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

Published date03 May 2024
Record Number2024-09357
Citation89 FR 36742
CourtFederal Motor Carrier Safety Administration
SectionProposed rules
Federal Register, Volume 89 Issue 87 (Friday, May 3, 2024)
[Federal Register Volume 89, Number 87 (Friday, May 3, 2024)]
                [Proposed Rules]
                [Pages 36742-36748]
                From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
                [FR Doc No: 2024-09357]
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                DEPARTMENT OF TRANSPORTATION
                Federal Motor Carrier Safety Administration
                49 CFR Part 385
                [Docket No. FMCSA-2024-0073]
                RIN 2126-AC65
                Incorporation by Reference; North American Standard Out-of-
                Service Criteria; Hazardous Materials Safety Permits
                AGENCY: Federal Motor Carrier Safety Administration (FMCSA), Department
                of Transportation (DOT).
                ACTION: Notice of proposed rulemaking.
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                SUMMARY: FMCSA proposes amendments to its Hazardous Materials Safety
                Permits (HMSPs) regulations to incorporate by reference the updated
                Commercial Vehicle Safety Alliance (CVSA) handbook containing
                inspection procedures and Out-of-Service Criteria (OOSC) for
                inspections of shipments of transuranic waste and highway route-
                controlled quantities (HRCQs) of radioactive material (RAM). The OOSC
                provide enforcement personnel nationwide, including FMCSA's State
                partners, with uniform enforcement tolerances for inspections.
                Currently, the regulations reference the April 1, 2023, edition of the
                handbook. Through this notice, FMCSA proposes to incorporate by
                reference the April 1, 2024, edition.
                DATES: Comments must be received on or before June 3, 2024.
                ADDRESSES: You may submit comments identified by Docket Number FMCSA-
                2024-0073 using any of the following methods:
                 Federal eRulemaking Portal: Go to https://www.regulations.gov/docket/FMCSA-2024-0073/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, 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 the National
                Transportation Library, DOT, 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: David Sutula, Vehicle and Roadside
                Operations Division, FMCSA, 1200 New Jersey Avenue SE, Washington, DC
                20590-0001, (202) 366-9209, [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. Section-by-Section Analysis
                VIII. 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. Advance Notice of Proposed Rulemaking
                 C. Regulatory Flexibility Act
                 D. Assistance for Small Entities
                 E. Unfunded Mandates Reform Act of 1995
                 F. Paperwork Reduction Act
                 G. E.O. 13132 (Federalism)
                 H. Privacy
                 I. E.O. 13175 (Indian Tribal Governments)
                 J. National Environmental Policy Act of 1969
                 K. Rulemaking Summary
                I. Public Participation and Request for Comments
                A. Submitting Comments
                 If you submit a comment, please include the docket number for this
                NPRM (FMCSA-2024-0073), 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
                [[Page 36743]]
                contact you if there are questions regarding your submission.
                 To submit your comment online, go to https://www.regulations.gov/docket/FMCSA-2024-0073/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
                ``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-2024-0073/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, 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 posted without edit and are
                searchable by the name of the submitter.
                II. Executive Summary
                 This NPRM proposes to update an incorporation by reference found at
                49 Code of Federal Regulations (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, 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.'' 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, Hazardous
                Materials Division) at (202) 493-0027. The document may be purchased
                from the Commercial Vehicle Safety Alliance 99 M Street SE, Suite 1025,
                Washington, DC 20003, 202-998-1002, www.cvsa.org.
                 In this NPRM, FMCSA proposes to incorporate by reference the April
                1, 2024, edition of the handbook. This NPRM will discuss all updates to
                the currently incorporated 2023 edition of the handbook.
                 Eleven updates distinguish the April 1, 2024, handbook edition from
                the April 1, 2023, edition. The incorporation by reference of the 2024
                edition does not impose new regulatory requirements.
