Federal Register / Vol. 86, No. 126 / Tuesday, July 6, 2021 / Proposed Rules 35443 

Standard for the Presentation of 

Nucleotide and Amino Acid Sequence 

Listings Using XML (eXtensible Markup 

Language) (2020), including Annexes I– 

VII (www.wipo.int/export/sites/www/ 

standards/en/pdf/03-26-01.pdf); IBR 

approved for §§ 1.831 through 1.834. 

(2) [Reserved] 

Andrew Hirshfeld, 

Commissioner for Patents, Performing the 

Functions and Duties of the Under Secretary 

of Commerce for Intellectual Property and 

Director of the United States Patent and 

Trademark Office. 

[FR Doc. 2021–14325 Filed 7–2–21; 8:45 am] 

BILLING CODE 3510–16–P 

DEPARTMENT OF TRANSPORTATION 

Federal Motor Carrier Safety 

Administration 

49 CFR Part 385 

[Docket No. FMCSA–2021–0063] 

RIN 2126–AC40 

Incorporation by Reference; North 

American Standard Out-of-Service 

Criteria; Hazardous Materials Safety 

Permits 

AGENCY: Federal Motor Carrier Safety 

Administration (FMCSA), Department 

of Transportation (DOT). 

ACTION: Notice of proposed rulemaking. 

SUMMARY: FMCSA proposes 

amendments to its Hazardous Materials 

Safety Permits regulations to 

incorporate by reference the updated 

Commercial Vehicle Safety Alliance 

(CVSA) handbook containing inspection 

procedures and Out-of-Service Criteria 

(OOSC) for inspections of shipments of 

transuranic waste and highway route 

controlled quantities of radioactive 

material. The OOSC provide 

enforcement personnel nationwide, 

including FMCSA’s State partners, with 

uniform enforcement tolerances for 

inspections. Currently, the regulations 

reference the April 1, 2019, edition of 

the handbook. Through this document, 

FMCSA proposes to incorporate by 

reference the April 1, 2021 edition. 

DATES: Comments on this document 

must be received on or before August 5, 

2021. 

ADDRESSES: You may submit comments 

identified by Docket Number FMCSA 

2021–0063 using any of the following 

methods: 

• Federal eRulemaking Portal: 

https://www.regulations.gov/docket/ 

FMCSA-2021-0063/document. Follow 

the online instructions for submitting 

comments. 

• Mail: Dockets Operations, U.S. 

Department of Transportation, 1200 

New Jersey Avenue SE, West Building, 

Ground Floor, Room W12–140, 

Washington, DC 20590–0001. 

• Hand Delivery or Courier: 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. 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. 

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. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Jose ́ Cestero, Vehicle and Roadside 

Operations Division, Federal Motor 

Carrier Safety Administration, 1200 

New Jersey Avenue SE, Washington, DC 

20590–0001, (202) 366–5541, 

jose.cestero@dot.gov. If you have 

questions on viewing or submitting 

material to the docket, contact Dockets 

Operations, (202) 366–9826. 

SUPPLEMENTARY INFORMATION: 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 Regulations 

B. Congressional Review Act 

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. Privacy 

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

J. National Environmental Policy Act of 

1969 

I. Public Participation and Request for 

Comments 

A. Submitting Comments 

If you submit a comment, please 

include the docket number for this 

NPRM (Docket No. FMCSA–2021– 

0063), 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 that FMCSA can contact you if there 

are questions regarding your 

submission. 

To submit your comment online, go to 

https://www.regulations.gov/docket/ 

FMCSA-2021-0063/document, click on 

this NPRM, click ‘‘Comment,’’ and type 

your comment into the text box on the 

following screen. 

If you submit your comments by mail 

or hand delivery, submit them in an 

unbound format, no larger than 81⁄2 by 

11 inches, suitable for copying and 

electronic filing. If you submit 

comments by mail and would like to 

know that they reached the facility, 

please enclose a stamped, self-addressed 

postcard or envelope. 

FMCSA will consider all comments 

and material received during the 

comment period. 

Confidential Business Information 

Confidential Business Information 

(CBI) is commercial or financial 

information that is both customarily and 

actually treated as private by its owner. 

Under the Freedom of Information Act 

(FOIA) (5 U.S.C. 552), CBI is exempt 

from public disclosure. If your 

comments responsive to this 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 this 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 FOIA, and they 

will not be placed in the public docket 

of this NPRM. Submissions containing 

CBI should be sent to Mr. Brian Dahlin, 

Chief, Regulatory Analysis Division, 

Federal Motor Carrier Safety 

Administration, 1200 New Jersey 

Avenue SE, Washington DC 20590– 

0001. Any comments FMCSA receives 

which are not specifically designated as 

CBI will be placed in the public docket 

for this rulemaking. 

B. Viewing Comments and Documents 

To view documents mentioned in this 

preamble as being available in the 


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35444 Federal Register / Vol. 86, No. 126 / Tuesday, July 6, 2021 / Proposed Rules 

docket, go to https://

www.regulations.gov/docket/FMCSA2021-0063/document and choose the 

document to review. To view 

comments, click this NPRM, and click 

‘‘Browse Comments.’’ If you do not have 

access to the internet, you may view the 

docket online by visiting Dockets 

Operations 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., 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 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 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. 

