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

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

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

Raymond P. Martinez
Federal Motor Carrier Safety Administration
31 December 2018

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

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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Part 385

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

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

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

ACTION: Notice of Proposed Rulemaking.

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

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

ADDRESSES: You may submit comments identified by Docket Number FMCSA-
2018-0165 using any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the online instructions for submitting comments.
Mail: Docket Management Facility, U.S. Department of
Transportation, 1200 New Jersey Avenue SE, West Building, Ground Floor,
Room W12-140, Washington, DC 20590-0001.
Hand Delivery or Courier: West Building, Ground Floor,
Room W12-140, 1200 New Jersey Avenue SE, Washington, DC, between 9 a.m.
and 5 p.m., Monday through Friday, except Federal holidays.
Fax: 202-493-2251.
To avoid duplication, please use only one of these four methods.
See the ``Public Participation and Request for Comments'' portion of
the SUPPLEMENTARY INFORMATION section for instructions on submitting
comments, including collection of information comments for the Office
of Information and Regulatory Affairs, OMB.

FOR FURTHER INFORMATION CONTACT: Mr. Michael Huntley, Chief, Vehicle
and Roadside Operations Division, Federal Motor Carrier Safety
Administration, 1200 New Jersey Avenue SE, Washington, DC 20590-0001 by
telephone at (202) 366-9209 or by email at michael.huntley@dot.gov. If
you have questions on viewing or submitting material to the docket,
contact Docket Services, telephone (202) 366-9826.

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

I. Public Participation and Request for Comments
A. Submitting Comments
B. Viewing Comments and Documents
C. Privacy Act
D. Advance Notice of Proposed Rulemaking Not Required
II. Executive Summary
III. Legal Basis for the Rulemaking
IV. Background
V. Discussion of Proposed Rulemaking
VI. International Impacts
VII. Section-by-Section Analysis
VIII. Regulatory Analyses
A. E.O. 12866 (Regulatory Planning and Review), E.O. 13563
(Improving Regulation and Regulatory Review), and DOT Regulatory
Policies and Procedures
B. E.O. 13771 Reducing Regulation and Controlling Costs
C. Regulatory Flexibility Act (Small Entities)
D. Assistance for Small Entities
E. Unfunded Mandates Reform Act of 1995
F. Paperwork Reduction Act
G. E.O. 13132 (Federalism)
H. E.O. 12988 (Civil Justice Reform)
I. E.O. 13045 (Protection of Children)
J. E.O. 12630 (Taking of Private Property)
K. Privacy
L. E.O. 12372 (Intergovernmental Review)
M. E.O. 13211 (Energy Supply, Distribution, or Use)
N. E.O. 13175 (Indian Tribal Governments)
O. National Technology Transfer and Advancement Act (Technical
Standards)
P. Environment (National Environmental Policy Act)

I. Public Participation and Request for Comments

A. Submitting Comments

If you submit a comment, please include the docket number for this
NPRM (Docket No. FMCSA-2018-0165), indicate the specific section of
this document to which each comment applies, and provide a reason for
each suggestion or recommendation. You may submit your comments and
material online or by fax, mail, or hand delivery, but please use only
one of these means. FMCSA recommends that you include your name and a
mailing address, an email address, or a phone number in the body of
your document so that FMCSA can contact you if there are questions
regarding your submission.
To submit your comment online, go to http://www.regulations.gov,
put the docket number, FMCSA-2018-0165, in the keyword box, and click
``Search.'' When the new screen appears, click on the ``Comment Now!''
button and type your comment into the text box on the following screen.
Choose whether you are submitting your comment as an individual or on
behalf of a third party and then submit.
If you submit your comments by mail or hand delivery, submit them
in an unbound format, no larger than 8\1/2\ by 11 inches, suitable for
copying and electronic filing. If you submit comments by mail and would
like to know that they reached the facility, please enclose a stamped,
self-addressed postcard or envelope.
FMCSA will consider all comments and material received during the
comment period and may change this proposed rule based on your
comments. FMCSA may issue a final rule at any time after the close of
the comment period.
Confidential Business Information
Confidential Business Information (CBI) is commercial or financial
information that is customarily not made available to the general
public by the submitter. Under the Freedom of Information Act, CBI is
eligible for protection from public disclosure. If you have CBI that is
relevant or responsive to this NPRM, it is important that you clearly
designate the submitted comments as CBI. Accordingly, please mark each
page of your submission as

[[Page 67706]]

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

B. Viewing Comments and Documents

To view comments, as well as any documents mentioned in this
preamble as being available in the docket, go to http://www.regulations.gov. Insert the docket number, FMCSA-2018-0165, in the
keyword box, and click ``Search.'' Next, click the ``Open Docket
Folder'' button and choose the document to review. If you do not have
access to the internet, you may view the docket online by visiting the
Docket Management Facility in Room W12-140 on the ground floor of the
DOT West Building, 1200 New Jersey Avenue SE, Washington, DC 20590,
between 9 a.m. and 5 p.m., e.t., Monday through Friday, except Federal
holidays.

