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

Meera Joshi
Federal Motor Carrier Safety Administration
27 August 2021

[Federal Register Volume 86, Number 164 (Friday, August 27, 2021)]
[Rules and Regulations]
[Pages 48038-48044]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-18474]

=======================================================================
-----------------------------------------------------------------------

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), Department
of Transportation (DOT).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: FMCSA incorporates by reference in its regulations the
Commercial Vehicle Safety Alliance's (CVSA) ``Operational Policy 4:
Inspector Training and Certification,'' as required by the Fixing
America's Surface Transportation Act (FAST Act). The CVSA policy
provides the current policy and practices for FMCSA employees, State or
local government employees, and contractors to obtain and maintain
certification for conducting driver or vehicle inspections. It has been
Attachment A to FMCSA's ``Certification Policy for Employees Who
Perform Inspections, Investigations, and Safety Audits.'' Consistent
with the requirements of the FAST Act, this rule substitutes the most
recent version of the CVSA policy, reflecting revisions to the version
referenced in the July 8, 2019 notice of proposed rulemaking (NPRM).
The revisions include availability of inspector certification
extensions under declared emergency situations adopted in response to
the COVID-19 National emergency. This rule also replaces an interim
final rule (IFR) in place since 2002.

DATES: This final rule is effective August 27, 2021. The incorporation
by reference of certain publications listed in the regulations is
approved by the Director of the Federal Register as of August 27, 2021.
Petitions for Reconsideration of this final rule must be submitted
to the FMCSA Administrator no later than September 27, 2021.

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, (202) 493-0027, paul.bomgardner@dot.gov. If you have
questions on viewing or submitting material to the docket, contact
Dockets Operations, (202) 366-9826.

SUPPLEMENTARY INFORMATION:

I. Rulemaking Documents

A. Availability of Rulemaking Documents

For access to docket FMCSA-2019-0081 to read background documents
and comments received, go to https://www.regulations.gov at any time,
or to Dockets Operations at U.S. Department of Transportation, Room
W12-140, 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.

B. 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_Federal Docket Management System, which can be
reviewed at www.transportation.gov/privacy.

[[Page 48039]]

II. Executive Summary

A. Summary of the Regulatory Action

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 \1\ issued by CVSA. CVSA's ``Operational Policy 4:
Inspector Training and Certification'' provides the current policy and
practices for FMCSA employees, State or local government employees, and
contractors to obtain and maintain certification for conducting driver
or vehicle inspections. It has been Attachment A to FMCSA's
``Certification Policy for Employees Who Perform Inspections,
Investigations, and Safety Audits.'' Consistent with the requirements
of the FAST Act and current certification processes, this rule
incorporates by reference in its regulations CVSA's policy and
substitutes the most recent version of the CVSA policy. This rule
reflects revisions to the version referenced in the July 8, 2019 NPRM
(84 FR 32379), including availability of inspector certification
extensions under declared emergency situations adopted in response to
the COVID-19 National emergency. Specific changes are addressed in
connection with CVSA's comment to the proposed rulemaking and
subsequent updates in Section V, below.
---------------------------------------------------------------------------

\1\ 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.''
---------------------------------------------------------------------------

In the NPRM, FMCSA proposed to replace an IFR titled
``Certification of Safety Auditors, Safety Investigators, and Safety
Inspectors,'' published March 19, 2002 (67 FR 12776), in part, by
formally incorporating by reference the FMCSA certification policy in
its regulations. For the reasons discussed in the following paragraph,
FMCSA takes a different procedural approach in this final rule and does
not incorporate the FMCSA certification policy. Accordingly, FMCSA now
replaces the IFR by amending some of its provisions and republishing
other provisions without change.
FMCSA initially proposed incorporating its own certification policy
because CVSA's policy has been included as an attachment within that
policy. However, as discussed in detail below, since this rulemaking
began, CVSA has revised its policy three times. The frequent revisions
have prompted FMCSA to determine that it will be administratively
easier for the Agency to respond to future revisions of the CVSA policy
if it is not included as an attachment in the FMCSA certification
policy. Also, the approach of incorporating by reference in FMCSA's
regulations only the CVSA policy is simpler and less confusing. As of
the effective date of this rule, FMCSA will remove the CVSA policy as
an attachment to FMCSA's certification policy. Therefore, it is no
longer necessary to incorporate FMCSA's certification policy. While
minor changes will be made in FMCSA's certification policy to conform
cross references to the CVSA policy, no substantive changes will be
made to FMCSA's policy or the certification requirements. FMCSA's
policy addresses certification requirements to conduct safety audits
and investigations, and supplements the provisions of CVSA's policy,
particularly as applicable to FMCSA employees.
The certification policy applies only 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 rule does
not change any regulatory requirements applicable to motor carriers,
drivers, or commercial motor vehicles (CMV). As such, there is no
impact on motor carriers or drivers.