II. Executive Summary 

This NPRM proposes to update an 

incorporation by reference found at 49 

CFR 385.4(b)(1) and referenced at 

§ 385.415(b). The provision at 

§ 385.4(b)(1) currently references the 

April 1, 2019, edition of CVSA’s 

handbook titled ‘‘North American 

Standard Out-of-Service Criteria and 

Level VI Inspection Procedures and Outof-Service Criteria for Commercial 

Highway Vehicles Transporting 

Transuranics and Highway Route 

Controlled Quantities of Radioactive 

Materials as defined in 49 CFR part 

173.403.’’ The CVSA handbook contains 

inspection procedures and Out-ofService Criteria (OOSC) for inspections 

of shipments of transuranic waste and 

highway route controlled quantities of 

radioactive material. The OOSC, while 

not regulations, provide enforcement 

personnel nationwide, including 

FMCSA’s State partners, with uniform 

enforcement tolerances for inspections. 

The material is available, and will 

continue to be available, for inspection 

at the FMCSA, Office of Enforcement 

and Compliance, 1200 New Jersey 

Avenue SE, Washington, DC 20590 

(Attention: Chief, Compliance Division) 

at (202) 366–1812. The document may 

be purchased from the Commercial 

Vehicle Safety Alliance, 6303 Ivy Lane, 

Suite 310, Greenbelt, MD 20770, 

telephone (301) 830–6143, 

www.cvsa.org. 

In this NPRM, FMCSA proposes to 

incorporate by reference the April 1, 

2021, edition of the handbook. FMCSA 

did not update § 385.4(b) to incorporate 

by reference the April 1, 2020, edition 

of the handbook. This NPRM will 

discuss all updates to the currently 

incorporated 2019 edition of the 

handbook, including the updates made 

in the April 1, 2020, edition of the 

handbook. 

Twenty-one updates distinguish the 

April 1, 2021, handbook edition from 

the 2019 edition. The incorporation by 

reference of the 2021 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 under 49 CFR part 385, 

subpart E to address the congressional 

mandate on hazardous materials safety 

permits. Those regulations are the 

underlying provisions to which the 

material incorporated by reference 

discussed in this document is 

applicable. 

IV. Background 

In 1986, the U.S. Department of 

Energy and CVSA entered into a 

cooperative agreement to develop a 

higher level of inspection procedures, 

out-of-service (OOS) conditions and/or 

criteria, an inspection decal, and a 

training and certification program for 

inspectors to conduct inspections on 

shipments of transuranic waste and 

highway route controlled quantities of 

radioactive material. CVSA developed 

the North American Standard Level VI 

Inspection Program for Transuranic 

Waste and Highway Route Controlled 

Quantities of Radioactive Material. This 

inspection program for select 

radiological shipments includes 

inspection procedures, enhancements to 

the North American Standard Level I 

Inspection, radiological surveys, CVSA 

Level VI decal requirements, and the 

‘‘North American Standard Out-ofService Criteria and Level VI Inspection 

Procedures and Out-of-Service Criteria 

for Commercial Highway Vehicles 

Transporting Transuranics and Highway 

Route Controlled Quantities of 

Radioactive Materials as defined in 49 

CFR part 173.403.’’ As of January 1, 

2005, all vehicles and carriers 

transporting highway route controlled 

quantities of radioactive material are 

regulated by the U.S. Department of 

Transportation. All highway route 

controlled quantities of radioactive 

material must pass the North American 

Standard Level VI Inspection prior to 

the shipment being allowed to travel in 

the United States. All highway route 

controlled quantities of radioactive 

material shipments entering the United 

States must also pass the North 

American Standard Level VI Inspection 

either at the shipment’s point of origin 

or when the shipment enters the United 

States. 

Section 385.415 of title 49, Code of 

Federal Regulations, prescribes 

operational requirements for motor 

carriers transporting hazardous 

materials for which a hazardous 

materials safety permit is required. 

Section 385.415(b) requires that motor 

carriers ensure a pre-trip inspection is 

performed on each motor vehicle to be 

used to transport a highway route 

controlled quantity of a Class 7 

(radioactive) material, in accordance 

with the requirements of CVSA’s 

handbook titled ‘‘North American 

Standard Out-of-Service Criteria and 

Level VI Inspection Procedures and Outof-Service Criteria for Commercial 

Highway Vehicles Transporting 

Transuranics and Highway Route 

Controlled Quantities of Radioactive 

Materials as defined in 49 CFR part 

173.403.’’ 

