Incorporation by Reference; North American Standard Out-of-Service Criteria; Hazardous Materials Safety Permits, 48141-48146 [2022-16510]

Agencies

• Federal Motor Carrier Safety Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 87, Number 151 (Monday, August 8, 2022)]
[Proposed Rules]
[Pages 48141-48146]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-16510]



[[Page 48141]]

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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Part 385

[Docket No. FMCSA-2022-0128]
RIN 2126-AC48


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, 2021, edition of the handbook. Through this notice, FMCSA 
proposes to incorporate by reference the April 1, 2022, edition.

DATES: Comments must be received on or before September 7, 2022.

ADDRESSES: You may submit comments identified by Docket Number FMCSA-
2022-0128 using any of the following methods:
     Federal eRulemaking Portal: Go to https://www.regulations.gov/docket/FMCSA-2022-0128/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: 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 ``EXECUTIVE SUMMARY AND 1 
CFR 51'' section of this preamble.

FOR FURTHER INFORMATION CONTACT: Mr. 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. International Impacts
VIII. Section-by-Section Analysis
IX. Regulatory Analyses
    A. E.O. 12866 (Regulatory Planning and Review), E.O. 13563 
(Improving Regulation and Regulatory Review), and DOT Regulatory 
Policies and Procedures
    B. Congressional Review Act
    C. Advance Notice of Proposed Rulemaking
    D. Regulatory Flexibility Act (Small Entities)
    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-2022-0128), 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-2022-0128/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 (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 
``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 Mr. Brian 
Dahlin, Chief, Regulatory Analysis Division, Office of Policy, FMCSA, 
1200 New Jersey Avenue SE, Washington DC 20590-0001. 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-2022-0128/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

[[Page 48142]]

Operations in Room W12-140 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

    DOT solicits comments from the public to better inform its 
regulatory process, in accordance with 5 U.S.C. 553(c). 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 www.transportation.gov/privacy.

II. Executive Summary and 1 CFR 51

    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, 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.'' 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 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, 2022, edition of the handbook. This NPRM will discuss all updates to 
the currently incorporated 2021 edition of the handbook.
    Fourteen updates distinguish the April 1, 2022, handbook edition 
from the 2021 edition. The incorporation by reference of the 2022 
edition does not impose new regulatory requirements.

III. Abbreviations

CDL Commercial Driver's License
CVSA Commercial Vehicle Safety Alliance
DOT Department of Transportation
FMCSA Federal Motor Carrier Safety Administration
FMCSRs Federal Motor Carrier Safety Regulations
FR Federal Register
MCMIS Motor Carrier Management Information System
OOS Out-of-Service
OOSC Out-of-Service Criteria
RFA Regulatory Flexibility Act
UMRA The Unfunded Mandates Reform Act of 1995
U.S.C. United States Code

IV. 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 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 
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 2018-2021 data from FMCSA's Motor Carrier Management 
Information System (MCMIS), approximately 2.86 million Level I-Level VI 
inspections were performed annually. Nearly 96 percent of these were 
Level I,\1\ Level II,\2\ and Level III \3\ inspections. During the same 
period, an average of 670 Level VI inspections were performed annually, 
comprising only 0.02 percent of all inspections. On average, OOS 
violations were cited in

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only 4 Level VI inspections annually (0.6 percent), whereas on average, 
OOS violations were cited in 212,603 Level I inspections (26 percent), 
249,550 Level II inspections (25 percent), and 52,911 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 2022 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 2022 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 23, 2021 (86 FR 72854), 
references the April 1, 2021, edition of the CVSA handbook. This NPRM 
proposes to amend Sec.  385.4(b)(1) by replacing the reference to the 
April 1, 2021, edition date with a reference to the new edition date of 
April 1, 2022.
    The changes made based on the 2022 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, 2022, Changes

