[Federal Register Volume 86, Number 126 (Tuesday, July 6, 2021)]
[Proposed Rules]
[Pages 35443-35449]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-14039]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Part 385

[Docket No. FMCSA-2021-0063]
RIN 2126-AC40


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 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 
of radioactive material. The OOSC provide enforcement personnel 
nationwide, including FMCSA's State partners, with uniform enforcement 
tolerances for inspections. Currently, the regulations reference the 
April 1, 2019, edition of the handbook. Through this document, FMCSA 
proposes to incorporate by reference the April 1, 2021 edition.

DATES: Comments on this document must be received on or before August 
5, 2021.

ADDRESSES: You may submit comments identified by Docket Number FMCSA 
2021-0063 using any of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov/docket/FMCSA-2021-0063/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, 
Room W12-140, Washington, DC 20590-0001.
     Hand Delivery or Courier: West Building, Ground Floor, 
Room W12-140, 1200 New Jersey Avenue SE, Washington, DC, 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.
    To avoid duplication, please use only one of these four methods. 
See the ``Public Participation and Request for Comments'' portion of 
the SUPPLEMENTARY INFORMATION section for instructions on submitting 
comments.

FOR FURTHER INFORMATION CONTACT: Mr. Jos[eacute] Cestero, Vehicle and 
Roadside Operations Division, Federal Motor Carrier Safety 
Administration, 1200 New Jersey Avenue SE, Washington, DC 20590-0001, 
(202) 366-5541, jose.cestero@dot.gov. If you have questions on viewing 
or submitting material to the docket, contact Dockets Operations, (202) 
366-9826.

SUPPLEMENTARY INFORMATION: This notice of proposed rulemaking (NPRM) is 
organized as follows:

I. Public Participation and Request for Comments
    A. Submitting Comments
    B. Viewing Comments and Documents
    C. Privacy Act
    D. Advance Notice of Proposed Rulemaking Not Required
II. Executive Summary
III. Legal Basis for the Rulemaking
IV. Background
V. Discussion of Proposed Rulemaking
VI. International Impacts
VII. Section-by-Section Analysis
VIII. Regulatory Analyses
    A. E.O. 12866 (Regulatory Planning and Review), E.O. 13563 
(Improving Regulation and Regulatory Review), and DOT Regulations
    B. Congressional Review Act
    C. Regulatory Flexibility Act (Small Entities)
    D. Assistance for Small Entities
    E. Unfunded Mandates Reform Act of 1995
    F. Paperwork Reduction Act
    G. E.O. 13132 (Federalism)
    H. Privacy
    I. E.O. 13175 (Indian Tribal Governments)
    J. National Environmental Policy Act of 1969

I. Public Participation and Request for Comments

A. Submitting Comments

    If you submit a comment, please include the docket number for this 
NPRM (Docket No. FMCSA-2021-0063), 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 that FMCSA can contact you if there are questions 
regarding your submission.
    To submit your comment online, go to https://www.regulations.gov/docket/FMCSA-2021-0063/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. If you submit comments by mail and would 
like to know that they reached the facility, please enclose a stamped, 
self-addressed postcard or envelope.
    FMCSA will consider all comments and material received during the 
comment period.
Confidential Business Information
    Confidential Business Information (CBI) is commercial or financial 
information that is both customarily and actually treated as private by 
its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), 
CBI is exempt from public disclosure. If your comments responsive to 
this 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 this 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 FOIA, and they will not be placed 
in the public docket of this NPRM. Submissions containing CBI should be 
sent to Mr. Brian Dahlin, Chief, Regulatory Analysis Division, Federal 
Motor Carrier Safety Administration, 1200 New Jersey Avenue SE, 
Washington DC 20590-0001. Any comments FMCSA receives which are not 
specifically designated as CBI will be placed in the public docket for 
this rulemaking.