According to 2015–2019 data from 

FMCSA’s Motor Carrier Management 

Information System (MCMIS), 

approximately 3.34 million Level I– 

Level VI inspections were performed 

annually. Nearly 97 percent of these 


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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. 

were Level I,1 Level II,2 and Level III 3

inspections. During the same period, an 

average of 611 Level VI inspections 

were performed annually, comprising 

only 0.02 percent of all inspections. On 

average, OOS violations were cited in 

only 7.8 Level VI inspections annually 

(2 percent), whereas on average, OOS 

violations were cited in 266,025 Level I 

inspections (25 percent), 275,840 Level 

II inspections (23 percent), and 61,201 

Level III inspections (6 percent) 

annually. As these statistics 

demonstrate, OOS violations are cited in 

a far lower percentage of Level VI 

inspections than Level I, II, and III 

inspections, due largely to the enhanced 

oversight and inspection of these 

vehicles because of the sensitive nature 

of the cargo being transported. 

The changes to the 2021 and 2020 

editions 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 2021 

edition of the CVSA handbook to affect 

the number of OOS violations cited 

during Level VI inspections. 

V. Discussion of Proposed Rulemaking 

Section 385.4(b)(1), as amended on 

February 24, 2020 (85 FR 10307), 

references the April 1, 2019, edition of 

the CVSA handbook. This NPRM 

proposes to amend § 385.4(b)(1) by 

replacing the reference to the April 1, 

2019, edition date with a reference to 

the new edition date of April 1, 2021. 

CVSA also published a 2020 edition 

of the handbook in the period between 

the February 24, 2020, final rule and the 

publishing of the 2021 edition. FMCSA 

did not publish an update to the 

incorporation by reference in 

§ 385.4(b)(1) with the April 1, 2020, 

edition of the handbook. This NPRM 

will therefore discuss the updates 

included in the 2020 and 2021 editions 

of the handbook. The changes made 

based on the 2020 and 2021 editions of 

the handbook are outlined below. It is 

necessary to update the materials 

incorporated by reference to ensure 

motor carriers and enforcement officials 

have convenient access to the correctly 

identified inspection criteria referenced 

in the rules. 

April 1, 2020, Changes 

Seventeen changes in the 2020 edition 

of the CVSA handbook distinguish it 

from the April 1, 2019 edition: 

(1) The title of Part I, Item 2.a. was 

amended to clarify that ‘‘. . . vehicles 

that, regardless of GVWR, do not require 

a commercial driver’s license (CDL) 

(e.g., exempt farm vehicles or fire 

apparatuses, etc.)’’ (2020 CVSA 

handbook, page 11) are included in this 

section of the OOSC. Currently, this 

section applies only to vehicles with a 

gross vehicle weight rating (GVWR) of 

26,000 lbs. or less, not designed to 

transport 16 or more passengers or 

placarded loads of hazardous materials. 

Under the current wording, a driver 

cannot be placed OOS for not having the 

proper class of driver’s license, for 

having a suspended/revoked license, or 

for being unlicensed when operating a 

vehicle over 26,000 pounds GVWR and 

exempt from the requirements to have a 

CDL. However, and because the 

FMCSRs include a number of regulatory 

exceptions to the CDL requirements, 

there are numerous other vehicle types 

over 26,000 pounds GVWR that may 

have non-CDL drivers (e.g., covered 

farm vehicles, intrastate farm vehicles, 

emergency vehicles, etc.). This 

clarification will not have any effect on 

the number of OOS violations cited 

during Level VI inspections, as all 

drivers transporting hazardous materials 

are required to have a CDL. 

(2) The note in Part I, Item 2.b., and 

Part I, Item 3.c., was amended to clarify 

that in Canada, a ‘‘valid’’ Canadian 

Transportation of Dangerous Goods 

(TDG) training certificate is required. 

Canadian TDG training certificates 

require certain informational items be 

identified; language was added to the 

note to clarify that a training certificate 

is considered invalid and the driver 

should be placed OOS if it is missing 

that required information. This update 

will ensure a uniform approach to 

Canadian TDG training certificate 

validity. This clarification is not 

expected to have any effect on the 

number of OOS violations cited during 

Level VI inspections in the U.S. 

(3) The title of Part I, Item 7., was 

amended by removing the language ‘‘AS 

IDENTIFIED UNDER SECTION 

392.4(a)’’ because the OOS violations 

now listed in this section are not all 

located in § 392.4(a). In addition, CVSA 

added a new OOS item to address 

drivers who are recorded in the Drug 

and Alcohol Clearinghouse as 

prohibited from performing safetysensitive functions per § 382.501(a) as a 

result of failing an alcohol or drug test. 

FMCSA records indicate that no driverrelated OOS violations have been issued 

as a result of a Level VI inspection in 

the past 3 years. The changes are 

intended to ensure clarity in the 

presentation of the OOS conditions and 

are not expected to affect the number of 

OOS violations cited during Level VI 

inspections. 

(4) Footnote 14 to Part I, Item 9., was 

amended to remove the reference to 

automatic on-board recording devices 

(AOBRDs), and a note was added to 

Footnotes 11–14 of the same section. 

