[Federal Register Volume 85, Number 36 (Monday, February 24, 2020)]
[Rules and Regulations]
[Pages 10307-10310]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-03129]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Part 385

[Docket No. FMCSA-2019-0068]
RIN 2126-AC28


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

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

ACTION: Final rule.

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SUMMARY: FMCSA amends its Hazardous Materials Safety Permit regulations 
to incorporate by reference the April 1, 2019, edition of the 
Commercial Vehicle Safety Alliance's (CVSA) ``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 Out-of-Service 
Criteria provide uniform enforcement tolerances for roadside 
inspections to enforcement personnel nationwide, including FMCSA's 
State partners.

DATES: This final rule is effective March 25, 2020. The incorporation 
by reference of certain publications listed in the regulations is 
approved by the Director of the Federal Register as of March 25, 2020.
    Petitions for Reconsideration of this final rule must be submitted 
to the FMCSA Administrator no later than March 25, 2020.

FOR FURTHER INFORMATION CONTACT: Mr. Michael Huntley, Chief, Vehicle 
and Roadside Operations Division, Federal Motor Carrier Safety 
Administration, 1200 New Jersey Avenue SE., Washington, DC 20590-0001, 
(202) 366-9209. If you have questions on viewing or submitting material 
to the docket, contact Docket Operations, (202) 366-9826.

SUPPLEMENTARY INFORMATION: 

Rulemaking Documents

    For access to docket FMCSA-2019-0068 to read background documents 
and comments received, go to http://www.regulations.gov at any time, or 
to Docket Operations at U.S. Department of Transportation, Room W12-
140, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. 
and 5 p.m., Monday through Friday, except Federal holidays.

II. Executive Summary

    This rulemaking updates an incorporation by reference found at 49 
CFR 385.4(b)(1) and referenced at 49 CFR 385.415(b). Section 
385.4(b)(1) currently references the April 1, 2018, 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 Out-of-Service Criteria, while not regulations, provide 
uniform enforcement tolerances for roadside inspections to enforcement 
personnel nationwide, including FMCSA's State partners. In this final 
rule, FMCSA incorporates by reference the April 1, 2019, edition.
    Thirteen updates distinguish the April 1, 2019, handbook edition 
from the 2018 edition. The updates are all described in detail in the 
October 2, 2019 notice of proposed rulemaking (NPRM) for this rule (85 
FR at 52434-36). The incorporation by reference of the 2019 edition 
does not impose new regulatory requirements.

III. Legal Basis for the Rulemaking

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

IV. Background

    In 1986, the U.S. Department of Energy and CVSA entered into a 
cooperative agreement to develop a higher level of inspection 
procedures, out-of-service 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. CVSA developed the North 
American Standard Level VI Inspection Program for Transuranic Waste and 
Highway Route Controlled Quantities of Radioactive Material. This 
inspection program for select radiological shipments includes 
inspection procedures, enhancements to the North American Standard 
Level I Inspection, radiological surveys, CVSA Level VI decal 
requirements, and the ``North American Standard Out-of-Service Criteria 
and Level VI Inspection Procedures and Out-of-Service Criteria for 
Commercial Highway Vehicles Transporting Transuranics and Highway Route 
Controlled Quantities of Radioactive Materials as defined in 49 CFR 
part 173.403.'' As of January 1, 2005, all vehicles and carriers 
transporting highway route controlled quantities of radioactive 
material are regulated by the U.S. Department of

[[Page 10308]]

