[Federal Register Volume 88, Number 140 (Monday, July 24, 2023)]
[Proposed Rules]
[Pages 47437-47442]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-15412]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Part 385

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


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

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

ACTION: Notice of proposed rulemaking.

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SUMMARY: FMCSA proposes amendments to its Hazardous Materials Safety 
Permits (HMSPs) regulations to incorporate by reference the updated 
Commercial Vehicle Safety Alliance (CVSA) handbook containing 
inspection procedures and Out-of-Service Criteria (OOSC) for 
inspections of shipments of transuranic waste and highway route-
controlled quantities (HRCQs) of radioactive material (RAM). The OOSC 
provide enforcement personnel nationwide, including FMCSA's State 
partners, with uniform enforcement tolerances for inspections. 
Currently, the regulations reference the April 1, 2022, edition of the 
handbook. Through this notice, FMCSA proposes to incorporate by 
reference the April 1, 2023, edition.

DATES: Comments must be received on or before August 23, 2023.

ADDRESSES: You may submit comments identified by Docket Number FMCSA-
2023-0122 using any of the following methods:
     Federal eRulemaking Portal: Go to https://www.regulations.gov/docket/FMCSA-2023-0122/document. Follow the online 
instructions for submitting comments.
     Mail: Dockets Operations, U.S. Department of 
Transportation, 1200 New Jersey Avenue SE, West Building, Ground Floor, 
Washington, DC 20590-0001.
     Hand Delivery or Courier: Dockets Operations, U.S. 
Department of Transportation, 1200 New Jersey Avenue SE, West Building, 
Ground Floor, Room W12-140, Washington, DC 20590-0001, between 9 a.m. 
and 5 p.m., Monday through Friday, except Federal holidays. To be sure 
someone is there to help you, please call (202) 366-9317 or (202) 366-
9826 before visiting Dockets Operations.
     Fax: (202) 493-2251.
    Viewing incorporation by reference material: You may inspect the 
material proposed for incorporation by reference at U.S. Department of 
Transportation, 1200 New Jersey Avenue SE, Washington, DC 20590-0001 
between 8 a.m. and 5 p.m., Monday through Friday, except Federal 
holidays. The telephone number is (202) 366-1812. Copies of the 
material are available as indicated in the ``Incorporation by 
Reference'' section of this preamble.

FOR FURTHER INFORMATION CONTACT: Jos[eacute] Cestero, Vehicle and 
Roadside Operations Division, FMCSA, 1200 New Jersey Avenue SE, 
Washington, DC 20590-0001, (202) 366-5541, [email protected]. If you 
have questions on viewing or submitting material to the docket, contact 
Dockets Operations, (202) 366-9826.

SUPPLEMENTARY INFORMATION: 
    FMCSA organizes this notice of proposed rulemaking (NPRM) as 
follows:

I. Public Participation and Request for Comments
    A. Submitting Comments
    B. Viewing Comments and Documents
    C. Privacy
II. Executive Summary
III. Abbreviations
IV. Legal Basis
V. Background
VI. Discussion of Proposed Rulemaking
VII. Severability
VIII. Section-by-Section Analysis
IX. Regulatory Analyses
    A. E.O. 12866 (Regulatory Planning and Review), E.O. 13563 
(Improving Regulation and Regulatory Review), E.O. 14094 
(Modernizing Regulatory Review), and DOT Regulatory Policies and 
Procedures
    B. Congressional Review Act
    C. Advance Notice of Proposed Rulemaking
    D. Regulatory Flexibility Act
    E. Assistance for Small Entities
    F. Unfunded Mandates Reform Act of 1995
    G. Paperwork Reduction Act
    H. E.O. 13132 (Federalism)
    I. Privacy
    J. E.O. 13175 (Indian Tribal Governments)
    K. 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 (FMCSA-2023-0122), indicate the specific section of this document 
to which your comment applies, and provide a reason for each suggestion 
or recommendation. You may submit your comments and material online or 
by fax, mail, or hand delivery, but please use only one of these means. 
FMCSA recommends that you include your name and a mailing address, an 
email address, or a phone number in the body of your document so FMCSA 
can contact you if there are questions regarding your submission.
    To submit your comment online, go to https://www.regulations.gov/docket/FMCSA-2023-0122/document, click on this NPRM, click ``Comment,'' 
and type your comment into the text box on the following screen.
    If you submit your comments by mail or hand delivery, submit them 
in an unbound format, no larger than 8\1/2\ by 11 inches, suitable for 
copying and electronic filing.
    FMCSA will consider all comments and material received during the 
comment period.
Confidential Business Information (CBI)
    CBI is commercial or financial information that is both customarily 
and actually treated as private by its owner. Under the Freedom of 
Information Act (5 U.S.C. 552), CBI is exempt from public disclosure. 
If your comments responsive to the NPRM contain commercial or financial 
information that is customarily treated as private, that you actually 
treat as private, and that is relevant or responsive to the NPRM, it is 
important that you clearly designate the submitted comments as CBI. 
Please mark each page of your submission that constitutes CBI as

