The Crittenden Automotive Library

Rulemaking Procedures Update

Rulemaking Procedures Update

Daphne Y. Jefferson
Federal Motor Carrier Safety Administration
7 August 2017

[Federal Register Volume 82, Number 150 (Monday, August 7, 2017)]
[Proposed Rules]
[Pages 36719-36724]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-16452]

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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Part 389

[Docket No. FMCSA-2016-0341]
RIN 2126-AB96

Rulemaking Procedures Update

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

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: FMCSA proposes to amend its rulemaking procedures by revising
the process for preparing and adopting rules, petitions, and direct
final rules. Also, the Agency adds new definitions, and makes general
administrative corrections throughout its rulemaking procedures. These
proposed actions are authorized under the Fixing America's Surface
Transportation (FAST) Act and the Administrative Procedure Act (APA).

DATES: Comments on this document must be received on or before October
6, 2017.

ADDRESSES: You may submit comments identified by Docket Number FMCSA-
2016-0341 using any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the online instructions for submitting comments.
Mail: Docket Management Facility, U.S. Department of
Transportation, 1200 New Jersey Avenue SE., West Building, Ground
Floor, Room W12-140, Washington, DC 20590-0001.
Hand Delivery or Courier: West Building, Ground Floor,
Room W12-140, 1200 New Jersey Avenue SE., Washington, DC, between 9
a.m. and 5 p.m., Monday through Friday, except Federal holidays.
Fax: 202-493-2251.
To avoid duplication, please use only one of these four methods.
See the ``Public Participation and Request for Comments'' portion of
the SUPPLEMENTARY INFORMATION section for instructions on submitting
comments.

FOR FURTHER INFORMATION CONTACT: Mr. Bivan R. Patnaik, Chief,
Regulatory Development Division, Federal Motor Carrier Safety
Administration, 1200 New Jersey Avenue SE., Washington, DC 20590-0001
or by telephone at 202-366-8092 or Bivan.Patnaik@dot.gov. If you have
questions on viewing or submitting material to the docket, contact
Docket Services, telephone (202) 366-9826.

SUPPLEMENTARY INFORMATION: This NPRM is organized as follows:

I. Public Participation and Request for Comments
A. Submitting Comments
B. Viewing Comments and Documents
C. Privacy Act
D. Waiver of Advance Notice of Proposed Rulemaking
II. Legal Basis for the Rulemaking
III. Discussion of Proposed Rulemaking
IV. International Impacts
V. Section-by-Section Analysis
VI. Regulatory Analyses
A. E.O. 12866 (Regulatory Planning and Review and DOT Regulatory
Policies and Procedures as Supplemented by E.O. 13563)
B. Regulatory Flexibility Act (Small Entities)
C. Assistance for Small Entities
D. Unfunded Mandates Reform Act of 1995
E. Paperwork Reduction Act (Collection of Information)
F. E.O. 13132 (Federalism)
G. E.O. 12988 (Civil Justice Reform)
H. E.O. 13045 (Protection of Children)
I. E.O. 12630 (Taking of Private Property)
J. Privacy
K. E.O. 12372 (Intergovermental Review)
L. E.O. 13211 (Energy Supply, Distribution, or Use)
M. E.O. 13175 (Indian Tribal Governments)
N. National Technology Transfer and Advancement Act (Technical
Standards)
O. Environment (NEPA, CAA, Environmental Justice)

