[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]


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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), Department 
of Transportation (DOT).

ACTION: Final rule.

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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, <a href="/cdn-cgi/l/email-protection#d1a1b0a4bdffb3bebcb6b0a3b5bfb4a391b5bea5ffb6bea7"><span class="__cf_email__" data-cfemail="ea9a8b9f86c48885878d8b988e848f98aa8e859ec48d859c">[email protected]</span></a>. 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.
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    \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.''
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    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\
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    \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.
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    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\
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    \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.
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    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.
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    \6\ This document is available in the docket for this 
rulemaking, https://www.regulations.gov/document?D=FMCSA-2019-0081-0006.
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    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.
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    \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.
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    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\
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    \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.
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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:
    <bullet> North American Standard Level I, II, III, and V 
Inspections;
    <bullet> Hazardous Materials/Dangerous Goods Inspection;
    <bullet> Cargo Tank Inspection;
    <bullet> Other Bulk Packaging Inspection;
    <bullet> Passenger Carrier Vehicle Inspection;
    <bullet> North American Standard Level VI Inspection for 
Transuranic Waste and Highway Route Controlled Quantities (HRCQ) of 
Radioactive Material; and
    <bullet> 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 (<a href="/cdn-cgi/l/email-protection#dabca8f4b3b4a9aabfb9aeb3b5b49ab4bba8bbf4bdb5ac"><span class="__cf_email__" data-cfemail="98feeab6f1f6ebe8fdfbecf1f7f6d8f6f9eaf9b6fff7ee">[email protected]</span></a>) 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 ``<a href="/cdn-cgi/l/email-protection#1a7c7f7e687f7d34767f7d7b765a747b687b347d756c"><span class="__cf_email__" data-cfemail="c1a7a4a5b3a4a6efada4a6a0ad81afa0b3a0efa6aeb7">[email protected]</span></a>'' and add, 
in its place, the text ``<a href="/cdn-cgi/l/email-protection#1573673b7c7b66657076617c7a7b557b7467743b727a63"><span class="__cf_email__" data-cfemail="5234207c3b3c21223731263b3d3c123c3320337c353d24">[email protected]</span></a>'';
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


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