver should be cited, and the violation should be 
recorded as a traffic violation on the inspection report. The change is 
intended to ensure clarity in the presentation of the OOS conditions 
and is not expected to significantly affect the number of OOS 
violations cited during Level VI inspections.
    10. Part II, Item 9 (``Lighting Devices (Headlamps, Tail Lamps, 
Stop Lamps, Turn Signals, and Lamps/Flags on Projecting Loads)'') was 
amended by adding a note applicable to the entire item, clarifying that 
required lighting that is operational but outside the scope of the 
requirements of 393.11/National Safety Code Standard 11B for issues 
such as height, lens color, or position is considered a violation. 
However, in such cases, the vehicle should not be placed OOS. FMCSA 
agrees with CVSA's determination that adding such a note would clarify 
the OOSC. The change is intended to ensure clarity in the presentation 
of the OOS conditions and is not expected to significantly affect the 
number of OOS violations cited during Level VI inspections.
    11. Part II, Item 12.b (``All Tires Other Than Those Found on the 
Front Steering Axle(s) of a Power Unit'') was amended by introducing a 
new section and renumbering the subsequent sections within item 12.b. 
CVSA believes that with the increasing prevalence of ATIS the OOSC 
should distinguish between leaks in the tread area of a tire equipped 
with ATIS versus a tire without ATIS. Underinflated tires pose a 
significant risk of tire blowouts due to increased susceptibility to 
overheating and structural damage. While ATIS help mitigate this risk 
by continuously monitoring and adjusting tire inflation levels, it is 
essential to acknowledge that they may not entirely prevent the 
occurrence of underinflated tires. For ATIS-equipped tires, if, at any 
point during the inspection, a tire is found to have a noticeable leak 
that can be heard or felt, which is specific to the tread area, and 
significant enough that the ATIS cannot maintain inflation pressure 
greater than 50 percent of the maximum inflation pressure marked on the 
tire sidewall, the vehicle will be placed OOS. However, if a tire not 
connected to an operable ATIS has a noticeable leak or is inflated to 
50 percent or less of the maximum inflation pressure marked on the tire 
sidewall, the vehicle will also be placed OOS. Therefore, CVSA added 
language to the 12.b.1 and 12.b.2 OOSC to distinguish vehicles equipped 
with and without ATIS. The changes are intended to ensure clarity in 
the presentation of the OOS conditions and are not expected to 
significantly affect the number of OOS violations cited during Level VI 
inspections.

VII. Section-by-Section Analysis

Section 385.4 Matter Incorporated by Reference

    Section 385.4(b)(1), as amended on November 8, 2023, references the 
April 1, 2023, edition of the CVSA handbook. This NPRM proposes to 
replace the reference to the April 1, 2023, edition date with a 
reference to the new edition date of April 1, 2024.

VIII. 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 NPRM 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 NPRM 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 proposed rule, if finalized, would update an incorporation by 
reference from the April 1, 2023, edition to the April 1, 2024, edition 
of CVSA's handbook titled ``North American Standard Out-of-Service 
Criteria and Level VI Inspection Procedures and Out-of-Service Criteria 
for Commercial Highway Vehicles Transporting Transuranics and Highway 
Route Controlled Quantities of Radioactive Materials as defined in 49 
CFR part 173.403.'' FMCSA reviewed its MCMIS data on inspections 
performed from 2020 to 2023 and does not expect the handbook updates to 
have a significant effect on the number of OOS violations cited during 
Level VI inspections. Therefore, the proposed rule's impact would be de 
minimis.

B. Advance Notice of Proposed Rulemaking

    Under 49 U.S.C. 31136(g), FMCSA is required to publish an advance 
notice of proposed rulemaking (ANPRM), or proceed with a negotiated 
rulemaking, if a proposed rule is likely to lead to the promulgation of 
a major rule. As this proposed rule is not likely to result in the 
promulgation of a major rule, the Agency is not required to issue an 
ANPRM or to proceed with a negotiated rulemaking.