B. Costs and Benefits

There are neither costs nor benefits associated with this rule.

III. Legal Basis for the Rulemaking

FMCSA's authority for this rule is from two statutes, section 211
of the Motor Carrier Safety Improvement Act of 1999 (MCSIA),\2\ and
section 5205 of the FAST Act.\3\
---------------------------------------------------------------------------

\2\ Public Law 106-159, 113 Stat. 1748, 1765-66 (Dec. 9, 1999),
codified at 49 U.S.C. 31148.
\3\ Public Law 114-94, 129 Stat. 1312, 1537 (Dec. 4, 2015), note
following 49 U.S.C. 31148.
---------------------------------------------------------------------------

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)). 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).
The Administrative Procedure Act (APA) specifically provides
exceptions to its notice and comment rulemaking procedures when an
agency finds there is good cause to dispense with them, and
incorporates the finding and a brief statement of the reasons for such
action in the rules issued (5 U.S.C. 553(b)(3)(B)). Good cause exists
when an agency determines that notice and public comment procedures are
impractical, unnecessary, or contrary to the public interest. The APA
also allows agencies to make rules effective immediately with good
cause (5 U.S.C. 553(d)(3)), instead of requiring publication 30 days
prior to the effective date.
During the comment period, CVSA informed FMCSA that its
``Operational Policy 4: Inspector Training and Certification'' was
revised on April 4, 2019, and encouraged FMCSA to incorporate the then-
current revision, rather than the version dated September 21, 2017
referenced in the proposed rule. After the comment period, FMCSA
learned from CVSA that its policy was further revised on March 30,
2020, in response to the COVID-19 National emergency, and revised again
on April 29, 2021.
The changes made in the April 4, 2019 revision are largely minor or
administrative in nature. However, in addition to minor changes of a
similar nature, the March 30, 2020 revision makes changes needed to
give jurisdictions the ability to extend time periods under declared
emergencies when, as in the current unprecedented and unexpected COVID-
19 National emergency, individuals are prevented from completing
training or performing the required number of inspections necessary to
obtain or maintain certification. The changes made in the

[[Page 48040]]

April 29, 2021 revision are again minor. Specific changes made in each
revision are addressed in Section V, below.
During the COVID-19 National emergency, many individuals have not
been able to complete inspections necessary to obtain or maintain
certification because the majority of inspection facilities have not
been open or have been open only sporadically. In addition, until
recently, the Agency has observed maximum telework, so inspectors were
generally not permitted to go to inspection facilities. In facilities
where inspections were being performed, staffing levels were reduced
and rotated to meet social distancing guidelines. Because of these
limitations, some individuals have not been able to complete the number
of inspections in the applicable time periods to satisfy the
requirements to obtain or maintain certification, which could result in
job loss. Without an extension to complete the certification
requirements, such individuals would have to start the certification
process over by repeating course work or challenging the examination
and performing 32 inspections, which would reduce the number of
inspectors available to perform inspections. The potential shortage of
certified inspectors could have an adverse impact on CMV safety.
The COIVD-19 National emergency is outside the Agency's control and
its widespread impact could not be foreseen. Accordingly, the public
interest is best served by adopting the most recent version of
``Operational Policy 4: Inspector Training and Certification''
immediately without further public comment or a delayed effective date,
to ensure there is an adequate number of certified individuals
available to perform inspections as the COVID-19 National emergency
abates and to ensure CMV safety is not compromised. Moreover, given
that the FAST Act requires the FMCSA Administrator to incorporate by
reference CVSA's certification standards, the Agency is performing
nondiscretionary, ministerial acts in accommodating CVSA's changes. The
changes to the CVSA policy also do not impose any material new
requirements or increase compliance obligations. Finally, a delayed
effective date is unnecessary because this rule incorporates the most
recent version of CVSA's policy that is already in effect. For these
reasons, FMCSA finds good cause that further notice and public comment
on this final rule are unnecessary and impracticable, and finds good
cause for this rule to be effective immediately.
This rule replaces the 2002 IFR issued under section 211 of the
MCSIA and carries out section 5205 of the FAST Act.