B. Viewing Comments and Documents

    To view documents mentioned in this preamble as being available in 
the

[[Page 35444]]

docket, go to https://www.regulations.gov/docket/FMCSA-2021-0063/document and choose the document to review. To view comments, click 
this NPRM, and click ``Browse Comments.'' If you do not have access to 
the internet, you may view the docket online by visiting Dockets 
Operations in Room W12-140 on the ground floor of the DOT West 
Building, 1200 New Jersey Avenue SE, Washington, DC 20590, 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 Act

    In accordance with 5 U.S.C. 553(c), DOT solicits comments from the 
public to better inform its rulemaking process. DOT posts these 
comments, without edit, including any personal information the 
commenter provides, to www.regulations.gov, as described in the system 
of records notice (DOT/ALL-14 FDMS), which can be reviewed at 
www.dot.gov/privacy.

D. Advance Notice of Proposed Rulemaking Not Required

    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.

II. Executive Summary

    This NPRM proposes to update 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, 2019, 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 Out-of-Service Criteria (OOSC) for inspections of shipments of 
transuranic waste and highway route controlled quantities of 
radioactive material. 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 Enforcement and Compliance, 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, 
telephone (301) 830-6143, www.cvsa.org.
    In this NPRM, FMCSA proposes to incorporate by reference the April 
1, 2021, edition of the handbook. FMCSA did not update Sec.  385.4(b) 
to incorporate by reference the April 1, 2020, edition of the handbook. 
This NPRM will discuss all updates to the currently incorporated 2019 
edition of the handbook, including the updates made in the April 1, 
2020, edition of the handbook.
    Twenty-one updates distinguish the April 1, 2021, handbook edition 
from the 2019 edition. The incorporation by reference of the 2021 
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 under 49 CFR part 385, subpart E to address the 
congressional mandate on hazardous materials safety permits. Those 
regulations are the underlying provisions to which the material 
incorporated by reference discussed in this document 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 (OOS) conditions and/or criteria, an 
inspection decal, and a training and certification program for 
inspectors to conduct inspections on shipments of transuranic waste and 
highway route controlled quantities of radioactive material. 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 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 United States. All highway route 
controlled quantities of radioactive material 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.
    Section 385.415 of title 49, Code of Federal Regulations, 
prescribes operational requirements for motor carriers transporting 
hazardous materials for which a hazardous materials safety permit is 
required. Section 385.415(b) requires that motor carriers ensure a pre-
trip inspection is performed on each motor vehicle to be used to 
transport a highway route controlled quantity of a Class 7 
(radioactive) material, in accordance with the requirements of CVSA's 
handbook titled ``North American Standard Out-of-Service Criteria and 
Level VI Inspection Procedures and Out-of-Service Criteria for 
Commercial Highway Vehicles Transporting Transuranics and Highway Route 
Controlled Quantities of Radioactive Materials as defined in 49 CFR 
part 173.403.''
    According to 2015-2019 data from FMCSA's Motor Carrier Management 
Information System (MCMIS), approximately 3.34 million Level I-Level VI 
inspections were performed annually. Nearly 97 percent of these

[[Page 35445]]

were Level I,\1\ Level II,\2\ and Level III \3\ inspections. During the 
same period, an average of 611 Level VI inspections were performed 
annually, comprising only 0.02 percent of all inspections. On average, 
OOS violations were cited in only 7.8 Level VI inspections annually (2 
percent), whereas on average, OOS violations were cited in 266,025 
Level I inspections (25 percent), 275,840 Level II inspections (23 
percent), and 61,201 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 2021 and 2020 editions 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 2021 edition of the CVSA 
handbook to affect the number of OOS violations cited during Level VI 
inspections.

