[Federal Register Volume 67, Number 53 (Tuesday, March 19, 2002)]
[Rules and Regulations]
[Pages 12776-12779]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-5894]



[[Page 12775]]

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Part V





Department of Transportation





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Federal Motor Carrier Safety Administration



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49 CFR Parts 350 and 385



Certification of Safety Auditors, Safety Investigators, and Safety 
Inspectors; Final Rule

  Federal Register / Vol. 67, No. 53 / Tuesday, March 19, 2002 / Rules 
and Regulations  

[[Page 12776]]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Parts 350 and 385

[Docket No. FMCSA-2001-11060]
RIN 2126-AA64


Certification of Safety Auditors, Safety Investigators, and 
Safety Inspectors

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

ACTION: Interim final rule; request for comments.

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SUMMARY: The FMCSA is amending the Federal Motor Carrier Safety 
Regulations (FMCSRs) by designating the current safety fitness 
regulations and adding Certification of Safety Auditors, Safety 
Investigators, and Safety Inspectors regulations. Section 211 of the 
Motor Carrier Safety Improvement Act of 1999 (MCSIA) requires that a 
certified motor carrier safety auditor perform any safety audit or 
compliance review conducted after December 31, 2002. This rule 
establishes procedures to certify and maintain certification for 
auditors and investigators. In addition, it requires certification for 
State or local government Motor Carrier Safety Assistance Program 
(MCSAP) employees performing driver/vehicle roadside inspections.

DATES: This rule is effective June 17, 2002. We must receive your 
comments by May 20, 2002.

ADDRESSES: You can mail, fax, hand deliver or electronically submit 
written comments to the Docket Management Facility, U.S. Department of 
Transportation, Dockets Management Facility, Room PL-401, 400 Seventh 
Street, SW., Washington, DC 20590-0001. The fax number is (202) 493-
2251. Comments to the web site (http://dmses.dot.gov/submit) may be 
typed on-line. You must include the docket number that appears at the 
heading of this document in your comments. You may examine and copy all 
comments at the above address from 9 a.m. to 5 p.m., e.t., Monday 
through Friday, except Federal holidays. You may also review the docket 
on the Internet at http://dms.dot.gov. If you want notification of 
receipt of comments, please include a self-addressed, stamped envelope 
or postcard, or after submitting comments electronically, print the 
acknowledgement page.

FOR FURTHER INFORMATION CONTACT: Mr. William C. Hill, Office of Bus & 
Truck Standards and Operations, (202) 366-4001, Federal Motor Carrier 
Safety Administration, 400 Seventh Street, SW., Room 8301, Washington, 
DC 20590-0001. Office hours are from 7:45 a.m. to 4:15 p.m. EST, Monday 
through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION: All comments received before the close of 
business on the comment closing date indicated above will be considered 
and will be available for examination using the docket number appearing 
at the top of this document in the docket room at the above address. 
The FMCSA will file comments received after the comment closing date in 
the docket and will consider late comments to the extent practicable. 
The FMCSA may, however, issue a final rule at any time after the close 
of the comment period.

Background

    On December 9, 1999, the President signed the Motor Carrier Safety 
Improvement Act of 1999 (MCSIA) (Pub. L. 106-159). Section 211 of the 
MCSIA requires the Secretary of Transportation to complete a rulemaking 
to improve training and provide for the certification of motor carrier 
safety auditors to conduct safety inspection audits and reviews. The 
legislation also gives the Secretary oversight responsibility for the 
motor carrier auditors and investigators it certifies, including the 
authority to decertify them. As enacted by Section 211(a), 49 U.S.C. 
31148(b) and (c) read as follows:
    (b) Certified Inspection Audit Requirement.--Not later than 1 year 
after completion of the Rulemaking required by subsection (a), any 
safety inspection audit or review required by, or based on the 
authority of, this chapter or chapter 5, 313, or 315 of this title and 
performed after December 31, 2002, shall be conducted by--
    (1) A motor carrier safety auditor certified under subsection (a); 
or
    (2) A Federal or State employee who, on the date of the enactment 
of this section, was qualified to perform such an audit or review.
    (c) Extension.--If the Secretary determines that subsection (b) 
cannot be implemented within the 1-year period established by that 
subsection and notifies the Committee on Commerce, Science, and 
Transportation of the Senate and the Committee on Transportation and 
Infrastructure of the House of Representatives of the determination and 
the reasons therefor, the Secretary may extend the deadline for 
compliance with subsection (b) by not more than 12 months.

