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Federal Register / Vol. 86, No. 164 / Friday, August 27, 2021 / Rules and Regulations
April 29, 2021 revision are again minor.
Specific changes made in each revision are addressed in Section V, below.
During the COVID19 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 COIVD19 National emergency is outside the Agencys 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 COVID19 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 CVSAs certification standards, the Agency is performing nondiscretionary, ministerial acts in accommodating CVSAs 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 CVSAs 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.

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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 FMCSAs 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 CVSAs Operational Policy 4: Inspector Training and Certification, which, at the time, was Attachment A
of FMCSAs 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 CVSAs 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 COVID19 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 CVSAs Operational Policy 4: Inspector 4 Public Law 11494, 129 Stat. 1312, 1537 Dec.
4, 2015, note following 49 U.S.C. 31148.

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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 jurisdictions representative responsible for training coordination. If the jurisdictions representative receives a request from outside the jurisdiction, the representative must ensure that the requesters jurisdictional representative for training coordination has granted permission. The purpose of the addition is to ensure that agencies go through a jurisdictions 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 an emergency situation that has been declared by a federal, state, provincial, territorial or local government authority 5 This document is also available at the locations referenced in 49 CFR 385.4, as adopted in this rule, and in the docket for this rulemaking.
6 This document is available in the docket for this rulemaking, https www.regulations.gov/
document?D=FMCSA-2019-0081-0006.
7 This document is available in the docket for this rulemaking, https www.regulations.gov/
document?D=FMCSA-2019-0081-0009 and https
www.regulations.gov/document?D=FMCSA-20190081-0008.

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