                III. Abbreviations
                ATIS Automatic Tire Inflation Systems
                CBI Confidential Business Information
                CDL Commercial Driver's License
                CE Categorical Exclusion
                CFR Code of Federal Regulations
                CLP Commercial Learner's Permit
                CVSA Commercial Vehicle Safety Alliance
                DACH Drug and Alcohol Clearinghouse
                DOT Department of Transportation
                FMCSA Federal Motor Carrier Safety Administration
                FR Federal Register
                HM Hazardous Materials
                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
                PBBT Performance-Based Brake Test
                PIA Privacy Impact Assessment
                PTA Privacy Threshold Assessment
                RAM Radioactive Material
                RFA Regulatory Flexibility Act
                TSA Transportation Security Administration
                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 (``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 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.
                 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 2024
                edition of the CVSA handbook outlining the OOSC and inspection
                procedures for commercial highway
                [[Page 36744]]
                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 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.
                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 covered by the
                U.S. Department of Transportation's HM Safety Permit rules (June 30,
                2004; 69 FR 39350). 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 HRCQs 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.
                 Operational requirements for motor carriers transporting hazardous
                materials for which a HMSP is required are prescribed by Sec. 385.415.
                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-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 2020 through 2023 data from FMCSA's Motor Carrier
                Management Information System (MCMIS), approximately 2.9 million Level
                I through Level VI inspections were performed annually. Nearly 96.2
                percent of these were Level I,\1\ Level II,\2\ and Level III \3\
                inspections. During the same period, an average of 876 Level VI
                inspections were performed annually, comprising only 0.03 percent of
                all inspections. On average, OOS violations were cited in only 5 Level
                VI inspections annually (0.6 percent), whereas on average, OOS
                violations were cited in 223,679 Level I inspections (27 percent),
                265,132 Level II inspections (27 percent), and 59,179 Level III
                inspections (6 percent) annually. As these statistics demonstrate, OOS
                violations are cited in a far lower percentage of Level VI inspections
                than Level I, II, and III inspections, due largely to the enhanced
                oversight and inspection of these vehicles because of the sensitive
                nature of the cargo being transported.
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                 \1\ Level I is a 37-step inspection procedure that involves
                examination of the motor carrier's and driver's credentials, record
                of duty status, the mechanical condition of the vehicle, and any
                hazardous materials/dangerous goods that may be present.
                 \2\ Level II is a driver and walk-around vehicle inspection,
                involving the inspection of items that can be checked without
                physically getting under the vehicle.
                 \3\ Level III is a driver-only inspection that includes
                examination of the driver's credentials and documents.
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                 The changes to the 2024 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 2024 edition of the CVSA handbook to
                significantly affect the number of OOS violations cited during Level VI
                inspections.
                VI. Discussion of Proposed Rulemaking
                 Section 385.4(b)(1), as amended on November 8, 2023 (88 FR 77010),
                references the April 1, 2023, edition of the CVSA handbook. This NPRM
                proposes to amend Sec. 385.4(b)(1) by replacing the reference to the
                April 1, 2023, edition date with a reference to the new edition date of
                April 1, 2024.
                 The changes made based on the 2024 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.
                 In preparing this NPRM, FMCSA obtained clarification from CVSA on
                various aspects of the 2024 edition of the handbook. FMCSA contacted
                CVSA on February 28, 2024, regarding why CVSA released a version in
                February 2024 before the changes were effective. Following this, on
                March 8, 2024, FMCSA contacted CVSA again to highlight a minor
                typographical error in the OOSC handbook. Finally, on April 3, 2024,
                FMCSA contacted CVSA regarding the change relating to the distinction
                between vehicles equipped with automatic tire inflation systems (ATIS)
                and vehicles not equipped with ATIS in the North American Standard OOSC
                Part II, Item 12(b)(1) and 12(b)(2). CVSA explained how the tires are
                treated differently. In each instance, CVSA provided clarifying
                information that aided the Agency with drafting the NPRM. FMCSA has
                placed a memorandum in the rulemaking docket documenting these
                communications.