IV. Discussion of Proposed Rulemaking

FMCSA published an NPRM on July 8, 2019 (84 FR 32379). In that
NPRM, FMCSA proposed to replace the 2002 IFR by incorporating by
reference FMCSA's ``Certification Policy for Employees Who Perform
Inspections, Investigations, and Safety Audits.'' The NPRM also
proposed to incorporate by reference the September 21, 2017 version of
CVSA's ``Operational Policy 4: Inspector Training and Certification,''
which, at the time, was Attachment A of FMCSA's policy. Finally, FMCSA
proposed to republish the definition of the term safety audit as it was
published in the 2002 IFR to allow comment on the definition.

V. Public Comments

A. Comments to the Proposed Rulemaking; Subsequent Updates

Only one timely comment, from CVSA, was received in response to the
NPRM. CVSA commended FMCSA for proposing to incorporate by reference
CVSA's ``Operational Policy 4: Inspector Training and Certification''
because it provides a uniform standard for training and certifying
inspectors to ensure they have the knowledge needed to conduct
effective driver or vehicle inspections. However, CVSA noted that its
``Operational Policy 4: Inspector Training and Certification'' was
revised on April 4, 2019 and encouraged FMCSA to incorporate the then-
current revision rather than the version dated September 21, 2017
referenced in the proposed rule.
Subsequent to the comment period, FMCSA learned from CVSA that
``Operational Policy 4: Inspector Training and Certification'' was
further revised on March 30, 2020, in response to the COVID-19 National
emergency to address jurisdictions' ability to extend inspectors'
certifications under certain declared emergencies, and revised again on
April 29, 2021. These revisions are discussed further below.

B. Agency Response

Consistent with the intent of section 5205 of the FAST Act,\4\ the
comment submitted by CVSA, and current certification processes,
including availability of emergency extensions, FMCSA incorporates in
its regulations the latest revision of CVSA's ``Operational Policy 4:
Inspector Training and certification,'' revised April 29, 2021
(including the April 4, 2019, March 30, 2020, and April 29, 2021
amendments). This revision is available at https://www.fmcsa.dot.gov/certification.\5\
---------------------------------------------------------------------------

\4\ Public Law 114-94, 129 Stat. 1312, 1537 (Dec. 4, 2015), note
following 49 U.S.C. 31148.
\5\ This document is also available at the locations referenced
in 49 CFR 385.4, as adopted in this rule, and in the docket for this
rulemaking.
---------------------------------------------------------------------------

FMCSA has compared the April 4, 2019 revisions to ``Operational
Policy 4: Inspector Training and Certification'' \6\ and the version
cited in the July 8, 2019 NPRM and determined that the changes are
largely minor or administrative. On page 1 of the April 4, 2019
revision, under the heading ``General,'' a new paragraph is added at
the end providing that an individual or agency seeking training
approval must contact the appropriate jurisdiction's representative
responsible for training coordination. If the jurisdiction's
representative receives a request from outside the jurisdiction, the
representative must ensure that the requester's jurisdictional
representative for training coordination has granted permission. The
purpose of the addition is to ensure that agencies go through a
jurisdiction's MCSAP lead-agency, given that training is generally
funded through MCSAP funds.
---------------------------------------------------------------------------

\6\ This document is available in the docket for this
rulemaking, https://www.regulations.gov/document?D=FMCSA-2019-0081-0006.
---------------------------------------------------------------------------