[[Page 47438]]

``PROPIN'' to indicate it contains proprietary information. FMCSA will 
treat such marked submissions as confidential under the Freedom of 
Information Act, and they will not be placed in the public docket of 
the NPRM. Submissions containing CBI should be sent to Brian Dahlin, 
Chief, Regulatory Evaluation Division, Office of Policy, FMCSA, 1200 
New Jersey Avenue SE, Washington, DC 20590-0001 or via email at 
[email protected]. At this time, you need not send a duplicate 
hardcopy of your electronic CBI submissions to FMCSA headquarters. Any 
comments FMCSA receives not specifically designated as CBI will be 
placed in the public docket for this rulemaking.

B. Viewing Comments and Documents

    To view any documents mentioned as being available in the docket, 
go to https://www.regulations.gov/docket/FMCSA-2023-0122/document and 
choose the document to review. To view comments, click this NPRM, then 
click ``Browse Comments.'' If you do not have access to the internet, 
you may view the docket online by visiting Dockets Operations in on the 
ground floor of the DOT West Building, 1200 New Jersey Avenue SE, 
Washington, DC 20590-0001, between 9 a.m. and 5 p.m., Monday through 
Friday, except Federal holidays. To be sure someone is there to help 
you, please call (202) 366-9317 or (202) 366-9826 before visiting 
Dockets Operations.

C. Privacy

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

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, 2022, edition of 
CVSA's handbook titled ``North American Standard Out-of-Service 
Criteria and Level VI Inspection Procedures and Out-of-Service Criteria 
for Commercial Highway Vehicles Transporting Transuranics and Highway 
Route Controlled Quantities of Radioactive Materials as defined in 49 
CFR part 173.403.'' The CVSA handbook contains inspection procedures 
and OOSC for inspections of shipments of transuranic waste and HRCQs of 
RAM. The OOSC, while not regulations, provide enforcement personnel 
nationwide, including FMCSA's State partners, with uniform enforcement 
tolerances for inspections. The material is available, and will 
continue to be available, for inspection at the FMCSA, Office of 
Safety, 1200 New Jersey Avenue SE, Washington, DC 20590 (Attention: 
Chief, Compliance Division) at (202) 366-1812. The document may be 
purchased from the Commercial Vehicle Safety Alliance, 6303 Ivy Lane, 
Suite 310, Greenbelt, MD 20770, (301) 830-6143, www.cvsa.org.
    In this NPRM, FMCSA proposes to incorporate by reference the April 
1, 2023, edition of the handbook. This NPRM will discuss all updates to 
the currently incorporated 2022 edition of the handbook.
    Nine updates distinguish the April 1, 2023, handbook edition from 
the 2022 edition. The incorporation by reference of the 2023 edition 
does not impose new regulatory requirements.