                April 1, 2024, Changes
                 Eleven changes in the 2024 edition of the CVSA handbook distinguish
                it from the April 1, 2023, edition:
                 1. Part I, Item 2.b (``Endorsements and Restrictions''), was
                amended to add a note clarifying the status of a Hazardous Materials
                (HM) endorsement in cases where a U.S. driver's Transportation Security
                Administration (TSA) screening/HM determination is expired, and the
                driver requires renewal. The HM endorsement threat assessment program
                is administered by TSA, which conducts security threat assessments for
                drivers seeking to obtain, renew, or transfer an HM endorsement on a
                State-issued commercial driver's license (CDL). A note was added to
                clarify that if a driver possesses a State-issued CDL and transports HM
                but fails to renew their HM endorsement, typically required to be
                renewed every 5 years, the HM endorsement becomes invalid, irrespective
                of the license's expiration date. Additionally, the note specifies that
                a driver will be placed OOS if transporting HM in a quantity
                necessitating placards. The changes are intended to ensure clarity in
                the presentation of the OOS conditions and are not expected to
                significantly affect the number of OOS violations cited during Level VI
                inspections.
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                 2. Part I, Item 4.b (``Medical Certificate'') was amended by
                removing language in the note regarding the requirement that Class D
                license-holders in Ontario, Canada provide additional evidence of
                compliance with medical prerequisites. The language was removed because
                a cyclical renewal of driver medical certification is now mandatory and
                integrated into this class of license. This amendment is applicable
                only to the enforcement of Canadian regulations and will not have any
                effect on the number of OOS violations cited during Level VI
                inspections in the United States.
                 3. Part I, Item 7.c (``Prohibited from performing safety-sensitive
                functions'') was amended by adding a new regulation code and a note
                addressing the use of this new regulation code for drivers prohibited
                from performing safety-sensitive functions. FMCSA agrees with CVSA's
                determination that the language was needed for instances where drivers
                are found operating a CMV while in prohibited status in the Drug and
                Alcohol Clearinghouse (DACH or Clearinghouse) under Sec. 392.15.
                However, because Sec. 392.15 is presently unavailable in the
                inspection software, a note was added stating that a citation to Sec.
                390.3(e) may be used until November 18, 2024,\4\ prior to the addition
                of the updated regulatory code into the inspection software and to
                provide U.S. jurisdictions a means of achieving early compliance with
                the requirement. The changes are intended to ensure clarity in the
                presentation of the OOS conditions and are not expected to
                significantly affect the number of OOS violations cited during Level VI
                inspections.
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                 \4\ On October 7, 2021, FMCSA published a final rule in the
                Federal Register (86 FR 55718) establishing requirements for State
                driver's licensing agencies to access and use information obtained
                through the DACH, an FMCSA-administered database containing driver-
                specific controlled substance (drug) and alcohol records. Among
                other actions, the final rule added a new Sec. 392.15 to prohibit
                any driver subject to the CMV driving prohibition in Sec.
                382.501(a) from operating a CMV. The deadline for States to come
                into compliance with that requirement is November 18, 2024.
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                 4. Part I, Item 7.c (``Prohibited from performing safety-sensitive
                functions'') was also amended by adding language in the applicability
                table regarding the prohibition against commercial learner's permit
                (CLP) holders performing safety-sensitive functions after engaging in
                prohibited use of drugs or alcohol, until the CLP holder has completed
                the return to duty requirements established by 49 CFR part 40, subpart
                O.\5\ CVSA concluded that the table should also refer to CLP holders in
                the ``Current CDL Holder'' section. CLP holders were not added to the
                ``Former CDL Holder'' section because a former CDL holder would possess
                a non-CDL license not subject to the Clearinghouse requirements. The
                changes are intended to ensure clarity in the presentation of the OOS
                conditions and are not expected to significantly affect the number of
                OOS violations cited during Level VI inspections.
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                 \5\ Similar to the previous change, this is necessary to meet
                the November 2024 compliance date for the October 2021 DACH final
                rule.
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                 5. Part II, Item 1.a.5.a (``Drum (Cam-Type and Wedge) Air Brakes'')
                was amended to include language specifying that missing camshaft
                bushings must be included in the 20 percent brake criterion. The 20
                percent criterion relates to the proportion of brakes on a vehicle or
                combination 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.