V. Discussion of Proposed Rulemaking

    Section 385.4(b)(1), as amended on February 24, 2020 (85 FR 10307), 
references the April 1, 2019, edition of the CVSA handbook. This NPRM 
proposes to amend Sec.  385.4(b)(1) by replacing the reference to the 
April 1, 2019, edition date with a reference to the new edition date of 
April 1, 2021.
    CVSA also published a 2020 edition of the handbook in the period 
between the February 24, 2020, final rule and the publishing of the 
2021 edition. FMCSA did not publish an update to the incorporation by 
reference in Sec.  385.4(b)(1) with the April 1, 2020, edition of the 
handbook. This NPRM will therefore discuss the updates included in the 
2020 and 2021 editions of the handbook. The changes made based on the 
2020 and 2021 editions 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.

April 1, 2020, Changes

    Seventeen changes in the 2020 edition of the CVSA handbook 
distinguish it from the April 1, 2019 edition:
    (1) The title of Part I, Item 2.a. was amended to clarify that ``. 
. . vehicles that, regardless of GVWR, do not require a commercial 
driver's license (CDL) (e.g., exempt farm vehicles or fire apparatuses, 
etc.)'' (2020 CVSA handbook, page 11) are included in this section of 
the OOSC. Currently, this section applies only to vehicles with a gross 
vehicle weight rating (GVWR) of 26,000 lbs. or less, not designed to 
transport 16 or more passengers or placarded loads of hazardous 
materials. Under the current wording, a driver cannot be placed OOS for 
not having the proper class of driver's license, for having a 
suspended/revoked license, or for being unlicensed when operating a 
vehicle over 26,000 pounds GVWR and exempt from the requirements to 
have a CDL. However, and because the FMCSRs include a number of 
regulatory exceptions to the CDL requirements, there are numerous other 
vehicle types over 26,000 pounds GVWR that may have non-CDL drivers 
(e.g., covered farm vehicles, intrastate farm vehicles, emergency 
vehicles, etc.). This clarification will not have any effect on the 
number of OOS violations cited during Level VI inspections, as all 
drivers transporting hazardous materials are required to have a CDL.
    (2) The note in Part I, Item 2.b., and Part I, Item 3.c., was 
amended to clarify that in Canada, a ``valid'' Canadian Transportation 
of Dangerous Goods (TDG) training certificate is required. Canadian TDG 
training certificates require certain informational items be 
identified; language was added to the note to clarify that a training 
certificate is considered invalid and the driver should be placed OOS 
if it is missing that required information. This update will ensure a 
uniform approach to Canadian TDG training certificate validity. This 
clarification is not expected to have any effect on the number of OOS 
violations cited during Level VI inspections in the U.S.
    (3) The title of Part I, Item 7., was amended by removing the 
language ``AS IDENTIFIED UNDER SECTION 392.4(a)'' because the OOS 
violations now listed in this section are not all located in Sec.  
392.4(a). In addition, CVSA added a new OOS item to address drivers who 
are recorded in the Drug and Alcohol Clearinghouse as prohibited from 
performing safety-sensitive functions per Sec.  382.501(a) as a result 
of failing an alcohol or drug test. FMCSA records indicate that no 
driver-related OOS violations have been issued as a result of a Level 
VI inspection in the past 3 years. The changes are intended to ensure 
clarity in the presentation of the OOS conditions and are not expected 
to affect the number of OOS violations cited during Level VI 
inspections.
    (4) Footnote 14 to Part I, Item 9., was amended to remove the 
reference to automatic on-board recording devices (AOBRDs), and a note 
was added to Footnotes 11-14 of the same section. The reference to 
AOBRDs in Footnote 14 was removed because the grandfather clause 
permitting use of AOBRDs expired on December 16, 2019, and therefore 
the reference to AOBRDs in Footnote 14 is no longer relevant. Since 
December 2017, the information in the `NOTE' outlines the policy that 
CVSA has used for placing drivers out of service for electronic logging 
device (ELD) violations. Similar information is listed in FMCSA's 
Frequently Asked Questions document on ELDs. The CVSA Driver-Traffic 
Enforcement Committee voted to add this information as a note relative 
to Footnotes 11-14. The changes are intended to ensure clarity in the 
presentation of the OOS conditions and are not expected to affect the 
number of OOS violations cited during Level VI inspections.
    (5) Part I, Item 10.h., regarding records of duty status (RODS) in 
Canada was amended to remove the provision for a driver to be placed 
OOS for a period of 72 hours for not producing a daily log. Recent 
changes to the Canadian federal hours-of-service (HOS) regulations have 
eliminated the ability of an officer/inspector to place a driver OOS 
for 72 hours for not producing a daily log. Under the new regulations, 
a driver is placed OOS only for the number of hours required to have 
the driver provide a compliant daily log. This amendment is applicable 
only to the enforcement of Canadian HOS regulations and will not have 
any effect on the number of OOS violations cited during Level VI 
inspections in the United States.
    (6) Footnote 2 to Part I, Item 10., regarding RODS in Canada was 
amended to reduce the time a driver can be behind on his/her daily log 
and not be declared OOS. Given the recent changes to the Canadian 
federal HOS regulations as discussed above, and because the 72-hour 
timeframe to place a driver OOS for no production of a log book was 
removed, it was deemed appropriate to reduce the time a driver can be 
behind on his/her log before

