2010-12834. Direct Final Rulemaking Procedures

AGENCY:

Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION:

Final rule.

SUMMARY:

FMCSA amends its regulations by establishing direct final rulemaking procedures for use on routine or noncontroversial rules. Under these procedures, FMCSA will make regulatory changes that will become effective a specified number of days after the date of publication in the Federal Register, unless FMCSA receives written adverse comment(s) or written notice of intent to submit adverse comment(s) by the date specified in the direct final rule. These new procedures will expedite the promulgation of routine or noncontroversial rules by reducing the time and resources necessary to develop, review, clear, and publish separate proposed and final rules. FMCSA will not use the direct final rule procedures for complex or controversial issues.

DATES:

Effective Date: May 28, 2010.

ADDRESSES:

Docket: For access to the docket to read background documents including those referenced in this document, or to read comments received, go to http://www.regulations.gov by searching Docket ID number FMCSA 2009-0354 at any time or to the ground floor, room W12-140, DOT Building, 1200 New Jersey Avenue, SE., Washington, DC, 20590, between 9 a.m. and 5 p.m. e.t., Monday through Friday, except Federal holidays.

Privacy Act: Anyone is able to search the electronic form for all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review U.S. Department of Transportation's (DOT) complete Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19476) or you may visit http://dms.dot.gov.

FOR FURTHER INFORMATION CONTACT:

Mr. Bivan R. Patnaik, Chief, Regulatory Development Division, Federal Motor Carrier Safety Administration, 1200 New Jersey Avenue, SE., Washington, DC 20590, [phone].

SUPPLEMENTARY INFORMATION:

Background

The Administrative Procedure Act (APA) (5 U.S.C. 553) specifically provides that notice and comment rulemaking procedures are not required where the Agency determines that there is good cause to dispense with them. Generally, good cause exists where the procedures are impracticable, unnecessary, or contrary to the public interest. 5 U.S.C. 553(b)(B). FMCSA proposes to use direct final rulemaking to streamline the rulemaking process where the rule is noncontroversial and the Agency does not expect adverse comment.

Direct final rulemaking will make more efficient use of FMCSA resources by reducing the time and resources necessary to develop, review, clear, and publish separate proposed and final rules for rules the Agency expects to be noncontroversial and unlikely to result in adverse public comment. A number of Federal agencies use this process, including various Department of Transportation operating administrations. For example, on January 30, 2004, the Office of the Secretary of Transportation published a final rule adopting direct final rule procedures (69 FR 4455) and the Federal Railroad Administration published a final rule adopting direct final rule procedures on March 7, 2007 (72 FR 10086).

Direct Final Rule Procedures Notice of Proposed Rulemaking (NPRM)

FMCSA proposed direct final rulemaking procedures in an NPRM published on March 17, 2010, in the Federal Register (75 FR 12720). The NPRM described the process of how FMCSA will determine whether a particular rulemaking is noncontroversial and unlikely to result in adverse comments. The NPRM also described how FMCSA determines whether a comment is adverse or not.

Discussion of Comments Received on the NPRM

FMCSA provided a 30-day comment period that ended on April 16, 2010. In response, the Agency received three comments and one question on the NPRM.

The Commercial Vehicle Safety Alliance, Advocates for Highway and Auto Safety (Advocates), and the American Trucking Associations submitted comments supporting the direct final rule procedures that were proposed in the NPRM. Advocates additionally stated that FMCSA should not use direct final rule procedures on safety-related rules, as these rules should be considered controversial and subject to full public notice and comment proceedings. They further maintain that FMCSA's granting of applications for waivers and two-year exemptions, under 49 U.S.C. 31315(a) and (b), and the renewal of such exemptions, should always be treated as controversial and subject to full public notice and comment procedures. As stated in the NPRM, FMCSA will use the direct final rule process for routine and noncontroversial rules. In the event that FMCSA publishes a direct final rule on an action that proves to be controversial, the public will have sufficient time and opportunity to submit adverse comments, or submit notices of intent to file adverse comments by the date specified in the direct final rule. If this occurs, FMCSA will publish a notice in the Federal Register withdrawing the direct final rule before it goes into effect.

Arkema Incorporated inquired about the number of days FMCSA is considering for a direct final rule to become effective after the date of publication in the Federal Register. As FMCSA intends to use the direct final rule process for routine and noncontroversial rules, the Agency will typically use 60 days after the date of publication in the Federal Register for the direct final rule to go into effect and 30 days after the date of publication in the Federal Register for the submission of adverse comments or notices of intent to submit adverse comments. FMCSA has the discretion to use a longer time period for a direct final rule to go into effect and a longer period for the submission of adverse comments if the Agency determines that it is necessary. If FMCSA receives adverse comments, or receives notice of intent to file adverse comments by the date specified in the direct final rule, it will publish a notice in the Federal Register withdrawing the direct final rule before it goes into effect.

