[Federal Register: March 19, 2002 (Volume 67, Number 53)]
[Rules and Regulations]
[Page 12775-12779]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19mr02-24]
[[Page 12775]]
-----------------------------------------------------------------------
Part V
Department of Transportation
-----------------------------------------------------------------------
Federal Motor Carrier Safety Administration
-----------------------------------------------------------------------
49 CFR Parts 350 and 385
Certification of Safety Auditors, Safety Investigators, and Safety
Inspectors; Final Rule
[[Page 12776]]
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=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://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=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
[[Page 12777]]
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 (http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://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 (http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://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
[[Page 12778]]
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
[[Page 12779]]
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 (http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://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 (http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://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 (http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://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]
BILLING CODE 4910-EX-P