I. Public Participation and Request for Comments

A. Submitting Comments

If you submit a comment, please include the docket number for this
NPRM (Docket No. FMCSA-2016-0341), indicate the specific section of
this document to which each section of your comment applies, and
provide a reason for each suggestion or recommendation. You may submit
your comments and material online or by fax, mail, or hand delivery,
but please use only one of these means. FMCSA recommends that you
include your name and a mailing address, an email address, or a phone
number in the body of your document so that FMCSA can contact you if
there are questions regarding your submission.
To submit your comment online, go to http://www.regulations.gov,
put the docket number, FMCSA-2016-0341, in the keyword box, and click
``Search.'' When the new screen appears, click on the ``Comment Now!''
button and type your comment into the text box on the following screen.
Choose whether you are submitting your comment as an individual or on
behalf of a third party and then submit.
If you submit your comments by mail or hand delivery, submit them
in an unbound format, no larger than 8\1/2\ by 11 inches, suitable for
copying and electronic filing. If you submit comments by mail and would
like to know that they reached the facility, please enclose a stamped,
self-addressed postcard or envelope.
FMCSA will consider all comments and material received during the
comment period and may change this proposed rule based on your
comments. FMCSA may issue a final rule at any time after the close of
the comment period.

[[Page 36720]]

B. Viewing Comments and Documents

To view comments, as well as any documents mentioned in this
preamble as being available in the docket, go to http://www.regulations.gov. Insert the docket number, FMCSA-2016-0341, in the
keyword box, and click ``Search.'' Next, click the ``Open Docket
Folder'' button and choose the document to review. If you do not have
access to the Internet, you may view the docket online by visiting the
Docket Management Facility in Room W12-140 on the ground floor of the
DOT West Building, 1200 New Jersey Avenue SE., Washington, DC 20590,
between 9 a.m. and 5 p.m., Monday through Friday, except Federal
holidays.

C. Privacy Act

In accordance with 5 U.S.C. 553(c), DOT solicits comments from the
public to better inform its rulemaking process. DOT posts these
comments, without edit, including any personal information the
commenter provides, to www.regulations.gov, as described in the system
of records notice (DOT/ALL-14 FDMS), which can be reviewed at
www.dot.gov/privacy.

D. Waiver of Advance Notice of Proposed Rulemaking

Under section 5202 of the FAST Act (Pub. L. 114-94, 129 Stat. 1312,
1534, December 4, 2015; 49 U.S.C. 31136(g)), if a proposed rule
regarding commercial motor vehicle safety is likely to lead to the
promulgation of a major rule, FMCSA is required to publish an advance
notice of proposed rulemaking (ANPRM), or proceed with a negotiated
rulemaking, unless the Agency finds good cause that both would be
impracticable, unnecessary, or contrary to the public interest. As
today's NPRM is not proposing any requirements regarding commercial
motor vehicle safety and would not lead to promulgation of a major
rule, FMCSA finds that publication of an ANPRM or proceeding with a
negotiated rulemaking are unnecessary and contrary to the public
interest in this case.

II. Legal Basis for the Rulemaking

The FAST Act requires FMCSA to address its rulemaking and petitions
procedures. Specifically, section 5202 provides requirements for the
Agency to follow regarding the development of proposed rulemakings [49
U.S.C. 31136(f)-(h)]. Section 5204 also directs the Agency to be more
transparent to the public regarding how FMCSA prioritizes and defines
petitions.
The APA (5 U.S.C. 551-706) established procedures for all Federal
agencies to use in developing rules and regulations. It also
established the standards that allow the public to participate in a
rulemaking as well as the opportunity to petition the Federal
government for the issuance, amendment, or repeal or a rule. The APA
authorizes those proposed changes to Part 389, beyond what is required
by the FAST Act.

III. Discussion of Proposed Rulemaking

FMCSA proposes several changes to the regulatory procedural
requirements found in 49 CFR part 389. These changes fall into the
three general categories outlined below, and are explained in further
detail in the section-by-section analysis.

A. Advance Rulemaking Procedures Required

FMCSA proposes new rulemaking provisions required by the FAST Act
where the Agency must consider undertaking a negotiated rulemaking or
an ANPRM for all major rules regarding commercial motor vehicle safety.
However, the FAST Act allows the Administrator to waive this
requirement in instances where those tools would be impracticable,
unnecessary, or contrary to the public interest. Additionally, the NPRM
proposes a definition of a ``major rule'' as defined in the
Congressional Review Act (5 U.S.C. 801). FMCSA would use this
definition to determine whether an ANPRM or negotiated rulemaking
process is necessary.

