Certification for Conducting Driver or Vehicle Inspections, Safety Audits, or Investigations

Certification for Conducting Driver or Vehicle Inspections, Safety Audits, or Investigations

Certification for Conducting Driver or Vehicle Inspections, Safety Audits, or Investigations

Raymond P. Martinez
Federal Motor Carrier Safety Administration
8 July 2019

[Federal Register Volume 84, Number 130 (Monday, July 8, 2019)]
[Proposed Rules]
[Pages 32379-32385]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-14224]

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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Part 385

[Docket No. FMCSA-2019-0081]
RIN 2126-AA64

Certification for Conducting Driver or Vehicle Inspections,
Safety Audits, or Investigations

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

ACTION: Notice of proposed rulemaking.

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SUMMARY: FMCSA proposes to incorporate by reference the current policy
and practices for FMCSA employees, State or local government employees,
and contractors to obtain and maintain certifications for conducting
driver or vehicle inspections, safety audits, or investigations. The
Fixing America's Surface Transportation Act (FAST Act) requires FMCSA
to incorporate by reference in its regulations the Commercial Vehicle
Safety Alliance's (CVSA) ``Operational Policy 4: Inspector Training and
Certification.'' The CVSA policy is currently Attachment A to FMCSA's
``Certification Policy for Employees Who Perform Inspections,
Investigations, and Safety Audits.'' This proposed rule, if adopted,
also would replace an interim final rule (IFR) in place since 2002 that
referenced the certification procedures published on the FMCSA website.
FMCSA proposes to replace selected provisions of the IFR by
incorporating by reference the FMCSA policy. No changes would be made
to the certification policy or procedures currently followed by
individuals to obtain and maintain certification to conduct driver or
vehicle inspections, safety audits, or investigations. Other provisions
of the IFR would be republished without change.

DATES: Comments on this document must be received on or before
September 6, 2019.

ADDRESSES: You may submit comments identified by Docket Number FMSCA-
2019-0081 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.

[[Page 32380]]

Hand Delivery or Courier: U.S. Department of
Transportation, 1200 New Jersey Avenue SE, West Building, Ground Floor,
Room W12-140, 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.
Viewing incorporation by reference material: You may view the
material proposed for incorporation by reference in the docket, online
at https://www.fmcsa.dot.gov/certification, or at the Federal Motor
Carrier Safety Administration, Office of Enforcement and Compliance,
1200 New Jersey Ave. SE, Washington, DC 20590-0001 between 8:00 a.m.
and 5:00 p.m., Monday through Friday, except Federal holidays. The
telephone number is (202) 385-2400.

FOR FURTHER INFORMATION CONTACT: Mr. Paul Bomgardner, Chief, Hazardous
Materials Division, Office of Enforcement and Compliance, Federal Motor
Carrier Safety Administration, 1200 New Jersey Avenue SE, Washington,
DC 20590-0001, by telephone at (202) 493-0027 or by email,
paul.bomgardner@dot.gov. If you have questions on viewing or submitting
material to the docket, contact Docket Services, telephone (202) 366-
9826.

SUPPLEMENTARY INFORMATION:

I. Public Participation and Request for Comments

A. Submitting Comments

If you submit a comment, please include the docket number for this
notice of proposed rulemaking (NPRM) (Docket No. FMSCA-2019-0081),
indicate the specific section of this document to which the 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 telephone 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, FMSCA-2019-0081, in the keyword box, and click
``Search.'' When the new screen appears, click on the ``Comment Now!''
button and type your comment into the text box on the following screen.
Choose whether you are submitting your comment as an individual or on
behalf of a third party and then submit.
If you submit your comments by mail or hand delivery, submit them
in an unbound format, no larger than 8\1/2\ by 11 inches, suitable for
copying and electronic filing. If you submit comments by mail and would
like to know that they reached the facility, please enclose a stamped,
self-addressed postcard or envelope.
FMCSA will consider all comments and material received during the
comment period and may change this proposed rule based on your
comments. FMCSA may issue a final rule at any time after the close of
the comment period.

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, FMSCA-2019-0081, 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 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. ET, 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.transportation.gov/privacy.

