[Federal Register Volume 89, Number 162 (Wednesday, August 21, 2024)]
[Rules and Regulations]
[Pages 67560-67562]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-18749]


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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: Final rule.

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SUMMARY: FMCSA amends 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 final rule, FMCSA 
incorporates by reference the April 1, 2024, edition.

DATES: Effective September 20, 2024. The incorporation by reference of 
certain material listed in this rule is approved by the Director of the 
Federal Register as of September 20, 2024.
    Petitions for reconsideration of this final rule must be submitted 
to the FMCSA Administrator no later than September 20, 2024.

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].

SUPPLEMENTARY INFORMATION: FMCSA organizes this final rule as follows:

I. Availability of Rulemaking Documents
II. Executive Summary
III. Abbreviations
IV. Legal Basis
V. Discussion of Proposed Rulemaking and Comments
    A. Proposed Rulemaking
    B. Comments and Responses
VI. Section-by-Section Analysis
VII. 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
    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-2024-0073/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 5p.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 
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.
    Eleven updates distinguish the April 1, 2024, handbook edition from 
the April 1, 2023, edition. The updates are all described in detail in 
the May 3, 2024, notice of proposed rulemaking (NPRM) for this rule (89 
FR 36742). The incorporation by reference of the 2024 edition does not 
impose new regulatory requirements.

III. Abbreviations

CE Categorical Exclusion
CFR Code of Federal Regulations
CVSA Commercial Vehicle Safety Alliance
DOT Department of Transportation
FMCSA Federal Motor Carrier Safety Administration
FR Federal Register
HMSP Hazardous Materials Safety Permit
HRCQ Highway Route Controlled Quantity
NPRM Notice of Proposed Rulemaking
OOS Out-of-Service
OOSC Out-of-Service Criteria
PIA Privacy Impact Assessment
PTA Privacy Threshold Assessment
RAM Radioactive Material
RFA Regulatory Flexibility Act
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 United States Code (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 rule is applicable.
    Congress authorized DOT by statute to promote safe transportation 
of hazardous materials in interstate

[[Page 67561]]

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 
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. Discussion of Proposed Rulemaking and Comments

A. Proposed Rulemaking

    FMCSA published an NPRM on May 3, 2024 (89 FR 36742). Because the 
incorporation by reference found at Sec.  385.4(b)(1) and referenced at 
Sec.  385.415(b) references the outdated April 1, 2023, 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, 2024, edition. Eleven updates distinguish the April 1, 2024, 
edition from the 2023 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 2024 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 
June 3, 2024. No comments were submitted.

C. Final Rule

    As FMCSA received no comments on the NPRM, the Agency finalizes the 
incorporation by reference of the April 1, 2024, edition of the CVSA 
handbook without modification.

VI. 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 final rule replaces 
the reference to the April 1, 2023, edition date with a reference to 
the new edition date of April 1, 2024.

VII. 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.
    This final rule will 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 Motor Carrier Management Information 
System (MCMIS) data on inspections performed from 2020 to 2023 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 will 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 (5 U.S.C. 802(4)).
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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,\2\ 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.
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    \2\ 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 and make available an initial regulatory flexibility 
analysis'' that will describe the impact of the final rule on small 
entities (5 U.S.C. 603(a)). Section 605 of the RFA allows an agency to 
certify a rule, instead of preparing an analysis, if the final rule is 
not expected to impact a substantial number of small entities. The 
final rule will update an incorporation by reference found at Sec.  
385.4(b)(1) and referenced at Sec.  385.415(b), and will 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 
affect the number of OOS violations cited during Level VI inspections 
in the United States. Accordingly, I certify that the proposed

[[Page 67562]]

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 final rule 
so they can better evaluate its effects on themselves and participate 
in the rulemaking initiative. If the final rule will 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 $200 million (which is the value equivalent of $100 million 
in 1995, adjusted for inflation to 2023 levels) or more in any 1 year. 
Though this final rule 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 final 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 final rule will 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 final rule 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 final rule will 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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    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,\4\ 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 will collect, maintain, or disseminate information as a 
result of this rule. Accordingly, FMCSA has not conducted a PIA.
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    \4\ Public Law 107-347, sec. 208, 116 Stat. 2899, 2921 (Dec. 17, 
2002).
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    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 final rule does not have Tribal implications under E.O. 13175, 
Consultation and Coordination with Indian Tribal Governments, because 
it does not have a substantial direct effect on one or more Indian 
Tribes, on the relationship between the Federal Government and Indian 
Tribes, or on the distribution of power and responsibilities between 
the Federal Government and Indian Tribes.

J. National Environmental Policy Act of 1969

    FMCSA analyzed this final 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 rule 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. 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, 2024; incorporation by reference approved for Sec.  
385.415(b).
* * * * *

    Issued under authority delegated in 49 CFR 1.87.
Vincent G. White,
Acting Administrator.
[FR Doc. 2024-18749 Filed 8-20-24; 8:45 am]
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