    Fourteen changes in the 2022 edition of the CVSA handbook 
distinguish it from the April 1, 2021, edition:
    (1) The Policy Statement of Part I was amended to provide a clear 
definition of OOSC and define the term ``imminent hazard.'' CVSA 
determined that the term ``imminent hazard'' should be used to describe 
an OOSC. As such, wording was used to provide consistency between the 
OOSC and the Federal Motor Carrier Safety Regulations (FMCSRs). A note 
was also added to clarify that the OOSC in Part I does not apply to a 
co-driver. This clarification is not expected to have any effect on the 
number of OOS violations cited during Level VI inspections in the 
United States.
    (2) Part I, Item 2.a. and Item 3.a., was amended to add a note 
clarifying that information received from the National Law Enforcement 
Telecommunication System or the Commercial Driver's License Information 
System may be used for U.S. home jurisdiction license verification 
without the need of additional confirmation. 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.
    (3) Part I, Item 2.b. and Item 3.c., were amended to clarify in the 
note on Mexico's ``Licencia Federal de Conductor'' (LFC) that only 
Class E requires an endorsement. Prior to February 25, 2016, a driver 
with Mexico's Class B license could operate a commercial motor vehicle 
combination that included double trailers. The ``Observaciones'' 
section on the back of the license did not include an explicit doubles 
endorsement. Similarly, a driver could obtain Mexico's Class E license 
and the ``Observaciones'' section on the back of the license did not 
include an explicit hazardous materials endorsement. After February 25, 
2016, Mexico's Direccion General de Autotransporte Federal, 
Secretar[iacute]a de Infraestructura, Comunicaciones, y Transportes 
required a new Class E license for drivers that wish and are qualified 
to operate doubles and/or transport hazardous materials. Additionally, 
the ``Observaciones'' section on the back of the license has an 
explicit endorsement specifying whether the driver is authorized to use 
doubles or transport hazardous materials or both. However, a 
clarification was needed to specify that the endorsement on the back of 
the license is for the Class E license, not the Class B license. This 
information had already been updated in the LFC Inspection Schematic 
issued in April 2021. This amendment is applicable only to the 
enforcement of Mexican regulations and will not have any effect on the 
number of OOS violations cited during Level VI inspections in the 
United States.
    (4) Part I, Item 7.c., was amended to add a table clarifying the 
Commercial Driver's License (CDL) and non-CDL drivers prohibited in the 
Drug and Alcohol Clearinghouse. Currently, this section details the OOS 
actions that are required to be taken when a driver is recorded in the 
Drug and Alcohol Clearinghouse as prohibited from performing safety-
sensitive functions per 382.501(a). However, CVSA noted that the 
current FMCSRs, specifically Sec.  382.501, do not state that a driver 
operating a non-CDL required vehicle and engaged in intrastate commerce 
be placed OOS. Therefore, a guidance table was provided to clarify the 
OOSC for CDL and non-CDL drivers prohibited from performing safety 
sensitive functions during intrastate and interstate commerce. A note 
was also added explaining the applicability of the table. 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.
    (5) The Policy Statement of Part II was amended to provide a clear 
definition of OOSC and define the term ``imminent hazard.'' CVSA 
determined that the term ``imminent hazard'' should be used to describe 
an OOSC. As such, wording was used to provide consistency between the 
OOSC and the FMCSRs. A note was also added to clarify that the OOSC in 
Part I does not apply to a co-driver. This clarification is not 
expected to have any effect on the number of OOS violations cited 
during Level VI inspections in the United States.
    (6) The chart for ``Defective Brakes'' in Part II, Item 1.a., was 
amended to add a note to clarify that brakes on wheels required or not 
shall be used in the 20 percent calculation for the total number of 
brakes. Clarification was necessary specifically in driveaway/towaway 
combination cases where brakes are not required on the towed unit. The 
20 percent calculation is only used to determine if the vehicle or 
combination is OOS based on the number of defective brakes versus the 
number of operational brakes. Therefore, CVSA determined that all 
brakes must be considered for the purpose of imminent hazard, whether 
they are required or not. This clarification is not expected to have 
any effect on the number of OOS violations cited during Level VI 
inspections in the United States.
    (7) Part II, Item 1.d.2., was amended to add language to specify 
that a breakaway device can be attached to a permanently mounted hitch. 
Clarification was needed to specify that a hitch that is bolted to the 
towing vehicle should be considered permanently attached to the 
vehicle. Thus, a breakaway device like a cable attached to a permanent 
hitch is acceptable. This clarification is not expected to have any 
effect on the number of OOS violations cited during Level VI 
inspections in the United States.
    (8) Reference table Part II, Item 1.h.1. was amended to clarify 
when an air hose should be placed OOS. CVSA contacted the industry to 
discuss air brake hose failure modes and OOS conditions. Brake hose 
manufacturers provided information indicating that when the 
reinforcement ply layer is frayed the integrity of the brake hose is 
compromised and thus, to prevent a