On page 6, under the prerequisites for ``Other Bulk Packaging
Inspection Certificate,'' the need for a North American Standard Cargo
Tank Inspection certificate is eliminated. The CVSA hazardous materials
and training committees recognized that the background for the two
types of inspections is significantly different and that there is no
need to be certified for cargo tank inspections to do other bulk
packaging inspections and vice-versa. The required training for the two
certifications is now distinct, but it does not create new training
requirements.
In addition to minor changes of a similar nature, the March 30,
2020 revision \7\ makes changes needed to give jurisdictions the
ability to extend time periods under declared emergencies when
individuals are prevented from completing training or performing the
required number of inspections necessary to obtain or maintain
certification. Specifically, on page 2 of the March 30, 2020 revision,
language is added, defining Declared Emergency as ``[a]n emergency
situation that has been declared by a federal, state, provincial,
territorial or local government authority

[[Page 48041]]

that removes an inspector from the responsibility or ability to conduct
inspections. This includes, but is not limited to fire, flood, drought,
pestilence, famine, disease, hurricanes, tornadoes, etc.'' On page 8,
the March 30, 2020 revision addresses initial certifications, providing
that, in the case of a declared emergency, if an inspector is unable to
conduct the inspections within the required 6-month time frame, the
applicable lead agency may provide the inspector an extension not
exceeding 6 months. However, if the declared emergency lasts beyond the
6-month extension, an inspector must attend applicable courses, pass
required exams, and complete required inspections. The applicable
jurisdiction is responsible for ensuring proficiency once initial
inspections are completed.
---------------------------------------------------------------------------

\7\ This document is available in the docket for this
rulemaking, https://www.regulations.gov/document?D=FMCSA-2019-0081-0009 and https://www.regulations.gov/document?D=FMCSA-2019-0081-0008.
---------------------------------------------------------------------------

Under the Standards for Inspector Decertification/Dequalification,
on page 14 of the March 30, 2020 revision, a provision is added
addressing declared emergencies affecting an inspector's ability to
maintain any certification other than Level VI (Transuranic Waste and
Highway Route Controlled Qualities (HRCQ) of Radioactive Material) and
Performance-Based Brake Tester Qualification. If an inspector cannot
complete the required inspections during a 3-month extension period
available under the policy, the March 30, 2020 revision allows the lead
agency to grant a further extension lasting no more than 3 months
beyond the end of the declared emergency. Finally, on page 10, the
March 30, 2020 revision addresses similar extensions in cases of
declared emergencies for those with Level VI certifications and
qualification as a performance-based brake tester.
The April 29, 2021 revision makes changes needed to give all
trainee inspectors a full 6 months to complete the applicable number of
required inspections. Specifically, on pages 2 (Level I Certification),
3 (Level II and III Certification), and 4 (Level V Certification), the
prior version provided inspections are to be completed no later than 6
months after passing the required written exam or exams, as applicable.
The revision removes the word ``written'' because not all exams are
written and adds a sentence. It reads: ``Agencies that have additional
classroom training elements immediately following the exam may have the
six-month time frame begin after all the classroom training is
completed.'' Some programs have classroom training that continues
several weeks after the required formal exam(s), during which time
inspections cannot be performed. The April 29, 2021 revision addresses
these situations and ensures trainee inspectors are not disadvantaged
if a program provides classroom training after the exam(s) are
completed.
At the end of the section labeled ``Level II Certification'' on
page 3, the April 29, 2021 revision adds a paragraph that provides
successful completion of Level II certification training also qualifies
an inspector to receive a Certificate of Proficiency to conduct Level
III inspections and, if the inspection includes a specific component
identified in the Level II Inspection Procedure, Level IV inspections.
This clarifies that successful completion of Level II certification
includes certification to conduct Level III or certain focused
inspections. Similarly, at the end of the section labeled ``Level III
Certification'' on page 4, the April 29, 2021 revision adds language
that provides successful completion of Level III certification training
also qualifies an inspector to receive a Certificate of Proficiency to
conduct Level IV inspections if the inspection includes a specific
component identified in the Level III Inspection Procedure. Finally, at
the end of the section labeled ``Level V Certification'' on page 4, the
April 29, 2021 revision adds language that provides successful
completion of Level V certification training also qualifies an
inspector to receive a Certificate of Proficiency to conduct Level IV
inspections if the inspection includes a specific component identified
in the Level V Inspection Procedure.
Other changes are simply technical or administrative measures.\8\
---------------------------------------------------------------------------