C. Privacy Act

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

D. Advance Notice of Proposed Rulemaking Not Required

Under 49 U.S.C. 31136(g), FMCSA is required, in part, to publish an
advance notice of proposed rulemaking if a proposed rule is likely to
lead to the promulgation of a major rule, unless the Agency either
develops the proposed rule through a negotiated rulemaking process or
finds good cause that an ANPRM is impracticable, unnecessary, or
contrary to the public interest. To be a major rule, a rule must result
in or be likely to result in: (1) ``An annual effect on the economy of
$100,000,000 or more;'' (2) ``a major increase in costs or prices for
consumers, individual industries, Federal, State, or local government
agencies, or geographic regions;'' or (3) ``significant adverse effects
on competition, employment, investment, productivity, innovation, or on
the ability of United States-based enterprises to compete with foreign-
based enterprises in domestic and export markets.'' 5 U.S.C. 804(2).
This proposed rule does meet the criteria of a major rule because it
simply incorporates by reference updates to the 2016 CVSA handbook
edition made on April 1, 2017, and April 1, 2018, which, as described
below, are largely editorial and provide clarity and guidance to
inspectors and motor carriers transporting transuranics. Therefore,
this proposed rule is not likely to lead to the promulgation of a major
rule that requires an ANPRM.

II. Executive Summary

This rulemaking proposes to update an incorporation by reference
found at 49 CFR 385.4 and referenced at 49 CFR 385.415(b). Section
385.4(b) currently references the April 1, 2016, edition of CVSA's
handbook titled ``North American Standard Out-of-Service Criteria and
Level VI Inspection Procedures and Out-of-Service Criteria for
Commercial Highway Vehicles Transporting Transuranics and Highway Route
Controlled Quantities of Radioactive Materials as defined in 49 CFR
part 173.403.'' The Out-of-Service Criteria, while not regulations,
provide uniform enforcement tolerances for roadside inspections to
enforcement personnel nationwide, including FMCSA's State partners. In
this rulemaking, FMCSA proposes to incorporate by reference the April
1, 2018, edition, which also captures changes adopted in the April 1,
2017 edition of the handbook.
Cumulatively, 15 updates distinguish the April 1, 2018, handbook
edition from the 2016 and 2017 editions (9 updates adopted in 2016 and
6 additional updates adopted in 2017). The incorporation by reference
of the 2018 edition does not impose new regulatory requirements.

III. Legal Basis for the Rulemaking

Congress has enacted several statutory provisions to ensure the
safe transportation of hazardous materials in interstate commerce.
Specifically, in provisions codified at 49 U.S.C. 5105(d), relating to
inspections of motor vehicles carrying certain hazardous material, and
49 U.S.C. 5109, relating to motor carrier safety permits, the Secretary
of Transportation is required to promulgate regulations as part of a
comprehensive safety program on hazardous materials safety permits. The
FMCSA Administrator has been delegated authority under 49 CFR
1.87(d)(2) to carry out the rulemaking functions vested in the
Secretary of Transportation. Consistent with that authority, FMCSA has
promulgated regulations to address the congressional mandate on
hazardous materials. Those regulations on hazardous materials are the
underlying provisions to which the material incorporated by reference
discussed in this notice is applicable.

IV. Background

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

[[Page 67707]]