The reference to AOBRDs in Footnote 

14 was removed because the grandfather 

clause permitting use of AOBRDs 

expired on December 16, 2019, and 

therefore the reference to AOBRDs in 

Footnote 14 is no longer relevant. Since 

December 2017, the information in the 

‘NOTE’ outlines the policy that CVSA 

has used for placing drivers out of 

service for electronic logging device 

(ELD) violations. Similar information is 

listed in FMCSA’s Frequently Asked 

Questions document on ELDs. The 

CVSA Driver-Traffic Enforcement 

Committee voted to add this 

information as a note relative to 

Footnotes 11–14. The changes are 

intended to ensure clarity in the 

presentation of the OOS conditions and 

are not expected to affect the number of 

OOS violations cited during Level VI 

inspections. 

(5) Part I, Item 10.h., regarding records 

of duty status (RODS) in Canada was 

amended to remove the provision for a 

driver to be placed OOS for a period of 

72 hours for not producing a daily log. 

Recent changes to the Canadian federal 

hours-of-service (HOS) regulations have 

eliminated the ability of an officer/ 

inspector to place a driver OOS for 72 

hours for not producing a daily log. 

Under the new regulations, a driver is 

placed OOS only for the number of 

hours required to have the driver 

provide a compliant daily log. This 

amendment is applicable only to the 

enforcement of Canadian HOS 

regulations and will not have any effect 

on the number of OOS violations cited 

during Level VI inspections in the 

United States. 

(6) Footnote 2 to Part I, Item 10., 

regarding RODS in Canada was 

amended to reduce the time a driver can 

be behind on his/her daily log and not 

be declared OOS. Given the recent 

changes to the Canadian federal HOS 

regulations as discussed above, and 

because the 72-hour timeframe to place 

a driver OOS for no production of a log 

book was removed, it was deemed 

appropriate to reduce the time a driver 

can be behind on his/her log before 


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being placed OOS. The timeframe was 

reduced from the current day plus the 

previous day to the current day only. 

This amendment is applicable only to 

the enforcement of Canadian HOS 

regulations and will not have any effect 

on the number of OOS violations cited 

during Level VI inspections in the 

United States. 

(7) Part I, Item 11., was amended by 

(1) replacing the OOSC for Mexico to 

reflect the requirements in NOM–087– 

SCT–2–2017, and (2) adding footnotes 

to that section. NOM–087–SCT–2–2017 

are Mexico’s CMV regulatory 

requirements. Mexico recently updated 

its HOS Official Mexican Standards 

(Norma Oficial Mexicana) (NOMs), and 

this update required changes to the 

OOSC. CVSA worked with Mexico to 

make these updates, and Mexico 

approved the amendments as written for 

use in Mexico for OOS conditions. This 

amendment is applicable only to the 

enforcement of Mexican HOS 

regulations and will not have any effect 

on the number of OOS violations cited 

during Level VI inspections in the 

United States. 

(8) The charts for ‘‘Clamp Type Brake 

Chamber Data’’ and ‘‘Long Stroke Clamp 

Type Brake Chamber Data’’ in Part II, 

Item 1.a., were amended to add a new 

column listing the SAE J2899 markings 

found on brake chambers. SAE J2899, 

‘‘Brake Adjustment Limit for Air Brake 

Actuators,’’ was issued in December 

2013 and revised in June 2017, and was 

developed to provide an alternative way 

of determining the size and allowable 

stroke of a brake chamber. 

Manufacturers have the option to cast a 

marking permanently onto the center 

section of the brake chamber using the 

letters ‘‘A’’ through ‘‘H.’’ The markings 

are easy to see and indicate the rated 

stroke and pushrod stroke of the 

chamber without the need to measure 

the diameter or determine if it is long or 

short stroke. This marking method 

reduces the likelihood that an inspector 

will either (1) pass a vehicle that should 

be OOS, or (2) place a vehicle OOS that 

is within acceptable operating 

conditions. The CVSA Vehicle 

Committee voted unanimously to add a 

column in the charts in Part II, Item 1.a. 

that lists the SAE J2899 markings found 

on brake chambers. FMCSA records 

indicate that no violations or OOS 

violations have been issued regarding 

brakes being out of adjustment as a 

result of a Level VI inspection in the 

past 3 years. The changes are intended 

to ensure clarity in the presentation of 

the OOS conditions and are not 

expected to affect the number of OOS 

violations cited during Level VI 

inspections. 

(9) Part II, Item 1., was amended to 

add a clarification that a parking brake 

needs to be held by mechanical means. 

Clarification was necessary regarding 

whether (1) the mechanical holding of 

the parking brake should be required, or 

(2) applying the parking brake with 

hand pressure and holding it with hand 

pressure is adequate. Specifically, in 

cases where the actuator cannot hold 

the parking brake in the applied 

position, it was unclear whether the 

vehicle should be placed OOS. 

Following discussion with brake 

industry experts, the CVSA Vehicle 

Committee confirmed that Federal 

Motor Vehicle Safety Standard Nos. 105 

and 121 require the parking brake to be 

held by a mechanical means. FMCSA 

records indicate that no OOS violations 

have been issued regarding parking 

brakes as a result of a Level VI 

inspection in the past 3 years. The 

changes are intended to ensure clarity in 

the presentation of the OOS conditions 

and are not expected to affect the 

number of OOS violations cited during 

Level VI inspections. 