Certification of Safety Auditors, Safety Investigators, and Safety 
Inspectors

    The FMCSA is implementing Section 211 by establishing three types 
of certification: (1) Certification to conduct safety audits, (2) 
certification to conduct compliance reviews, and (3) certification to 
conduct roadside inspections. FMCSA or State or local government MCSAP 
employees qualified to perform compliance reviews on December 9, 1999, 
are grandfathered by 49 U.S.C. 31148(b)(2) and are not required to be 
certified under this rule.
    The FMCSA is also grandfathering Federal, or State or local MCSAP, 
employees who had not been hired, or had not yet completed their normal 
training on December 9, 1999, but were fully trained and performing 
compliance reviews or roadside inspections before June 17, 2002, when 
we are closing the grandfather period.
    We believe this complies with congressional intent, since these 
employees received the same kind of training as those statutorily 
grandfathered on December 9, 1999. Moreover, requiring these employees 
to repeat such training would impose unnecessary costs on their 
agencies and burdensome time constraints on the employees themselves, 
keeping them from performing their important, safety-related functions.
    Grandfathered employees are treated as though they had been 
certified through the procedures described in this rule. As such, they 
are also required to maintain their virtual certification by completing 
the required training updates.
    The FMCSA is augmenting its procedures for assessing the safety 
performance of motor carriers by adding a new tool, a safety audit. The 
agency is treating the term ``safety inspection audit or review `` used 
in Section 211 as equivalent to the ``safety review'' of new entrants 
into the motor carrier industry which is mandated by Sec. 210 of the 
MCSIA. The two provisions are closely related. Under Section 210, the 
Secretary is required to ``establish the elements of the safety 
review,'' which implies that it may be something less than a full 
compliance review pursuant to Part 385. The safety review is to be 
phased in ``in a manner that takes into account the availability of 
certified motor carrier safety auditors'' (49 U.S.C. 31144(c)(3), 
enacted by Section 210). Section 211 contemplates the use of certified 
auditors to perform the ``safety inspection audits and reviews'' that 
are ``required by, or based on the authority of (chapter 311) or 
chapter 5, 313, or 315 of'' title 49, United States Code. FMCSA