III. Abbreviations

CDL Commercial Driver's License
CFR Code of Federal Regulations
CVSA Commercial Vehicle Safety Alliance
DOT Department of Transportation
FMCSA Federal Motor Carrier Safety Administration
FMCSRs Federal Motor Carrier Safety Regulations
FR Federal Register
HMSP Hazardous Materials Safety Permit
HRCQ Highway Route-Controlled Quantity
MCMIS Motor Carrier Management Information System
OOS Out-of-Service
OOSC Out-of-Service Criteria
RAM Radioactive Material
RODS Record of Duty Status
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 U.S.C. 5105(d), relating to 
inspections of motor vehicles carrying certain hazardous material, and 
49 U.S.C. 5109, relating to motor carrier safety permits (hereinafter 
``HMSPs''), the Secretary of Transportation is required to promulgate 
regulations as part of a comprehensive safety program on HMSPs. The 
FMCSA Administrator has been delegated authority under 49 U.S.C. 113(f) 
and 49 Code of Federal Regulations (CFR) 1.87(d)(2) to carry out the 
functions vested in the Secretary of Transportation related to HMSPs. 
Consistent with that authority, FMCSA has promulgated regulations under 
49 CFR part 385, subpart E to address the congressional mandate on 
HMSPs. Those regulations are the underlying provisions to which the 
material incorporated by reference discussed in this notice is 
applicable.

V. Background

    In 1986, the U.S. Department of Energy and CVSA entered into a 
cooperative agreement to develop a higher level of inspection 
procedures, out-of-service (OOS) conditions and/or criteria, an 
inspection decal, and a training and certification program for 
inspectors to conduct inspections on shipments of transuranic waste and 
HRCQs of RAM. CVSA developed the North American Standard Level VI 
Inspection Program for Transuranic Waste and Highway Route Controlled 
Quantities of Radioactive Material. This inspection program for select 
radiological shipments includes inspection procedures, enhancements to 
the North American Standard Level I Inspection, radiological surveys, 
CVSA Level VI decal requirements, and the ``North American Standard 
Out-of-Service Criteria and Level VI Inspection Procedures and Out-of-
Service Criteria for Commercial Highway Vehicles Transporting 
Transuranics and Highway Route Controlled Quantities of Radioactive 
Materials as defined in 49 CFR part 173.403.'' As of January 1, 2005, 
all vehicles and carriers transporting HRCQs of RAM are regulated by 
the U.S. Department of Transportation. All HRCQs of RAM must pass the 
North American Standard Level VI Inspection prior to the shipment being 
allowed to travel in the United States. All highway route controlled 
quantities of RAM shipments entering the United States must also pass 
the North American Standard Level VI Inspection either at the 
shipment's point of origin or when the shipment enters the United 
States.
    49 CFR 385.415 prescribes operational requirements for motor 
carriers transporting hazardous materials for which a HMSP 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 
HRCQ of a Class 7 (radioactive) material, in accordance with the 
requirements of CVSA's handbook titled ``North American Standard Out-
of-Service Criteria and Level VI Inspection Procedures and Out-

[[Page 47439]]

of-Service Criteria for Commercial Highway Vehicles Transporting 
Transuranics and Highway Route Controlled Quantities of Radioactive 
Materials as defined in 49 CFR part 173.403.''
    According to 2019-2022 data from FMCSA's Motor Carrier Management 
Information System (MCMIS), approximately 3 million Level I through 
Level VI inspections were performed annually. Nearly 96.3 percent of 
these were Level I,\1\ Level II,\2\ and Level III \3\ inspections. 
During the same period, an average of 756 Level VI inspections were 
performed annually, comprising only 0.03 percent of all inspections. On 
average, OOS violations were cited in only 6 Level VI inspections 
annually (0.8 percent), whereas on average, OOS violations were cited 
in 233,259 Level I inspections (26 percent), 264,926 Level II 
inspections (26 percent), and 57,990 Level III inspections (6 percent) 
annually. As these statistics demonstrate, OOS violations are cited in 
a far lower percentage of Level VI inspections than Level I, II, and 
III inspections, due largely to the enhanced oversight and inspection 
of these vehicles because of the sensitive nature of the cargo being 
transported.
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    \1\ Level I is a 37-step inspection procedure that involves 
examination of the motor carrier's and driver's credentials, record 
of duty status, the mechanical condition of the vehicle, and any 
hazardous materials/dangerous goods that may be present.
    \2\ Level II is a driver and walk-around vehicle inspection, 
involving the inspection of items that can be checked without 
physically getting under the vehicle.
    \3\ Level III is a driver-only inspection that includes 
examination of the driver's credentials and documents.
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    The changes to the 2023 edition of the CVSA handbook are intended 
to ensure clarity in the presentation of the OOS conditions and are 
generally editorial or ministerial. As discussed below, FMCSA does not 
expect the changes made in the 2023 edition of the CVSA handbook to 
affect the number of OOS violations cited during Level VI inspections.