Regulatory Analyses and Notices

FMCSA has determined that this action is not a significant regulatory action under Executive Order 12866 or under DOT's Regulatory Policies and Procedures. There are no costs associated with the final rule. There will be some cost savings in Federal Register publication costs and may be savings in efficiencies for the public and FMCSA personnel in eliminating duplicative reviews. I certify that this rule will not have a significant impact on a substantial number of small entities. Finally, FMCSA states that there are no Federalism implications.

Paperwork Reduction Act

This rulemaking contains no information collection requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

Unfunded Mandates Reform Act

FMCSA has determined that the requirements of Title II of the Unfunded Mandates Act of 1995 do not apply to this final rule.

Environment

FMCSA considered the environmental impacts of this final rule under the National Environmental Policy Act of 1969, and determined it is categorically excluded from further environmental analysis under FMCSA Order 5610.1 paragraph 6.x of Appendix 2. FMCSA Order 5610.1 was published on March 1, 2004 (69 FR 9680). A Categorical Exclusion Determination is available for inspection or copying in the regulations.gov Web site listed under ADDRESSES.

List of Subjects in 49 CFR Part 389

• Rulemaking procedures

For the reasons set forth in the preamble, FMCSA amends 49 CFR Part 389 as follows:

PART 389—[AMENDED]

1. The authority citation for 49 CFR part 389 is revised to read as follows:

Authority: 49 U.S.C. 113, 501 et seq., subchapters I and III of chapter 311, chapter 313, and 31502; 42 U.S.C 4917; and 49 CFR 1.73

2. Section 389.11 is revised to read as follows:

§ 389.11

General.

Except as provided in § 389.39, Direct final rulemaking procedures, unless the Administrator, for good cause, finds a rule is impractical, unnecessary, or contrary to the public interest, and incorporates such a finding and a brief statement for the reason for it in the rule, a notice of proposed rulemaking must be issued, and interested persons are invited to participate in the rulemaking proceedings involving rules under an Act.

3. Add new § 389.39 to read as follows:

§ 389.39

Direct final rulemaking procedures

A direct final rule makes regulatory changes and states that those changes will take effect on a specified date unless FMCSA receives an adverse comment or notice of intent to file an adverse comment by the date specified in the direct final rule published in the Federal Register.

(a) Types of actions appropriate for direct final rulemaking. Rules that the Administrator determines to be non-controversial and unlikely to result in adverse public comments may be published in the final rule section of the Federal Register as direct final rules. These include non-controversial rules that:

(1) Make non-substantive clarifications or corrections to existing rules;

(2) Incorporate by reference the latest or otherwise updated versions of technical or industry standards;

(3) Affect internal FMCSA procedures such as filing requirements and rules governing inspection and copying of documents;

(4) Update existing forms; and

(5) Make minor changes to rules regarding statistics and reporting requirements, such as a change in reporting period (for example, from quarterly to annually) or eliminating a type of data collection no longer necessary.

(b) Adverse comment. An adverse comment is a comment that FMCSA judges to be critical of the rule, to suggest that the rule should not be adopted, or to suggest that a change should be made to the rule. Under the direct final rule process, FMCSA does not consider the following types of comments to be adverse:

(1) Comments recommending another rule change, unless the commenter states that the direct final rule will be ineffective without the change;

(2) Comments outside the scope of the rule and comments suggesting that the rule's policy or requirements should or should not be extended to other Agency programs outside the scope of the rule;

(3) Comments in support of the rule; or

(4) Comments requesting clarification.

(c) Confirmation of effective date. FMCSA will publish a confirmation rule document in the Federal Register, if it has not received an adverse comment or notice of intent to file an adverse comment by the date specified in the direct final rule. The confirmation rule document tells the public the effective date of the rule.

(d) Withdrawal of a direct final rule.

(1) If FMCSA receives an adverse comment or a notice of intent to file an adverse comment within the comment period, it will publish a rule document in the Federal Register, before the effective date of the direct final rule, advising the public and withdrawing the direct final rule.

(2) If FMCSA withdraws a direct final rule because of an adverse comment, the Agency may issue a notice of proposed rulemaking if it decides to pursue the rulemaking.

Issued on: May 24, 2010.

Anne S. Ferro,

Administrator.