B. Definition and Processing of a Petition

Under the current FMSA regulations (49 CFR part 389) for submitting
petitions, there is no regulatory definition of a petition. However,
section 5204 of the FAST Act clearly defines the term ``petition.'' It
includes requests for: A new regulation; a regulatory interpretation or
clarification; or a determination by FMCSA that a regulation should be
modified or eliminated for one of several enumerated reasons prescribed
in section 5204. FMCSA proposes to include this definition in part 389.
Additionally, under this proposal, part 389 would be revised to
include a new process for filing and addressing petitions. These
changes are being proposed in order to clarify FMCSA's procedures for
rulemaking, and to make editorial changes.
Finally, FMCSA proposes to define what ``written or in writing''
means to include electronic documentation.

C. Direct Final Rulemaking Procedures

Under FMCSA's current direct final rulemaking (DFR) procedures, if
the Agency receives a notice of intent (NOI) to file an adverse
comment, the DFR will be withdrawn, even if the comment that is
eventually filed does not meet the definition of an adverse comment
found in 49 CFR 389.39(b). FMCSA proposes to change this requirement.
Upon receiving an NOI to file an adverse comment, the Agency would
extend the comment period rather than withdraw the DFR, allowing the
commenter additional time to file. Once FMCSA receives the comment, the
Agency would determine whether it is adverse. If it is an adverse
comment, FMCSA would withdraw the DFR; however, if it does not meet the
definition in Sec. 389.39(b), the Agency would move forward with the
DFR. If the same or another commenter submits an NOI at the end of the
extended comment period, FMCSA will determine, on a case-by-case basis,
whether to extend the comment period again, withdraw the DFR, or
proceed with the DFR using only the comments already received.

IV. International Impacts

The FMCSRs, and any exceptions to the FMCSRs, apply only within the
United States (and, in some cases, United States territories). Motor
carriers and drivers are subject to the laws and regulations of the
countries that they operate in, unless an international agreement
states otherwise. Drivers and carriers should be aware of the
regulatory differences amongst nations.

V. Section-by-Section Analysis

Throughout part 389, FMCSA would change the term ``rule making'' to
``rulemaking'' for consistency.

Section 389.3 Definitions

FMCSA would add new definitions of ``major rule,'' ``petitions,''
and ``written or in writing'' to Sec. 389.3.

Section 389.13 Initiation of Rulemaking

In Sec. 389.13, FMCSA would redesignate the existing text into
paragraph (a) and would add paragraphs (b)(1) through (b)(3).
Proposed paragraph (b) of section 389.13 and its subparagraphs
include the advanced public participation requirements from section
5202 of the FAST Act.

[[Page 36721]]

Section 389.15 Contents of Notices of Proposed Rulemaking

The title of Sec. 389.15 is changed by removing the space between
``rule'' and ``making.''

Section 389.21 Submission of Written Comments

FMCSA proposes revising Sec. 389.21 to include direction on how
comments should be submitted. The Agency would remove the text
regarding incorporation by reference, as it is not relevant to the
topic of comment submission. FMCSA also proposes renaming the section
heading to ``Submission of written comments'' to reflect this change.

Section 389.29 Adoption of Final Rules

In Sec. 389.29, FMCSA makes minor changes to the text to clarify
the procedure followed when the Agency finalizes a rule.

Section 389.31 Petitions for Rulemaking

In Sec. 389.31(a) the word ``repeal'' would be replaced with
``withdraw'' to more accurately describe the removal of a regulation.
In paragraph (b)(1) the word ``duplicate'' would be replaced with
``writing'' to make use of and follow the definition of this term,
proposed in Sec. 389.3. This proposed change would also reflect that
the Agency no longer requires duplicate submissions.

Section 389.39 Direct Final Rulemaking Procedures

In Sec. 389.39, FMCSA would remove language regarding the
withdrawal of a DFR if the Agency receives an NOI to submit an adverse
comment. Upon receipt of an NOI, the Agency would extend the comment
period to give the submitter additional time to file the comment. Once
submitted, the comment would be reviewed to determine if it is an
adverse comment, and proceed according to the results of that analysis
(either to withdraw the DFR if the comment is adverse, or to move
forward with the DFR if it is not).