                During a roadside inspection, CVSA found a missing camshaft bushing in
                the drum brake system of a CMV. However, due to the positioning of the
                camshaft within the spider casting, the brake was not out of adjustment
                and was still partially operative. Subsequently, FMCSA agrees with
                CVSA's determination it was appropriate to include missing camshaft
                bushings in the 20 percent brake criterion. With this update, CVSA
                added language clarifying that a brake can be considered defective if
                it has a missing camshaft bushing. The change is intended to ensure
                clarity in the presentation of the OOS conditions and is not expected
                to significantly affect the number of OOS violations cited during Level
                VI inspections.
                 6. Part II, Item 1 (``Brake Systems'') was amended by adding
                language that more clearly identifies which violations are to be
                included in the 20 percent criterion calculation for defective brakes.
                Previously, this specification was only found at the end of the list of
                brake violations. CVSA has added standard language to the side of each
                criterion as a visual indicator for Items 1.a. (``Defective Brakes'')
                and 1.b (``Front Steering Axle(s) Brakes''), to facilitate
                identification of the violations included in the 20 percent criterion.
                Additionally, language was added at the end of the list of violations
                to clarify that the remaining OOS conditions are not part of the 20
                percent criterion but are standalone OOS violations. The changes are
                intended to ensure clarity in the presentation of the OOS conditions
                and are not expected to significantly affect the number of OOS
                violations cited during Level VI inspections.
                 7. Part II, Item 1.q (``Performance-Based Brake Test'') was amended
                by changing the language in the note from ``shall'' to ``may,''
                providing inspectors discretion regarding retesting the vehicle on an
                approved Performance-Based Brake Test (PBBT). The previous OOSC noted
                that, if a PBBT was accessible, the vehicle had to undergo retesting on
                the PBBT. However, this requirement for a vehicle to return for re-
                inspection posed a traffic hazard at certain inspection locations,
                particularly due to the layout of some inspection pull-off locations.
                While it is still advisable to conduct the retest whenever feasible,
                there may be circumstances where it cannot be carried out. Changing the
                language in the note from ``shall'' to ``may'' will allow inspector
                discretion during the vehicle retest, ensuring the safety of the
                motoring public. The change is intended to ensure clarity in the
                presentation of the OOS conditions and is not expected to significantly
                affect the number of OOS violations cited during Level VI inspections.
                 8. Part II, Item 3.c.1 (``Pintle Hooks: Mounting and Integrity'')
                and 3.g.1 (``Hitch Systems (Excluding Fifth Wheels and Pintle Hooks):
                Mounting and Integrity'') were amended by adding language that
                specifies an OOSC for latches that are not in use and ball hitches that
                are mismatched with the receiver, respectively. Roadside inspectors
                encountered a situation where a CMV had a pintle hook disconnected from
                the trailer, with the full trailer only connected by the safety chains
                and wedged under the bumper. Additionally, during inspections, ball and
                coupler type connections were found with mismatched components, such as
                the wrong size ball or receiver hitch. Adding language to specify the
                OOSC if latches are not in use and for mismatched ball hitches with the
                receiver will help cover such occurrences. The changes are intended to
                ensure clarity in the presentation of the OOS conditions and are not
                expected to significantly affect the number of OOS violations cited
                during Level VI inspections.
                 9. Part II, Item 9.a was amended by changing the title for the part
                from ``When Lights Are Required To Be On'' to ``When Lights Are
                Required To Be On (does not include lamps that are not turned on).''
                The added language is intended to indicate that the absence of
                activated lights does not constitute an OOS condition. FMCSA agrees
                with CVSA's determination that if the lights are operational upon
                inspection and no mechanical issues are identified with the vehicle, it
                would be unreasonable to
                [[Page 36746]]
                declare the vehicle OOS when operational lights are not turned on. Each
                State, Province, and Territory has regulatory provisions regarding
                drivers operating vehicles without activating necessary lights. In such
                instances, the driver should be cited, and the violation should be
                recorded as a traffic violation on the inspection report. The change is
                intended to ensure clarity in the presentation of the OOS conditions
                and is not expected to significantly affect the number of OOS
                violations cited during Level VI inspections.