\8\ For example, on page 3 of the April 4, 2019 revision, under
Level II certification, a change is made to reflect that either
Level I or Level II inspections may count toward the 32-inspection
minimum. Throughout the notes included under each certification
standard, the appropriate certification description is inserted in
describing the type of inspections not permitted absent
certification (in lieu of references to Level I inspection in the
2017 policy); this appears to correct a typographical error. On page
1 of that revised policy, under the heading ``General,'' the word
``Inspection'' is inserted after the term ``Hazardous Materials/
Dangerous Goods.'' On page 4 of the March 30, 2020 revision, a
missing word was inserted and references to the availability of
refresher training were inserted in appropriate locations.
---------------------------------------------------------------------------

VI. Incorporation by Reference

In accordance with section 5205 of the FAST Act (note following 49
U.S.C. 31148), FMCSA incorporates by reference in its regulations
CVSA's ``Operational Policy 4: Inspector Training and Certification,''
revised April 29, 2021. This rule amends 49 CFR 385.4, Matter
incorporated by reference, to include CVSA's policy on the list of
materials incorporated and to identify the specific section that relies
upon the material. The policy is referenced in Sec. 385.207.
The CVSA policy ensures that CMV 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;
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'' is available in the docket for this rulemaking.
Additionally, 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, and online at https://www.fmcsa.dot.gov/certification.

VII. Section-by-Section Analysis

This section-by-section analysis describes changes from the
proposed rule in numerical order. With respect to subpart C of part
385, changes from the existing regulatory text also are explained.

A. Section 385.3 Definitions and Acronyms

This section is adopted as proposed in the July 8, 2019 NPRM. As
stated in the NPRM, FMCSA republishes the definition of safety audit in
paragraph (2) of the definition of reviews without change as a
procedural necessity to replace the 2002 IFR.

B. Section 385.4 Matter Incorporated by Reference

Many changes proposed to Sec. 385.4 in the NPRM are no longer
necessary. For

[[Page 48042]]

example, most of the proposed changes to paragraph (a) to update the
locations where incorporated materials can be obtained are no longer
necessary because the updates were made in different rules (84 FR
32323, 32326 (July 8, 2019); 85 FR 10307, 10310 (Feb. 24, 2020)). The
exception is that FMCSA amends paragraph (a) to provide a new email
address (fr.inspection@nara.gov) for the National Archives and Records
Administration. Because FMCSA takes the simpler approach in this final
rule of incorporating by reference only CVSA's policy, proposed
paragraph (c) to incorporate FMCSA's policy is no longer necessary.
Because it is no longer helpful to restate the entire section for
clarity, the restatement of paragraph (b)(1) pertaining to other CVSA
materials incorporated by reference, which are unrelated to this rule,
is unnecessary.
In this final rule, FMCSA amends the paragraph (b) introduction by
adding the acronym ``CVSA.'' The Agency revises proposed paragraph
(b)(2) to reference the CVSA ``Operational Policy 4: Inspector Training
and Certification'' April 29, 2021 revision of the policy (including
the April 4, 2019, March 30, 2020, and April 29, 2021 amendments),
consistent with the requirements of the FAST Act and current
certification processes. FMCSA adds the term ``CVSA Operational Policy
4'' to make the related sections more concise. FMCSA deletes the
proposed reference to the CVSA policy being available as attachment A
of the FMCSA certification policy and changes proposed ``Sec.
385.209'' to ``Sec. 385.207,'' to reflect the final rule section
designation.

