Incorporation by Reference; North American Standard Out-of-Service Criteria; Hazardous Materials Safety Permits, 67705-67711 [2018-28169]

Agencies

• Federal Motor Carrier Safety Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 83, Number 249 (Monday, December 31, 2018)]
[Proposed Rules]
[Pages 67705-67711]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-28169]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Part 385

[Docket No. FMCSA-2018-0165]
RIN 2126-AC01


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

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

ACTION: Notice of Proposed Rulemaking.

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SUMMARY: FMCSA proposes to amend its Hazardous Materials Safety Permits 
regulations to incorporate by reference the updated Commercial Vehicle 
Safety Alliance (CVSA) handbook. The Out-of-Service Criteria provide 
uniform enforcement tolerances for roadside inspections to enforcement 
personnel nationwide, including FMCSA's State partners. Currently, the 
regulations reference the April 1, 2016, edition of the handbook. 
Through this notice, FMCSA proposes to incorporate by reference the 
April 1, 2018, edition.

DATES: Comments on this document must be received on or before January 
30, 2019.

ADDRESSES: You may submit comments identified by Docket Number FMCSA-
2018-0165 using any of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the online instructions for submitting comments.
     Mail: Docket Management Facility, 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.
     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, including collection of information comments for the Office 
of Information and Regulatory Affairs, OMB.

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 by 
telephone at (202) 366-9209 or by email at michael.huntley@dot.gov. If 
you have questions on viewing or submitting material to the docket, 
contact Docket Services, telephone (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 Regulatory 
Policies and Procedures
    B. E.O. 13771 Reducing Regulation and Controlling Costs
    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. E.O. 12988 (Civil Justice Reform)
    I. E.O. 13045 (Protection of Children)
    J. E.O. 12630 (Taking of Private Property)
    K. Privacy
    L. E.O. 12372 (Intergovernmental Review)
    M. E.O. 13211 (Energy Supply, Distribution, or Use)
    N. E.O. 13175 (Indian Tribal Governments)
    O. National Technology Transfer and Advancement Act (Technical 
Standards)
    P. Environment (National Environmental Policy Act)

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-2018-0165), indicate the specific section of 
this document to which each 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, 
put the docket number, FMCSA-2018-0165, in the keyword box, and click 
``Search.'' When the new screen appears, click on the ``Comment Now!'' 
button and type your comment into the text box on the following screen. 
Choose whether you are submitting your comment as an individual or on 
behalf of a third party and then submit.
    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 and may change this proposed rule based on your 
comments. FMCSA may issue a final rule at any time after the close of 
the comment period.
Confidential Business Information
    Confidential Business Information (CBI) is commercial or financial 
information that is customarily not made available to the general 
public by the submitter. Under the Freedom of Information Act, CBI is 
eligible for protection from public disclosure. If you have CBI that is 
relevant or responsive to this NPRM, it is important that you clearly 
designate the submitted comments as CBI. Accordingly, please mark each 
page of your submission as

[[Page 67706]]

``confidential'' or ``CBI.'' Submissions designated as CBI and meeting 
the definition noted above will not be placed in the public docket of 
this NPRM. Submissions containing CBI should be sent to Brian Dahlin, 
Chief, Regulatory Analysis Division, 1200 New Jersey Avenue SE, 
Washington DC 20590. Any commentary that FMCSA receives which is not 
specifically designated as CBI will be placed in the public docket for 
this rulemaking.
    FMCSA will consider all comments and material received during the 
comment period.

B. Viewing Comments and Documents

    To view comments, as well as any documents mentioned in this 
preamble as being available in the docket, go to https://www.regulations.gov. Insert the docket number, FMCSA-2018-0165, in the 
keyword box, and click ``Search.'' Next, click the ``Open Docket 
Folder'' button and choose the document to review. If you do not have 
access to the internet, you may view the docket online by visiting the 
Docket Management Facility 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., e.t., Monday through Friday, except Federal 
holidays.

