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


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

DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Part 385

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


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

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

ACTION: Notice of proposed rulemaking.

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

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

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

ADDRESSES: You may submit comments identified by Docket Number FMSCA-
2019-0081 using any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the online instructions for submitting comments.
     Mail: Docket Management Facility, U.S. Department of 
Transportation, 1200 New Jersey Avenue SE, West Building, Ground Floor, 
Room W12-140, Washington, DC 20590-0001.

[[Page 32380]]

     Hand Delivery or Courier: U.S. Department of 
Transportation, 1200 New Jersey Avenue SE, West Building, Ground Floor, 
Room W12-140, Washington, DC, between 9 a.m. and 5 p.m., Monday through 
Friday, except Federal holidays.
     Fax: (202) 493-2251.
    To avoid duplication, please use only one of these four methods. 
See the ``Public Participation and Request for Comments'' portion of 
the SUPPLEMENTARY INFORMATION section for instructions on submitting 
comments.
    Viewing incorporation by reference material: You may view the 
material proposed for incorporation by reference in the docket, online 
at https://www.fmcsa.dot.gov/certification, or at the Federal Motor 
Carrier Safety Administration, Office of Enforcement and Compliance, 
1200 New Jersey Ave. SE, Washington, DC 20590-0001 between 8:00 a.m. 
and 5:00 p.m., Monday through Friday, except Federal holidays. The 
telephone number is (202) 385-2400.

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

SUPPLEMENTARY INFORMATION: 

I. Public Participation and Request for Comments

A. Submitting Comments

    If you submit a comment, please include the docket number for this 
notice of proposed rulemaking (NPRM) (Docket No. FMSCA-2019-0081), 
indicate the specific section of this document to which the comment 
applies, and provide a reason for each suggestion or recommendation. 
You may submit your comments and material online or by fax, mail, or 
hand delivery, but please use only one of these means. FMCSA recommends 
that you include your name and a mailing address, an email address, or 
a telephone number in the body of your document so that FMCSA can 
contact you if there are questions regarding your submission.
    To submit your comment online, go to http://www.regulations.gov, 
put the docket number, FMSCA-2019-0081, in the keyword box, and click 
``Search.'' When the new screen appears, click on the ``Comment Now!'' 
button and type your comment into the text box on the following screen. 
Choose whether you are submitting your comment as an individual or on 
behalf of a third party and then submit.
    If you submit your comments by mail or hand delivery, submit them 
in an unbound format, no larger than 8\1/2\ by 11 inches, suitable for 
copying and electronic filing. If you submit comments by mail and would 
like to know that they reached the facility, please enclose a stamped, 
self-addressed postcard or envelope.
    FMCSA will consider all comments and material received during the 
comment period and may change this proposed rule based on your 
comments. FMCSA may issue a final rule at any time after the close of 
the comment period.

B. Viewing Comments and Documents

    To view comments, as well as any documents mentioned in this 
preamble as being available in the docket, go to http://www.regulations.gov. Insert the docket number, FMSCA-2019-0081, in the 
keyword box, and click ``Search.'' Next, click the ``Open Docket 
Folder'' button and choose the document to review. If you do not have 
access to the internet, you may view the docket by visiting the Docket 
Management Facility in Room W12-140 on the ground floor of the DOT West 
Building, 1200 New Jersey Avenue SE, Washington, DC 20590, between 9 
a.m. and 5 p.m. ET, Monday through Friday, except Federal holidays.

C. Privacy Act

    In accordance with 5 U.S.C. 553(c), DOT solicits comments from the 
public to better inform its rulemaking process. DOT posts these 
comments, without edit, including any personal information the 
commenter provides, to www.regulations.gov, as described in the system 
of records notice (DOT/ALL 14--FDMS), which can be reviewed at 
www.transportation.gov/privacy.

D. Waiver of Advance Notice of Proposed Rulemaking

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

II. Executive Summary

A. Summary of the Proposed Regulatory Action

    FMCSA proposes to incorporate by reference the current policy and 
practices for FMCSA employees, State or local government employees, and 
contractors to obtain and maintain certifications for conducting driver 
or vehicle inspections,\1\ safety audits, or investigations. Under 
section 5205 of the FAST Act (note following 49 U.S.C. 31148), the 
FMCSA Administrator is required to incorporate by reference the 
certification standards for conducting driver or vehicle inspections 
issued by CVSA. Currently, CVSA's ``Operational Policy 4: Inspector 
Training and Certification'' (rev. Sept. 21, 2017) is Attachment A to 
FMCSA's ``Certification Policy for Employees Who Perform Inspections, 
Investigations, and Safety Audits.''
---------------------------------------------------------------------------