Transportation. All highway route controlled quantities of radioactive 
material must pass the North American Standard Level VI Inspection 
prior to the shipment being allowed to travel in the U.S. All highway 
route controlled quantities of radioactive material shipments entering 
the U.S. must also pass the North American Standard Level VI Inspection 
either at the shipment's point of origin or when the shipment enters 
the U.S.
    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 must 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 
``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 2012-2017 data from FMCSA's Motor Carrier Management 
Information System (MCMIS), approximately 3.5 million Level I--Level VI 
roadside inspections were performed annually. Nearly 97 percent of 
these were Level I,\1\ Level II,\2\ and Level III \3\ inspections. 
During the same period, an average of 842 Level VI inspections were 
performed annually, comprising only 0.024 percent of all roadside 
inspections. On average, out-of-service violations were cited in only 
10 Level VI inspections annually (1.19 percent), whereas on average, 
out-of-service violations were cited in 269,024 Level I inspections 
(25.3 percent), 266,122 Level II inspections (22.2 percent), and 66,489 
Level III inspections (6.2 percent) annually. Based on these 
statistics, CMVs transporting transuranics and highway route controlled 
quantities of radioactive materials are clearly among the best 
maintained and safest CMVs on the highways today, 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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V. Notice of Proposed Rulemaking

    FMCSA published an NPRM on October 2, 2019 (84 FR 52432). Whereas 
the incorporation by reference found at 49 CFR 385.4(b)(1) and 
referenced at 49 CFR 385.415(b) concerns the April 1, 2018, 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, 
2019, edition.
    The 2019 edition identifies (1) driver-related violations of the 
FMCSRs that are so severe as to warrant placing the CMV driver out of 
service, (2) vehicle equipment-related violations of the FMCSRs that 
are so severe as to warrant placing the CMV out of service, and (3) 
unsafe conditions in the transportation of hazardous materials. The 
purpose of the publication is to provide inspection criteria for 
Federal and State motor carrier safety enforcement personnel to promote 
uniform and consistent inspection procedures of CMVs operated in 
commerce.
    Thirteen updates distinguish the April 1, 2019, handbook edition 
from the 2018 edition. The updates are all described in detail in the 
NPRM (85 FR at 52434-36). The incorporation by reference of the 2019 
edition does not impose new regulatory requirements.

VI. Discussion of Comments Received on the Proposed Rule

    FMCSA received one comment to the NPRM. CVSA commended FMCSA for 
publishing the NPRM, and encouraged FMCSA to finalize the rule and 
update the incorporation by reference because ``the current reference 
of the April 1, 2018 edition is outdated and does not reflect the most 
up to date standard which was published on April 1, 2019.'' In 
addition, CVSA stated that the handbook is reviewed and updated 
annually, and noted ``that a new edition will be published on April 1, 
2020, and encourages the agency to take the necessary actions to update 
the regulations accordingly at that time.''

VII. Section-by-Section Analysis

    FMCSA revises 385.4(b)(1) to update the reference from the April 1, 
2018, edition to the April 1, 2019, edition of 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.''

VIII. International Impacts

    The FMCSRs, and any exceptions to the FMCSRs, apply only within the 
United States (and, in some cases, United States territories). Motor 
carriers and drivers are subject to the laws and regulations of the 
countries in which they operate, unless an international agreement 
states otherwise. Drivers and carriers should be aware of the 
regulatory differences among nations.
    The CVSA is an organization representing Federal, State, and 
Provincial motor carrier safety enforcement agencies in United States, 
Canada, and Mexico. The Out-of-Service Criteria provide uniform 
enforcement tolerances for roadside inspections conducted in all three 
countries.

IX. Regulatory Analyses

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

    FMCSA has determined that this action is not a significant 
regulatory action under section 3(f) of E.O. 12866, Regulatory Planning 
and Review, as supplemented by E.O. 13563 (76 FR 3821, January 21, 
2011), Improving Regulation and Regulatory Review. In addition, this 
rule is not significant within the meaning of DOT regulations (84 FR 
71714, December 27, 2019).The Office of Management and Budget (OMB) did 
not, therefore, review this document.

