May 28, 2010 (Volume 75, Number 103)]
[Rules and Regulations]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
49 CFR Part 389
[Docket No. FMCSA-2009-0354]
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
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://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&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
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://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=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,
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
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.
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
For the reasons set forth in the preamble, FMCSA amends 49 CFR Part 389
1. The authority citation for 49 CFR part 389 is revised to read as
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 Sec. 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
(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:
Make non-substantive clarifications or corrections to existing
Incorporate by reference the latest or otherwise updated
versions of technical or industry standards;
Affect internal FMCSA procedures such as filing requirements
and rules governing inspection and copying of documents;
Update existing forms; and
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
(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
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:
Comments recommending another rule change, unless the commenter
states that the direct final rule will be ineffective without the
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;
Comments in support of the rule; or
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
(d) Withdrawal of a direct final rule.
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
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.
[FR Doc. 2010-12834 Filed 5-27-10; 8:45 am]
BILLING CODE 4910-EX-P