D. Waiver of Advance Notice of Proposed Rulemaking

If a regulatory proposal is likely to lead to the promulgation of a
major rule, FMCSA is required to either publish an advance notice of
proposed rulemaking (ANPRM), unless the Agency finds good cause that an
ANPRM is impracticable, unnecessary, or contrary to the public
interest, or conduct a negotiated rulemaking (49 U.S.C. 31136(g)).
However, this rulemaking would not result in the promulgation of a
major rule under the statute.

II. Executive Summary

A. Summary of the Proposed Regulatory Action

FMCSA proposes to incorporate by reference the current policy and
practices for FMCSA employees, State or local government employees, and
contractors to obtain and maintain certifications for conducting driver
or vehicle inspections,\1\ safety audits, or investigations. Under
section 5205 of the FAST Act (note following 49 U.S.C. 31148), the
FMCSA Administrator is required to incorporate by reference the
certification standards for conducting driver or vehicle inspections
issued by CVSA. Currently, CVSA's ``Operational Policy 4: Inspector
Training and Certification'' (rev. Sept. 21, 2017) is Attachment A to
FMCSA's ``Certification Policy for Employees Who Perform Inspections,
Investigations, and Safety Audits.''
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\1\ Throughout this NPRM, FMCSA uses the term ``driver or
vehicle inspection'' in lieu of the term ``roadside inspection,''
recognizing that these inspections are not necessarily conducted at
``roadside.''
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FMCSA also proposes to replace an IFR titled ``Certification of
Safety Auditors, Safety Investigators, and Safety Inspectors,''
published March 19, 2002 (67 FR 12776). That IFR provided the
certification requirements by referencing FMCSA's website, which
contains FMCSA's policy on certification and training requirements.
Rather than simply referencing the policy on the FMCSA website, this
NPRM proposes to replace selected provisions of the IFR by formally
incorporating by reference the FMCSA policy. No changes would be made
to the certification policy or procedures currently followed by
individuals to obtain and maintain certification to conduct driver or
vehicle inspections, safety audits, or investigations. Other provisions
of the IFR would be republished without change.
The certification policy only applies to FMCSA employees and
contractors and State or local government employees and contractors
funded through FMCSA's Motor Carrier Safety Assistance Program (MCSAP)
who wish to obtain or maintain certification to conduct driver or
vehicle inspections, safety audits, or investigations. This rulemaking
would not change any regulatory requirements applicable to motor
carriers, drivers, or commercial motor vehicles. As such, there would
be no impact on motor carriers or drivers.

B. Costs and Benefits

Because no changes are proposed to the current FMCSA certification
policy,

[[Page 32381]]

there are neither costs nor benefits associated with this rulemaking.

III. Legal Basis for the Rulemaking

FMCSA's authority for this rulemaking is from two statutes, section
211 of the Motor Carrier Safety Improvement Act of 1999 (MCSIA), Public
Law 106-159, 113 Stat. 1748, 1765-1766, 49 U.S.C. 31148 (Dec. 9, 1999),
and section 5205 of the FAST Act, Public Law 114-94, 129 Stat. 1312,
1537, note following 49 U.S.C. 31148 (Dec. 4, 2015).
Section 211 of the MCSIA requires the Secretary of Transportation
to issue regulations ``to improve training and provide for the
certification of motor carrier safety auditors . . . to conduct safety
inspection audits and reviews'' under specified statutory provisions
(49 U.S.C. 31148(a)). Subject to a grandfathering provision applicable
to Federal and State employees who were qualified to conduct a safety
inspection audit or review on December 9, 1999, the statute requires
that covered safety inspection audits or reviews be conducted by
individuals certified under the regulations (49 U.S.C. 31148(b)). While
private contractors are authorized to obtain certification, the
Secretary is not permitted to delegate authority to private contractors
to issue ratings or operating authority (49 U.S.C. 31148(a) and (d)).
Finally, the statute grants the Secretary authority over certified
safety auditors, including the authority to withdraw their
certification (49 U.S.C. 31148(e)). As further explained below in the
background section, on March 19, 2002, FMCSA issued an IFR implementing
this statutory provision (67 FR 12776).
Section 5205 of the FAST Act requires FMCSA's Administrator to
revise 49 CFR part 385 ``to incorporate by reference the certification
standards for roadside inspectors issued by the Commercial Vehicle
Safety Alliance'' (note following 49 U.S.C. 31148).
This NPRM proposes to replace the 2002 IFR issued under section 211
of the MCSIA and to carry out section 5205 of the FAST Act.