[[Page 35446]]

being placed OOS. The timeframe was reduced from the current day plus 
the previous day to the current day only. This amendment is applicable 
only to the enforcement of Canadian HOS regulations and will not have 
any effect on the number of OOS violations cited during Level VI 
inspections in the United States.
    (7) Part I, Item 11., was amended by (1) replacing the OOSC for 
Mexico to reflect the requirements in NOM-087-SCT-2-2017, and (2) 
adding footnotes to that section. NOM-087-SCT-2-2017 are Mexico's CMV 
regulatory requirements. Mexico recently updated its HOS Official 
Mexican Standards (Norma Oficial Mexicana) (NOMs), and this update 
required changes to the OOSC. CVSA worked with Mexico to make these 
updates, and Mexico approved the amendments as written for use in 
Mexico for OOS conditions. This amendment is applicable only to the 
enforcement of Mexican HOS regulations and will not have any effect on 
the number of OOS violations cited during Level VI inspections in the 
United States.
    (8) The charts for ``Clamp Type Brake Chamber Data'' and ``Long 
Stroke Clamp Type Brake Chamber Data'' in Part II, Item 1.a., were 
amended to add a new column listing the SAE J2899 markings found on 
brake chambers. SAE J2899, ``Brake Adjustment Limit for Air Brake 
Actuators,'' was issued in December 2013 and revised in June 2017, and 
was developed to provide an alternative way of determining the size and 
allowable stroke of a brake chamber. Manufacturers have the option to 
cast a marking permanently onto the center section of the brake chamber 
using the letters ``A'' through ``H.'' The markings are easy to see and 
indicate the rated stroke and pushrod stroke of the chamber without the 
need to measure the diameter or determine if it is long or short 
stroke. This marking method reduces the likelihood that an inspector 
will either (1) pass a vehicle that should be OOS, or (2) place a 
vehicle OOS that is within acceptable operating conditions. The CVSA 
Vehicle Committee voted unanimously to add a column in the charts in 
Part II, Item 1.a. that lists the SAE J2899 markings found on brake 
chambers. FMCSA records indicate that no violations or OOS violations 
have been issued regarding brakes being out of adjustment as a result 
of a Level VI inspection in the past 3 years. The changes are intended 
to ensure clarity in the presentation of the OOS conditions and are not 
expected to affect the number of OOS violations cited during Level VI 
inspections.
    (9) Part II, Item 1., was amended to add a clarification that a 
parking brake needs to be held by mechanical means. Clarification was 
necessary regarding whether (1) the mechanical holding of the parking 
brake should be required, or (2) applying the parking brake with hand 
pressure and holding it with hand pressure is adequate. Specifically, 
in cases where the actuator cannot hold the parking brake in the 
applied position, it was unclear whether the vehicle should be placed 
OOS. Following discussion with brake industry experts, the CVSA Vehicle 
Committee confirmed that Federal Motor Vehicle Safety Standard Nos. 105 
and 121 require the parking brake to be held by a mechanical means. 
FMCSA records indicate that no OOS violations have been issued 
regarding parking brakes as a result of a Level VI inspection in the 
past 3 years. The changes are intended to ensure clarity in the 
presentation of the OOS conditions and are not expected to affect the 
number of OOS violations cited during Level VI inspections.
    (10) The title of Part II, Item 11.d., was amended to remove sway 
bars from the OOSC. The CVSA Vehicle Committee determined that sway 
bars provide comfort, not stability, and that they are not a critical 
vehicle inspection item. As such, the CVSA Vehicle Committee determined 