C. Subpart C--Certification of Safety Auditors, Safety Investigators,
and Safety Inspectors

The NPRM proposed to remove and reserve Sec. Sec. 385.201,
385.203, and 385.205 and add new Sec. Sec. 385.207, 385.209, and
385.211 to accomplish the incorporation of both the CVSA and FMCSA
policies. Because FMCSA takes the simpler approach in this final rule
of incorporating by reference only CVSA's policy, FMCSA essentially
needs only to amend the existing sections by removing references to
inspections and adding a new Sec. 385.207 to address inspections.
Accordingly, there is no need to amend the subpart heading.
However, since the existing regulations are nearly 20 years old,
the Agency adopts most of the terminology and other updates or changes
proposed in the NPRM. For example, FMCSA adopts the current language
for describing driver or vehicle inspections. The word ``individual''
replaces ``person'' and certain referenced pronouns. When employees are
referenced, FMCSA includes contractors as proposed. The Agency adopts
the updated physical and website addresses for this part as proposed in
Sec. 385.4. FMCSA removes the unnecessary acronym ``MCSAP'' also as
proposed.
FMCSA continues to update the June 17, 2002 date used for the
grandfather provisions. However, the NPRM was prepared under the
assumption that the final rule would be effective 60 days after it was
published. As discussed above in Section III, the Agency finds good
cause to make this rule effective immediately. Accordingly, the
referenced date is changed to reflect the date the final rule is
published in the Federal Register, rather than 60 days following
publication of the rule.
Section 385.201 Who is qualified to perform a safety audit or
investigation, including review, of a motor carrier or an intermodal
equipment provider?
In addition to adopting use of contractor and individual,
eliminating use of MCSAP, and updating the date of the grandfather
clause, FMCSA amends Sec. 385.201 as follows. The Agency changes the
section heading by adding the phrase ``safety audit or investigation,
including'' before ``review'' and adding a comma after it to identify
the new scope of the section. FMCSA removes the terms ``compliance
review'' and ``roadability review'' and replaces them with the phrase
``safety audit or investigation'' essentially as proposed, but adds ``,
including review,'' after investigation to clarify an individual
certified to perform an investigation is also certified to conduct a
``review,'' as defined in Sec. 385.3 to include compliance and
roadability reviews. FMCSA also removes the references to roadside
inspections.
Section 385.203 What are the requirements to obtain and maintain
certification to perform a safety audit or investigation, including
review?
In addition to adopting use of the term ``individual'' (including
replacing the word ``employees''), updating the date of the grandfather
clause, and updating physical and website addresses, FMCSA amends Sec.
385.201 as follows. The Agency changes the section heading by adding
the phrase ``to perform a safety audit or investigation, including
review'' to identify the scope of the section. FMCSA removes the terms
``compliance review'' and ``roadability review'' and replaces them with
the phrase ``safety audit or investigation'' essentially as proposed,
but again adds ``, including review,'' after investigation for
clarification. FMCSA also removes the references to roadside
inspections. Finally, in paragraph (b), FMCSA removes the paragraph
heading to conform to the part style of not including such headings and
``the'' before FMCSA in the second sentence.
Section 385.205 How can an individual who has lost certification to
perform a safety audit or investigation, including review, be re-
certified?
In addition to adopting use of the term ``individual'' and
eliminating certain referenced pronouns, FMCSA amends Sec. 385.201 by
adding in the section heading the phrase ``to perform a safety audit or
investigation, including review'' after certification to identify the
scope of the section.
Section 385.207 What are the requirements to obtain and maintain
certification to conduct driver or vehicle inspections?
FMCSA adds a new Sec. 385.207 to address certification to conduct
driver or vehicle inspections as set forth in CVSA's Operational Policy
4. The Agency adopts this section essentially as proposed in the NPRM
as Sec. Sec. 385.207(b) and 385.209, except for substituting ``CVSA''
and ``Operational Policy 4'' where applicable to be more concise. FMCSA
changes the section heading of proposed Sec. 385.209 by adding ``What
are the'' at the beginning to form a question consistent with the
existing section headings. The specifics of the grandfather provision
in paragraph (a) were proposed Sec. 385.207(b). The remainder of
paragraph (a) was proposed Sec. 385.209(a). Paragraph (b) was proposed
Sec. 385.209(b). FMCSA removes the proposed paragraph headings to
conform to the part style of not including such headings.