                 10. Part II, Item 9 (``Lighting Devices (Headlamps, Tail Lamps,
                Stop Lamps, Turn Signals, and Lamps/Flags on Projecting Loads)'') was
                amended by adding a note applicable to the entire item, clarifying that
                required lighting that is operational but outside the scope of the
                requirements of 393.11/National Safety Code Standard 11B for issues
                such as height, lens color, or position is considered a violation.
                However, in such cases, the vehicle should not be placed OOS. FMCSA
                agrees with CVSA's determination that adding such a note would clarify
                the OOSC. The change is intended to ensure clarity in the presentation
                of the OOS conditions and is not expected to significantly affect the
                number of OOS violations cited during Level VI inspections.
                 11. Part II, Item 12.b (``All Tires Other Than Those Found on the
                Front Steering Axle(s) of a Power Unit'') was amended by introducing a
                new section and renumbering the subsequent sections within item 12.b.
                CVSA believes that with the increasing prevalence of ATIS the OOSC
                should distinguish between leaks in the tread area of a tire equipped
                with ATIS versus a tire without ATIS. Underinflated tires pose a
                significant risk of tire blowouts due to increased susceptibility to
                overheating and structural damage. While ATIS help mitigate this risk
                by continuously monitoring and adjusting tire inflation levels, it is
                essential to acknowledge that they may not entirely prevent the
                occurrence of underinflated tires. For ATIS-equipped tires, if, at any
                point during the inspection, a tire is found to have a noticeable leak
                that can be heard or felt, which is specific to the tread area, and
                significant enough that the ATIS cannot maintain inflation pressure
                greater than 50 percent of the maximum inflation pressure marked on the
                tire sidewall, the vehicle will be placed OOS. However, if a tire not
                connected to an operable ATIS has a noticeable leak or is inflated to
                50 percent or less of the maximum inflation pressure marked on the tire
                sidewall, the vehicle will also be placed OOS. Therefore, CVSA added
                language to the 12.b.1 and 12.b.2 OOSC to distinguish vehicles equipped
                with and without ATIS. The changes are intended to ensure clarity in
                the presentation of the OOS conditions and are not expected to
                significantly affect the number of OOS violations cited during Level VI
                inspections.
                VII. Section-by-Section Analysis
                Section 385.4 Matter Incorporated by Reference
                 Section 385.4(b)(1), as amended on November 8, 2023, references the
                April 1, 2023, edition of the CVSA handbook. This NPRM proposes to
                replace the reference to the April 1, 2023, edition date with a
                reference to the new edition date of April 1, 2024.
                VIII. 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, 2023, edition to the April 1, 2024, 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 2020 to 2023 and does not expect the handbook updates to
                have a significant effect on the number of OOS violations cited during
                Level VI inspections. Therefore, the proposed rule's impact would be de
                minimis.
                B. Advance Notice of Proposed Rulemaking
                 Under 49 U.S.C. 31136(g), FMCSA is required to publish an advance
                notice of proposed rulemaking (ANPRM), or proceed with a negotiated
                rulemaking, if a proposed rule is likely to lead to the promulgation of
                a major rule. As this proposed rule is not likely to result in the
                promulgation of a major rule, the Agency is not required to issue an
                ANPRM or to proceed with a negotiated rulemaking.
                C. 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,\6\ 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 2024 edition impose new requirements or make
                substantive changes to the Federal Motor Carrier Safety Regulations.
                ---------------------------------------------------------------------------
                 \6\ Public Law 104-121, 110 Stat. 857, (Mar. 29, 1996).