IV. Background

Prior to the MCSIA, certification of Federal safety investigators
and State or local government employees participating in MCSAP who
performed compliance reviews or driver or vehicle inspections meant
that those officials had successfully completed certain training
programs. The training requirements had been in effect for a number of
years.
FMCSA relied on the compliance review, an in-depth investigation,
to assess a motor carrier's safety performance and compliance with the
Federal Motor Carrier Safety Regulations (FMCSRs) and applicable
Hazardous Materials Regulations (HMRs). Compliance reviews were
traditionally performed only of motor carriers with poor performance,
high crash rates, high vehicle or driver out-of-service rates, or past
poor compliance, or of motor carriers against which a non-frivolous
complaint was made.
As noted above, section 211 of the MCSIA required the Secretary to
issue regulations to conduct ``safety inspection audits and reviews.''
The Agency determined that phrase was equivalent to the ``safety
review'' of new entrants into the motor carrier industry that was
mandated by section 210 of the MCSIA. Section 210 also required the
Secretary to ``establish the elements of the safety review,'' and the
Agency inferred that a ``safety review'' may be something less than a
full compliance review (67 FR 12776, Mar. 19, 2002). FMCSA selected the
term ``safety audit'' for the new type of safety review to avoid
confusion with safety reviews that were previously conducted by the
Agency (67 FR 12777, Mar. 19, 2002).
In response to the requirement in section 211 of the MCSIA that the
Agency improve training and provide for the certification of motor
carrier safety auditors, FMCSA issued an IFR on March 19, 2002, titled
``Certification of Safety Auditors, Safety Investigators, and Safety
Inspectors'' (67 FR 12776). This IFR modified 49 CFR 350.211 and 385.3,
and added a new subpart C to part 385 consisting of Sec. Sec. 385.201,
385.203, and 385.205 pertaining to certification requirements.
New subpart C referenced FMCSA's website for the specific
certification requirements. The IFR stated in the preamble that all
individuals who conduct safety audits, compliance reviews, or driver or
vehicle inspections would be required to perform a specific number of
safety audits, compliance reviews, or inspections annually with
acceptable quality; to successfully complete any required training to
obtain and maintain certification; and, when necessary, to obtain
recertification to perform reviews of motor carriers (67 FR 12777, Mar.
19, 2002). The IFR, however, did not include specific training or
certification requirements in the regulatory text. Instead, the Agency
noted that it needed ``flexibility to modify course content quickly to
match changes in the FMCSRs and HMRs, or to adapt other elements of the
training process to changed circumstances'' (67 FR 12777, Mar. 19,
2002).
The IFR added a ``safety audit'' in Sec. 385.3 as a new type of
safety review with the purpose of assessing safety performance in new
entrant motor carriers. Finally, the IFR added Sec. 350.211(17) \2\ to
require State and local MCSAP partners to follow the certification
requirements, a requirement that is not affected by this proposed rule.
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\2\ This provision, as amended, is found currently at 49 CFR
350.211(p).
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On December 29, 2015, FMCSA issued its current ``Certification
Policy for Employees Who Perform Inspections, Investigations, and
Safety Audits.'' FMCSA's policy includes four attachments. In October
2017, FMCSA amended Attachment A of its policy to incorporate the most
recent version of CVSA's ``Operational Policy 4: Inspector Training and
Certification,'' which was revised on September 21, 2017. In March
2019, FMCSA amended Attachment B, ``Certification of Safety Inspectors,
Safety Investigators, New Entrant Safety Auditors, Commercial
Enforcement Specialists[,] Safety Investigators Who Perform Cargo Tank
Facility Reviews, and Other Employees Who Maintain Certification.''

