Incorporation by Reference; North American Standard Out-of-Service Criteria; Hazardous Materials Safety Permits, 47437-47442 [2023-15412]
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Federal Register / Vol. 88, No. 140 / Monday, July 24, 2023 / Proposed Rules
this action will reduce emissions from
the Asarco facility.
The methodology and the results of
the demographic analysis are presented
in the preamble of the 2022 proposed
rule (87 FR 1616; January 11, 2022) and
in the technical report, Risk and
Technology Review—Analysis of
Demographic Factors for Populations
Living Near Primary Copper Smelting
Source Category Operations (Docket
Item No. EPA–HQ–OAR–2020–0430–
0052). The information supporting this
Executive Order review is contained in
section V.E. of the 2022 proposed RTR
preamble (87 FR 1616; January 11,
2022). We did not conduct any
additional demographics analyses for
this supplemental proposed rule.
List of Subjects in 40 CFR Part 63
Environmental protection, Air
pollution control, Hazardous
substances, Incorporation by reference,
Reporting and recordkeeping
requirements.
Michael S. Regan,
Administrator.
[FR Doc. 2023–15303 Filed 7–21–23; 8:45 am]
BILLING CODE 6560–50–P
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
Federal Motor Carrier Safety
Administration (FMCSA), Department
of Transportation (DOT).
ACTION: Notice of proposed rulemaking.
AGENCY:
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 routecontrolled 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,
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SUMMARY:
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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 FMCSA2023–0122 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: Jose
Cestero, Vehicle and Roadside
Operations Division, FMCSA, 1200 New
Jersey Avenue SE, Washington, DC
20590–0001, (202) 366–5541,
jose.cestero@dot.gov. If you have
questions on viewing or submitting
material to the docket, contact Dockets
Operations, (202) 366–9826.
SUPPLEMENTARY INFORMATION:
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
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47437
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 81⁄2 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
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Federal Register / Vol. 88, No. 140 / Monday, July 24, 2023 / Proposed Rules
‘‘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 brian.g.dahlin@
dot.gov. 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.
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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-systemrecords-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
§ 385.415(b). The provision at
§ 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 Outof-Service Criteria for Commercial
Highway Vehicles Transporting
Transuranics and Highway Route
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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
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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-ofService 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-
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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.
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.
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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 § 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
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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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
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47439
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
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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
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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
Reference
Matter Incorporated by
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.
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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 Outof-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
C. Advance Notice of Proposed
Rulemaking
Under 49 U.S.C. 31136(g), FMCSA is
required to publish an advance notice of
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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Federal Register / Vol. 88, No. 140 / Monday, July 24, 2023 / Proposed Rules
lotter on DSK11XQN23PROD with PROPOSALS1
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.
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
§ 385.4(b)(1) and referenced at
§ 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.
5 Public Law 104–121, 110 Stat. 857, (Mar. 29,
1996).
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16:14 Jul 21, 2023
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47441
E. Assistance for Small Entities
H. E.O. 13132 (Federalism)
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-nationalombudsman) 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.
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.
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.
F. Unfunded Mandates Reform Act of
1995
K. National Environmental Policy Act of
1969
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.
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.
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).
PO 00000
Frm 00046
Fmt 4702
Sfmt 4702
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.
6 Public Law 108–447, 118 Stat. 2809, 3268, note
following 5 U.S.C. 552a (Dec. 4, 2014).
E:\FR\FM\24JYP1.SGM
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47442
Federal Register / Vol. 88, No. 140 / Monday, July 24, 2023 / Proposed Rules
In consideration of the foregoing,
FMCSA proposes to amend 49 CFR
chapter III, part 385, as set forth below:
PART 385—SAFETY FITNESS
PROCEDURES
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.
2. Amend § 385.4 by revising
paragraph (b)(1) to read as follows:
■
§ 385.4
Matter incorporated by reference.
*
*
*
*
*
(b) * * *
(1) ‘‘North American Standard Out-ofService 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
§ 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
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 29
[Docket No. FWS–HQ–NWRS–2019–0017;
FF09R50000–XXX–FVRS8451900000]
RIN 1018–BD78
Streamlining U.S. Fish and Wildlife
Service Permitting of Rights-of-Way
Across National Wildlife Refuges and
Other U.S. Fish and Wildlife ServiceAdministered Lands
Fish and Wildlife Service,
Interior.