that missing or loose sway bars should not be an OOS condition. This 
amendment also requires a supporting edit to Note 2 in Part II, Item 
11.b., that references the title to Part II, Item 11.d. FMCSA records 
indicate that no OOS violations have been issued regarding sway bars as 
a result of a Level VI inspection in the past 3 years. As such, and 
because the changes eliminate an existing OOS condition, the changes 
will not affect the number of OOS violations cited during Level VI 
inspections.
    (11) Part II, Item 12.a.9., and Part II, Item 12.b.4., were amended 
to clarify that the OOS condition refers to a wheel end on an axle. In 
response to questions regarding whether the tire loading restriction in 
Sec.  393.75(g) of the FMCSRs applies to (1) a wheel end on an axle, or 
(2) a single tire on an axle, or (3) whether the entire axle must 
exceed the tire weight rating in order to constitute an OOS condition, 
the CVSA Vehicle Committee determined that exceeding the tire load 
limits should apply to the wheel end. The OOS condition applies when 
the tire or dual set exceeds the applicable load rating on the sidewall 
of the tire(s), and the language was amended to reflect this condition. 
FMCSA records indicate that no OOS violations have been issued 
regarding tire loading restrictions as a result of a Level VI 
inspection in the past 3 years. The changes are intended to ensure 
clarity in the presentation of the OOS conditions and are not expected 
to affect the number of OOS violations cited during Level VI 
inspections.
    (12) Part II, Item 16.a., was amended to add new OOS conditions for 
emergency exits on passenger-carrying vehicles that are marked as such, 
but that are not necessarily required to be installed by regulation. 
Language was added to this section to clarify that passenger-carrying 
vehicles with marked emergency exits that are obstructed should be 
declared OOS, whether such exits are required to be installed or not. 
The new criteria were also separated to reference marked required 
exits, versus other marked exits, and the revised criteria clearly 
articulate the items/conditions that constitute an OOS condition. As 
this change applies only to passenger-carrying vehicles, it will not 
have any effect on the number of OOS violations cited during Level VI 
inspections, which are applicable to carriers transporting transuranics 
and highway route controlled quantities of radioactive materials.
    (13) Part III, Item 3.c., was amended to modify: (1) The title of 
this section; and (2) the OOS condition to include terminology adopted 
in Canada's TDG Regulations. While the previous title of this section 
referred only to ``Bulk Package Authorization,'' Canada's TDG 
Regulations do not reference bulk packages, but instead reference and 
define the term ``large means of containment.'' The Canadian Education 
Quality Assurance Team (EQAT)--Dangerous Goods Working Group requested 
addition of the Canadian terminology in the OOSC to improve uniform 
application of the OOS condition. Adding ``large means of containment'' 
to the OOSC will make it easier for Canadian inspectors to interpret 
the criteria. The changes are intended to ensure clarity in the 
presentation of the OOS conditions and are not expected to affect the 
number of OOS violations cited during Level VI inspections.
    (14) Part III, Item 3.d., was amended by adding a note regarding 
manhole covers. The CVSA Hazardous Materials Committee contacted the 
Truck Trailer Manufacturers Association to discuss manhole securement 
with the Tank Engineering Committee. The committee agreed that all 
fasteners on the dome need to be engaged and hand tightened to be 
considered closed and secured. Based on this information, the committee 
voted to add a note to the