(10) The title of Part II, Item 11.d., was 

amended to remove sway bars from the 

OOSC. The CVSA Vehicle Committee 

determined that sway bars provide 

comfort, not stability, and that they are 

not a critical vehicle inspection item. As 

such, the CVSA Vehicle Committee 

determined that missing or loose sway 

bars should not be an OOS condition. 

This amendment also requires a 

supporting edit to Note 2 in Part II, Item 

11.b., that references the title to Part II, 

Item 11.d. FMCSA records indicate that 

no OOS violations have been issued 

regarding sway bars as a result of a 

Level VI inspection in the past 3 years. 

As such, and because the changes 

eliminate an existing OOS condition, 

the changes will not affect the number 

of OOS violations cited during Level VI 

inspections. 

(11) Part II, Item 12.a.9., and Part II, 

Item 12.b.4., were amended to clarify 

that the OOS condition refers to a wheel 

end on an axle. In response to questions 

regarding whether the tire loading 

restriction in § 393.75(g) of the FMCSRs 

applies to (1) a wheel end on an axle, 

or (2) a single tire on an axle, or (3) 

whether the entire axle must exceed the 

tire weight rating in order to constitute 

an OOS condition, the CVSA Vehicle 

Committee determined that exceeding 

the tire load limits should apply to the 

wheel end. The OOS condition applies 

when the tire or dual set exceeds the 

applicable load rating on the sidewall of 

the tire(s), and the language was 

amended to reflect this condition. 

FMCSA records indicate that no OOS 

violations have been issued regarding 

tire loading restrictions as a result of a 

Level VI inspection in the past 3 years. 

The changes are intended to ensure 

clarity in the presentation of the OOS 

conditions and are not expected to affect 

the number of OOS violations cited 

during Level VI inspections. 

(12) Part II, Item 16.a., was amended 

to add new OOS conditions for 

emergency exits on passenger-carrying 

vehicles that are marked as such, but 

that are not necessarily required to be 

installed by regulation. Language was 

added to this section to clarify that 

passenger-carrying vehicles with 

marked emergency exits that are 

obstructed should be declared OOS, 

whether such exits are required to be 

installed or not. The new criteria were 

also separated to reference marked 

required exits, versus other marked 

exits, and the revised criteria clearly 

articulate the items/conditions that 

constitute an OOS condition. As this 

change applies only to passengercarrying vehicles, it will not have any 

effect on the number of OOS violations 

cited during Level VI inspections, 

which are applicable to carriers 

transporting transuranics and highway 

route controlled quantities of 

radioactive materials. 

(13) Part III, Item 3.c., was amended 

to modify: (1) The title of this section; 

and (2) the OOS condition to include 

terminology adopted in Canada’s TDG 

Regulations. While the previous title of 

this section referred only to ‘‘Bulk 

Package Authorization,’’ Canada’s TDG 

Regulations do not reference bulk 

packages, but instead reference and 

define the term ‘‘large means of 

containment.’’ The Canadian Education 

Quality Assurance Team (EQAT)— 

Dangerous Goods Working Group 

requested addition of the Canadian 

terminology in the OOSC to improve 

uniform application of the OOS 

condition. Adding ‘‘large means of 

containment’’ to the OOSC will make it 

easier for Canadian inspectors to 

interpret the criteria. The changes are 

intended to ensure clarity in the 

presentation of the OOS conditions and 

are not expected to affect the number of 

OOS violations cited during Level VI 

inspections. 

(14) Part III, Item 3.d., was amended 

by adding a note regarding manhole 

covers. The CVSA Hazardous Materials 

Committee contacted the Truck Trailer 

Manufacturers Association to discuss 

manhole securement with the Tank 

Engineering Committee. The committee 

agreed that all fasteners on the dome 

need to be engaged and hand tightened 

to be considered closed and secured. 

Based on this information, the 

committee voted to add a note to the 


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OOSC to clarify that an OOS condition 

exists when any manhole cover 

securement device is missing or 

unsecured. The change is intended to 

ensure clarity in the presentation of the 

OOS condition and is not expected to 

affect the number of OOS violations 

cited during Level VI inspections. 

(15) The title of Part III, Item 6., was 

amended to include terminology 

adopted in Canada’s TDG Regulations. 

While the previous title of this section 

referred only to ‘‘Non-Bulk Packaging,’’ 

Canada’s TDG Regulations do not 

reference non-bulk packaging, but 

instead reference and define the term 

‘‘small means of containment.’’ The 

Canadian EQAT—Dangerous Goods 

Working Group requested the addition 

of Canadian terminology in the title to 

improve uniform application of the OOS 

condition. Adding ‘‘small means of 

containment’’ to the OOSC will make it 

easier for Canadian inspectors to 

interpret the criteria. The change is 

intended to ensure clarity in the 

presentation of the OOS conditions and 

is not expected to affect the number of 

OOS violations cited during Level VI 

inspections. 