ACTION: Proposed rule; revisions and
reopening of the comment period.
lotter on DSK11XQN23PROD with PROPOSALS1
AGENCY:
We, the U.S. Fish and
Wildlife Service (Service), are revising
our proposed rule that would streamline
our process for permitting of rights-ofway across National Wildlife Refuge
System lands and other Service-
SUMMARY:
VerDate Sep<11>2014
16:14 Jul 21, 2023
Jkt 259001
administered lands. By aligning Service
processes more closely with those of
other Department of the Interior (DOI)
bureaus, to the extent practicable and
consistent with applicable law, we will
reduce the amount of time the Service
requires to process applications for
rights-of-way across Service-managed
lands. We originally proposed revisions
that included requiring a preapplication
meeting and use of a standard
application, allowing electronic
submission of applications, and
providing the Service with additional
flexibility, as appropriate, to determine
the fair market value or fair market
rental value of rights-of-way across
Service-managed lands. We now further
propose new permit terms and
conditions and other regulatory
changes. The Service seeks comments
on this revised proposed rule.
DATES: The public comment period on
the proposed rule that published on
January 19, 2021, at 86 FR 5120, is
reopened. We will accept comments
until August 23, 2023.
ADDRESSES: This revised proposed rule,
the original proposed rule (86 FR 5120,
January 19, 2021), supporting
documents, and the comments we
received on the proposed rule are
available at https://www.regulations.gov
at Docket No. FWS–HQ–NWRS–2019–
0017.
Information collection requirements:
Written comments and suggestions on
the information collection requirements
may be submitted at any time to the
Service Information Collection
Clearance Officer, U.S. Fish and
Wildlife Service, 5275 Leesburg Pike,
MS: PRB (JAO/3W), Falls Church, VA
22041–3803 (mail); or Info_Coll@fws.gov
(email). Please reference ‘‘OMB Control
Number 0596–0249’’ in the subject line
of your comments.
FOR FURTHER INFORMATION CONTACT: Ken
Fowler, U.S. Fish and Wildlife Service,
MS: NWRS, 5275 Leesburg Pike, Falls
Church, VA 22041; (703) 358–1876.
Individuals in the United States who are
deaf, deafblind, hard of hearing, or have
a speech disability may dial 711 (TTY,
TDD, or TeleBraille) to access
telecommunications relay services.
Individuals outside the United States
should use the relay services offered
within their country to make
international calls to the point of
contact in the United States.
SUPPLEMENTARY INFORMATION:
Background
The Service’s mission is working with
others to conserve, protect, and
enhance, fish, wildlife, plants, and their
habitats for the continuing benefit of the
PO 00000
Frm 00047
Fmt 4702
Sfmt 4702
American people. The Service has some
amount of management responsibility
for more than 96 million terrestrial acres
as well as an additional 760 million
acres of submerged lands in marine
national monuments. The 96 million
acres of terrestrial land includes
approximately 89 million acres where
the Service is the principal land
manager and permitting authority;
nearly 4.9 million acres of conservation
easements on private lands, where
landowners are the principal land
managers, but the Service has a
permitting role when a proposed use
will affect the United States’ real
property interest; more than 1.7 million
acres of public land where another
Federal agency is the principal land
manager and permitting authority, but
where the Service has some
management responsibility through an
agreement with another agency; and
approximately 775,000 acres under a
temporary lease or agreement where
another entity is the permitting
authority.
Of the 89 million acres of terrestrial
land principally managed by the
Service, 76.8 million acres are in
Alaska, 12.2 million acres are in the
lower 48 States, and 50,000 acres are in
Hawaii. The vast majority of these acres
are part of the National Wildlife Refuge
System (Refuge System), the mission of
which is to administer a national
network of lands and waters for the
conservation, management, and where
appropriate, restoration of the fish,
wildlife, and plant resources and their
habitats within the United States for the
benefit of present and future generations
of Americans (16 U.S.C. 668dd(a)(2)).
The total also includes approximately
21,000 acres of public land in the
National Fish Hatchery System, which
the Service manages for the propagation
and distribution of fish and other
aquatic animal life.
The 89 million acres of terrestrial land
includes more than 20 million acres of
designated wilderness that the Service
manages for ‘‘the preservation of their
wilderness character’’ in accordance
with the Wilderness Act of 1964 (16
U.S.C. 1131 et seq.). Subject to existing
private rights, and special provisions
included in specific wildernessdesignation statutes and the Alaska
National Interest Lands Conservation
Act (ANILCA; Pub. L. 96–487; 16 U.S.C.
3101 et seq.), the Wilderness Act
prohibits commercial enterprises and
permanent roads. The law also prohibits
temporary roads; motor vehicles,
motorized equipment, motorboats,
landing of aircraft, and other forms of
mechanical transport; structures; and
installations, unless their use can be
E:\FR\FM\24JYP1.SGM
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]]>Agencies
[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]
=======================================================================
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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.
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\6\ Public Law 108-447, 118 Stat. 2809, 3268, note following 5
U.S.C. 552a (Dec. 4, 2014).
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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