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expects that such audits will be performed by FMCSA employees or by 
State inspectors. The language of section 211 authorizes non-government 
personnel to conduct the safety review required of new entrants. FMCSA 
seeks comments on the advisability of certifying non-government 
employees that meet all training and experience criteria to conduct 
safety reviews as provided in the IFR. In the interest of simplicity, 
the FMCSA will use the single term ``safety audit'' in the remainder of 
this document, and in a subsequent rulemaking to implement Section 210.
    The term ``safety audit'' avoids any possible confusion with the 
safety reviews previously conducted by the agency, which were 
discontinued on September 30, 1994. A safety audit will provide 
educational and technical assistance to new entrant motor carriers and 
gather critical safety data needed to make an assessment of these 
carriers' safety performance and basic safety management controls. It 
will only be used to review carriers identified as new entrants, i.e., 
those registering for a USDOT identification number.
    Currently, the FMCSA relies on the compliance review, an in-depth 
review, to assess a carrier's safety performance and compliance with 
the FMCSRs and applicable hazardous materials regulations (HMRs). They 
are typically performed only on motor carriers with poor performance, 
high accident rates, high vehicle or driver out-of-service rates, past 
poor compliance, or those against which non-frivolous complaints have 
been lodged. A compliance review performed on a motor carrier's 
operations usually results in a determination whether the carrier meets 
FMCSA's safety fitness standard.
    Compliance reviews are performed on shippers of hazardous 
materials, but do not result in a safety rating, as shippers of 
hazardous materials are not subject to the FMCSRs.
    The compliance review also provides recommendations to assist the 
carrier or hazardous materials shipper to attain full compliance with 
the regulations. Approximately 30% of compliance reviews result in 
enforcement actions.
    The compliance review will retain its current procedures, report 
format, and purpose--to evaluate a motor carrier's safety fitness--and 
may trigger enforcement action. The FMCSA or the State MCSAP agency 
will certify Federal or State personnel to conduct compliance reviews 
and safety audits.
    All individuals who conduct safety audits, compliance reviews, or 
driver/vehicle roadside inspections will be required to maintain their 
certification by performing a specific number of safety audits, 
compliance reviews, or inspections annually, with acceptable quality, 
and by successfully completing any required training. Failing to 
successfully complete training, or to demonstrate proficiency in 
conducting audits, reviews, or inspections, requires the individual to 
repeat the requirements established by the FMCSA for conducting safety 
audits, compliance reviews, or inspections.
    The FMCSA is amending the MCSAP regulations to require that each 
State or local government participating in MCSAP certify that its 
employees performing safety audits, compliance reviews, and driver/
vehicle roadside inspections meet minimum Federal training, experience, 
and proficiency standards (see 49 CFR 350.211(17)). These standards 
will be posted on the FMCSA website (www.fmcsa.dot.gov). This 
certification process is appropriate in that participating MCSAP States 
and local agencies already determine if their employees are qualified 
based on Federal standards. It also relieves them of the potential 
burden of requiring State or local government employees to travel out 
of state to be trained or to maintain their certifications to perform 
compliance reviews, safety audits, or roadside inspections.
    The FMCSA is not including specific training requirements in this 
regulation. The agency needs 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. Codification 
would make the program inflexible and difficult to manage.
    The certification requirements, however, will be posted on the 
FMCSA website (www.fmcsa.dot.gov) and available in hard copy at its 
Washington, DC, headquarters. These requirements will include the 
successful completion of a training course covering the FMCSRs and 
HMRs. Certification and maintenance requirements will be updated as 
necessary to reflect changes in the safety regulations. The training 
course will thus remain current. FMCSA will work with the States and 
other stakeholders as we consider and develop any amendments to the 
training requirements.
    This interim final rule is effective on June 17, 2002. Under the 
fiscal year 2002 DOT Appropriations Act (Public Law 107-87; December 
18, 2001), Congress directed that as a precondition to processing 
applications of Mexico-domiciled carriers for authority to operate 
beyond the commercial zone, FMCSA must issue an interim final rule on 
this statutory requirement. This regulation only imposes a requirement 
to be certified as provided for in the Motor Carrier Safety Improvement 
Act of 1999 (MCSIA)(Pub. L. 106-159). Certification of Federal safety 
investigators and State or local government employees participating in 
MCSAP who perform compliance reviews or driver/vehicle roadside 
inspections, means that these officials have successfully completed 
certain training programs. These training requirements have been in 
effect for a number of years, and the rule imposes no new burdens on 
such officials. The rule also creates a new kind of review--the 
``safety audit''--and a corresponding certification, but the training 
required to be certified as a safety auditor is simply a less 
comprehensive version of that required to conduct compliance reviews 
and driver/vehicle roadside inspections. Because of Congress' direction 
and the limited impact of the regulations, FMCSA finds that there is 
good cause that notice and comment are contrary to the public interest 
under 5 U.S.C. 553(b)(3)(B).

Rulemaking Analysis and Notices

Executive Order 12866 (Regulatory Planning and Review) and DOT 
Regulatory Policies and Procedures

    The FMCSA has determined that this action is a significant 
regulatory action within the meaning of Executive Order 12866, and is 
significant within the meaning of Department of Transportation 
regulatory policies and procedures (44 FR 11034, February 26, 1979). It 
has been reviewed by the Office of Management and Budget. The subject 
of requirements for certification of safety auditors, investigators and 
inspectors will likely generate considerable public interest within the 
meaning of Executive Order 12866. We have classified the rule as 
significant because of the high level of public and congressional 
interest in the program.
    The IFR establishes the safety certification process for persons 
who conduct safety audits, compliance reviews, and safety inspections. 
This IFR will have minimal or no economic impact. The FMCSA has 
developed training material and requirements for the three types of 
certifications to ensure uniform implementation with respect to all 
persons who must comply with the rule. To maintain certification, 
individuals must conduct a minimum number of safety activities (i.e., 
audits, reviews, or inspections) per year. The FMCSA may develop other 
specific standards regarding initial certification or maintaining 
certification. However, Federal and State employees who