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, in part, to publish an 
advance notice of proposed rulemaking if a proposed rule is likely to 
lead to the promulgation of a major rule, unless the Agency either 
develops the proposed rule through a negotiated rulemaking process or 
finds good cause that an ANPRM is impracticable, unnecessary, or 
contrary to the public interest. To be a major rule, a rule must result 
in or be likely to result in: (1) ``An annual effect on the economy of 
$100,000,000 or more;'' (2) ``a major increase in costs or prices for 
consumers, individual industries, Federal, State, or local government 
agencies, or geographic regions;'' or (3) ``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). 
This proposed rule does meet the criteria of a major rule because it 
simply incorporates by reference updates to the 2016 CVSA handbook 
edition made on April 1, 2017, and April 1, 2018, which, as described 
below, are largely editorial and provide clarity and guidance to 
inspectors and motor carriers transporting transuranics. Therefore, 
this proposed rule is not likely to lead to the promulgation of a major 
rule that requires an ANPRM.

II. Executive Summary

    This rulemaking proposes to update an incorporation by reference 
found at 49 CFR 385.4 and referenced at 49 CFR 385.415(b). Section 
385.4(b) currently references the April 1, 2016, 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 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 rulemaking, FMCSA proposes to incorporate by reference the April 
1, 2018, edition, which also captures changes adopted in the April 1, 
2017 edition of the handbook.
    Cumulatively, 15 updates distinguish the April 1, 2018, handbook 
edition from the 2016 and 2017 editions (9 updates adopted in 2016 and 
6 additional updates adopted in 2017). The incorporation by reference 
of the 2018 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 notice is applicable.

IV. Background

    In 1986, the U.S. Department of Energy (DOE) 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 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)(1) 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 
handbook titled ``North

[[Page 67707]]

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. Discussion of Proposed Rulemaking

    Section 385.4(b), as amended on June 17, 2016 (81 FR 39587), 
references the April 1, 2016, edition of the CVSA handbook. This rule 
proposes to amend Sec.  385.4(b), by redesignating paragraph (b) as 
(b)(1), and by replacing the reference to the April 1, 2016, edition 
date with a reference to the new edition date of April 1, 2018. Also in 
Sec.  385.4(b), FMCSA clarifies that the CVSA publication is available 
for interested parties to view at the Agency's Washington, DC office 
and that the document may be purchased from the CVSA. The CVSA's 
website address, mail address, and phone number would be provided. 
Section 385.4(b) would be amended by reserving paragraph (b)(2) to 
accommodate additional sources of information associated with future 
incorporations by reference.
    In addition, this rule proposes to amend Sec.  385.4(a) to remove 
the paragraph header titled ``Incorporation by reference.''
    Section 385.415(b) would also be revised by removing paragraph 
(b)(2) to conform to formatting requirements of the Office of the 
Federal Register.
    The changes made based on the 2017 and 2018 handbook editions 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, 2017, Changes

