Federal Register / Vol. 83, No. 249 / Monday, December 31, 2018 / Proposed Rules 67705 

exempt bonds that are qualified tender 

bonds are retired for purposes of 

sections 103 and 141 through 150, see 

§ 1.150–3. 

* * * * * 

(h) Applicability date. * * * 

(1) * * * Except as otherwise 

provided in paragraphs (h)(2) and (3) of 

this section, this section applies to 

alterations of the terms of a debt 

instrument on or after September 24, 

1996. * * * 

(2) Alteration or modification results 

in an instrument or property right that 

is not debt. * * * 

(3) Qualified tender bonds. Paragraph 

(a)(2) of this section applies to events 

and actions taken with respect to 

qualified tender bonds that occur on or 

after the date that is 90 days after the 

date of publication of the Treasury 

decision adopting these rules as final 

regulations in the Federal Register. 

Kirsten Wielobob, 

Deputy Commissioner for Services and 

Enforcement. 

[FR Doc. 2018–28370 Filed 12–28–18; 8:45 am] 

BILLING CODE 4830–01–P 

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. 

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-ofService 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 FMCSA2018–0165 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 81⁄2 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 


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‘‘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 foreignbased 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 


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1Level 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. 

2Level II is a driver and walk-around vehicle 

inspection, involving the inspection of items that 

can be checked without physically getting under 

the vehicle. 

3Level III is a driver-only inspection that 

includes examination of the driver’s credentials and 

documents. 

4 Item 4.(b)(4) was amended again in April 2018 

as discussed below. 

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, outof-service violations were cited in only 

10 Level VI inspections annually (1.19 

percent), whereas on average, out-ofservice 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. 

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 

§ 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 § 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 § 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 nonCDL 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. 

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 


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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-ofservice 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-ofservice 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-ofservice 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 noncompliance 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-ofservice 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 outof-service violations cited during Level 

VI inspections. 

April 1, 2018 Changes 

The 2018 edition identifies (1) driverrelated 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, 


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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 nonexcepted 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-ofservice 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-ofService Criteria. This update was made 

to maintain consistency with drum 

(cam-type and wedge) air brakes. 

FMCSA records indicate that no out-ofservice 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-ofservice 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 

§ 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-ofservice 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 

§ 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 § 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 

§ 385.4(b), FMCSA clarifies that the 

CVSA publication is available for 

interested parties to view at the 


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67710 Federal Register / Vol. 83, No. 249 / Monday, December 31, 2018 / Proposed Rules 

5 5 U.S.C. 601. 

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 § 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. 

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. 


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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 

■ 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. 

■ 2. Revise § 385.4 to read as follows: 

§ 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-ofService Criteria and Level VI Inspection 

Procedures and Out-of-Service Criteria 

for Commercial Highway Vehicles 

Transporting Transuranics and Highway 

Route Controlled Quantities of 

Radioactive Materials as defined in 49 

CFR 173.403,’’ April 1, 2018, 

incorporation by reference approved for 

§ 385.415(b). 

(2) [Reserved] 

§ 385.415 [Amended] 

■ 3. Remove and reserve § 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 


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