(16) Part III, Item 10.a., regarding 

requirements pertaining to Canada’s 

Emergency Response Assistance Plan 

(ERAP) was amended to specify that 

certain ERAP information must be on 

the shipping document. The Canadian 

EQAT—Dangerous Goods Working 

Group indicated that for first responders 

to activate an ERAP, the ERAP reference 

number and implementation telephone 

number must be listed on the shipping 

document. Currently, the OOSC only 

allows inspectors to place a shipment 

OOS if the carrier/consignor does not 

have an approved ERAP at all. 

Situations have arisen where the ERAP 

reference number/activation telephone 

number was not listed on the shipping 

document, and inspectors were not able 

to place the dangerous goods shipment 

OOS as intended. This additional 

language specifies that this information 

is required. This amendment is 

applicable only to Canada’s ERAP, and 

will not have any effect on the number 

of OOS violations cited during Level VI 

inspections in the United States. 

(17) The Level VI Inspection 

Procedures were amended by adding 

Step 36, ‘‘Proof of Periodic (Annual) 

Inspection.’’ Currently, there is no 

language in the Level VI Inspection 

Procedures addressing the required 

periodic (annual) inspection. Adding 

this item will require each unit to have 

evidence that a periodic inspection was 

conducted and satisfactorily completed 

before a CVSA Level VI decal can be 

applied by the inspector during a point 

of origin inspection only. As this is not 

an OOS condition for the Level VI 

Inspection, this amendment will not 

have any effect on the number of OOS 

violations cited during Level VI 

inspections. 

April 1, 2021, Changes 

Four changes in the 2021 edition of 

the CVSA handbook distinguish it from 

the April 1, 2020 edition: 

(1) Footnotes 5–8 to Part I, Item 9., 

were amended to remove language that 

repeats the FMCSRs. The CVSA DriverTraffic Enforcement Committee 

determined that there is no reason to 

repeat information in the OOSC that is 

contained in §§ 395.1 and 395.3. 

Quoting the FMCSRs in the footnotes 

could potentially confuse an inspector 

as there are other applicable exemptions 

that are not addressed in the footnotes. 

The footnotes, 5–8, were removed and 

reserved because other documents refer 

to these notes and renumbering them 

could cause confusion. The changes are 

intended to ensure clarity in the 

presentation of the OOS conditions and 

are not expected to affect the number of 

OOS violations cited during Level VI 

inspections. 

Footnote 10 to Part I, Item 9., was 

amended to clarify that AOBRDs cannot 

be used in place of a compliant ELD. 

However, some carriers are exempt from 

using ELDs and they may still use 

AOBRDs. Language was added to this 

footnote to clarify that drivers who are 

not required to have an ELD that 

complies with § 395.22(a), but who 

utilize an electronic device other than 

those described in the regulations, shall 

not be declared OOS. The amendment is 

intended to ensure clarity in the 

presentation of the OOS conditions and 

is not expected to affect the number of 

OOS violations cited during Level VI 

inspections. 

(2) In Part I, Items 10.h. and 10.i., 

regarding RODS in Canada, were 

amended to include terminology based 

on the pending implementation of the 

ELD requirement, effective June 12, 

2021. A note was also added to 

Footnotes 1–2 of the same section. The 

terminology in Canada’s regulation will 

change from ‘‘daily log’’ to ‘‘RODS.’’ 

However, there will be some Provinces/ 

Territories that will continue to use the 

daily log terminology in their 

Provincial/Territorial regulations. The 

Driver-Traffic Enforcement Committee 

determined that the appropriate action 

would be to refer to both terms to make 

the OOSC applicable to all drivers. 

These amendments are applicable only 

to Canada’s RODS, 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 10., regarding RODS in 

Canada was amended by adding a 

footnote 6 to indicate that a driver who 

is found without an ELD but is still 

completing another form of a RODS will 

currently not be placed OOS. This 

enforcement action is different from that 

applicable in the U.S., so the note was 

added for Canadian inspectors to 

reference, similar to the note for the U.S 

(Footnote 10, Part I, Item 9. United 

States). The amendment is applicable 

only to Canada’s RODS, and will not 

have any effect on the number of OOS 

violations cited during Level VI 

inspections in the United States. 

(4) Part II, Item 9.b., was amended to 

clarify that an inoperative center highmounted stop lamp(s) that is required 

by regulation is considered a critical 

vehicle inspection item, but not 

considered for OOS purposes. The 

CVSA-critical vehicle inspection item 

list and the OOSC include ‘‘Lighting 

devices (headlamps, tail lamps, stop 

lamps, turn signals, and lamps/flags on 

projecting loads).’’ In both the United 

States and Canada, there are regulations 

requiring some smaller vehicles to be 

equipped with center high-mounted 

stop lamp(s) and they must be 

maintained and operational; however, 

on larger vehicles, they are optional. 