    Nine updates to the 2017 edition distinguish it from the April 1, 
2016, edition. Additional conforming changes were made to the table of 
contents, but are not included in the summary below.
    The first 2017 update removed the following paragraph referencing 
the Federal Motor Carrier Safety Regulations (FMCSRs) from the Policy 
Statement in Part I (North American Standard Driver Out-of-Service 
Criteria):
    ``FMCSR code references in the North American Standard Out-of-
Service Criteria are simply recommendations to help inspectors find an 
appropriate citation. Other violation codes may be more suitable for a 
specific condition.''
    This paragraph was removed because the conditions included in the 
North American Standard Out-of-Service Criteria are based on violations 
that exist in the FMCSRs. As data quality and uniformity are critical, 
any suggestion that softens a direct linkage between an out-of-service 
condition and the corresponding FMCSR section has the potential to 
reduce the quality or uniformity of the data. The subject language was 
removed to lessen the possibility that an inspector might select an 
incorrect or a less appropriate section of the FMCSRs when documenting 
a violation related to the out-of-service condition. This change will 
not affect the number of out-of-service violations cited during Level 
VI inspections; rather, it simply clarifies that inspectors should cite 
the specific FMCSR section provided in the handbook as opposed to 
other, alternative violation codes.
    The second and third 2017 updates amended the language in Part I, 
Item 4 (Driver Medical/Physical Requirements). Item 4.(b)(4) was 
updated to be consistent with item 4.(b)(3), and to clarify that both 
Item 4.(b)(3) and Item 4.(b)(4) are applicable only to individuals who 
are not required to possess a commercial driver's license (CDL).\4\ As 
written in the 2016 edition, Item 4.(b)(4) covers individuals operating 
a passenger-carrying vehicle for which a CDL is not required when such 
individuals lack the required medical certification. However, the 2016 
edition omitted the term ``non-CDL'' when referencing the operation of 
a property-carrying vehicle by a driver without a valid medical 
certificate. The CVSA updated Item 4.(b)(4) in the 2017 edition to read 
``[o]perating a non-CDL property-carrying vehicle . . .'' The note to 
Item 4.(b)(5) was updated to clarify how roadside inspectors should 
handle proof of medical certification for individuals possessing a 
valid Provincial or Territorial license. The updated note now clearly 
delineates the inspection criteria when dealing with a driver 
presenting a Class 5 license from any Canadian jurisdiction, a Class D 
or G license from Ontario, or Class 3 license from New Brunswick. The 
change to Item 4.(b)(4) regarding non-CDL property-carrying vehicles 
will not affect the number of out-of-service violations cited during 
Level VI inspections, as all drivers transporting transuranics and 
highway route controlled quantities of radioactive materials are 
required to have a CDL. The updated note to Item 4.(b)(5) simply 
provides additional guidance to inspectors regarding drivers possessing 
Canadian licenses, and will not affect the number of out-of-service 
violations cited during Level VI inspections.
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    \4\ Item 4.(b)(4) was amended again in April 2018 as discussed 
below.
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    The fourth 2017 update added several footnotes relating to Part I, 
Items 9.(a)(4), (5), and (6) (Driver's Record of Duty Status--U.S.) 
regarding when a driver is to be placed out-of-service for having (a) 
no record of duty status in possession when one is required, (b) no 
record of duty status in possession for the previous 7 consecutive 
days, or (c) a false record of duty status, respectively, specifically 
when the driver is using or required to use an automatic on-board 
recording device (AOBRD) or electronic logging device (ELD). These 
violations relating to a driver's records of duty status have always 
been out-of-service violations; the new footnotes simply provide 
clarification to roadside inspection officials regarding when a driver 
is considered to have no or false records of duty status when using 
AOBRDs or ELDs as outlined in a December 16, 2015, final rule, 
effective December 2017 (80 FR 78292). FMCSA records indicate that only 
one out-of-service

[[Page 67708]]