VIII. Regulatory Analyses

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

FMCSA has considered the impacts of this rule under 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, and DOT's regulatory policies and
procedures. The Office of Information and Regulatory Affairs within the
Office of Management and Budget (OMB) has determined that

[[Page 48043]]

this rulemaking is not a significant regulatory action under section
3(f) of E.O. 12866. Accordingly, OMB has not reviewed it under that
E.O.
As addressed under Section V, above, the revisions to CVSA's
``Operational Policy 4: Inspector Training and Certification'' are
either largely minor or administrative or do not impose any material
requirements or increase compliance obligations. Accordingly, there are
no new costs or benefits associated with this final rule.

B. Congressional Review Act

Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.),
the Office of Information and Regulatory Affairs designated this rule
as not a ``major rule,'' as defined by 5 U.S.C. 804(2).\9\
---------------------------------------------------------------------------

\9\ A ``major rule'' means any rule that the Administrator of
the Office of Information and Regulatory Affairs 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)).
---------------------------------------------------------------------------

C. Regulatory Flexibility Act

The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.), as
amended by the Small Business Regulatory Enforcement Fairness Act of
1996,\10\ 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.
---------------------------------------------------------------------------

\10\ Public Law 104-121, 110 Stat. 857 (Mar. 29, 1996), note
following 5 U.S.C. 601.
---------------------------------------------------------------------------

This rule directly affects States and a limited number of
contractors requiring certification. States do not meet the definition
of a ``small entity'' in section 601 of the Regulatory Flexibility Act.
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 rule will not result in costs or benefits, it will not impose
impacts on the limited number of contractors regulated under this rule.
Therefore, this rule will not have an impact on a substantial number of
small entities. Because FMCSA incorporates by reference the current
policy and practices for individuals to obtain and maintain
certification for conducting inspections, this rule will not result in
changes for those affected. Thus, this rule will not have a significant
economic impact on the regulated entities.
Consequently, I certify that the action will not have a significant
economic impact on a substantial number of small entities.

D. Assistance for Small Entities

In accordance with section 213(a) of the Small Business Regulatory
Enforcement Fairness Act of 1996, FMCSA wants to assist small entities
in understanding this rule so they can better evaluate its effects on
themselves and participate in the rulemaking initiative. If the rule
will 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 1 year. Though this rule will not result in
such an expenditure, the Agency does discuss the effects of this rule
elsewhere in this preamble.

F. Paperwork Reduction Act

This final rule contains no information collection requirements
under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

G. E.O. 13132 (Federalism)

A rule has implications for federalism under section 1(a) of E.O.
13132 if it has ``substantial direct effects on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government.'' FMCSA has determined that this rule will not have
substantial direct costs on or for States, nor would it limit the
policymaking discretion of States. Nothing in this document preempts
any State law or regulation. Therefore, this rule does not have
sufficient federalism implications to warrant the preparation of a
Federalism Impact Statement.

H. Privacy

The Consolidated Appropriations Act, 2005,\11\ requires the Agency
to conduct a privacy impact assessment (PIA) of a regulation that will
affect the privacy of individuals. This rule will not require the
collection of personally identifiable information.
---------------------------------------------------------------------------

\11\ Public Law 108-447, 118 Stat. 2809, 3268 (Dec. 4, 2014),
note following 5 U.S.C. 552a.
---------------------------------------------------------------------------

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,\12\ 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.
---------------------------------------------------------------------------

\12\ Public Law 107-347, sec. 208, 116 Stat. 2899, 2921 (Dec.
17, 2002).
---------------------------------------------------------------------------

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

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

[[Page 48044]]

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, Mar. 1, 2004),
Appendix 2, paragraph 6.d. The categorical exclusion in paragraph 6.d.
covers regulations concerning the training, qualifying, licensing,
certifying, and managing of personnel. The requirements in this rule
are covered by this categorical exclusion and the rule will not have
any effect on the quality of the environment.

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 amends 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(d), 5109, 5113,
13901-13905, 13908, 31135, 31136, 31144, 31148, 31151, 31502; sec.
113(a), Pub. L. 103-311, 108 Stat. 1673, 1676; sec. 408, Pub. L.
104-88, 109 Stat. 803, 958; sec. 350, Pub. L. 107-87, 115 Stat. 833,
864; sec. 5205, Pub. L. 114-94, 129 Stat. 1312, 1537; and 49 CFR
1.87.