VI. Discussion of Proposed Rulemaking

    Section 385.4(b)(1), as amended on December 22, 2022 (87 FR 78579), 
references the April 1, 2022, edition of the CVSA handbook. This NPRM 
proposes to amend Sec.  385.4(b)(1) by replacing the reference to the 
April 1, 2022, edition date with a reference to the new edition date of 
April 1, 2023.
    The changes made based on the 2023 edition of the handbook are 
outlined below. It is necessary to update the materials incorporated by 
reference to ensure motor carriers and enforcement officials have 
convenient access to the correctly identified inspection criteria 
referenced in the rules.

April 1, 2023, Changes

    Nine changes in the 2023 edition of the CVSA handbook distinguish 
it from the April 1, 2022, edition:
    1. Part I, Item 4.b.4 was revised by removing a section of the 
paragraph to provide more clarity to the OOSC, as this criterion was 
causing confusion for inspectors. Previously, inspectors interpreted 
Item 4.b.4 as a driver's operation of a property-carrying vehicle 
without a medical certificate or with an expired medical certificate. 
However, language was removed to make clear that an OOS violation 
exists if a driver operates a property-carrying vehicle without a valid 
medical certificate, either in the driver's possession or on file with 
the State driver licensing agency, and has a history of either failing 
to produce a medical certificate or having an expired medical 
certificate. 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 in the 
United States.
    2. Part I, Item 7.b, was amended to clarify that if evidence of a 
driver's use of a drug or other controlled substance within the 
previous 24 hours is noted by the inspector, then the driver is 
considered to be under the influence with probable cause and shall be 
declared out of service for 24 consecutive hours. This clarifies the 
previous OOSC language specifying that drivers must not be under the 
influence of drugs or any other substances at the time of the 
inspection. A note has been added to the section to define the term 
driver's use, which covers instances where drivers have acknowledged 
using drugs or other substances or where an inspector has directly 
observed such use within the previous 24 hours. 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 in the United States.
    3. Part I, Items 9, 10, and 11 were amended to provide clear 
guidance on when a driver should be declared OOS for false record of 
duty status (RODS). CVSA added language that clarifies that a false 
RODS violation does not present an ``imminent hazard'' if the 
falsification occurred on a previous date and the driver had an 
intervening confirmed qualifying rest period. In addition, footnote 2 
was relocated as a note in the applicable U.S., Canadian, and Mexican 
OOS sections to assist inspectors in identifying the OOS criterion. 
Furthermore, the footnotes in these sections were reorganized, and the 
outdated ``Removed and Reserved'' footnotes deleted. 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 in the United States.
    4. Part I, Item 9, was amended to clarify footnote 10 concerning 
when to consider a driver OOS for not being able to print or sign their 
RODS. CVSA determined that, as the prevalence of digital documents and 
credentials in the Federal Motor Carrier Safety Regulations (FMCSRs) 
increases, electronic versions of those documents and credentials will 
replace paper copies. Therefore, a driver will not be placed OOS for 
not having a physical RODS, provided that their hours of service can be 
verified on an electronic display, as the absence of a physical RODS 
alone does not present an imminent hazard. 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 in the United States.
    5. Part II, Item a.6.d, Item a.7.e, Item b.3.e, and Item b.4.e were 
amended to clarify the severity of rust required on a brake rotor to be 
included in the 20 percent brake criterion. The 20 percent criterion 
relates to the number of brakes on the vehicle or combination and the 
number of those brakes that are found to be defective during an 
inspection. Specifically, if 20 percent or more of the total number of 
brakes on the vehicle are found to be defective, the vehicle is 
considered OOS. With this update, CVSA added language to clarify that a 
brake can be considered defective only if rust is present on the entire 
surface of both sides of the rotor, rather than just a section. 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 in the United States.
    6. Part II, Item 2.e.3 and Item 2.f were amended to clarify that 
placement of tiedowns on cargo is not specified in the FMCSRs or 
National Safety Code (NSC) Standard 10. Section 393.110(b)(3) of the 
FMCSRs and NSC Standard 10 state that 2 tiedowns are required for 
articles exceeding a length of 10 feet (3.04 meters), and 1 additional 
tiedown for every 10 feet (3.04 meters) of article length, or fraction 
thereof, beyond the first 10 feet (3.04 meters) of length. The FMCSRs 
use the term ``for'' instead of ``in'' or ``within,'' implying a 
quantity