violation has been issued to a driver as a result of a Level VI 
inspection in the past 3 years. As such, and since the ELD rule is 
intended to help improve compliance with the hours-of-service rules, 
the addition of the footnotes to Part I, Items 9.(a)(4), (5), and (6) 
is not expected to have any effect on the number of out-of-service 
violations cited during Level VI inspections.
    The fifth 2017 update removed the following paragraph referencing 
the FMCSRs from the end of the Policy Statement in Part II (North 
American Standard Vehicle Out-of-Service Criteria Inspection 
Standards):
    ``FMCSR code references in the North American Standard Out-of-
Service Criteria are simply recommendations to help inspectors find an 
appropriate citation. Other violation codes may be more suitable for a 
specific condition.''
    As noted with the change in the policy statement concerning the 
driver inspection criteria, this paragraph was removed because the 
conditions included in the North American Standard Out-of-Service 
Criteria are based on violations that exist in the FMCSRs. As data 
quality and uniformity are critical, any suggestion that softens a 
direct linkage between an out-of-service condition and the 
corresponding FMCSR section has the potential to reduce the quality or 
uniformity of the data. The subject language was removed to lessen the 
possibility that an inspector might select an incorrect or a less 
appropriate section of the FMCSRs when documenting a violation related 
to the out-of-service condition. This change is not expected to affect 
the number of out-of-service violations cited during Level VI 
inspections; rather, it simply clarifies that inspectors should cite 
the specific FMCSR section provided in the handbook as opposed to 
other, alternative violation codes.
    The sixth 2017 update amended the language in Part II, Item 4 
(Driveline/Driveshaft). Item 4.(b)(3) was updated to correct the 
omission of ``retainer bolts'' from the list of missing, broken or 
loose components for universal joints, and to remove the parenthetical 
statement, ``with hand pressure only.'' In the 2016 edition, Item 
4.(b)(3) read: ``Any missing, broken or loose (with hand pressure only) 
universal joint bearing cap bolt.'' As amended, Item 4.(b)(3) reads: 
``Any missing, broken or loose universal joint bearing cap bolt or 
retainer bolt.'' Retainer bolts are essential to keeping the components 
in safe and proper operating condition. Federal and State inspectors 
have the training, knowledge and experience to recognize the need to 
place vehicles out of service when they observe missing retainer bolts. 
In addition, the Committee deleted the original language regarding 
``with hand pressure only'' to maintain consistency and uniformity with 
the examination of other types of fasteners in the North American 
Standard Out-of-Service Criteria (e.g., wheel fasteners, U-bolts, 
fifth-wheel fasteners, etc.). FMCSA records indicate that no out-of-
service violations have been issued regarding universal joints as a 
result of a Level VI inspection in the past 3 years, demonstrating that 
motor carriers transporting transuranics and highway route controlled 
quantities of radioactive materials ensure that this component is well 
maintained and in safe and proper operating condition at all times. The 
changes are intended to ensure clarity in the presentation of the out-
of-service conditions, and are not expected to affect the number of 
out-of-service violations cited during Level VI inspections.
    The seventh 2017 update amended Part II, Item 10.(e)(6) and (7) 
(Adjustable Axle(s)/Sliding Trailer Suspension System) to add language 
regarding missing fasteners (i.e., bolts) on sliding suspension 
members. The 2016 edition provided clear instructions regarding broken 
welds on sliding suspension members, but lacked instructions regarding 
missing fasteners. While trained and experienced inspectors had 
consistently cited the unsafe condition of missing fasteners because 
the fasteners perform the same function as welds, the absence of 
specific language in the North American Standard Vehicle Out-of-Service 
Criteria resulted in inconsistencies regarding the threshold for 
placing vehicles out of service. FMCSA records indicate that no out-of-
service violations have been issued regarding missing fasteners on 
sliding suspension members as a result of a Level VI inspection in the 
past 3 years, demonstrating that motor carriers transporting 
transuranics and highway route controlled quantities of radioactive 
materials ensure that this component is well maintained and in safe and 
proper operating condition at all times. The changes to Item 10.e. 
ensure a consistent threshold is used in determining whether the degree 
of non-compliance with the existing safety rules warrants placing the 
trailer out of service, and are not expected to affect the number of 
out-of-service violations cited during Level VI inspections.
    The eighth 2017 update removed the paragraph referencing the FMCSRs 
from the Policy Statement in Part IV (Administrative Inspection 
Standards). As noted with the change in the policy statement for both 
the driver and vehicle inspection criteria, this paragraph was removed 
because the conditions included in the North American Standard Out-of-
Service Criteria are based on violations that exist in the FMCSRs. As 
data quality and uniformity are critical, any suggestion that softens a 
direct linkage between an out-of-service condition and the 
corresponding FMCSR section has the potential to reduce the quality or 
uniformity of the data. The subject language was removed to lessen the 
possibility that an inspector might select an incorrect or a less 
appropriate section of the FMCSRs when documenting a violation related 
to the out-of-service condition. This change is not expected to affect 
the number of out-of-service violations cited during Level VI 
inspections; rather, it simply clarifies that inspectors should cite 
the specific FMCSR section provided in the handbook as opposed to 
other, alternative violation codes.
    The last 2017 update amended Part IV by adding a new Item 2 
(Inactive/No USDOT Number). This added condition addresses motor 
carriers that either do not have an active USDOT number or have no 
USDOT number, and therefore do not have the authority to operate. Given 
the limited number of motor carriers that transport transuranics and 
highway route controlled quantities of radioactive material, and the 
enhanced oversight and scrutiny that these carriers are subject to 
because of the sensitive nature of the cargo being transported, it 
would be highly unlikely to find a motor carrier transporting these 
commodities without having a USDOT number and proper operating 
authority. FMCSA records indicate that no out-of-service violations 
have been cited for motor carriers with no USDOT number as a result of 
a Level VI inspection in the past 3 years, and this amendment is not 
expected to affect the number of out-of-service violations cited during 
Level VI inspections.