    \1\ Throughout this NPRM, FMCSA uses the term ``driver or 
vehicle inspection'' in lieu of the term ``roadside inspection,'' 
recognizing that these inspections are not necessarily conducted at 
``roadside.''
---------------------------------------------------------------------------

    FMCSA also proposes to replace an IFR titled ``Certification of 
Safety Auditors, Safety Investigators, and Safety Inspectors,'' 
published March 19, 2002 (67 FR 12776). That IFR provided the 
certification requirements by referencing FMCSA's website, which 
contains FMCSA's policy on certification and training requirements. 
Rather than simply referencing the policy on the FMCSA website, this 
NPRM proposes to replace selected provisions of the IFR by formally 
incorporating by reference the FMCSA policy. No changes would be made 
to the certification policy or procedures currently followed by 
individuals to obtain and maintain certification to conduct driver or 
vehicle inspections, safety audits, or investigations. Other provisions 
of the IFR would be republished without change.
    The certification policy only applies to FMCSA employees and 
contractors and State or local government employees and contractors 
funded through FMCSA's Motor Carrier Safety Assistance Program (MCSAP) 
who wish to obtain or maintain certification to conduct driver or 
vehicle inspections, safety audits, or investigations. This rulemaking 
would not change any regulatory requirements applicable to motor 
carriers, drivers, or commercial motor vehicles. As such, there would 
be no impact on motor carriers or drivers.

B. Costs and Benefits

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

[[Page 32381]]

there are neither costs nor benefits associated with this rulemaking.

III. Legal Basis for the Rulemaking

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

IV. Background

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

    \2\ This provision, as amended, is found currently at 49 CFR 
350.211(p).
---------------------------------------------------------------------------

    On December 29, 2015, FMCSA issued its current ``Certification 
Policy for Employees Who Perform Inspections, Investigations, and 
Safety Audits.'' FMCSA's policy includes four attachments. In October 
2017, FMCSA amended Attachment A of its policy to incorporate the most 
recent version of CVSA's ``Operational Policy 4: Inspector Training and 
Certification,'' which was revised on September 21, 2017. In March 
2019, FMCSA amended Attachment B, ``Certification of Safety Inspectors, 
Safety Investigators, New Entrant Safety Auditors, Commercial 
Enforcement Specialists[,] Safety Investigators Who Perform Cargo Tank 
Facility Reviews, and Other Employees Who Maintain Certification.''

V. Incorporations by Reference

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

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

[[Page 32382]]

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

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

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

VI. Other Proposed Changes

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

VII. Section-by-Section Analysis

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

A. Section 385.3 Definitions and Acronyms

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

B. Section 385.4 Matter Incorporated by Reference

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

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

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

[[Page 32383]]

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

VIII. Regulatory Analyses

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

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

B. E.O. 13771 (Reducing Regulation and Controlling Regulatory Costs)

    E.O. 13771, Reducing Regulation and Controlling Regulatory Costs, 
does not apply to this action because it is not a significant 
regulatory action, as defined in section 3(f) of E.O. 12866.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) of 1980 (5 U.S.C. 601 et 
seq.), as amended by the Small Business Regulatory Enforcement Fairness 
Act of 1996 (SBREFA) (Pub. L. 104-121, 110 Stat. 857), requires Federal 
agencies to consider the effects of the regulatory action on small 
business and other small entities and to minimize any significant 
economic impact. The term ``small entities'' comprises small businesses 
and not-for-profit organizations that are independently owned and 
operated and are not dominant in their fields, and governmental 
jurisdictions with populations of less than 50,000. Accordingly, DOT 
policy requires an analysis of the impact of all regulations on small 
entities, and mandates that agencies strive to lessen any adverse 
effects on these businesses.
    This proposed rule would directly affect States and a limited 
number of contractors requiring certification. States do not meet the 
definition of a ``small entity'' in section 601 of the RFA. 
Specifically, States are not considered small governmental 
jurisdictions under section 601(5), both because State government is 
not included among the various levels of government listed in section 
601(5), and because no State, including the District of Columbia, has a 
population of less than 50,000, which is the criterion for a 
governmental jurisdiction to be considered small under section 601(5). 
As the proposed rule would not result in costs or benefits, it would 
not impose impacts on the limited number of contractors that would be 
regulated under this rulemaking. Therefore, this proposed rule would 
not have an impact on a substantial number of small entities. Because 
no changes are proposed to the current FMCSA certification policy, this 
rule would not result in changes for those affected. Thus, this 
rulemaking would not have a significant economic impact on the 
regulated entities.
    Consequently, I certify that the action would not have a 
significant economic impact on a substantial number of small entities.