Therefore, in those cases where center 

high-mounted stop lamp(s) are required, 

the vehicle will still require at least one 

brake light in addition to the center 

high-mounted stop lamp(s) to avoid 

being placed OOS. The amendment is 

intended to ensure clarity in the 

presentation of the OOS conditions and 

is not expected to affect the number of 

OOS violations cited during Level VI 

inspections. 

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 the United 

States, Canada, and Mexico. The OOSC 

provide uniform enforcement tolerances 

for inspections conducted in all three 

countries. 


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35448 Federal Register / Vol. 86, No. 126 / Tuesday, July 6, 2021 / Proposed Rules 

4A ‘‘major rule’’ means any rule that the 

Administrator of OIRA at OMB finds has resulted 

in or is likely to result in (a) an annual effect on 

the economy of $100 million or more; (b) a major 

increase in costs or prices for consumers, individual 

industries, Federal agencies, State agencies, local 

government agencies, or geographic regions; or (c) 

significant adverse effects on competition, 

employment, investment, productivity, innovation, 

or on the ability of United States-based enterprises 

to compete with foreign-based enterprises in 

domestic and export markets (5 U.S.C. 804(2)). 

VII. Section-by-Section Analysis 

Section 385.4 Matter Incorporated by 

Reference 

Section 385.4(b)(1), as amended on 

February 24, 2020, references the April 

1, 2019, edition of the CVSA handbook. 

This NPRM would replace the reference 

to the April 1, 2019, edition date with 

a reference to the new edition date of 

April 1, 2021. 

VIII. Regulatory Analyses 

A. Executive Order (E.O.) 12866 

(Regulatory Planning and Review), E.O. 

13563 (Improving Regulation and 

Regulatory Review), and DOT 

Regulations 

FMCSA has considered the impact of 

this proposed rule under E.O. 12866 (58 

FR 51735, Oct. 4, 1993), Regulatory 

Planning and Review, E.O. 13563 (76 FR 

3821, Jan. 21, 2011), Improving 

Regulation and Regulatory Review, and 

DOT’s regulatory policies and 

procedures. OIRA determined that this 

proposed rule is not a significant 

regulatory action under section 3(f) of 

E.O. 12866, as supplemented by E.O. 

13563, and does not require an 

assessment of potential costs and 

benefits under section 6(a)(3) of that 

Order. Accordingly, OMB has not 

reviewed it under these Orders. 

The proposed rule, if finalized, would 

update an incorporation by reference 

from the April 1, 2019, edition to the 

April 1, 2021, edition of CVSA’s 

handbook titled ‘‘North American 

Standard Out-of-Service Criteria and 

Level VI Inspection Procedures and Outof-Service Criteria for Commercial 

Highway Vehicles Transporting 

Transuranics and Highway Route 

Controlled Quantities of Radioactive 

Materials as defined in 49 CFR part 

173.403.’’ FMCSA reviewed its MCMIS 

data on inspections performed from 

2015 to 2019 and does not expect the 

handbook updates to have any effect on 

the number of OOS violations cited 

during Level VI inspections. Therefore, 

the proposed rule’s impact would be de 

minimis. 

B. Congressional Review Act 

Pursuant to the Congressional Review 

Act (5 U.S.C. 801, et seq.), the Office of 

Information and Regulatory Affairs 

(OIRA) designated this rulemaking as 

not a ‘‘major rule,’’ as defined by 5 

U.S.C. 804(2).4

C. Regulatory Flexibility Act (Small 

Entities) 

The Regulatory Flexibility Act of 1980 

(5 U.S.C. 601 et seq.) (RFA), as amended 

by the Small Business Regulatory 

Enforcement Fairness Act of 1996 (Pub. 

L. 104–121, 110 Stat. 857), 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-forprofit 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 2021 

edition imposes new requirements or 

makes substantive changes to the 

FMCSRs. 

When an Agency issues a rulemaking 

proposal, the RFA requires the Agency 

to ‘‘prepare and make available an 

initial regulatory flexibility analysis’’ 

that will describe the impact of the 

proposed rule on small entities (5 U.S.C. 

603(a)). Section 605 of the RFA allows 

an agency to certify a rule, instead of 

preparing an analysis, if the proposed 

rule is not expected to impact a 

substantial number of small entities. 

The proposed rule would update an 

incorporation by reference found at 49 

CFR 385.4(b)(1) and referenced at 49 

CFR 385.415(b), and would incorporate 

by reference the April 1, 2021, edition 

of the CVSA handbook. The changes to 

the 2021 edition of the CVSA handbook 

from the 2019 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 2021 edition of the CVSA 

handbook to affect the number of OOS 

violations cited during Level VI 

inspections. Accordingly, I 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 rulemaking so they 

can better evaluate its effects on 

themselves and participate in the 

rulemaking initiative. If the rulemaking 

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 

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) requires 

Federal agencies to assess the effects of 

their discretionary regulatory actions. In 

particular, 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 

$170 million (which is the value 

equivalent of $100 million in 1995, 

adjusted for inflation to 2020 levels) or 

more in any one year. Though this 

rulemaking would not result in such an 

expenditure, the Agency does discuss 

the effects of this rulemaking elsewhere 

in this preamble. 