[[Page 35447]]

OOSC to clarify that an OOS condition exists when any manhole cover 
securement device is missing or unsecured. The change is intended to 
ensure clarity in the presentation of the OOS condition and is not 
expected to affect the number of OOS violations cited during Level VI 
inspections.
    (15) The title of Part III, Item 6., was amended to include 
terminology adopted in Canada's TDG Regulations. While the previous 
title of this section referred only to ``Non-Bulk Packaging,'' Canada's 
TDG Regulations do not reference non-bulk packaging, but instead 
reference and define the term ``small means of containment.'' The 
Canadian EQAT--Dangerous Goods Working Group requested the addition of 
Canadian terminology in the title to improve uniform application of the 
OOS condition. Adding ``small means of containment'' to the OOSC will 
make it easier for Canadian inspectors to interpret the criteria. The 
change is intended to ensure clarity in the presentation of the OOS 
conditions and is not expected to affect the number of OOS violations 
cited during Level VI inspections.
    (16) Part III, Item 10.a., regarding requirements pertaining to 
Canada's Emergency Response Assistance Plan (ERAP) was amended to 
specify that certain ERAP information must be on the shipping document. 
The Canadian EQAT--Dangerous Goods Working Group indicated that for 
first responders to activate an ERAP, the ERAP reference number and 
implementation telephone number must be listed on the shipping 
document. Currently, the OOSC only allows inspectors to place a 
shipment OOS if the carrier/consignor does not have an approved ERAP at 
all. Situations have arisen where the ERAP reference number/activation 
telephone number was not listed on the shipping document, and 
inspectors were not able to place the dangerous goods shipment OOS as 
intended. This additional language specifies that this information is 
required. This amendment is applicable only to Canada's ERAP, and will 
not have any effect on the number of OOS violations cited during Level 
VI inspections in the United States.
    (17) The Level VI Inspection Procedures were amended by adding Step 
36, ``Proof of Periodic (Annual) Inspection.'' Currently, there is no 
language in the Level VI Inspection Procedures addressing the required 
periodic (annual) inspection. Adding this item will require each unit 
to have evidence that a periodic inspection was conducted and 
satisfactorily completed before a CVSA Level VI decal can be applied by 
the inspector during a point of origin inspection only. As this is not 
an OOS condition for the Level VI Inspection, this amendment will not 
have any effect on the number of OOS violations cited during Level VI 
inspections.