D. Assistance for Small Entities

    In accordance with section 213(a) of the SBREFA, FMCSA wants to 
assist small entities in understanding this proposed rule so that they 
can better evaluate its effects on themselves and participate in the 
rulemaking initiative. If the proposed rule would affect your small 
business, organization, or governmental jurisdiction and you have 
questions concerning its provisions or options for compliance, please 
consult the FMCSA point of contact, Paul Bomgardner, listed in the For 
Further Information Contact section of this proposed rule.
    Small businesses may send comments on the actions of Federal 
employees who enforce or otherwise determine compliance with Federal 
regulations to the Small Business Administration's Small Business and 
Agriculture Regulatory Enforcement Ombudsman and the Regional Small 
Business Regulatory Fairness Boards. The Ombudsman evaluates these 
actions annually and rates each agency's responsiveness to small 
business. If you wish to comment on actions by employees of FMCSA, call 
1-888-REG-FAIR (1-888-734-3247). DOT has a policy regarding the rights 
of small entities to regulatory enforcement fairness and an explicit 
policy against retaliation for exercising these rights.

E. Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) 
requires Federal agencies to assess the effects of their discretionary 
regulatory actions. In particular, the Act addresses actions that may 
result in the expenditure by a State, local, or tribal government, in 
the aggregate, or by the private sector of $161 million (which is the 
value equivalent of $100,000,000 in 1995, adjusted for inflation to 
2017 levels) or more in any 1 year. Though this proposed rule would not 
result in such an expenditure, the Agency does discuss the effects of 
this rule elsewhere in this preamble.

F. Paperwork Reduction Act

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

G. E.O. 13132 (Federalism)

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

[[Page 32384]]

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

H. E.O. 12988 (Civil Justice Reform)

    This proposed rule meets applicable standards in sections 3(a) and 
3(b)(2) of E.O. 12988, Civil Justice Reform, to minimize litigation, 
eliminate ambiguity, and reduce burden.

I. E.O. 13045 (Protection of Children)

    E.O. 13045, Protection of Children from Environmental Health Risks 
and Safety Risks (62 FR 19885, Apr. 23, 1997), requires agencies 
issuing ``economically significant'' rules, if the regulation also 
concerns an environmental health or safety risk that an agency has 
reason to believe may disproportionately affect children, to include an 
evaluation of the regulation's environmental health and safety effects 
on children. The Agency determined this proposed rule is not 
economically significant. Therefore, no analysis of the impacts on 
children is required. In any event, the Agency does not anticipate that 
this proposed regulatory action could in any respect present an 
environmental or safety risk that could disproportionately affect 
children.

J. E.O. 12630 (Taking of Private Property)

    FMCSA reviewed this proposed rule in accordance with E.O. 12630, 
Governmental Actions and Interference with Constitutionally Protected 
Property Rights, and has determined it would not effect a taking of 
private property or otherwise have taking implications.

K. Privacy

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

L. E.O. 12372 (Intergovernmental Review)

    The regulations implementing E.O. 12372 regarding intergovernmental 
consultation on Federal programs and activities do not apply to this 
program.

M. E.O. 13211 (Energy Supply, Distribution, or Use)

    FMCSA has analyzed this proposed rule under E.O. 13211, Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. The Agency has determined that it is not a 
``significant energy action'' under that order because it is not a 
``significant regulatory action'' likely to have a significant adverse 
effect on the supply, distribution, or use of energy. Therefore, it 
does not require a Statement of Energy Effects under E.O. 13211.

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

    This proposed rule does not have tribal implications under E.O. 
13175, Consultation and Coordination with Indian Tribal Governments, 
because it does not have a substantial direct effect on one or more 
Indian tribes, on the relationship between the Federal government and 
Indian tribes, or on the distribution of power and responsibilities 
between the Federal government and Indian tribes.

O. National Technology Transfer and Advancement Act (Technical 
Standards)

    The National Technology Transfer and Advancement Act (note 
following 15 U.S.C. 272) directs agencies to use voluntary consensus 
standards in their regulatory activities unless the agency provides 
Congress, through the Office of Management and Budget, with an 
explanation of why using these standards would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
(e.g., specifications of materials, performance, design, or operation; 
test methods; sampling procedures; and related management systems 
practices) are standards that are developed or adopted by voluntary 
consensus standards bodies. This proposed rule does not use technical 
standards. Therefore, FMCSA did not consider the use of voluntary 
consensus standards.