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currently conduct compliance reviews and safety inspections will not 
have to undergo any additional training to comply with this rule. They 
would only be required to meet the new standards regarding maintenance 
of certification. States will be required to certify that their 
employees meet minimal Federal standards as part of their continued 
participation in the Motor Carrier Safety Assistance Program (MCSAP).
    Currently, Federal employees who perform compliance reviews (CRs) 
or roadside inspections undergo an extensive training program, such as 
a six-week academy training class for safety investigators and a 
variety of refresher courses for those performing CRs. State employees 
who conduct these reviews or inspections under the Motor Carrier Safety 
Assistance Program have training requirements that are comparable to, 
or as effective as, the Federal program. The agency believes that the 
training required for initial certification of new Federal or State 
employees assigned to conduct safety activities will be similar to the 
training that these individuals currently undergo. While there may be 
some additional training material developed and taught due to 
regulatory or program changes, it is unlikely that there will be any 
measurable increase in the amount of time trainees must spend in class. 
Any extra material would most likely be offset by reduction in the 
amount of time spent on topics that require less classroom instruction 
to master the concepts. Accordingly, we do not believe that this rule 
will impose any new costs on Federal or State employees who undergo 
training. If there are costs imposed on State agencies, those expenses 
are eligible expenses under the MCSAP program and as such would be paid 
through the program as opposed to being paid by the States.
    Although the benefits of this IFR cannot be quantified at this 
time, we believe this rulemaking will ensure greater uniformity and 
consistency in the quality of safety audits, compliance reviews, and 
roadside inspections, than would otherwise exist. Under the IFR, 
Federal or State employees will have to complete a minimum number of 
safety activities (safety audits, compliance reviews, roadside 
inspections) to maintain their certifications. This should ensure 
consistency in the quality of the reviews and inspections, and thereby 
increase the likelihood that enforcement officials identify unsafe 
motor carriers, drivers, and vehicles during safety activities. The 
ultimate result should be a reduction in crashes, injuries and 
fatalities. (See OMCHS Safety Program Performance Measures: Assessment 
of Initial Models and Plans for Second Generation Models, 1999, for an 
analysis of the safety impact of compliance reviews. A copy of this 
analysis is available in the docket described above under ADDRESSES).

Regulatory Flexibility Act

    In compliance with the Regulatory Flexibility Act (5 U.S.C. 601-
612), the FMCSA has considered the effects of this regulatory action on 
small entities. This rule is directed at certifying federal and state 
safety auditors, investigators, and inspectors. Federal and State 
employees who currently conduct compliance reviews and safety 
inspections will not have to undergo any additional training to comply 
with this rule. Therefore, we have determined that there would be 
minimal or no economic impact on motor carriers, including small 
entities. We therefore certify that it would not have a significant 
impact on a substantial number of small entities.

Executive Order 12988 (Civil Justice Reform)

    This action meets applicable standards in sections 3(a) and 3(b)(2) 
of Executive Order 12988, Civil Justice Reform, to minimize litigation, 
eliminate ambiguity, and reduce burden.

Executive Order 13045 (Protection of Children)

    We have analyzed this rule under E.O. 13045, ``Protection of 
Children from Environmental Health Risks and Safety Risks.'' This rule 
is not economically significant and does not concern an environmental 
risk to health or safety that would disproportionately affect children.

Executive Order 12630 (Taking of Private Property)

    This rule will not effect a taking of private property or otherwise 
have taking implications under Executive Order 12630, Governmental 
Actions and Interference with Constitutionally Protected Property 
Rights.

Executive Order 13132 (Federalism)

    This action has been analyzed in accordance with the principles and 
criteria contained in Executive Order 13132 dated August 4, 1999, and 
it has been determined that this action does not have substantial 
direct Federalism implications that would limit the policymaking 
discretion of the States. Nothing in this document directly preempts 
any State law or regulation. It will not impose additional costs or 
burdens on the States. This action will not have a significant effect 
on the States' ability to execute traditional State governmental 
functions.

Executive Order 12372 (Intergovernmental Review)

    Catalog of Federal Domestic Assistance Program Number 20.217, Motor 
Carrier Safety. The regulations implementing Executive Order 12372 
regarding intergovernmental consultation on Federal programs and 
activities do not apply to this program.

Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-
3520), Federal agencies must obtain approval from the Office of 
Management and Budget for each collection of information they conduct, 
sponsor, or require through regulations. The FMCSA has determined that 
this proposal does not contain new collection of information 
requirements for the purpose of the PRA.

National Environmental Policy Act

    The Federal Motor Carrier Safety Administration (FMCSA) is a new 
administration within the Department of Transportation (DOT). The FMCSA 
is currently developing an agency order that will comply with all 
statutory and regulatory policies under the National Environmental 
Policy Act of 1969 (42 U.S.C. 4321 et seq.). We expect the draft FMCSA 
Order to appear in the Federal Register for public comment in the near 
future. The framework of the FMCSA Order is consistent with and 
reflects the procedures for considering environmental impacts under DOT 
Order 5610.1C. The FMCSA analyzed this rule under the NEPA and DOT 
Order 5610.1C. We believe it would be among the type of regulations 
that would be categorically excluded from any environmental assessment.