V. Incorporations by Reference

A. CVSA's ``Operational Policy 4: Inspector Training and
Certification''

In accordance with section 5205 of the FAST Act (note following 49
U.S.C. 31148), FMCSA proposes to incorporate by reference in its
regulations CVSA's ``Operational Policy 4: Inspector Training and
Certification,'' revised September 21, 2017. This rulemaking would
amend an incorporation by reference found at 49 CFR 385.4 to include
CVSA's policy. The policy would be referenced in proposed Sec.
385.209.
The CVSA policy ensures that commercial motor vehicle inspectors
uploading driver or vehicle inspection reports and data into FMCSA
information systems are certified under a training program that is
approved by CVSA. The policy provides the standards for initial
inspector certification and maintenance of inspector certification. It
also provides the decertification process and paths to regain
certification.
The CVSA policy provides the minimum training and testing
requirements and number of inspections an individual must complete to
be certified to conduct the following types of driver or vehicle
inspections:
North American Standard Level I, II, III, and V
Inspections;

[[Page 32382]]

Hazardous Materials/Dangerous Goods Inspection;
Cargo Tank Inspection;
Other Bulk Packaging Inspection;
Passenger Carrier Vehicle Inspection;
North American Standard Level VI Inspection for
Transuranic Waste and Highway Route Controlled Quantities (HRCQ) of
Radioactive Material; and
Performance-Based Brake Testing.
CVSA's ``Operational Policy 4: Inspector Training and
Certification'' that FMCSA is proposing to incorporate by reference is
Attachment A of FMCSA's ``Certification Policy for Employees Who
Perform Inspections, Investigations, and Safety Audits,'' and is
available in the docket for this rulemaking. Additionally, the CVSA
policy is available, and will continue to be available, for inspection
at the Federal Motor Carrier Safety Administration, Office of
Enforcement and Compliance, 1200 New Jersey Avenue SE, Washington, DC
20590, telephone (202) 385-2400, and online at https://www.fmcsa.dot.gov/certification.

B. FMCSA's ``Certification Policy for Employees Who Perform
Inspections, Investigations, and Safety Audits''

FMCSA also proposes to incorporate by reference in its regulations
FMCSA's December 29, 2015, ``Certification Policy for Employees Who
Perform Inspections, Investigations, and Safety Audits,'' as amended,
without change. This rulemaking would incorporate by reference FMCSA's
policy in 49 CFR 385.4 and reference it in proposed Sec. 385.211.
FMCSA's policy applies to FMCSA employees and contractors. It also
applies to State or local government employees and contractors who are
funded through MCSAP, who enforce applicable Federal statutes and
regulations, or who upload data into FMCSA information systems. The
policy includes the following attachments:
Attachment A: CVSA's ``Operational Policy 4: Inspector Training and
Certification,'' revised September 21, 2017;
Attachment B: Certification of Safety Inspectors, Safety
Investigators, New Entrant Safety Auditors, Commercial Enforcement
Specialists[,] Safety Investigators Who Perform Cargo Tank Facility
Reviews, and Other Employees Who Maintain Certification, amended March
2019;
Attachment C: Acknowledgement of Initial Certification Completion
and Maintenance Requirement; and
Attachment D: Employee Certification Status.
FMCSA's policy establishes certification requirements for
individuals performing inspections, safety audits, and investigations.
Attachment A of the policy provides CVSA's ``Operational Policy 4:
Inspector Training and Certification,'' as discussed above. Attachment
B to the FMCSA policy includes provisions addressing certification
requirements to conduct safety audits, investigations, commercial
enforcement investigations, as well as additional certification
requirements for Commercial Enforcement Specialists, and cargo tank
facility reviews. Attachment B also outlines the circumstances when
individuals conducting audits or investigations will be decertified and
the process for decertification. It describes a temporary waiver
process that may be available when an individual becomes decertified
due to reasons beyond his or her control and the recertification
process. Finally, Attachment B supplements the provisions of CVSA's
``Operational Policy 4: Inspector Training and Certification''
(Attachment A), particularly as applicable to FMCSA employees.
Attachments C and D provide templates addressing the documentation
of individuals' certification for FMCSA employees. Other entities have
the option of using these templates or their own documentation.
FMCSA's ``Certification Policy for Employees Who Perform
Inspections, Investigations, and Safety Audits'' is available in the
docket for this rulemaking. Additionally, FMCSA's policy is available,
and will continue to be available, for inspection at the Federal Motor
Carrier Safety Administration, Office of Enforcement and Compliance,
1200 New Jersey Avenue SE, Washington, DC 20590, telephone (202) 385-
2400, and online at https://www.fmcsa.dot.gov/certification.