American Standard Out-of-Service Criteria and Level VI Inspection
Procedures and Out-of-Service Criteria for Commercial Highway Vehicles
Transporting Transuranics and Highway Route Controlled Quantities of
Radioactive Materials as defined in 49 CFR part 173.403.''
According to 2012-2017 data from FMCSA's Motor Carrier Management
Information System (MCMIS), approximately 3.5 million Level I--Level VI
roadside inspections were performed annually. Nearly 97 percent of
these were Level I,\1\ Level II,\2\ and Level III \3\ inspections.
During the same period, an average of 842 Level VI inspections were
performed annually, comprising only 0.024 percent of all roadside
inspections. On average, out-of-service violations were cited in only
10 Level VI inspections annually (1.19 percent), whereas on average,
out-of-service violations were cited in 269,024 Level I inspections
(25.3 percent), 266,122 Level II inspections (22.2 percent), and 66,489
Level III inspections (6.2 percent) annually. Based on these
statistics, CMVs transporting transuranics and highway route controlled
quantities of radioactive materials are clearly among the best
maintained and safest CMVs on the highways today, due largely to the
enhanced oversight and inspection of these vehicles because of the
sensitive nature of the cargo being transported.
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\1\ Level I is a 37-step inspection procedure that involves
examination of the motor carrier's and driver's credentials, record
of duty status, the mechanical condition of the vehicle, and any
hazardous materials/dangerous goods that may be present.
\2\ Level II is a driver and walk-around vehicle inspection,
involving the inspection of items that can be checked without
physically getting under the vehicle.
\3\ Level III is a driver-only inspection that includes
examination of the driver's credentials and documents.
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V. Discussion of Proposed Rulemaking

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

April 1, 2017, Changes

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

[[Page 67708]]

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

April 1, 2018 Changes

The 2018 edition identifies (1) driver-related violations of the
FMCSRs that are so severe as to warrant placing the CMV driver out of
service, (2) vehicle equipment-related violations of the FMCSRs that
are so severe as to warrant placing the CMV out of service, and (3)
unsafe conditions in the transportation of hazardous materials. The
purpose of the publication is to provide inspection criteria for
Federal and State motor carrier safety enforcement personnel to promote
uniform and consistent inspection procedures of CMVs operated in
commerce.
Six updates to the 2018 edition distinguish it from the April 1,
2017,

[[Page 67709]]

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

VI. International Impacts

The FMCSRs, and any exceptions to the FMCSRs, apply only within the
United States (and, in some cases, United States territories). Motor
carriers and drivers are subject to the laws and regulations of the
countries in which they operate, unless an international agreement
states otherwise. Drivers and carriers should be aware of the
regulatory differences among nations.
The CVSA is an organization representing Federal, State and
Provincial motor carrier safety enforcement agencies in United States,
Canada and Mexico. The Out-of-Service Criteria provide uniform
enforcement tolerances for roadside inspections conducted in all three
countries.

VII. Section-by-Section Analysis

Section 385.4 Matter Incorporated by Reference

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

[[Page 67710]]

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

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

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

VIII. Regulatory Analyses

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

FMCSA has determined that this action is not a significant
regulatory action under section 3(f) of E.O. 12866, Regulatory Planning
and Review, as supplemented by E.O. 13563 (76 FR 3821, January 21,
2011). Additionally, it is not significant within the meaning of DOT
Regulatory Policies and Procedures (DOT Order 2100.5 dated May 22,
1980; 44 FR 11034, February 26, 1979) and does not require an
assessment of potential costs and benefits under section 6(a)(3) of
that Order. The Office of Management and Budget (OMB) did not,
therefore, review this document.

B. E.O. 13771 Reducing Regulation and Controlling Regulatory Costs

E.O. 13771, ``Reducing Regulation and Controlling Regulatory
Costs,'' does not apply to this action because it is a nonsignificant
regulatory action, as defined in section 3(f) of E.O. 12866, and has
zero costs; therefore, it is not subject to the ``2 for 1'' and
budgeting requirements.

C. Regulatory Flexibility Act (Small Entities)

The Regulatory Flexibility Act of 1980 (RFA), Public Law 96-354, 94
Stat. 864 (1980), as amended by the Small Business Regulatory
Enforcement Fairness Act of 1996 (SBREFA) (5 U.S.C. 601 et seq.),
requires Federal agencies to consider the effects of the regulatory
action on small business and other small entities and to minimize any
significant economic impact. The term ``small entities'' comprises
small businesses and not-for-profit organizations that are
independently owned and operated and are not dominant in their fields,
and governmental jurisdictions with populations of less than 50,000.\5\
In compliance with the RFA, FMCSA evaluated the effects of the proposed
rule on small entities. The proposed rule incorporates by reference
updates to the 2016 CVSA handbook edition made on April 1, 2017, and
April 1, 2018, which, as described above, are largely editorial and
provide clarity and guidance to inspectors and motor carriers
transporting transuranics. DOT policy requires an analysis of the
impact of all regulations on small entities, and mandates that agencies
strive to lessen any adverse effects on these entities. None of the 15
updates from the 2017 and 2018 editions impose new requirements or make
substantive changes to the FMCSRs.
---------------------------------------------------------------------------

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

When an Agency issues a rulemaking proposal, the RFA requires the
Agency to ``prepare and make available an initial regulatory
flexibility analysis'' that will describe the impact of the proposed
rule on small entities (5 U.S.C 603(a)). Section 605 of the RFA allows
an agency to certify a rule, instead of preparing an analysis, if the
proposed rule is not expected to impact a substantial number of small
entities. The proposed rule is largely editorial and provides guidance
to inspectors and motor carriers transporting transuranics in
interstate commerce. Accordingly, I hereby certify that if promulgated,
this proposed rule will not have a significant economic impact on a
substantial number of small entities. FMCSA invites comments from
anyone who believes there will be a significant impact on small
entities from this action.