                ---------------------------------------------------------------------------
                 When an Agency issues a rulemaking proposal, the RFA requires the
                Agency to ``prepare and make available an initial regulatory
                flexibility analysis'' that will describe the impact of the proposed
                rule on small entities (5 U.S.C. 603(a)). Section 605 of the RFA allows
                an agency to certify a rule, instead of preparing an analysis, if the
                proposed rule is not expected to impact a substantial number of small
                entities. The proposed rule would update an incorporation by reference
                found at Sec. 385.4(b)(1) and referenced at Sec. 385.415(b), and
                would incorporate by reference the April 1, 2024, edition of the CVSA
                handbook. The changes to the 2024 edition of the CVSA handbook from the
                2023 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 2024 edition of
                the CVSA handbook to significantly affect the number of OOS violations
                cited during Level VI inspections in the United
                [[Page 36747]]
                States. Accordingly, I certify that the proposed action would not have
                a significant economic impact on a substantial number of small
                entities.
                D. 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.
                E. 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.
                F. 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).
                G. 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.
                H. Privacy
                 The Consolidated Appropriations Act, 2005,\7\ requires the Agency
                to assess the privacy impact of a regulation that will affect the
                privacy of individuals. This NPRM would not require the collection of
                personally identifiable information.
                ---------------------------------------------------------------------------
                 \7\ Public Law 108-447, 118 Stat. 2809, 3268, note following 5
                U.S.C. 552a (Dec. 4, 2014).
                ---------------------------------------------------------------------------
                 The Privacy Act (5 U.S.C. 552a) applies only to Federal agencies
                and any non-Federal agency that receives records contained in a system
                of records from a Federal agency for use in a matching program.
                 The E-Government Act of 2002,\8\ requires Federal agencies to
                conduct a Privacy Impact Assessment (PIA) for new or substantially
                changed technology that collects, maintains, or disseminates
                information in an identifiable form. No new or substantially changed
                technology would collect, maintain, or disseminate information as a
                result of this rule. Accordingly, FMCSA has not conducted a PIA.
                ---------------------------------------------------------------------------
                 \8\ Public Law 107-347, sec. 208, 116 Stat. 2899, 2921 (Dec. 17,
                2002).
                ---------------------------------------------------------------------------
                 In addition, the Agency submitted a Privacy Threshold Assessment
                (PTA) to evaluate the risks and effects the proposed rulemaking might
                have on collecting, storing, and sharing personally identifiable
                information. The PTA was adjudicated by DOT's Chief Privacy Officer on
                March 26, 2024.
                I. 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.
                J. 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.
                K. Rulemaking Summary
                 As required by 5 U.S.C. 553(b)(4), a summary of this rule can be
                found in the Abstract section of the Department's Unified Agenda entry
                for this rulemaking at https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202310&RIN=2126-AC65.
                List of Subjects in 49 CFR 385
                 Administrative practice and procedure, Highway safety,
                Incorporation by reference, Mexico, Motor carriers, Motor vehicle
                safety, Reporting and recordkeeping requirements.
                 In consideration of the foregoing, FMCSA proposes to amend 49 CFR
                chapter III, part 385, as set forth below:
                PART 385--SAFETY FITNESS PROCEDURES
                0
                1. The authority citation for part 385 continues to read as follows:
                 Authority: 49 U.S.C. 113, 504, 521(b), 5105(d), 5109, 5113,
                13901-13905, 13908, 31135, 31136, 31144, 31148, 31151, 31502; sec.
                113(a), Pub. L. 103-311, 108 Stat. 1673, 1676; sec. 408, Pub. L.
                104-88, 109 Stat. 803, 958; sec. 350, Pub. L. 107-87, 115 Stat. 833,
                864; sec. 5205, Pub. L. 114-94, 129 Stat. 1312, 1537; and 49 CFR
                1.87.
                0
                2. Amend Sec. 385.4 by revising 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 173.403,''
                April 1, 2024,
                [[Page 36748]]
                incorporation by reference approved for Sec. 385.415(b).
                * * * * *
                 Issued under authority delegated in 49 CFR 1.87.
                Sue Lawless,
                Acting Deputy Administrator.
                [FR Doc. 2024-09357 Filed 5-2-24; 8:45 am]
                BILLING CODE 4910-EX-P
                

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