VI. Other Proposed Changes

This NPRM proposes to replace the 2002 IFR. That IFR amended Sec.
385.3 by adding the term ``safety audit'' in paragraph (2) of the
definition of ``reviews.'' If the IFR is replaced, it is necessary
procedurally to adopt the safety audit definition provided in the IFR,
given that it has not been amended since adoption of the IFR.
Therefore, FMCSA proposes to republish the definition of a safety audit
without change to allow comment on the definition.

VII. Section-by-Section Analysis

This section-by-section analysis describes the proposed changes in
numerical order.

A. Section 385.3 Definitions and Acronyms

FMCSA proposes to republish the definition of ``safety audit'' in
paragraph (2) of the definition of ``reviews'' without change. As noted
above, this action is necessary procedurally because the Agency
proposes to replace the 2002 IFR.

B. Section 385.4 Matter Incorporated by Reference

FMCSA would make technical changes to Sec. 385.4(a) to update the
locations where the materials proposed to be incorporated by reference
are available for inspection. Paragraph (b) would be revised to provide
information about how CVSA's ``Operational Policy 4: Inspector Training
and Certification'' (rev. Sept. 21, 2017) can be accessed and to
incorporate it by reference. FMCSA also would add a new Sec. 385.4(c)
that would incorporate by reference FMCSA's December 29, 2015,
``Certification Policy for Employees Who Perform Inspections,
Investigations, and Safety Audits,'' as amended, and provide
information about how to access the policy.

C. Subpart C--Certification To Conduct Driver or Vehicle Inspections,
Safety Audits, and Safety Investigations

Sections 385.201, 385.203, and 385.205
FMCSA would remove and reserve the provisions of existing subpart C
of part 385, which consist of Sec. Sec. 385.201, 385.203, and 385.205,
added by the IFR on March 19, 2002 (67 FR 12779). FMCSA would add new
provisions consisting of Sec. Sec. 385.207, 385.209, and 385.211,
under the revised subpart heading, ``Subpart C--Certification to
Conduct Driver or Vehicle Inspections, Safety Audits, and Safety
Investigations.''
Section 385.207 Qualifications To Perform a Driver or Vehicle
Inspection, Safety Audit, or Investigation of a Motor Carrier.
The heading of this new section reflects the current language for
describing driver or vehicle inspections. New Sec. 385.207(a) would
identify FMCSA employees, State or local government employees, and
contractors as those who may qualify to perform a driver or vehicle
inspection, safety audit, or investigation. It would update the
terminology ``driver or vehicle inspection, safety audit, or

[[Page 32383]]

investigation.'' Paragraph (b) would provide that personnel who were
certified before any final rule is effective are grandfathered as long
as they maintain their certification.
Section 385.209 Requirements To Obtain and Maintain Certification To
Conduct Driver or Vehicle Inspections.
New Sec. 385.209(a) would provide the certification requirements
to conduct driver or vehicle inspections and specifically reference the
requirements in CVSA's ``Operational Policy 4: Inspector Training and
Certification,'' proposed to be incorporated by reference in Sec.
385.4. Paragraph (b) would provide that an individual who qualifies to
conduct inspections would be required to maintain certification or
obtain recertification in accordance with CVSA's policy.
Section 385.211 Requirements To Obtain and Maintain Certification To
Conduct Safety Audits or Investigations.
New Sec. 385.211(a) would contain the requirements for
certification to conduct safety audits or investigations and
specifically reference the requirements in FMCSA's ``Certification
Policy for Employees Who Perform Inspections, Investigations, and
Safety Audits,'' proposed to be incorporated by reference in Sec.
385.4. Paragraph (b) would address the requirements to maintain
certification and how an individual who has lost certification would be
recertified.