VI. Regulatory Analyses

A. E.O. 12866 (Regulatory Planning and Review and DOT Regulatory
Policies and Procedures as Supplemented by E.O. 13563)

This NPRM is not a significant regulatory action under section 3(f)
of Executive Order 12866, Regulatory Planning and Review, as
supplemented by E.O. 13563 (76 FR 3821, January 21, 2011), and is also
not significant within the meaning of DOT regulatory policies and
procedures (DOT Order 2100.5 dated May 22, 1980; 44 FR 11034, February
26, 1979) and does not require an assessment of potential costs and
benefits under section 6(a)(3) of that Order. The Office of Management
and Budget has not reviewed it under that Order.
This rule is procedural in nature, primarily impacting FMCSA's
process for promulgation of regulations. As a result, there would be no
costs associated with this NPRM.

B. Regulatory Flexibility Act (Small Entities)

The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.)
requires Federal agencies to consider the effects of the regulatory
action on small business and other small entities and to minimize any
significant economic impact. The term ``small entities'' comprises
small businesses and not-for-profit organizations that are
independently owned and operated and are not dominant in their fields,
and governmental jurisdictions with populations of less than 50,000.\1\
Accordingly, DOT policy requires an analysis of the impact of all
regulations on small entities, and mandates that agencies strive to
lessen any adverse effects on these businesses.
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\1\ Regulatory Flexibility Act (5 U.S.C. 601 et seq.) see
National Archives at http://www.archives.gov/federal-register/laws/regulaotry-flexibility/601.html.
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FMCSA does not expect this NPRM to have a significant economic
impact on a substantial number of small entities. Consequently, I
certify that the action would not have a significant economic impact on
a substantial number of small entities. FMCSA invites comment from
members of the public who believe there will be a significant impact
either on small businesses or on governmental jurisdictions with a
population of less than 50,000.

C. Assistance for Small Entities

In accordance with section 213(a) of the Small Business Regulatory
Enforcement Fairness Act of 1996, FMCSA wants to assist small entities
in understanding this NPRM so that they can better evaluate its effects
on themselves and participate in the rulemaking initiative. If the NPRM
will affect your small business, organization, or governmental
jurisdiction and you have questions concerning its provisions or
options for compliance; please consult the FMCSA point of contact, Mr.
Bivan Patnaik, listed in the FOR FURTHER INFORMATION CONTACT section of
this NPRM.
Small businesses may send comments on the actions of Federal
employees who enforce or otherwise determine compliance with Federal
regulations to the Small Business Administration's Small Business and
Agriculture Regulatory Enforcement Ombudsman and the Regional Small
Business Regulatory Fairness Boards. The Ombudsman evaluates these
actions annually and rates each agency's responsiveness to small
business. If you wish to comment on actions by employees of FMCSA, call
1-888-REG-FAIR (1-888-734-3247). DOT has a policy regarding the rights
of small entities to regulatory enforcement fairness and an explicit
policy against retaliation for exercising these rights.

D. Unfunded Mandates Reform Act of 1995

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538)
requires Federal agencies to assess the effects of their discretionary
regulatory actions. In particular, the Act addresses actions that may
result in the expenditure by a State, local, or tribal government, in
the aggregate, or by the private sector of $156 million (which is the
value equivalent of $100,000,000 in 1995, adjusted for inflation to
2015 levels) or more in any one year. As the proposed rule is
procedural in nature and is not expected to result in any costs at the
societal level, it would likewise not impose costs to State, local, or
tribal governments.

E. Paperwork Reduction Act (Collection of Information)

This NPRM calls for no new collection of information under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

F. E.O. 13132 (Federalism)

A rule has implications for Federalism under Section 1(a) of
Executive Order 13132 if it has ``substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government.'' FMCSA has determined that this NPRM
would not have substantial direct costs on or for States, nor would it
limit the policymaking discretion of States. Nothing in this document
preempts any State law or regulation. Therefore, this NPRM does not
have sufficient Federalism implications to warrant the preparation of a
Federalism Impact Statement.

