
[Federal Register: May 28, 2010 (Volume 75, Number 103)]
[Rules and Regulations]               
[Page 29915-29917]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28my10-13]                         

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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Part 389

[Docket No. FMCSA-2009-0354]
RIN 2126-AB23

 
Direct Final Rulemaking Procedures

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION: Final rule.

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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, 
(202) 366-8092.

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

[[Page 29916]]

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.

0
For the reasons set forth in the preamble, FMCSA amends 49 CFR Part 389 
as follows:

PART 389--[AMENDED]

0
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


0
2. Section 389.11 is revised to read as follows:


Sec.  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.


0
3. Add new Sec.  389.39 to read as follows:


Sec.  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

[[Page 29917]]

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.
[FR Doc. 2010-12834 Filed 5-27-10; 8:45 am]
BILLING CODE 4910-EX-P