B. E.O. 13771 Reducing Regulation and Controlling Regulatory Costs

    E.O. 13771, ``Reducing Regulation and Controlling Regulatory 
Costs,'' does not apply to this action because it is a nonsignificant 
regulatory action, as defined in section 3(f) of E.O. 12866, and has 
zero costs; therefore, it is not subject to the ``2 for 1'' and 
budgeting requirements.

C. Congressional Review Act

    Pursuant to the Congressional Review Act (5 U.S.C. 801, et seq.), 
the Office of Information and Regulatory Affairs designated this rule 
as not a ``major rule,'' as defined by 5 U.S.C. 804(2).\4\
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    \4\ A ``major rule'' means any rule that the Administrator of 
the Office of Information and Regulatory Affairs at the Office of 
Management and Budget finds has resulted in or is likely to result 
in (a) an annual effect on the economy of $100 million or more; (b) 
a major increase in costs or prices for consumers, individual 
industries, Federal agencies, State agencies, local government 
agencies, or geographic regions; or (c) significant adverse effects 
on competition, employment, investment, productivity, innovation, or 
the ability of United States-based enterprises to compete with 
foreign-based enterprises in domestic and export markets (5 U.S.C. 
804(2)).

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[[Page 10309]]

D. Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 (RFA), Public Law 96-354, 94 
Stat. 864 (1980), as amended by the Small Business Regulatory 
Enforcement Fairness Act of 1996 (SBREFA) (5 U.S.C. 601 et seq.), 
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\ 
In compliance with the RFA, FMCSA evaluated the effects of the rule on 
small entities. The rule incorporates by reference the April 1, 2019, 
edition of CVSA's ``North American Standard Out-of-Service Criteria and 
Level VI Inspection Procedures and Out-of-Service Criteria for 
Commercial Highway Vehicles Transporting Transuranics and Highway Route 
Controlled Quantities of Radioactive Materials as defined in 49 CFR 
part 173.403.'' 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 entities.
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    \5\ 5 U.S.C. 601.
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    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. The final rule is largely editorial and provides guidance to 
inspectors and motor carriers transporting transuranics in interstate 
commerce. Accordingly, I hereby certify that this final rule will not 
have a significant economic impact on a substantial number of small 
entities.

E. Assistance for Small Entities

    In accordance with section 213(a) of the Small Business Regulatory 
Enforcement Fairness Act of 1996, FMCSA wants to assist small entities 
in understanding this rule so that they can better evaluate its 
effects. If the rule will affect your small business, organization, or 
governmental jurisdiction and you have questions concerning its 
provisions, please consult the FMCSA point of contact, Michael Huntley, 
listed in the FOR FURTHER INFORMATION CONTACT section of this rule.
    Small businesses may send comments on the actions of Federal 
employees who enforce or otherwise determine compliance with Federal 
regulations to the Small Business Administration's Small Business and 
Agriculture Regulatory Enforcement Ombudsman and the Regional Small 
Business Regulatory Fairness Boards. The Ombudsman evaluates these 
actions annually and rates each agency's responsiveness to small 
business. If you wish to comment on actions by employees of FMCSA, call 
1-888-REG-FAIR (1-888-734-3247). DOT has a policy regarding the rights 
of small entities to regulatory enforcement fairness and an explicit 
policy against retaliation for exercising these rights.\6\
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    \6\ U.S. Department of Transportation (DOT). ``The Rights of 
Small Entities to Enforcement Fairness and Policy Against 
Retaliation.'' Available at: https://www.transportation.gov/sites/dot.gov/files/docs/SBREFAnotice2.pdf (accessed April 20, 2018).
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F. Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) 
requires Federal agencies to assess the effects of their discretionary 
regulatory actions. 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 $165 million (which is the value 
equivalent to $100,000,000 in 1995, adjusted for inflation to 2018 
levels) or more in any one year. This final rule will not result in 
such an expenditure.

G. Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.), 
Federal agencies must obtain approval from the OMB for each collection 
of information they conduct, sponsor, or require through regulations. 
FMCSA determined that no new information collection requirements are 
associated with this final rule.