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

Under section 3(f) of E.O. 12866 (58 FR 51735, Oct. 4, 1993),
Regulatory Planning and Review, as supplemented by E.O. 13563 (76 FR
3821, Jan. 21, 2011), Improving Regulation and Regulatory Review, this
proposed rule does not require an assessment of potential costs and
benefits under section 6(a)(4) of that Order. This proposed rule is
also not significant within the meaning of DOT regulatory policies and
procedures (DOT Order 2100.6, dated Dec. 20, 2018)). Accordingly, the
Office of Management and Budget has not reviewed it under these Orders.
Because no changes are proposed to the current FMCSA certification
policy, there are neither costs nor benefits associated with this
rulemaking.

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 not a significant
regulatory action, as defined in section 3(f) of E.O. 12866.

C. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) of 1980 (5 U.S.C. 601 et
seq.), as amended by the Small Business Regulatory Enforcement Fairness
Act of 1996 (SBREFA) (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-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. 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.
This proposed rule would directly affect States and a limited
number of contractors requiring certification. States do not meet the
definition of a ``small entity'' in section 601 of the RFA.
Specifically, States are not considered small governmental
jurisdictions under section 601(5), both because State government is
not included among the various levels of government listed in section
601(5), and because no State, including the District of Columbia, has a
population of less than 50,000, which is the criterion for a
governmental jurisdiction to be considered small under section 601(5).
As the proposed rule would not result in costs or benefits, it would
not impose impacts on the limited number of contractors that would be
regulated under this rulemaking. Therefore, this proposed rule would
not have an impact on a substantial number of small entities. Because
no changes are proposed to the current FMCSA certification policy, this
rule would not result in changes for those affected. Thus, this
rulemaking would not have a significant economic impact on the
regulated entities.
Consequently, I certify that the action would not have a
significant economic impact on a substantial number of small entities.

D. Assistance for Small Entities

In accordance with section 213(a) of the SBREFA, FMCSA wants to
assist small entities in understanding this proposed rule so that they
can better evaluate its effects on themselves and participate in the
rulemaking initiative. If the proposed rule would affect your small
business, organization, or governmental jurisdiction and you have
questions concerning its provisions or options for compliance, please
consult the FMCSA point of contact, Paul Bomgardner, listed in the For
Further Information Contact section of this proposed rule.
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 $161 million (which is the
value equivalent of $100,000,000 in 1995, adjusted for inflation to
2017 levels) or more in any 1 year. Though this proposed rule would not
result in such an expenditure, the Agency does discuss the effects of
this rule elsewhere in this preamble.

F. Paperwork Reduction Act

This proposed rule calls for no new collection of information under
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

G. E.O. 13132 (Federalism)

A rule has implications for federalism under section 1(a) of E.O.
13132 if it has ``substantial direct effects on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government.'' Nothing in this document preempts any State law or
regulation. Therefore, this proposed rule

[[Page 32384]]

would not have sufficient federalism implications to warrant the
preparation of a Federalism Impact Statement.

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, Apr. 23, 1997), requires agencies
issuing ``economically significant'' rules, if the regulation also
concerns an environmental health or safety risk that an agency has
reason to believe may disproportionately affect children, to include an
evaluation of the regulation's environmental health and safety effects
on 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 proposed regulatory action could in any respect present an
environmental or safety risk that could disproportionately affect
children.

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 would not effect a taking of
private property or otherwise have taking implications.

K. Privacy

The Consolidated Appropriations Act, 2005, (Pub. L. 108-447, 118
Stat. 2809, 3268, note following 5 U.S.C. 552a) requires the Agency to
conduct a privacy impact assessment (PIA) of a regulation that will
affect the privacy of individuals. This proposed rule would not require
the collection of personally identifiable information.
The Privacy Act (5 U.S.C. 552a) applies only to Federal agencies
and any non-Federal agency that receives records contained in a system
of records from a Federal agency for use in a matching program.
The E-Government Act of 2002, Public Law 107-347, sec. 208, 116
Stat. 2899, 2921 (Dec. 17, 2002), requires Federal agencies to conduct
a PIA for new or substantially changed technology that collects,
maintains, or disseminates information in an identifiable form. No new
or substantially changed technology would collect, maintain, or
disseminate information as a result of this rule. Accordingly, FMCSA
has not conducted a PIA.