April 1, 2018 Changes

    The 2018 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.
    Six updates to the 2018 edition distinguish it from the April 1, 
2017,

[[Page 67709]]

edition. Additional conforming changes were made to the table of 
contents, but those are not included in the summary below.
    The first 2018 update amended Part I, Item 4.b (Driver Medical/
Physical Requirements, Medical Certificate). Subsections (3) and (4) 
were amended to clarify and address passenger-carrying vehicles. A note 
was added to clarify what to do when the driver's response for the CDL 
is valid but the medical information is not contained in the response. 
In these cases, the CDL is to be considered valid with a valid medical 
certificate. A new subsection (6) was added regarding CDL non-excepted 
vehicles when the driver is self-certified as excepted intrastate or 
interstate. In these cases, drivers are not required to submit their 
medical certification to the State and therefore the information will 
not be tied to the driver's CDL. Additionally, this covers drivers who 
self-certify as exempt when they are not. In these cases, the driver 
must have evidence of medical certification through the State's filing 
or have the medical certificate in his/her possession. FMCSA records 
indicate that no out-of-service violations have been cited relating to 
medical qualifications as a result of a Level VI inspection in the past 
3 years, and this amendment is not expected to affect the number of 
out-of-service violations cited during Level VI inspections.
    The second 2018 change amended Part I, Item 4.(b) by amending the 
NOTE on how to handle certain Canadian licenses. Specifically, the 
Class 3 license from Alberta does not require a cyclical medical 
examination to be conducted after the initial medical examination to 
obtain the license in Canada until the driver is over 65 years of age. 
The Alberta Class 3 license was added to the list of other licenses 
from Canada that require further evidence of medical qualification when 
operating in the United States. This amendment is not expected to 
affect the number of out-of-service violations cited during Level VI 
inspections.
    The third 2018 change amended Part I, Item 9 (Driver's Record of 
Duty Status) by amending and deleting some of the footnotes, which were 
added in 2017, related to electronic logging devices (ELD). Footnote 12 
was amended to clarify that if the device (ELD or automatic on-board 
recording device) is able to produce the logs (via display, data 
transfer, printing or paper) during a malfunction, the driver will not 
be placed out of service for no record of duty status. Footnotes 14, 
15, and 16 were determined to be too complex to be applied uniformly 
during roadside inspections and were therefore removed. Instead, FMCSA 
will work to address the situations outlined in those footnotes through 
training and inspection bulletins. This change is not expected to have 
any effect on the number of out-of-service violations cited during 
Level VI inspections.
    The fourth 2018 change amended Part II, Item 1.a.(7) (Brake 
Systems, Hydraulic and Electric Brakes). The amendment added the term 
``drum'' to subsection (f) to clarify that if the friction surface of 
the brake drum or rotor and the brake friction material on hydraulic 
and electric brakes are contaminated by oil, grease, or brake fluid, 
then that condition is considered a brake defect and subject to the 20 
percent brake criterion in the Out-of-Service Criteria. This update was 
made to maintain consistency with drum (cam-type and wedge) air brakes. 
FMCSA records indicate that no out-of-service violations have been 
cited for oil, grease, or brake fluid contamination of brake components 
as a result of a Level VI inspection in the past 3 years, demonstrating 
that motor carriers transporting transuranics and highway route 
controlled quantities of radioactive materials ensure that these 
components are well maintained and in safe and proper operating 
condition at all times. This amendment is not expected to affect the 
number of out-of-service violations cited during Level VI inspections.
    The fifth 2018 change amended Part II, Item 3.(b) (Coupling 
Devices, Upper Coupler Assembly (Including Kingpin)) to add a NOTE to 
address flat countersunk socket head cap screws. Whereas the Out-of-
Service Criteria includes a chart that outlines the minimum number of 
bolts required on upper coupler assemblies based on the type and size 
of the bolt, the chart does not address the use of flat countersunk 
socket head cap screws that are being used by some trailer 
manufacturers. This can lead to vehicles being placed out-of-service 
for use of those screws. Until further research is conducted to 
determine if, or when, an out-of-service condition exists for the use 
of flat countersunk socket head cap screws, the amendment makes clear 
that the use of these fasteners is allowed, following industry 
practice. FMCSA records indicate that no out-of-service violations have 
been cited for the use of flat countersunk socket head cap screws on 
upper coupler assemblies as a result of a Level VI inspection in the 
past 3 years. This amendment is not expected to affect the number of 
out-of-service violations cited during Level VI inspections.
    The sixth 2018 change amended Part II, Item 3.(f) (Coupling 
Devices, Safety Devices) to add an exception to subsection (4) to 
address knotted or twisted safety devices. Many drivers twist the 
safety chains required by Sec.  393.70(d) of the FMCSRs for the 
coupling of full trailers to make them shorter so they do not drag on 
the ground. While knotted or twisted chains are not permitted to be 
used to secure cargo on a trailer, a chain that has been knotted or 
twisted to account for excess slack so that it does not drag on the 
ground is not considered to be defective and is not an out-of-service 
condition. FMCSA records indicate that no out-of-service violations 
have been cited for knotted or twisted safety devices used in coupling 
of full trailers as a result of a Level VI inspection in the past 3 
years. This amendment is not expected to affect the number of out-of-
service 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 United States, 
Canada and Mexico. The Out-of-Service Criteria provide uniform 
enforcement tolerances for roadside inspections conducted in all three 
countries.