[[Page 36722]]

G. E.O. 12988 (Civil Justice Reform)

This NPRM meets applicable standards in sections 3(a) and 3(b) (2)
of E.O. 12988, Civil Justice Reform, to minimize litigation, eliminate
ambiguity, and reduce burden.

H. E.O. 13045 (Protection of Children)

E.O. 13045, Protection of Children from Environmental Health Risks
and Safety Risks (62 FR 19885, Apr. 23, 1997), requires agencies
issuing ``economically significant'' rules, if the regulation also
concerns an environmental health or safety risk that an agency has
reason to believe may disproportionately affect children, to include an
evaluation of the regulation's environmental health and safety effects
on children. The Agency determined this NPRM is not economically
significant. Therefore, no analysis of the impacts on children is
required. In any event, the Agency does not anticipate that this
regulatory action would in any respect present an environmental or
safety risk that could disproportionately affect children.

I. E.O. 12630 (Taking of Private Property)

FMCSA reviewed this NPRM in accordance with E.O. 12630,
Governmental Actions and Interference with Constitutionally Protected
Property Rights, and has determined it will not effect a taking of
private property or otherwise have taking implications.

J. Privacy

Section 522 of title I of division H of the Consolidated
Appropriations Act, 2005, enacted December 8, 2004 (Pub. L. 108-447,
118 Stat. 2809, 3268, 5 U.S.C. 552a note), requires the Agency to
conduct a privacy impact assessment (PIA) of a regulation that will
affect the privacy of individuals. This NPRM does not require the
collection of personally identifiable information (PII).
The Privacy Act (5 U.S.C. 552a) applies only to Federal agencies
and any non-Federal agency which receives records contained in a system
of records from a Federal agency for use in a matching program.
The E-Government Act of 2002, Public Law 107-347, 208, 116 Stat.
2899, 2921 (Dec. 17, 2002), requires Federal agencies to conduct PIA
for new or substantially changed technology that collects, maintains,
or disseminates information in an identifiable form.
No new or substantially changed technology would collect, maintain,
or disseminate information as a result of this NPRM. As a result, FMCSA
has not conducted a privacy impact assessment.

K. E.O. 12372 (Intergovernmental Review)

The regulations implementing E.O. 12372 regarding intergovernmental
consultation on Federal programs and activities do not apply to this
NPRM.

L. E.O. 13211 (Energy Supply, Distribution, or Use)

FMCSA has analyzed this NPRM under E.O. 13211, Actions Concerning
Regulations That Significantly Affect Energy Supply, Distribution, or
Use. The Agency has determined that it is not a ``significant energy
action'' under that order because it is not a ``significant regulatory
action'' likely to have a significant adverse effect on the supply,
distribution, or use of energy. Therefore, it does not require a
Statement of Energy Effects under E.O. 13211. 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 Statement
of Energy Effects under Executive Order 13211.

M. E.O. 13175 (Indian Tribal Governments)

This NPRM does not have tribal implications under E.O. 13175,
Consultation and Coordination with Indian Tribal Governments, because
it does not have a substantial direct effect on one or more Indian
tribes, on the relationship between the Federal Government and Indian
tribes, or on the distribution of power and responsibilities between
the Federal Government and Indian tribes.

N. National Technology Transfer and Advancement Act (Technical
Standards)

The National Technology Transfer and Advancement Act (NTTAA) (15
U.S.C. 272 note) directs agencies to use voluntary consensus standards
in their regulatory activities unless the agency provides Congress,
through OMB, with an explanation of why using these standards would be
inconsistent with applicable law or otherwise impractical. Voluntary
consensus standards (e.g., specifications of materials, performance,
design, or operation; test methods; sampling procedures; and related
management systems practices) are standards that are developed or
adopted by voluntary consensus standards bodies. This NPRM does not use
technical standards. Therefore, FMCSA did not consider the use of
voluntary consensus standards.