[[Page 47440]]

requirement rather than a location specification. As a result, the note 
in the OOSC can be interpreted differently from the regulations. 
Therefore, CVSA updated the OOSC to specify that the correct number of 
tiedowns, rather than their specific placement on the cargo, should be 
enforced. 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 in the 
United States.
    7. Part II, Item 9.a was amended to modify the title by adding ``To 
Be On'' to clarify the conditions under which certain lighting devices, 
including headlamps, tail lamps, stop lamps, turn signals, and lamp/
flags on projecting loads, should be considered OOS. The previous 
language of ``When lights are required'' led some inspectors to believe 
that the vehicle is OOS when these lighting devices are not operating. 
However, the intention of the OOSC is to declare the vehicle OOS only 
when these lighting devices are required to be turned on. To avoid 
confusion, CVSA added the language ``to be on'' to the title, which 
will help clarify this OOS criterion. 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 in the United States.
    8. Part II, Item 11.d was amended to add language to clarify that 
spring hangers and equalizers are part of the vehicle's frame and axle 
when declaring the vehicle OOS. A vehicle is OOS if any part of a 
suspension connecting rod or tracking component assembly, including 
spring leaves that are used as a suspension connecting rod, or any part 
used to attach these components to the vehicle's frame or axle, such as 
spring hangers or equalizers, is cracked, loosened, broken, or missing. 
The addition was necessary as spring hangers and equalizers are 
considered part of the vehicle's frame or axle but, previously, were 
not specifically identified. 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 
in the United States.
    9. Part II, Item 11.d was amended to add a diagram to aid 
inspectors in identifying the various parts of the suspension system 
during vehicle inspections for OOS violations. The suspension system 
contains numerous components and parts that may require inspectors to 
have other reference materials readily available to aid in the 
identification of the item(s). To simplify the identification process 
during inspections, CVSA supplemented the section with a diagram to 
enable inspectors to quickly identify those areas. 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 in the United States.

VII. Severability

    Congress authorized DOT by statute to promote safe transportation 
of hazardous materials in interstate commerce by prescribing, among 
other things, regulations and minimum standards for practices, methods, 
and procedures for inspections and safety permits for motor vehicles 
carrying certain hazardous materials. 49 U.S.C. 5105(d); 49 U.S.C. 
5109. The purpose of this rule is to incorporate by reference the 2023 
edition of the CVSA handbook outlining the out-of-service criteria 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 
able to operate functionally if one or more provisions were rendered 
null or otherwise eliminated. 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. In the event a court were to invalidate one or more of the 
CVSA handbook's unique provisions, the remaining provisions should 
stand, thus allowing this congressionally mandated program to continue 
to operate.