P. National Environmental Policy Act of 1969 (NEPA)

    FMCSA analyzed this NPRM for the purpose of NEPA (42 U.S.C. 4321 et 
seq.) and determined this action is categorically excluded from further 
analysis and documentation in an environmental assessment or 
environmental impact statement under FMCSA Order 5610.1 (69 FR 9680, 
Mar. 1, 2004), Appendix 2, paragraph 6.d. The Categorical Exclusion 
(CE) in paragraph 6.d. covers regulations concerning the training, 
qualifying, licensing, certifying, and managing of personnel. The 
proposed requirements in this rule would be covered by this CE and the 
NPRM would not have any effect on the quality of the environment. The 
CE determination is available for review in the docket.

List of Subjects in 49 CFR Part 385

    Administrative practice and procedure, Highway safety, 
Incorporation by reference, Mexico, Motor carriers, Motor vehicle 
safety, Reporting and recordkeeping requirements.

    In consideration of the foregoing, FMCSA proposes to amend 49 CFR 
chapter III, part 385 to read as follows:

PART 385--SAFETY FITNESS PROCEDURES

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

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

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


Sec.  385.3   Definitions and acronyms.

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


Sec.  385.4   Matter incorporated by reference.

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

[[Page 32385]]

Register under 5 U.S.C. 552(a) and 1 CFR part 51. To enforce any 
edition other than that specified in this section, FMCSA must publish 
notification of change in the Federal Register and the material must be 
available to the public. All approved material is available for 
inspection at the Federal Motor Carrier Safety Administration, Office 
of Enforcement and Compliance, 1200 New Jersey Ave. SE, Washington, DC 
20590, telephone (202) 385-2400, and is available from the sources 
listed in paragraphs (b) and (c) of this section. It is also available 
for inspection at the National Archives and Records Administration 
(NARA). For information on the availability of this material at NARA, 
call (202) 741-6030 or go to http://www.archives.gov/federal-register/cfr/ibr-locations.html.
    (b) Commercial Vehicle Safety Alliance, 6303 Ivy Lane, Suite 310, 
Greenbelt, MD 20770, telephone (301) 830-6143, www.cvsa.org.
    (1) ``North American Standard Out-of-Service Criteria and Level VI 
Inspection Procedures and Out-of-Service Criteria for Commercial 
Highway Vehicles Transporting Transuranics and Highway Route Controlled 
Quantities of Radioactive Materials as defined in 49 CFR part 
173.403,'' April 1, 2016, incorporation by reference approved for Sec.  
385.415(b).
    (2) ``Operational Policy 4: Inspector Training and Certification,'' 
as revised September 21, 2017, incorporation by reference approved for 
Sec.  385.209. The policy is available to the public online as 
Attachment A of FMCSA's ``Certification Policy for Employees Who 
Perform Inspections, Investigations, and Safety Audits'' available at 
https://www.fmcsa.dot.gov/certification.
    (c) Federal Motor Carrier Safety Administration, Office of 
Enforcement and Compliance, 1200 New Jersey Ave. SE, Washington, DC 
20590, telephone (202) 385-2400.
    (1) ``Certification Policy for Employees Who Perform Inspections, 
Investigations, and Safety Audits,'' December 29, 2015, as amended 
October 2017 with respect to Attachment A (Commercial Vehicle Safety 
Alliance's ``Operational Policy 4: Inspector Training and 
Certification'' (revised September 21, 2017)), and as amended March 
2019 with respect to Attachment B (``Certification of Safety 
Inspectors, Safety Investigators, New Entrant Safety Auditors, 
Commercial Enforcement Specialists[,] Safety Investigators Who Perform 
Cargo Tank Facility Reviews, and Other Employees Who Maintain 
Certification''), incorporation by reference approved for Sec.  
385.211. The policy is available to the public online at https://www.fmcsa.dot.gov/certification.
    (2) [Reserved]
0
5. Revise the subpart C to read as follows:
Subpart C--Certification to Conduct Driver or Vehicle Inspections, 
Safety Audits, and Investigations
Sec.
385.201-385.205 [Reserved]
385.207 Qualifications to perform a driver or vehicle inspection, 
safety audit, or investigation of a motor carrier.
385.209 Requirements to obtain and maintain certification to conduct 
driver or vehicle inspections.
385.211 Requirements to obtain and maintain certification to conduct 
safety audits or investigations.

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


Sec.  385.201-385.205   [Reserved]


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

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


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

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


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

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

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