VII. Section-by-Section Analysis

Section 385.4 Matter Incorporated by Reference

    This rule proposes to amend Sec.  385.4(a) to remove the paragraph 
header titled ``Incorporation by reference'' to conform to formatting 
requirements of the Office of the Federal Register.
    Section 385.4(b), as amended on June 17, 2016, references the April 
1, 2016, edition of the CVSA handbook. This rule's most significant 
proposed changes would amend Sec.  385.4(b) by redesignating paragraph 
(b) as (b)(1), while, importantly, replacing the reference to the April 
1, 2016, edition date with a reference to the new edition date of April 
1, 2018. Also in revised Sec.  385.4(b), FMCSA clarifies that the CVSA 
publication is available for interested parties to view at the

[[Page 67710]]

Agency's Washington, DC office and that the document may be purchased 
from the CVSA. The CVSA's website address, mail address, and phone 
number would be provided. Section 385.4(b) would be amended by 
reserving paragraph (b)(2) to accommodate additional sources of 
information associated with future incorporations by reference.

Section 385.415 What operational requirements apply to the 
transportation of hazardous materials for which a permit is required?

    Section 385.415(b) would be revised by removing paragraph (b)(2) to 
conform to formatting requirements of the Office of the Federal 
Register. The material removed, however, would continue to be contained 
in Sec.  385.4 paragraphs (a) and (b); therefore, the deleted material 
was duplicative.

VIII. Regulatory Analyses

A. Executive Order (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). Additionally, it is not significant within the meaning of DOT 
Regulatory Policies and Procedures (DOT Order 2100.5 dated May 22, 
1980; 44 FR 11034, February 26, 1979) and does not require an 
assessment of potential costs and benefits under section 6(a)(3) of 
that Order. 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. Regulatory Flexibility Act (Small Entities)

    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 proposed 
rule on small entities. The proposed rule incorporates by reference 
updates to the 2016 CVSA handbook edition made on April 1, 2017, and 
April 1, 2018, which, as described above, are largely editorial and 
provide clarity and guidance to inspectors and motor carriers 
transporting transuranics. 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. None of the 15 
updates from the 2017 and 2018 editions impose new requirements or make 
substantive changes to the FMCSRs.
---------------------------------------------------------------------------

    \5\ 5 U.S.C. 601.
---------------------------------------------------------------------------

    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 is largely editorial and provides guidance 
to inspectors and motor carriers transporting transuranics in 
interstate commerce. Accordingly, I hereby 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 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.

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. 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 $161 million (which is the value 
equivalent to $100,000,000 in 1995, adjusted for inflation to 2017 
levels) or more in any one year. This proposed rule will not result in 
such an expenditure.

F. 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 proposed rule.

G. 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 analyzed this proposed rule and determined that it does not 
have implications for federalism.

H. E.O. 12988 (Civil Justice Reform)

    This proposed rule meets applicable standards in sections 3(a) and 
3(b) (2) of E.O. 12988, Civil Justice Reform, to minimize litigation, 
eliminate ambiguity, and reduce burden.