Energy Effects

    We have analyzed this rule under Executive Order 13211, Actions 
Concerning Regulations that Significantly Affect Energy Supply, 
Distribution, or Use. We have determined that it is not a ``significant 
energy action'' under Executive Order 13211 because it is not likely to 
have a significant adverse effect on the supply, distribution, or use 
of energy because it sets standards for personnel who want to serve as 
safety auditors and has no direct relation to energy consumption. The 
Administrator of the Office of Information and Regulatory Affairs has 
not designated it as a significant energy action. Therefore, it does 
not require a

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Statement of Energy Effects under Executive Order 13211.

List of Subjects

49 CFR Part 350

    Highway safety, Motor carriers, and Commercial Motor Carrier Safety 
Assistance Program.

49 CFR Part 385

    Highway safety, Motor carriers, and Safety fitness procedures.

    In consideration of the foregoing, Title 49, Code of Federal 
Regulations, Chapter III, part 350 is amended as set forth below:

    1. The authority citation for Part 350 is revised to read as 
follows:

    Authority: 49 U.S.C. 31100-31104, 31108, 31136, 31140-31141, 
31144, 31148, 31161, 31310-31311, 31502; and 49 CFR 1.73.

    2. Amend Sec. 350.211 by adding (17).


Sec. 350.211  What is the format of the certification required by 
Sec. 350.209?

* * * * *
    (17) The State or a local recipient of MCSAP funds will certify 
that it meets the minimum Federal standards set forth in 49 CFR part 
385, Subpart C, for training and experience of employees performing 
safety audits, compliance reviews, or driver/vehicle roadside 
inspections.

    In consideration of the foregoing, Title 49, Code of Federal 
Regulations, Chapter III, part 385 is amended as set forth below:

PART 385--SAFETY FITNESS PROCEDURES

    3. The authority citation for Part 385 is revised to read as 
follows:

    Authority: 49 U.S.C. 113, 504, 521(b), 5113, 13901-13905, 31136, 
31144, 31148, and 31502; Section 350 of Public Law 107-87; and 49 
CFR 1.73.

    4. Amend paragraph 2 in the definition of Reviews in Sec. 385.3 to 
read as follows:


Sec. 385.3  Definitions.

    Reviews. For the purposes of this part:
* * * * *
    (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.

    6. Part 385 is amended by adding a new Subpart C to read as 
follows:
Subpart C--Certification of Safety Auditors, Safety Investigators, and 
Safety Inspectors
Sec.
385.201   Who is qualified to perform a review of a motor carrier?
385.203   What are the requirements to obtain and maintain 
certification?
385.205   How can a person who has lost his or her certification be 
re-certified?


Sec. 385.201  Who is qualified to perform a review of a motor carrier?

    (a) An FMCSA employee, or a State or local government employee 
funded through MCSAP, who was qualified to perform a compliance review 
before June 17, 2002, may perform a compliance review, safety audit or 
roadside inspection if he or she complies with Sec. 385.203(b).
    (b) A person who was not qualified to perform a compliance review 
before June 17, 2002, may perform a compliance review, safety audit or 
roadside inspection after complying with the requirements of 
Sec. 385.203(a).


Sec. 385.203  What are the requirements to obtain and maintain 
certification?

    (a) After June 17, 2002, a person who is not qualified under 
Sec. 385.201(a) may not perform a compliance review, safety audit, or 
roadside inspection unless he or she 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). These 
employees must also comply with the maintenance of certification/
qualification requirements of paragraph (b) of this section.
    (b) Maintenance of certification/qualification. A person may not 
perform a compliance review, safety audit, or roadside inspection 
unless he or she meets the quality-control and periodic re-training 
requirements adopted by the 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).
    (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), are also 
available in hard copy from the Office of Professional Development and 
Training, FMCSA, 400 7th Street, SW., Washington, DC 20590.


Sec. 385.205  How can a person who has lost his or her certification be 
re-certified?

    He or she must successfully complete the requirements of 
Sec. 385.203(a) and (b).

    Issued on: March 7, 2002.
Joseph M. Clapp,
Administrator.
[FR Doc. 02-5894 Filed 3-14-02; 8:45 am]
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