O. Environment (NEPA, CAA, Environmental Justice)

FMCSA analyzed this rule for the purpose of the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and
determined this action is categorically excluded from further analysis
and documentation in an environmental assessment or environmental
impact statement under FMCSA Order 5610.1 (69 FR 9680, March 1, 2004),
Appendix 2, paragraph 6.x. The Categorical Exclusion (CE) in paragraph
6.x. addresses regulations implementing procedures for the issuance,
amendment, revision and rescission of Federal motor carrier regulations
(e.g., the establishment of procedural rules that would provide general
guidance on how the agency manages its notice-and-comment rulemaking
proceedings, including the handling of petitions for rulemakings,
waivers, exemptions, and reconsiderations, and how it manages
delegations of authority to carry out certain rulemaking functions.).
The content in this rule is covered by this CE and the proposed action
would not have any effect on the quality of the environment. The CE
determination is available for inspection or copying in the Federal
eRulemaking Portal: http://www.regulations.gov.
FMCSA also analyzed this rule under the Clean Air Act, as amended
(CAA), section 176(c) (42 U.S.C. 7401 et seq.), and implementing
regulations promulgated by the Environmental Protection Agency.
Approval of this action is exempt from the CAA's general conformity
requirement since it does not affect direct or indirect emissions of
criteria pollutants.
Under E.O. 12898, each Federal agency must identify and address, as
appropriate, ``disproportionately high and adverse human health or
environmental effects of its programs, policies, and activities on
minority populations and low-income populations'' in the United States,
its possessions, and territories. FMCSA evaluated the environmental
justice effects of this proposed rule in accordance with the E.O., and
has determined that no environmental justice issue is associated with
this proposed rule, nor is there any collective environmental impact
that would result from its promulgation.

List of Subjects in 49 CFR Part 389

Administrative practice and procedure, Highway safety, Motor
carriers, Motor vehicle safety.

[[Page 36723]]

In consideration of the foregoing, FMCSA proposes to amend 49 CFR
chapter III, part 389 to read as follows:

PART 389--RULEMAKING PROCEDURES--FEDERAL MOTOR CARRIER SAFETY
REGULATIONS

0
1. The authority citation for part 389 is revised to read as follows:

Authority: Authority: 49 U.S.C. 113, 501 et seq., subchapters I
and III of chapter 311, chapter 313, and 31502; sec. 5204 of Pub. L.
114-94, 129 Stat. 1312. 1536, 42 U.S.C. 4917; and 49 CFR 1.87.

0
2. Amend Sec. 389.3 by adding definitions of Major rule, Petition, and
Written or in writing in alphabetical order to read as follows:

Sec. 389.3 Definitions.

* * * * *
Major rule means:
(1) Any rule that the Administrator of the Office of Information
and Regulatory Affairs of the Office of Management and Budget finds has
resulted in or is likely to result in:
(i) An annual effect on the economy of $100,000,000 or more;
(ii) A major increase in costs or prices for consumers, individual
industries, Federal, State, or local government agencies, or geographic
regions; or
(iii) Significant adverse effects on competition, employment,
investment, productivity, innovation, or on the ability of United
States-based enterprises to compete with foreign-based enterprises in
domestic and export markets.
(2) The term does not include any rule promulgated under the
Telecommunications Act of 1996 and the amendments made by that Act.
Petition means a request for:
(1) A new regulation;
(2) A regulatory interpretation or clarification; or
(3) A determination made by the Administrator that a regulation
should be modified or eliminated because it is:
(i) No longer:
(A) Consistent and clear;
(B) Current with the operational realities of the motor carrier
industry; or
(C) Uniformly enforced.
(ii) Ineffective; or
(iii) Overly burdensome.
Written or in writing means printed, handwritten, typewritten
either on paper or other tangible medium, or by any method of
electronic documentation such as electronic mail.