April 1, 2021, Changes

    Four changes in the 2021 edition of the CVSA handbook distinguish 
it from the April 1, 2020 edition:
    (1) Footnotes 5-8 to Part I, Item 9., were amended to remove 
language that repeats the FMCSRs. The CVSA Driver-Traffic Enforcement 
Committee determined that there is no reason to repeat information in 
the OOSC that is contained in Sec. Sec.  395.1 and 395.3. Quoting the 
FMCSRs in the footnotes could potentially confuse an inspector as there 
are other applicable exemptions that are not addressed in the 
footnotes. The footnotes, 5-8, were removed and reserved because other 
documents refer to these notes and renumbering them could cause 
confusion. The changes are intended to ensure clarity in the 
presentation of the OOS conditions and are not expected to affect the 
number of OOS violations cited during Level VI inspections.
    Footnote 10 to Part I, Item 9., was amended to clarify that AOBRDs 
cannot be used in place of a compliant ELD. However, some carriers are 
exempt from using ELDs and they may still use AOBRDs. Language was 
added to this footnote to clarify that drivers who are not required to 
have an ELD that complies with Sec.  395.22(a), but who utilize an 
electronic device other than those described in the regulations, shall 
not be declared OOS. The amendment is intended to ensure clarity in the 
presentation of the OOS conditions and is not expected to affect the 
number of OOS violations cited during Level VI inspections.
    (2) In Part I, Items 10.h. and 10.i., regarding RODS in Canada, 
were amended to include terminology based on the pending implementation 
of the ELD requirement, effective June 12, 2021. A note was also added 
to Footnotes 1-2 of the same section. The terminology in Canada's 
regulation will change from ``daily log'' to ``RODS.'' However, there 
will be some Provinces/Territories that will continue to use the daily 
log terminology in their Provincial/Territorial regulations. The 
Driver-Traffic Enforcement Committee determined that the appropriate 
action would be to refer to both terms to make the OOSC applicable to 
all drivers. These amendments are applicable only to Canada's RODS, 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 10., regarding RODS in Canada was amended by 
adding a footnote 6 to indicate that a driver who is found without an 
ELD but is still completing another form of a RODS will currently not 
be placed OOS. This enforcement action is different from that 
applicable in the U.S., so the note was added for Canadian inspectors 
to reference, similar to the note for the U.S (Footnote 10, Part I, 
Item 9. United States). The amendment is applicable only to Canada's 
RODS, and will not have any effect on the number of OOS violations 
cited during Level VI inspections in the United States.
    (4) Part II, Item 9.b., was amended to clarify that an inoperative 
center high-mounted stop lamp(s) that is required by regulation is 
considered a critical vehicle inspection item, but not considered for 
OOS purposes. The CVSA-critical vehicle inspection item list and the 
OOSC include ``Lighting devices (headlamps, tail lamps, stop lamps, 
turn signals, and lamps/flags on projecting loads).'' In both the 
United States and Canada, there are regulations requiring some smaller 
vehicles to be equipped with center high-mounted stop lamp(s) and they 
must be maintained and operational; however, on larger vehicles, they 
are optional. Therefore, in those cases where center high-mounted stop 
lamp(s) are required, the vehicle will still require at least one brake 
light in addition to the center high-mounted stop lamp(s) to avoid 
being placed OOS. The amendment is intended to ensure clarity in the 
presentation of the OOS conditions and is not expected to affect the 
number of OOS violations cited during Level VI inspections.

VI. 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 the United 
States, Canada, and Mexico. The OOSC provide uniform enforcement 
tolerances for inspections conducted in all three countries.

[[Page 35448]]

VII. Section-by-Section Analysis

Section 385.4 Matter Incorporated by Reference

    Section 385.4(b)(1), as amended on February 24, 2020, references 
the April 1, 2019, edition of the CVSA handbook. This NPRM would 
replace the reference to the April 1, 2019, edition date with a 
reference to the new edition date of April 1, 2021.

VIII. Regulatory Analyses

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

    FMCSA has considered the impact of this proposed rule under E.O. 
12866 (58 FR 51735, Oct. 4, 1993), Regulatory Planning and Review, E.O. 
13563 (76 FR 3821, Jan. 21, 2011), Improving Regulation and Regulatory 
Review, and DOT's regulatory policies and procedures. OIRA determined 
that this proposed rule is not a significant regulatory action under 
section 3(f) of E.O. 12866, as supplemented by E.O. 13563, and does not 
require an assessment of potential costs and benefits under section 
6(a)(3) of that Order. Accordingly, OMB has not reviewed it under these 
Orders.
    The proposed rule, if finalized, would update an incorporation by 
reference from the April 1, 2019, edition to the April 1, 2021, edition 
of CVSA's handbook titled ``North American Standard Out-of-Service 
Criteria and Level VI Inspection Procedures and Out-of-Service Criteria 
for Commercial Highway Vehicles Transporting Transuranics and Highway 
Route Controlled Quantities of Radioactive Materials as defined in 49 
CFR part 173.403.'' FMCSA reviewed its MCMIS data on inspections 
performed from 2015 to 2019 and does not expect the handbook updates to 
have any effect on the number of OOS violations cited during Level VI 
inspections. Therefore, the proposed rule's impact would be de minimis.