0
2. 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. Amend Sec. 385.4 as follows:
0
a. In paragraph (a), remove the text ``fedreg.legal@nara.gov'' and add,
in its place, the text ``fr.inspection@nara.gov'';
0
b. Revise paragraph (b) introductory text; and
0
c. Add paragraph (b)(2).
The revision and addition read as follows:

Sec. 385.4 Matter incorporated by reference.

* * * * *
(b) Commercial Vehicle Safety Alliance (CVSA), 6303 Ivy Lane, Suite
310, Greenbelt, MD 20770, telephone (301) 830-6143, www.cvsa.org.
* * * * *
(2) ``Operational Policy 4: Inspector Training and Certification'',
Revised April 29, 2021 (CVSA Operational Policy 4); incorporation by
reference approved for Sec. 385.207. (Also available at
www.fmcsa.dot.gov/certification).

0
4. Revise Sec. 385.201 to read as follows:

Sec. 385.201 Who is qualified to perform a safety audit or
investigation, including review, of a motor carrier or an intermodal
equipment provider?

(a) An FMCSA employee or contractor, or a State or local government
employee or contractor funded through the Motor Carrier Safety
Assistance Program, who was qualified to perform a safety audit or
investigation, including review, before August 27, 2021, may perform a
safety audit or investigation, including review, if the individual
complies with Sec. 385.203(b).
(b) An individual who was not qualified to perform a safety audit
or investigation, including review, before August 27, 2021, may perform
a safety audit or investigation, including review, after complying with
the requirements of Sec. 385.203(a).

0
5. Revise Sec. 385.203 to read as follows:

Sec. 385.203 What are the requirements to obtain and maintain
certification to perform a safety audit or investigation, including
review?

(a) On and after August 27, 2021, an individual who is not
qualified under Sec. 385.201(a) may not perform a safety audit or
investigation, including review, unless the individual has been
certified by FMCSA or a State or local agency applying the FMCSA
standards after successfully completing classroom training and
examinations on the FMCSRs and HMRs as described in detail on the FMCSA
website (www.fmcsa.dot.gov/certification). These individuals must also
comply with the maintenance of certification/qualification requirements
of paragraph (b) of this section.
(b) An individual may not perform a safety audit or investigation,
including review, unless the individual meets the quality-control and
periodic re-training requirements adopted by FMCSA to ensure the
maintenance of high standards and familiarity with amendments to the
FMCSRs and HMRs. These maintenance of certification/qualification
requirements are described in detail on the FMCSA website
(www.fmcsa.dot.gov/certification).
(c) The requirements of paragraphs (a) and (b) of this section for
training, performance, and maintenance of certification/qualification,
which are described on the FMCSA website (www.fmcsa.dot.gov/certification), are also available in hard copy from the Federal Motor
Carrier Safety Administration, Office of Enforcement and Compliance,
1200 New Jersey Ave. SE, Washington, DC 20590; Attention: Chief,
Compliance Division at (202) 366-1812.

0
6. Revise Sec. 385.205 to read as follows:

Sec. 385.205 How can an individual who has lost certification to
perform a safety audit or investigation, including review, be re-
certified?

The individual must successfully complete the requirements of Sec.
385.203(a) and (b).

0
7. Add Sec. 385.207 to read as follows:

Sec. 385.207 What are the requirements to obtain and maintain
certification to conduct driver or vehicle inspections?

(a) An FMCSA employee or contractor, or a State or local government
employee or contractor funded through the Motor Carrier Safety
Assistance Program, who was qualified to conduct a driver or vehicle
inspection before August 27, 2021 or meets requirements as specified in
CVSA Operational Policy 4 (incorporated by reference, see Sec. 385.4)
may conduct a driver or vehicle inspection. The individual may conduct
a driver or vehicle inspection only at a level for which the individual
is certified.
(b) 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
CVSA Operational Policy 4.
Issued under authority delegated in 49 CFR 1.87.

Meera Joshi,
Deputy Administrator.
[FR Doc. 2021-18474 Filed 8-26-21; 8:45 am]
BILLING CODE 4910-EX-P