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failure, the brake hose should be placed OOS. According to this 
information, The Society of Automotive Engineers provided updated 
language and guidance to the OOS condition. As such, CVSA added 
language to the OOS reference table and updated the diagram for air 
hoses/tubing. In addition, a note was also added to define the term 
``reinforcement ply.'' 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 1.o., was amended to add an OOS condition to 
address a situation where the entire master cylinder assembly is found 
loose. In response to a video that shows an inspection where the entire 
master cylinder assembly, including the backup system, was loose on the 
firewall, CVSA determined that this condition, although rare, would 
cause a severe reduction in braking action and, in other cases, brake 
failure if the assembly is completely detached from the firewall. Part 
II, Item 1.o. was amended to add an OOS condition that a vehicle should 
be placed OOS when the master cylinder assembly including the backup 
system, power assist, or power brake unit has loose or missing mounting 
bolts. 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.
    (10) Part II, Item 9.b. was amended to clarify that this section 
only applies to lighting systems and no other electrical systems. There 
have been instances where inspectors have been using this section and 
applying it incorrectly to electric brakes. The purpose of the OOS 
condition in the ``Lighting Devices'' section was to only address 
lighting. However, for further clarity, CVSA determined that the term 
``lighting'' should be added to the existing language to clarify that 
this condition only applies to the lights. 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.
    (11) Part II, Item 12.a.2., was amended to remove the reference to 
``breaker strip'' in a steering tire. The term ``breaker strip'' in the 
OOSC is outdated nomenclature that is no longer used in reference 
materials describing radial truck tires. Enforcement personnel 
therefore have trouble identifying and finding the area of the 
``breaker strip'' in supporting documentation. Also, the sidewall and 
tread area OOS conditions cover the same area of the tire rendering the 
term redundant. As such, CVSA determined that the term ``breaker 
strip'' should be removed from the 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.
    (12) The Policy Statement of Part III was amended to provide a 
clear definition of OOSC and define the term ``imminent hazard.'' CVSA 
determined that the term ``imminent hazard'' should be used to describe 
an OOSC. As such, wording was used to provide consistency between the 
OOSC and the FMCSRs. A note was also added to clarify that the OOSC in 
Part III does not apply to a co-driver. This clarification is not 
expected to have any effect on the number of OOS violations cited 
during Level VI inspections in the United States.
    (13) Part III, Item 4.a., was amended to clarify in the notes that 
the identification number is not required on the transport vehicle if 
it is visible on the bulk packaging. CVSA determined that if there is 
no identification number on the transport vehicle, the identification 
number displayed on an orange panel or incorporated with a placard (in 
the United States and Canada), or on a white square-on-point (United 
States only) that is visible on a bulk package is sufficient to satisfy 
the requirement. 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.
    (14) The Policy Statement of Part IV was amended to provide a 
better description of OOSC and define the term ``imminent hazard.'' The 
former policy statement stated that an ``Out of Service Violation'' 
preclude a driver from further operation of a commercial motor vehicle 
for a specified period of time or for some violations until a required 
condition is met. CVSA found that the language in the OOSC description 
needed consistency with the FMCSRs and determined that a driver that 
presents an ``imminent hazard'' precluding safe operation of a 
commercial motor vehicle should be used to describe OOSC. Specifically, 
383.5 defines imminent hazard as the existence of any condition of a 
driver that substantially increases the likelihood of serious injury or 
death if not discontinued immediately. As such, CVSA updated the 
language in the OOSC and defined ``imminent hazard'' as described in 
the FMCSRs. A note was also added to clarify that the OOSC in Part IV 
does not apply to a co-driver. This clarification is not expected to 
have any effect on the number of OOS violations cited during Level VI 
inspections in the United States.

VII. International Impacts

    Motor carriers and drivers are subject to the laws and regulations 
of the countries that they operate in, unless an international 
agreement states otherwise. Drivers and carriers should be aware of the 
regulatory differences between 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.

VIII. Section-By-Section Analysis

Section 385.4 Matter Incorporated by Reference

    Section 385.4(b)(1), as amended on December 23, 2021, references 
the April 1, 2021, edition of the CVSA handbook. This NPRM would 
replace the reference to the April 1, 2021, edition date with a 
reference to the new edition date of April 1, 2022.

IX. 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 considered the impact of this notice of proposed 
rulemaking 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. The Office of Information and Regulatory Affairs within the 
Office of Management and Budget (OMB) determined that this notice of 
proposed rulemaking 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 that 
E.O.
    The proposed rule, if finalized, would update an incorporation by 
reference from the April 1, 2021, edition to the April 1, 2022, edition 
of CVSA's handbook titled ``North American Standard Out-of-Service 
Criteria and Level VI Inspection Procedures and Out-

[[Page 48145]]

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 2018 to 2021 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 (49 CFR 389.3).
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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 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 2022 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).
---------------------------------------------------------------------------

    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, 2022, edition of the CVSA 
handbook. The changes to the 2022 edition of the CVSA handbook from the 
2021 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 2022 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,\6\ 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.
---------------------------------------------------------------------------

    \6\ Public Law 104-121, 110 Stat. 857, (Mar. 29, 1996).
---------------------------------------------------------------------------

    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 $178 million (which is the 
value equivalent of $100 million in 1995, adjusted for inflation to 
2021 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,\7\ 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.
---------------------------------------------------------------------------

    \7\ 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

[[Page 48146]]

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.

    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 paragraphs (a) and (b)(1) 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 in accordance 
with 5 U.S.C. 552(a) and 1 CFR part 51. All approved incorporation by 
reference (IBR) material is available for inspection at the FMCSA and 
at the National Archives and Records Administration (NARA). Contact 
FMCSA 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. For 
information on the availability of this material at NARA, email: 
[email protected], or go to: www.archives.gov/federal-register/cfr/ibr-locations.html. The material may be obtained from the source in 
the following paragraph of this section.
    (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, 2022, incorporation by reference approved for Sec.  
385.415(b).
* * * * *

    Issued under authority delegated in 49 CFR 1.87.
Robin Hutcheson,
Deputy Administrator.
[FR Doc. 2022-16510 Filed 8-5-22; 8:45 am]
BILLING CODE 4910-EX-P