[Federal Register Volume 75, Number 51 (Wednesday, March 17, 2010)]
[Proposed Rules]
[Pages 12720-12722]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-5737]


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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: Notice of proposed rulemaking.

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SUMMARY: FMCSA proposes to amend its regulations by establishing direct 
final rulemaking procedures for use on noncontroversial rules. Under 
these procedures, FMCSA would make regulatory changes that would 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), received by 
the date specified in the direct final rule. These new procedures would 
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 would not use the 
direct final rule procedures for complex or controversial issues.

DATES: You must submit comments on or before April 16, 2010.

ADDRESSES: You may submit comments identified by the Federal Docket 
Management System Number in the heading of this document by any of the 
following methods. Do not submit the same comments by more than one 
method. However, to allow effective public participation before the 
comment period deadline, the Agency encourages use of the Web site that 
is listed first. It will provide the most efficient and timely method 
of receiving and processing your comments.
     Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting 
comments.
     Fax: 1-202-493-2251.
     Mail: Docket Management Facility, U.S. Department of 
Transportation, Room W12-140, 1200 New Jersey Avenue, SE., Washington, 
DC 20590-0001.
     Hand Delivery: Ground Floor, Room W12-140, 1200 New Jersey 
Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., e.t., Monday 
through Friday, except Federal holidays.
    Instructions: All submissions must include the Agency name and 
docket number for this regulatory action. Note that all comments 
received will be posted without change to http://www.regulations.gov, 
including any personal information provided. Refer to the Privacy Act 
heading on http://www.regulations.gov for further information.
    Public Participation: The regulations.gov system is generally 
available 24 hours each day, 365 days each year. You can find 
electronic submission and retrieval help and guidelines under the 
``help'' section of the Web site. For notification that FMCSA received 
the comments, please include a self-addressed, stamped envelope or 
postcard, or print the acknowledgement page that appears after 
submitting comments on line. Copies or abstracts of all documents 
referenced in this notice are in the docket: FMCSA-2009-0354. For 
access to the docket to read background documents or comments received, 
go to http://www.regulations.gov at any time or to Room W12-140, 1200 
New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., 
e.t., Monday through Friday, except Federal holidays. All comments 
received before the close of business on the comment closing date 
indicated above will be considered and will be available for 
examination in the docket at the above address. Comments received after 
the comment closing date will be filed in the docket and will be 
considered to the extent practicable. In addition to late comments, 
FMCSA will also continue to file relevant information in the docket as 
it becomes available after the comment period closing date, and 
interested persons should continue to examine the docket for new 
material.

FOR FURTHER INFORMATION CONTACT: Please 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 would be more efficient in using 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 (OST) 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

    FMCSA would determine whether a particular rulemaking is 
noncontroversial and unlikely to result in adverse comments based on 
its experience with similar rules that it previously proposed and 
published without receiving adverse comments. Adverse comments are 
those comments that are critical of the rule, suggest that the rule 
should not be adopted, or suggest a change to the rule. 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 would not be considered adverse.
    After making the determination that a rule would be appropriate for 
direct

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final rulemaking, FMCSA would publish the rule as a direct final rule 
in the Federal Register. The document would state in the preamble that 
FMCSA does not anticipate adverse comments and that unless it receives 
written adverse comments or written notice of intent to submit adverse 
comments, the rule would become effective a specified number of days 
after the date it is published in the Federal Register. If FMCSA 
receives adverse comments, or receives notice of intent to file adverse 
comments by the date specified in the direct final rule, it would 
publish a rule in the Federal Register withdrawing the direct final 
rule before it goes into effect. FMCSA may then publish a notice of 
proposed rulemaking with a new comment period if the Agency decides to 
go forward with the rulemaking.
    If no adverse comments or written notice of intent to submit 
adverse comments are received by the date specified in the direct final 
rule, FMCSA would publish a rule in the Federal Register stating that 
it did not receive any adverse comments and confirming the effective 
date of the rule.
    Direct final rulemaking may be appropriate for noncontroversial 
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 procedures of FMCSA such as filing requirements and rules 
governing inspection and copying of documents; (4) update existing 
forms; (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. FMCSA may also use direct final 
rulemaking for a particular rule if similar rules had been previously 
proposed and published without adverse comment. Even if a rulemaking 
falls into one of the above categories, if adverse comments are 
anticipated, FMCSA would not use the direct final rule process. The 
additional time and resources expended to withdraw the rule and 
republish it for comment will serve as an incentive for the Agency to 
make careful determinations as to whether this procedure is 
appropriate.

Regulatory Analyses and Notices

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

Paperwork Reduction Act

    This proposed 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 proposed 
rulemaking.

Environment

    FMCSA considered the environmental impacts of this proposed 
rulemaking 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 website listed under ADDRESSES.

List of Subjects in 49 CFR Part 389

    Rulemaking procedures.

    For the reasons set forth in the preamble, FMCSA proposes to amend 
49 CFR part 389 as follows:

PART 389--[AMENDED]

    1. The authority citation for 49 CFR part 389 is amended 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:


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.
    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 s 
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;
    (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, in addition to the 
change in the direct final rule at issue, unless the commenter states 
that the direct final rule would 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.

[[Page 12722]]

    (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: March 10, 2010.
Anne S. Ferro,
Administrator.
[FR Doc. 2010-5737 Filed 3-16-10; 8:45 am]
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