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,\6\ requires Federal agencies to consider the effects of the 
regulatory action on small business and other small entities and to 
minimize any significant economic impact. The term small entities 
comprises small businesses and not-for-profit organizations that are 
independently owned and operated and are not dominant in their fields, 
and governmental jurisdictions with populations of less than 50,000 (5 
U.S.C. 601(6)). Accordingly, DOT policy requires an analysis of the 
impact of all regulations on small entities, and mandates that agencies 
strive to lessen any adverse effects on these businesses. None of the 
updates from the 2024 edition impose new requirements or make 
substantive changes to the Federal Motor Carrier Safety Regulations.
---------------------------------------------------------------------------

    \6\ Public Law 104-121, 110 Stat. 857, (Mar. 29, 1996).
---------------------------------------------------------------------------

    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 
proposed rule is not expected to impact a substantial number of small 
entities. The proposed rule would update an incorporation by reference 
found at Sec.  385.4(b)(1) and referenced at Sec.  385.415(b), and 
would incorporate by reference the April 1, 2024, edition of the CVSA 
handbook. The changes to the 2024 edition of the CVSA handbook from the 
2023 edition are intended to ensure clarity in the presentation of the 
OOS conditions and are generally editorial or ministerial. As noted 
above, FMCSA does not expect the changes made in the 2024 edition of 
the CVSA handbook to significantly affect the number of OOS violations 
cited during Level VI inspections in the United

[[Page 36747]]

States. Accordingly, I certify that the proposed action would 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 proposed 
rule so they can better evaluate its effects on themselves and 
participate in the rulemaking initiative. If the proposed rule 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 (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 NPRM 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 proposed rule contains no new information collection 
requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
3520).

G. E.O. 13132 (Federalism)

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

H. Privacy

    The Consolidated Appropriations Act, 2005,\7\ requires the Agency 
to assess the privacy impact of a regulation that will affect the 
privacy of individuals. This NPRM would not require the collection of 
personally identifiable information.
---------------------------------------------------------------------------

    \7\ Public Law 108-447, 118 Stat. 2809, 3268, note following 5 
U.S.C. 552a (Dec. 4, 2014).
---------------------------------------------------------------------------

    The Privacy Act (5 U.S.C. 552a) applies only to Federal agencies 
and any non-Federal agency that receives records contained in a system 
of records from a Federal agency for use in a matching program.
    The E-Government Act of 2002,\8\ requires Federal agencies to 
conduct a Privacy Impact Assessment (PIA) for new or substantially 
changed technology that collects, maintains, or disseminates 
information in an identifiable form. No new or substantially changed 
technology would collect, maintain, or disseminate information as a 
result of this rule. Accordingly, FMCSA has not conducted a PIA.
---------------------------------------------------------------------------

    \8\ Public Law 107-347, sec. 208, 116 Stat. 2899, 2921 (Dec. 17, 
2002).
---------------------------------------------------------------------------

    In addition, the Agency submitted a Privacy Threshold Assessment 
(PTA) to evaluate the risks and effects the proposed rulemaking might 
have on collecting, storing, and sharing personally identifiable 
information. The PTA was adjudicated by DOT's Chief Privacy Officer on 
March 26, 2024.

I. E.O. 13175 (Indian Tribal Governments)

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

K. Rulemaking Summary

    As required by 5 U.S.C. 553(b)(4), a summary of this rule can be 
found in the Abstract section of the Department's Unified Agenda entry 
for this rulemaking at https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202310&RIN=2126-AC65.

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 proposes to amend 49 CFR 
chapter III, part 385, as set forth below:

PART 385--SAFETY FITNESS PROCEDURES

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

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

0
2. Amend Sec.  385.4 by revising paragraph (b)(1) to read as follows:


Sec.  385.4  Matter incorporated by reference.

* * * * *
    (b) * * *
    (1) ``North American Standard Out-of-Service Criteria and Level VI 
Inspection Procedures and Out-of-Service Criteria for Commercial 
Highway Vehicles Transporting Transuranics and Highway Route Controlled 
Quantities of Radioactive Materials as defined in 49 CFR 173.403,'' 
April 1, 2024,

[[Page 36748]]

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

    Issued under authority delegated in 49 CFR 1.87.
Sue Lawless,
Acting Deputy Administrator.
[FR Doc. 2024-09357 Filed 5-2-24; 8:45 am]
BILLING CODE 4910-EX-P