B. Congressional Review Act

    Pursuant to the Congressional Review Act (5 U.S.C. 801, et seq.), 
the Office of Information and Regulatory Affairs (OIRA) designated this 
rulemaking as not a ``major rule,'' as defined by 5 U.S.C. 804(2).\4\
---------------------------------------------------------------------------

    \4\ A ``major rule'' means any rule that the Administrator of 
OIRA at 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, 
Federal agencies, State agencies, local government agencies, or 
geographic regions; 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. 
804(2)).
---------------------------------------------------------------------------

C. Regulatory Flexibility Act (Small Entities)

    The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) 
(RFA), as amended by the Small Business Regulatory Enforcement Fairness 
Act of 1996 (Pub. L. 104-121, 110 Stat. 857), requires Federal agencies 
to consider the effects of the regulatory action on small business and 
other small entities and to minimize any significant economic impact. 
The term ``small entities'' comprises small businesses and not-for-
profit organizations that are independently owned and operated and are 
not dominant in their fields, and governmental jurisdictions with 
populations of less than 50,000 (5 U.S.C. 601(6)). Accordingly, DOT 
policy requires an analysis of the impact of all regulations on small 
entities, and mandates that agencies strive to lessen any adverse 
effects on these businesses. None of the updates from the 2021 edition 
imposes new requirements or makes substantive changes to the FMCSRs.
    When an Agency issues a rulemaking proposal, the RFA requires the 
Agency to ``prepare and make available an initial regulatory 
flexibility analysis'' that will describe the impact of the proposed 
rule on small entities (5 U.S.C. 603(a)). Section 605 of the RFA allows 
an agency to certify a rule, instead of preparing an analysis, if the 
proposed rule is not expected to impact a substantial number of small 
entities. The proposed rule would update an incorporation by reference 
found at 49 CFR 385.4(b)(1) and referenced at 49 CFR 385.415(b), and 
would incorporate by reference the April 1, 2021, edition of the CVSA 
handbook. The changes to the 2021 edition of the CVSA handbook from the 
2019 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 2021 edition of 
the CVSA handbook to affect the number of OOS violations cited during 
Level VI inspections. Accordingly, I certify that, if promulgated, this 
proposed rule will not have a significant economic impact on a 
substantial number of small entities. FMCSA invites comments from 
anyone who believes there will be a significant impact on small 
entities from this action.

D. 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 rulemaking so they can better evaluate its 
effects on themselves and participate in the rulemaking initiative. If 
the rulemaking 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 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) 
requires Federal agencies to assess the effects of their discretionary 
regulatory actions. In particular, 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 $170 million (which is the 
value equivalent of $100 million in 1995, adjusted for inflation to 
2020 levels) or more in any one year. Though this rulemaking would not 
result in such an expenditure, the Agency does discuss the effects of 
this rulemaking 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

[[Page 35449]]

responsibilities among the various levels of government.''
    FMCSA has determined that this rulemaking 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 rulemaking does not have 
sufficient federalism implications to warrant the preparation of a 
Federalism Impact Statement.

H. Privacy

    The Consolidated Appropriations Act, 2005,\5\ requires the Agency 
to conduct a privacy impact assessment of a regulation that will affect 
the privacy of individuals. This rulemaking would not require the 
collection of personally identifiable information.
---------------------------------------------------------------------------

    \5\ Public Law 108-447, 118 Stat. 2809, 3268, 5 U.S.C. 552a note 
(Dec. 8, 2004).
---------------------------------------------------------------------------

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

    This rulemaking 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 rulemaking for the purpose of 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, paragraph 6(b). This Categorical Exclusion (CE) covers 
minor revisions to regulations. The proposed requirements in this 
rulemaking are covered by this CE and the rulemaking does not have any 
effect on the quality of the environment.

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, 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. Revise Sec.  385.4(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, 2021, incorporation by reference approved for Sec.  
385.415(b).
* * * * *

    Issued under authority delegated in 49 CFR 1.87.
Meera Joshi,
Deputy Administrator.
[FR Doc. 2021-14039 Filed 7-2-21; 8:45 am]
BILLING CODE 4910-EX-P