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
program.

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 under E.O. 13211.

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 (note
following 15 U.S.C. 272) directs agencies to use voluntary consensus
standards in their regulatory activities unless the agency provides
Congress, through the Office of Management and Budget, 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. This proposed rule does not use technical
standards. Therefore, FMCSA did not consider the use of voluntary
consensus standards.

P. National Environmental Policy Act of 1969 (NEPA)

FMCSA analyzed this NPRM for the purpose of NEPA (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,
Mar. 1, 2004), Appendix 2, paragraph 6.d. The Categorical Exclusion
(CE) in paragraph 6.d. covers regulations concerning the training,
qualifying, licensing, certifying, and managing of personnel. The
proposed requirements in this rule would be covered by this CE and the
NPRM would not have any effect on the quality of the environment. The
CE determination is available for review in the docket.

List of Subjects in 49 CFR Part 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 to read as follows:

PART 385--SAFETY FITNESS PROCEDURES

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

Authority: 49 U.S.C. 113, 504, 521(b), 5105(e), 5109, 5113,
13901-13905, 13908, 31136, 31144, 31148, 31151, 31502; sec. 350,
Pub. L. 107-87, 115 Stat. 833, 864-868; sec. 5205, Pub. L. 114-94,
129 Stat. 1312, 1537; and 49 CFR 1.87.

0
2. In Sec. 385.3, republish paragraph (2) of the definition of
``Reviews'' to read as follows:

Sec. 385.3 Definitions and acronyms.

* * * * *
Reviews. * * *
(2) Safety audit means an examination of a motor carrier's
operations to provide educational and technical assistance on safety
and the operational requirements of the FMCSRs and applicable HMRs and
to gather critical safety data needed to make an assessment of the
carrier's safety performance and basic safety management controls.
Safety audits do not result in safety ratings.
* * * * *
0
3. Revise Sec. 385.4 to read as follows:

Sec. 385.4 Matter incorporated by reference.

(a) Certain material is incorporated by reference into this part
with the approval of the Director of the Federal

[[Page 32385]]

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 change in the Federal Register and the material must be
available to the public. All approved material is available for
inspection at the Federal Motor Carrier Safety Administration, Office
of Enforcement and Compliance, 1200 New Jersey Ave. SE, Washington, DC
20590, telephone (202) 385-2400, and is available from the sources
listed in paragraphs (b) and (c) of this section. It is also available
for inspection at the National Archives and Records Administration
(NARA). For information on the availability of this material at NARA,
call (202) 741-6030 or go to http://www.archives.gov/federal-register/cfr/ibr-locations.html.
(b) Commercial Vehicle Safety Alliance, 6303 Ivy Lane, Suite 310,
Greenbelt, MD 20770, telephone (301) 830-6143, www.cvsa.org.
(1) ``North American Standard Out-of-Service Criteria and Level VI
Inspection Procedures and Out-of-Service Criteria for Commercial
Highway Vehicles Transporting Transuranics and Highway Route Controlled
Quantities of Radioactive Materials as defined in 49 CFR part
173.403,'' April 1, 2016, incorporation by reference approved for Sec.
385.415(b).
(2) ``Operational Policy 4: Inspector Training and Certification,''
as revised September 21, 2017, incorporation by reference approved for
Sec. 385.209. The policy is available to the public online as
Attachment A of FMCSA's ``Certification Policy for Employees Who
Perform Inspections, Investigations, and Safety Audits'' available at
https://www.fmcsa.dot.gov/certification.
(c) Federal Motor Carrier Safety Administration, Office of
Enforcement and Compliance, 1200 New Jersey Ave. SE, Washington, DC
20590, telephone (202) 385-2400.
(1) ``Certification Policy for Employees Who Perform Inspections,
Investigations, and Safety Audits,'' December 29, 2015, as amended
October 2017 with respect to Attachment A (Commercial Vehicle Safety
Alliance's ``Operational Policy 4: Inspector Training and
Certification'' (revised September 21, 2017)), and as amended March
2019 with respect to Attachment B (``Certification of Safety
Inspectors, Safety Investigators, New Entrant Safety Auditors,
Commercial Enforcement Specialists[,] Safety Investigators Who Perform
Cargo Tank Facility Reviews, and Other Employees Who Maintain
Certification''), incorporation by reference approved for Sec.
385.211. The policy is available to the public online at https://www.fmcsa.dot.gov/certification.
(2) [Reserved]
0
5. Revise the subpart C to read as follows:
Subpart C--Certification to Conduct Driver or Vehicle Inspections,
Safety Audits, and Investigations
Sec.
385.201-385.205 [Reserved]
385.207 Qualifications to perform a driver or vehicle inspection,
safety audit, or investigation of a motor carrier.
385.209 Requirements to obtain and maintain certification to conduct
driver or vehicle inspections.
385.211 Requirements to obtain and maintain certification to conduct
safety audits or investigations.

