48038 Federal Register / Vol. 86, No. 164 / Friday, August 27, 2021 / Rules and Regulations 

Polymer CAS No. 

*******

a-Alkyl-w-hydroxypoly (oxypropylene) and/or 

poly (oxyethylene) polymers where the alkyl 

chain contains a minimum of six carbons and 

a minimum number average molecular weight 

(in amu) 1,100.

9002–92–0; 9004–95–9; 9004–98–2; 9005–00–9; 9035–85–2; 9038–29–3; 9038–43–1; 9040– 

05–5; 9043–30–5; 9087–53–0; 25190–05–0; 24938–91–8; 25231–21–4; 251553–55–6; 

26183–52–8; 26468–86–0; 26636–39–5; 26636–40–8; 27252–75–1; 27306–79–2; 31726– 

34–8; 32128–65–7; 34398–01–1; 34398–05–5; 37251–67–5; 37311–00–5; 37311–01–6; 

37311–02–7; 37311–04–9; 39587–22–9; 50861–66–0; 52232–09–4; 52292–17–8; 52609– 

19–5; 57679–21–7; 59112–62–8; 60636–37–5; 60828–78–6; 61702–78–1; 61723–78–2; 

61725–89–1; 61791–13–7; 61791–20–6; 61791–28–4; 61804–34–0; 61827–42–7; 61827– 

84–7; 62648–50–4; 63303–01–5; 63658–45–7; 63793–60–2; 64366–70–7; 64415–24–3; 

64415–25–4; 64425–86–1; 65104–72–5; 65150–81–4; 66455–14–9: 66455–15–0; 67254– 

71–1; 67763–08–0; 68002–96–0; 68002–97–1; 68131–39–5; 68131–40–8; 68154–96–1; 

68154–97–2; 68154–98–3; 68155–01–1; 68213–23–0; 68213–24–1; 68238–81–3; 68238– 

82–4; 68409–58–5; 68409–59–6; 68439–30–5; 68439–45–2; 68439–46–3; 68439–48–5; 

68439–49–6; 68439–50–9; 68439–51–0; 68439–53–2; 68439–54–3; 68458–88–8; 68526– 

94–3; 68526–95–4; 68551–12–2; 68551–13–3; 68551–14–4; 68603–20–3; 68603–25–8; 

68920–66–1; 68920–69–4; 68937–66–6; 68951–67–7; 68954–94–9; 68987–81–5; 68991– 

48–0; 69011–36–5; 69013–18–9; 69013–19–0; 69227–20–9; 69227–21–0; 69227–22–1; 

69364–63–2; 70750–27–5; 70879–83–3; 70955–07–6; 71011–10–4; 71060–57–6; 71243– 

46–4; 72066–65–0; 72108–90–8; 72484–69–6; 72854–13–8; 72905–87–4; 73018–31–2; 

73049–34–0; 74432–13–6; 74499–34–6; 78330–19–5; 78330–20–8; 78330–21–9; 78330– 

23–1; 79771–03–2; 84133–50–6; 85422–93–1; 97043–91–9; 97953–22–5; 102782–43–4; 

103331–86–8; 103657–84–7; 103657–85–8; 103818–93–5; 103819–03–0; 106232–83–1; 

111905–54–5; 116810–31–2; 116810–32–3; 116810–33–4; 120313–48–6; 120944–68–5; 

121617–09–2; 126646–02–4; 126950–62–7; 127036–24–2; 139626–71–4; 152231–44–2; 

154518–36–2; 157627–86–6; 157627–88–8; 157707–41–0; 157707–43–2; 159653–49–3; 

160875–66–1; 160901–20–2; 160901–09–7; 160901–19–9; 161025–21–4; 161025–22–5; 

161133–70–6; 166736–08–9; 169107–21–5; 172588–43–1; 176022–76–7; 196823–11–7; 

287935–46–0; 288260–45–7; 303176–75–2; 954108–36–2; 2222805–23–2; 2409830–33–5 

*******

[FR Doc. 2021–18527 Filed 8–26–21; 8:45 am] 

BILLING CODE 6560–50–P 

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. 


lotter on DSK11XQN23PROD with RULES1
Federal Register / Vol. 86, No. 164 / Friday, August 27, 2021 / Rules and Regulations 48039 

1FMCSA uses the term ‘‘driver or vehicle 

inspection’’ in lieu of the term ‘‘roadside 

inspection,’’ recognizing that these inspections are 

not necessarily conducted at ‘‘roadside.’’ 

2Public Law 106–159, 113 Stat. 1748, 1765–66 

(Dec. 9, 1999), codified at 49 U.S.C. 31148. 

3Public Law 114–94, 129 Stat. 1312, 1537 (Dec. 

4, 2015), note following 49 U.S.C. 31148. 

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. 

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

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 


lotter on DSK11XQN23PROD with RULES1
48040 Federal Register / Vol. 86, No. 164 / Friday, August 27, 2021 / Rules and Regulations 

4Public Law 114–94, 129 Stat. 1312, 1537 (Dec. 

4, 2015), note following 49 U.S.C. 31148. 

5This 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. 6This document is available in the docket for this 

rulemaking, https://www.regulations.gov/ 

document?D=FMCSA-2019-0081-0006. 7This 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. 

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

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. 

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 


lotter on DSK11XQN23PROD with RULES1
Federal Register / Vol. 86, No. 164 / Friday, August 27, 2021 / Rules and Regulations 48041 

8For 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. 

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. 

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

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 § 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 § 385.4 in 

the NPRM are no longer necessary. For 


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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 ‘‘§ 385.209’’ to ‘‘§ 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 §§ 385.201, 385.203, and 

385.205 and add new §§ 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 § 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 § 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 

§ 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 § 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 § 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 § 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 § 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 

§§ 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 § 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 

§ 385.207(b). The remainder of 

paragraph (a) was proposed 

§ 385.209(a). Paragraph (b) was 

proposed § 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 


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9A ‘‘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)). 

10Public Law 104–121, 110 Stat. 857 (Mar. 29, 

1996), note following 5 U.S.C. 601. 

11Public Law 108–447, 118 Stat. 2809, 3268 (Dec. 

4, 2014), note following 5 U.S.C. 552a. 

12Public Law 107–347, sec. 208, 116 Stat. 2899, 

2921 (Dec. 17, 2002). 

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

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. 

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. 

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. 

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 


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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 

■ 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. 

■ 2. In § 385.3, republish paragraph (2) 

of the definition of Reviews to read as 

follows: 

§ 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. 

* * * * * 

■ 3. Amend § 385.4 as follows: 

■ a. In paragraph (a), remove the text 

‘‘fedreg.legal@nara.gov’’ and add, in its 

place, the text ‘‘fr.inspection@nara.gov’’; 

■ b. Revise paragraph (b) introductory 

text; and 

■ c. Add paragraph (b)(2). 

The revision and addition read as 

follows: 

§ 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 § 385.207. (Also available 

at www.fmcsa.dot.gov/certification). 

■ 4. Revise § 385.201 to read as follows: 

§ 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 

§ 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 § 385.203(a). 

■ 5. Revise § 385.203 to read as follows: 

§ 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 

§ 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. 

■ 6. Revise § 385.205 to read as follows: 

§ 385.205 How can an individual who has 

lost certification to perform a safety audit or 

investigation, including review, be recertified? 

The individual must successfully 

complete the requirements of 

§ 385.203(a) and (b). 

■ 7. Add § 385.207 to read as follows: 

§ 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 § 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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