D. Assistance for Small Entities

In accordance with section 213(a) of the Small Business Regulatory
Enforcement Fairness Act of 1996, FMCSA wants to assist small entities
in understanding this rule so that they can better evaluate its
effects. If the rule will affect your small business, organization, or
governmental jurisdiction and you have questions concerning its
provisions, please consult the FMCSA point of contact, Michael Huntley,
listed in the FOR FURTHER INFORMATION CONTACT section of this rule.

E. Unfunded Mandates Reform Act of 1995

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538)
requires Federal agencies to assess the effects of their discretionary
regulatory actions. The Act addresses actions that may result in the
expenditure by a State, local, or tribal government, in the aggregate,
or by the private sector, of $161 million (which is the value
equivalent to $100,000,000 in 1995, adjusted for inflation to 2017
levels) or more in any one year. This proposed rule will not result in
such an expenditure.

F. Paperwork Reduction Act

Under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.),
Federal agencies must obtain approval from the OMB for each collection
of information they conduct, sponsor, or require through regulations.
FMCSA determined that no new information collection requirements are
associated with this proposed rule.

G. E.O. 13132 (Federalism)

A rule has implications for Federalism under Section 1(a) of
Executive Order 13132 if it has ``substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government.''
FMCSA analyzed this proposed rule and determined that it does not
have implications for federalism.

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

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

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

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

[[Page 67711]]

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

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

K. Privacy

Section 522 of title I of division H of the Consolidated
Appropriations Act, 2005, enacted December 8, 2004 (Pub. L. 108-447,
118 Stat. 2809, 3268, 5 U.S.C. 552a note), requires the Agency to
conduct a privacy impact assessment of a regulation that will affect
the privacy of individuals. This proposed rule does not require the
collection of personally identifiable information or affect the privacy
of individuals.

L. E.O. 12372 (Intergovernmental Review)

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

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

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

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

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

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

The National Technology Transfer and Advancement Act (15 U.S.C. 272
note) directs agencies to use voluntary consensus standards in their
regulatory activities unless the agency provides Congress, through OMB,
with an explanation of why using these standards would be inconsistent
with applicable law or otherwise impractical. Voluntary consensus
standards (e.g., specifications of materials, performance, design, or
operation; test methods; sampling procedures; and related management
systems practices) are standards that are developed or adopted by
voluntary consensus standards bodies. FMCSA does not intend to adopt
its own technical standard, thus there is no need to submit a separate
statement to OMB on this matter. The standard being incorporated in
this proposed rule is discussed in detail in section IV, Incorporation
by Reference, and is reasonably available at FMCSA and through the CVSA
website.

P. Environment (National Environmental Policy Act)

FMCSA analyzed this rule consistent with the National Environmental
Policy Act of 1969 (42 U.S.C. 4321 et seq.) and determined this action
is categorically excluded from further analysis and documentation in an
environmental assessment or environmental impact statement under FMCSA
Order 5610.1 (69 FR 9680, March 1, 2004), Appendix 2, paragraph (6)(b).
This Categorical Exclusion (CE) covers minor revisions to regulations.
The content in this proposed rule is covered by this CE, there are no
extraordinary circumstances present, and the proposed action does not
have any effect on the quality of the environment. The CE determination
is available for inspection or copying in the Regulations.gov website
listed under ADDRESSES.

List of Subjects in 49 CFR 385

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

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

PART 385--SAFETY FITNESS PROCEDURES

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

Authority: 49 U.S.C. 113, 504, 521(b), 5105(d), 5109, 5113
13901-13905, 13908, 31135, 31136, 31144, 31148, and 31502; Sec.
113(a), Pub. L. 103-311; Sec. 408, Pub. L. 104-88, 109 Stat. 803,
958; Sec. 350 of Pub. L. 107-87, 115 Stat. 833, 864; and 49 CFR
1.87.

0
2. Revise Sec. 385.4 to read as follows:

Sec. 385.4 Matter incorporated by reference.

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

Sec. 385.415 [Amended]

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

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