I. E.O. 13045 (Protection of Children)

    E.O. 13045, Protection of Children from Environmental Health Risks 
and Safety Risks (62 FR 19885, April 23, 1997), requires agencies 
issuing ``economically significant'' rules to include an evaluation of 
their environmental health and safety effects on children, if the 
agency has reason to believe that the rule may disproportionately 
affect children. The Agency determined this proposed rule is not 
economically significant. Therefore, no analysis of the impacts on 
children is required. In any event, the Agency does not anticipate that 
this regulatory action could pose an environmental or safety risk that 
could affect children disproportionately.

[[Page 67711]]

J. E.O. 12630 (Taking of Private Property)

    FMCSA reviewed this proposed rule in accordance with E.O. 12630, 
Governmental Actions and Interference with Constitutionally Protected 
Property Rights, and has determined it will not effect a taking of 
private property or otherwise have taking implications.

K. Privacy

    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 of a regulation that will affect 
the privacy of individuals. This proposed rule does not require the 
collection of personally identifiable information or affect the privacy 
of individuals.

L. E.O. 12372 (Intergovernmental Review)

    The regulations implementing E.O. 12372 regarding intergovernmental 
consultation on Federal programs and activities do not apply to this 
proposed rule.

M. E.O. 13211 (Energy Supply, Distribution, or Use)

    FMCSA has analyzed this proposed rule under E.O. 13211, Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. The Agency has determined that it is not a 
``significant energy action'' under that order because it is not a 
``significant regulatory action'' likely to have a significant adverse 
effect on the supply, distribution, or use of energy. Therefore, it 
does not require a Statement of Energy Effects.

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

    This proposed 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.

O. National Technology Transfer and Advancement Act (Technical 
Standards)

    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 proposed rule is discussed in detail in section IV, Incorporation 
by Reference, and is reasonably available at FMCSA and through the CVSA 
website.

P. Environment (National Environmental Policy Act)

    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, paragraph (6)(b). 
This Categorical Exclusion (CE) covers minor revisions to regulations. 
The content in this proposed rule is covered by this CE, there are no 
extraordinary circumstances present, and the proposed action does not 
have any effect on the quality of the environment. The CE determination 
is available for inspection or copying in the Regulations.gov website 
listed under ADDRESSES.

List of Subjects in 49 CFR 385

    Administrative practice and procedure, Highway safety, 
Incorporation by reference, Mexico, Motor carriers, Motor vehicle 
safety, Reporting and recordkeeping requirements.

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

PART 385--SAFETY FITNESS PROCEDURES

0
1. The authority citation for part 385 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. Revise Sec.  385.4 to read as follows:


Sec.  385.4  Matter incorporated by reference.

    (a) Certain material is incorporated by reference into this part 
with the approval of the Director of the Federal Register under 5 
U.S.C. 552(a) and 1 CFR part 51. To enforce any edition other than that 
specified in this section, FMCSA must publish notification of the 
change in the Federal Register and the material must be available to 
the public. All approved material is available for inspection at 
Federal Motor Carrier Safety Administration, Office of Enforcement and 
Compliance, 1200 New Jersey Ave. SE, Washington, DC 20590; Attention: 
Chief, Compliance Division at (202) 366-1812, and is available from the 
sources listed below. It is also available for inspection at the 
National Archives and Records Administration (NARA). For information on 
the availability of this material at NARA, call (202) 741-6030 or go to 
https://www.archives.gov/federal-register/cfr/ibr-locations.html.
    (b) Commercial Vehicle Safety Alliance, 6303 Ivy Lane, Suite 310, 
Greenbelt, MD 20770, telephone (301) 830-6143, www.cvsa.org.
    (1) ``North American Standard Out-of-Service Criteria and Level VI 
Inspection Procedures and Out-of-Service Criteria for Commercial 
Highway Vehicles Transporting Transuranics and Highway Route Controlled 
Quantities of Radioactive Materials as defined in 49 CFR 173.403,'' 
April 1, 2018, incorporation by reference approved for Sec.  
385.415(b).
    (2) [Reserved]


Sec.  385.415  [Amended]

0
3. Remove and reserve Sec.  385.415(b)(2).

    Issued under authority delegated in 49 CFR 1.87 on: December 20, 
2018.
Raymond P. Martinez,
Administrator.
[FR Doc. 2018-28169 Filed 12-28-18; 8:45 am]
 BILLING CODE 4910-EX-P