Subpart C--Certification to Conduct Driver or Vehicle Inspections,
Safety Audits, and Investigations

Sec. 385.201-385.205 [Reserved]

Sec. 385.207 Qualifications to perform a driver or vehicle
inspection, safety audit, or investigation of a motor carrier.

(a) General. Subject to paragraph (b) of this section, an FMCSA
employee or contractor, or a State or local government employee or
contractor funded through the Motor Carrier Safety Assistance Program
or authorized to upload data to FMCSA, may qualify to perform a driver
or vehicle inspection, safety audit, or investigation by complying with
the requirements of this subpart.
(b) Previously qualified personnel. An FMCSA employee or
contractor, or a State or local government employee or contractor
funded through the Motor Carrier Safety Assistance Program or
authorized to upload data to FMCSA, who was qualified to perform a
driver or vehicle inspection, safety audit, or investigation before
[DATE 60 DAYS AFTER PUBLICATION OF FINAL RULE IN Federal Register], may
perform a driver or vehicle inspection, safety audit, or investigation
if the employee or contractor maintains the appropriate certification
under this subpart.

Sec. 385.209 Requirements to obtain and maintain certification to
conduct driver or vehicle inspections.

(a) Certification. An individual may conduct driver or vehicle
inspections under this subpart only if the individual meets the
requirements of Sec. 385.207(b), or meets requirements as specified in
the Commercial Vehicle Safety Alliance's ``Operational Policy 4:
Inspector Training and Certification'' (incorporated by reference, see
Sec. 385.4). The individual may conduct a driver or vehicle inspection
only at a level for which the individual is certified.
(b) Maintaining certification and obtaining recertification. An
individual who qualifies to conduct driver or vehicle inspections under
this section must meet the requirements for maintaining certification
or obtaining recertification as specified in the Commercial Vehicle
Safety Alliance's ``Operational Policy 4: Inspector Training and
Certification.''

Sec. 385.211 Requirements to obtain and maintain certification to
conduct safety audits or investigations.

(a) Certification. An individual may conduct safety audits or
investigations under this subpart only if the individual meets the
requirements of Sec. 385.207(b), or meets the requirements specified
in FMCSA's ``Certification Policy for Employees Who Perform
Inspections, Investigations, and Safety Audits'' (incorporated by
reference, see Sec. 385.4).
(b) Maintaining certification and obtaining recertification. An
individual who qualifies to conduct safety audits or investigations
under this section must maintain certification or obtain
recertification by successfully completing the requirements specified
in FMCSA's ``Certification Policy for Employees Who Perform
Inspections, Investigations, and Safety Audits.''

Issued under authority delegated in 49 CFR 1.87: June 26, 2019.
Raymond P. Martinez,
Administrator.
[FR Doc. 2019-14224 Filed 7-5-19; 8:45 am]
BILLING CODE 4910-EX-P