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Federal Register / Vol. 86, No. 164 / Friday, August 27, 2021 / Rules and Regulations II. Executive Summary
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A. Summary of the Regulatory Action
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 FMCSAs 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 FMCSAs certification policy. Therefore, it is no longer necessary to incorporate FMCSAs certification policy. While minor changes will be made in FMCSAs certification policy to conform cross references to the CVSA policy, no substantive changes will be made to FMCSAs policy or the certification requirements. FMCSAs policy addresses certification requirements to conduct safety audits and investigations, and supplements the provisions of CVSAs 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 FMCSAs 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.

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. CVSAs 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 FMCSAs 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 CVSAs 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 COVID19 National emergency. Specific changes are addressed in connection with CVSAs 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 CVSAs 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
FMCSAs 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. 31148a. 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
1 FMCSA uses the term driver or vehicle inspection in lieu of the term roadside inspection, recognizing that these inspections are not necessarily conducted at roadside.

2 Public Law 106159, 113 Stat. 1748, 176566
Dec. 9, 1999, codified at 49 U.S.C. 31148.
3 Public Law 11494, 129 Stat. 1312, 1537 Dec.
4, 2015, note following 49 U.S.C. 31148.

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B. Costs and Benefits There are neither costs nor benefits associated with this rule.
III. Legal Basis for the Rulemaking
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conducted by individuals certified under the regulations 49 U.S.C.
31148b. 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.
31148a and d. Finally, the statute grants the Secretary authority over certified safety auditors, including the authority to withdraw their certification 49 U.S.C. 31148e. On March 19, 2002, FMCSA issued an IFR
implementing this statutory provision 67 FR 12776.
Section 5205 of the FAST Act requires FMCSAs 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.
553b3B. 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.
553d3, 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 COVID19 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 COVID19 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
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