H. E.O. 13132 (Federalism)

    A rule has implications for federalism under section 1(a) of 
Executive Order 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 
will not have substantial direct costs on or for States, nor will 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.

I. Privacy Impact Assessment

    Section 522 of title I of division H of the Consolidated 
Appropriations Act, 2005, enacted December 8, 2004 (Pub. L. 108-447, 
118 Stat. 2809, 3268, 5 U.S.C. 552a note), requires the Agency to 
conduct a privacy impact assessment (PIA) of a regulation that will 
affect the privacy of individuals. This rule does not require the 
collection of personally identifiable information (PII) and will not 
affect the privacy of individuals.

J. 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.

K. National Technology Transfer and Advancement Act (Technical 
Standards) and 1 CFR Part 51

    The National Technology Transfer and Advancement Act (15 U.S.C. 272 
note) directs agencies to use voluntary consensus standards in their 
regulatory activities unless the agency provides Congress, through OMB, 
with an explanation of why using these standards would be inconsistent 
with applicable law or otherwise impractical. Voluntary consensus 
standards (e.g., specifications of materials, performance, design, or 
operation; test methods; sampling procedures; and related management 
systems practices) are standards that are developed or adopted by 
voluntary consensus standards bodies. FMCSA does not intend to adopt 
its own technical standard, thus there is no need to submit a separate 
statement to OMB on this matter. The standard being incorporated in 
this final rule is discussed in sections IV, V, and VII

[[Page 10310]]

above, and is reasonably available at FMCSA and through the CVSA 
website.

L. Environment (NEPA)

    FMCSA analyzed this rule consistent with the National Environmental 
Policy Act of 1969 (42 U.S.C. 4321 et seq.) and determined this action 
is categorically excluded from further analysis and documentation in an 
environmental assessment or environmental impact statement under FMCSA 
Order 5610.1 (69 FR 9680, March 1, 2004), Appendix 2, paragraphs (6)(b) 
and (6)(t)(2). The Categorical Exclusion (CE) in paragraph (6)(b) 
covers regulations which are editorial or procedural, including 
technical or other minor amendments to existing FMCSA regulations, 
while the CE in paragraph (6)(t)(2) includes regulations to ensure that 
the States comply with the provisions of the Commercial Motor Vehicle 
Safety Act of 1986. The content in this rule is covered by these CEs, 
there are no extraordinary circumstances present, and the final action 
does not have any effect on the quality of the environment.

M. E.O. 13783 (Promoting Energy Independence and Economic Growth)

    E.O. 13783 directs executive departments and agencies to review 
existing regulations that potentially burden the development or use of 
domestically produced energy resources, and to appropriately suspend, 
revise, or rescind those that unduly burden the development of domestic 
energy resources. In accordance with E.O. 13783, DOT prepared and 
submitted a report to the Director of OMB that provides specific 
recommendations that, to the extent permitted by law, could alleviate 
or eliminate aspects of agency action that burden domestic energy 
production. This rule has not been identified by DOT under E.O. 13783 
as potentially alleviating unnecessary burdens on domestic energy 
production.

List of Subjects in 49 CFR Part 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 part 385 as 
set forth below:

PART 385--SAFETY FITNESS PROCEDURES

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

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

0
2. Amend Sec.  385.4:
0
a. In paragraph (a), by removing the words ``call (202) 741-6030'' and 
adding in their place ``email fedreg.legal@nara.gov''; and
0
b. By revising paragraph (b)(1).
    The revision reads 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, 2019, incorporation by reference approved for Sec.  
385.415(b).
* * * * *

    Issued under authority delegated in 49 CFR 1.87.

    Dated: February 11, 2020.
Jim Mullen,
Acting Administrator.
[FR Doc. 2020-03129 Filed 2-21-20; 8:45 am]
 BILLING CODE 4910-EX-P