F. Paperwork Reduction Act 

This rulemaking 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 


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5Public Law 108–447, 118 Stat. 2809, 3268, 5 

U.S.C. 552a note (Dec. 8, 2004). 

responsibilities among the various 

levels of government.’’ 

FMCSA has determined that this 

rulemaking 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 rulemaking does not 

have sufficient federalism implications 

to warrant the preparation of a 

Federalism Impact Statement. 

H. Privacy 

The Consolidated Appropriations Act, 

2005,5 requires the Agency to conduct a 

privacy impact assessment of a 

regulation that will affect the privacy of 

individuals. This rulemaking would not 

require the collection of personally 

identifiable information. 

I. E.O. 13175 (Indian Tribal 

Governments) 

This rulemaking 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 rulemaking for 

the purpose of 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 proposed requirements in this 

rulemaking are covered by this CE and 

the rulemaking does not have any effect 

on the quality of the environment. 

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 

■ 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, 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(b)(1) to read as 

follows: 

§ 385.4 Matter incorporated by reference. 

* * * * * 

(b) * * * 

(1) ‘‘North American Standard Out-ofService Criteria and Level VI Inspection 

Procedures and Out-of-Service Criteria 

for Commercial Highway Vehicles 

Transporting Transuranics and Highway 

Route Controlled Quantities of 

Radioactive Materials as defined in 49 

CFR part 173.403,’’ April 1, 2021, 

incorporation by reference approved for 

§ 385.415(b). 

* * * * * 

Issued under authority delegated in 49 CFR 

1.87. 

Meera Joshi, 

Deputy Administrator. 

[FR Doc. 2021–14039 Filed 7–2–21; 8:45 am] 

BILLING CODE 4910–EX–P 

DEPARTMENT OF TRANSPORTATION 

Federal Motor Carrier Safety 

Administration 

49 CFR Part 393 

[Docket No. FMCSA–2021–0037] 

RIN 2126–AC42 

Parts and Accessories Necessary for 

Safe Operation; Authorized Windshield 

Area for the Installation of Vehicle 

Safety Technology 

AGENCY: Federal Motor Carrier Safety 

Administration (FMCSA), Department 

of Transportation (DOT). 

ACTION: Notice of proposed rulemaking 

(NPRM). 

SUMMARY: FMCSA proposes to amend 

the Federal Motor Carrier Safety 

Regulations (FMCSRs) to increase the 

area within which certain vehicle safety 

technology devices may be mounted on 

the interior of the commercial motor 

vehicle (CMV) windshields. In addition, 

FMCSA proposes to add items to the 

definition of vehicle safety technology. 

This NPRM responds to a rulemaking 

petition from Daimler Trucks North 

America (DTNA). 

DATES: Comments must be received on 

or before August 5, 2021. 

ADDRESSES: You may submit comments 

identified by Docket Number FMCSA2021–0037 using any of the following 

methods: 

• Federal eRulemaking Portal: Go to 

https://www.regulations.gov/docket/ 

FMCSA-2021-0037/document. Follow 

the online instructions for submitting 

comments. 

• Mail: Dockets Operations, U.S. 

Department of Transportation, 1200 

New Jersey Avenue SE, West Building, 

Ground Floor, Room W12–140, 

Washington, DC 20590–0001. 

• Hand Delivery or Courier: Dockets 

Operations, U.S. Department of 

Transportation, 1200 New Jersey 

Avenue SE, West Building, Ground 

Floor, Room W12–140, Washington, DC 

20590–0001, between 9 a.m. and 5 p.m., 

Monday through Friday, except Federal 

holidays. To be sure someone is there to 

help you, please call (202) 366–9317 or 

(202) 366–9826 before visiting Dockets 

Operations. 

• Fax: (202) 493–2251. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Luke W. Loy, Vehicle and Roadside 

Operations Division, Office of Policy, 

Federal Motor Carrier Safety 

Administration, 1200 New Jersey 

Avenue SE, Washington, DC 20590– 

0001; (202) 366–0676; Luke.Loy@

dot.gov. If you have questions on 

viewing or submitting material to the 

docket, call Dockets Operations at (202) 

366–9826. 

SUPPLEMENTARY INFORMATION: 

FMCSA organizes this NPRM as 

follows: 

I. Public Participation and Request for 

Comments 

A. Submitting Comments 

B. Viewing Comments and Documents 

C. Privacy Act 

II. Executive Summary 

A. Purpose and Summary of the Regulatory 

Action 

B. Costs and Benefits 

III. Abbreviations 

IV. Legal Basis 

V. Background 

A. Temporary Exemptions 

B. Petition To Initiate Rulemaking 

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), and 

DOT Regulatory Policies and Procedures 

B. Congressional Review Act 

C. Waiver of Advance Notice of Proposed 

Rulemaking 

D. Regulatory Flexibility Act (Small 

Entities) 

E. Assistance for Small Entities 

F. Unfunded Mandates Reform Act of 1995 


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