VIII. Section-by-Section Analysis

Section 385.4 Matter Incorporated by Reference

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

IX. Regulatory Analyses

A. Executive Order (E.O.) 12866 (Regulatory Planning and Review), E.O. 
13563 (Improving Regulation and Regulatory Review), E.O. 14094 
(Modernizing Regulatory Review), and DOT Regulatory Policies and 
Procedures

    FMCSA has considered the impact of this NPRM under E.O. 12866 (58 
FR 51735, Oct. 4, 1993), Regulatory Planning and Review, E.O. 13563 (76 
FR 3821, Jan. 21, 2011), Improving Regulation and Regulatory Review, 
E.O. 14094 (88 FR 21879, Apr. 11, 2023), Modernizing Regulatory Review, 
and DOT's regulatory policies and procedures. The Office of Information 
and Regulatory Affairs within the Office of Management and Budget (OMB) 
determined that this NPRM is not a significant regulatory action under 
section 3(f) of E.O. 12866, as supplemented by E.O. 13563 and E.O. 
14094, and does not require an assessment of potential costs and 
benefits under section 6(a)(3) of that order. Accordingly, OMB has not 
reviewed it under that E.O.
    The proposed rule, if finalized, would update an incorporation by 
reference from the April 1, 2022, edition to the April 1, 2023, edition 
of CVSA's handbook titled ``North American Standard Out-of-Service 
Criteria and Level VI Inspection Procedures and Out-of-Service Criteria 
for Commercial Highway Vehicles Transporting Transuranics and Highway 
Route Controlled Quantities of Radioactive Materials as defined in 49 
CFR part 173.403.'' FMCSA reviewed its MCMIS data on inspections 
performed from 2019 to 2022 and does not expect the handbook updates to 
have any effect on the number of OOS violations cited during Level VI 
inspections. Therefore, the proposed rule's impact would 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).\4\
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    \4\ A major rule means any rule that OMB finds has resulted in 
or is likely to result in (a) an annual effect on the economy of 
$100 million or more; (b) a major increase in costs or prices for 
consumers, individual industries, geographic regions, Federal, 
State, or local government agencies; or (c) significant adverse 
effects on competition, employment, investment, productivity, 
innovation, or on the ability of United States-based enterprises to 
compete with foreign-based enterprises in domestic and export 
markets (5 U.S.C. 802(4)).
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C. Advance Notice of Proposed Rulemaking

    Under 49 U.S.C. 31136(g), FMCSA is required to publish an advance 
notice of

[[Page 47441]]

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.

D. Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) (RFA), as 
amended by the Small Business Regulatory Enforcement Fairness Act of 
1996,\5\ requires Federal agencies to consider the effects of the 
regulatory action on small business and other small entities and to 
minimize any significant economic impact. The term small entities 
comprises small businesses and not-for-profit organizations that are 
independently owned and operated and are not dominant in their fields, 
and governmental jurisdictions with populations of less than 50,000 (5 
U.S.C. 601(6)). Accordingly, DOT policy requires an analysis of the 
impact of all regulations on small entities, and mandates that agencies 
strive to lessen any adverse effects on these businesses. None of the 
updates from the 2023 edition impose new requirements or make 
substantive changes to the FMCSRs.
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    \5\ Public Law 104-121, 110 Stat. 857, (Mar. 29, 1996).
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    When an Agency issues a rulemaking proposal, the RFA requires the 
Agency to ``prepare and make available an initial regulatory 
flexibility analysis'' that will describe the impact of the proposed 
rule on small entities (5 U.S.C. 603(a)). Section 605 of the RFA allows 
an agency to certify a rule, instead of preparing an analysis, if the 
proposed rule is not expected to impact a substantial number of small 
entities. The proposed rule would update an incorporation by reference 
found at Sec.  385.4(b)(1) and referenced at Sec.  385.415(b), and 
would incorporate by reference the April 1, 2023, edition of the CVSA 
handbook. The changes to the 2023 edition of the CVSA handbook from the 
2022 edition are intended to ensure clarity in the presentation of the 
OOS conditions and are generally editorial or ministerial. As noted 
above, FMCSA does not expect the changes made in the 2023 edition of 
the CVSA handbook to affect the number of OOS violations cited during 
Level VI inspections in the United States. Accordingly, I certify that 
the proposed action would 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 (Pub. L. 104-121, 110 Stat. 857), 
FMCSA wants to assist small entities in understanding this proposed 
rule so they can better evaluate its effects on themselves and 
participate in the rulemaking initiative. If the proposed rule would 
affect your small business, organization, or governmental jurisdiction 
and you have questions concerning its provisions or options for 
compliance, please consult the person listed under FOR FURTHER 
INFORMATION CONTACT.
    Small businesses may send comments on the actions of Federal 
employees who enforce or otherwise determine compliance with Federal 
regulations to the Small Business Administration's Small Business and 
Agriculture Regulatory Enforcement Ombudsman (Office of the National 
Ombudsman, see https://www.sba.gov/about-sba/oversight-advocacy/office-national-ombudsman) and the Regional Small Business Regulatory Fairness 
Boards. The Ombudsman evaluates these actions annually and rates each 
agency's responsiveness to small business. If you wish to comment on 
actions by employees of FMCSA, call 1-888-REG-FAIR (1-888-734-3247). 
DOT has a policy regarding the rights of small entities to regulatory 
enforcement fairness and an explicit policy against retaliation for 
exercising these rights.

F. Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) 
(UMRA) requires Federal agencies to assess the effects of their 
discretionary regulatory actions.
    The Act addresses actions that may result in the expenditure by a 
State, local, or Tribal government, in the aggregate, or by the private 
sector of $192 million (which is the value equivalent of $100 million 
in 1995, adjusted for inflation to 2022 levels) or more in any 1 year. 
Though this NPRM would not result in such an expenditure, and the 
analytical requirements of UMRA do not apply as a result, the Agency 
discusses the effects of this rule elsewhere in this preamble.

G. Paperwork Reduction Act

    This proposed rule contains no new information collection 
requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
3520).

H. E.O. 13132 (Federalism)

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

I. Privacy

    The Consolidated Appropriations Act, 2005,\6\ requires the Agency 
to assess the privacy impact of a regulation that will affect the 
privacy of individuals. This NPRM would not require the collection of 
personally identifiable information.
---------------------------------------------------------------------------

    \6\ Public Law 108-447, 118 Stat. 2809, 3268, note following 5 
U.S.C. 552a (Dec. 4, 2014).
---------------------------------------------------------------------------

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

    This rule does not have Tribal implications under E.O. 13175, 
Consultation and Coordination with Indian Tribal Governments, because 
it does not have a substantial direct effect on one or more Indian 
Tribes, on the relationship between the Federal Government and Indian 
Tribes, or on the distribution of power and responsibilities between 
the Federal Government and Indian Tribes.

K. National Environmental Policy Act of 1969

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

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.


[[Page 47442]]


    In consideration of the foregoing, FMCSA proposes to amend 49 CFR 
chapter III, part 385, as set forth below:

PART 385--SAFETY FITNESS PROCEDURES

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

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

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


Sec.  385.4  Matter incorporated by reference.

* * * * *
    (b) * * *
    (1) ``North American Standard Out-of-Service Criteria and Level VI 
Inspection Procedures and Out-of-Service Criteria for Commercial 
Highway Vehicles Transporting Transuranics and Highway Route Controlled 
Quantities of Radioactive Materials as defined in 49 CFR part 
173.403,'' April 1, 2023, incorporation by reference approved for Sec.  
385.415(b).
* * * * *

    Issued under authority delegated in 49 CFR 1.87.
Robin Hutcheson,
Administrator.
[FR Doc. 2023-15412 Filed 7-21-23; 8:45 am]
BILLING CODE 4910-EX-P