Sec. 389.7 [Amended]

0
3. Amend Sec. 389.7 by removing the term ``rule making'' and add the
term ``rulemaking'' in its place.
0
4. Revise Sec. 389.13 to read as follows:

Sec. 389.13 Initiation of rulemaking

(a) The Administrator initiates rulemaking on his/her own motion.
However, in so doing, he/she may, in his/her discretion, consider the
recommendations of his/her staff or other agencies of the United States
or of other interested persons.
(b) If a proposed rule regarding commercial motor vehicle safety is
likely to lead to the promulgation of a major rule, the Administrator,
before publishing such proposed rule, shall--
(1) Issue an advance notice of proposed rulemaking that:
(i) Identifies the need for a potential regulatory action;
(ii) Identifies and requests public comment on the best available
science or technical information relevant to analyzing potential
regulatory alternatives;
(iii) Requests public comment on the available data and costs with
respect to regulatory alternatives reasonably likely to be considered
as part of the rulemaking; and
(iv) Requests public comment on available alternatives to
regulation; or
(2) Proceed with a negotiated rulemaking.
(3) This paragraph does not apply to a proposed rule if the
Administrator, for good cause, finds (and incorporates the finding and
a brief statement of reasons for such finding in the proposed or final
rule) that an advance notice of proposed rulemaking is impracticable,
unnecessary, or contrary to the public interest.

Sec. 389.15 [Amended]

0
5. In Sec. 389.15, paragraph (a), remove the term ``rule making'' and
add the term ``rulemaking'' in its place.
0
6. Revise Sec. 389.21 to read as follows:

Sec. 389.21 Submission of written comments.

(a) You may submit comments identified by the docket number
provided in the rulemaking document using any of the following methods.
To avoid duplication, please use only one of these four methods.
(1) Federal eRulemaking Portal: http://www.regulations.gov. Follow
the online instructions for submitting comments.
(2) Mail: Docket Management Facility, U.S. Department of
Transportation, 1200 New Jersey Avenue SE., West Building, Ground
Floor, Room W12-140, Washington, DC 20590-0001.
(3) Hand Delivery or Courier: West Building, Ground Floor, Room
W12-140, 1200 New Jersey Avenue SE., Washington, DC, between 9 a.m. and
5 p.m., Monday through Friday, except Federal holidays.
(4) Fax: 202-493-2251.
(b) All written comments must be submitted in English and include
copies of any material that the commenter refers to within the comment.
0
7. Revise Sec. 389.29 to read as follows:

Sec. 389.29 Adoption of final rules.

Final rules are prepared by representatives from all relevant
offices of FMCSA. The final rule is then submitted to the Administrator
for his/her consideration. If the Administrator adopts the rule, and
once approved by the Office of the Management and Budget, if necessary,
the final rule is published in the Federal Register, unless all persons
subject to the final rule are named and personally served with a copy
of it.
0
8. Revise Sec. 389.31 to read as follows:

Sec. 389.31 Petitions for rulemaking.

(a) Any interested person may petition the Administrator to
establish, amend, or withdraw a rule.
(b) Each petition filed under this section must:
(1) Be submitted in writing to the Administrator, Federal Motor
Carrier Safety Administration, 1200 New Jersey Ave. SE., Washington, DC
20590-0001;
(2) Set forth the text or substance of the rule or amendment
proposed, or specify the rule that the petitioner seeks to have
repealed, as the case may be;
(3) Explain the interest of the petitioner in the action requested;
(4) Contain any information, data, research studies, and arguments
available to the petitioner to support the action sought.
0
9. In Sec. 389.39, redesignate paragraphs (c) and (d) as paragraphs
(d) and (e), respectively, add new paragraph (c), and revise newly
redesignated paragraphs (d) and (e) to read as follows:

Sec. 389.39 Direct final rulemaking procedures.

* * * * *
(c) Extension of comment period. FMCSA will extend the comment
period for a direct final rule if it receives a notice of intent to
submit an adverse comment. Upon receipt of the comment, FMCSA will
determine if it is an adverse comment or not.
(d) Confirmation of effective date. FMCSA will publish a
confirmation rule document in the Federal Register, if it has not
received an adverse comment by the specified date in the direct final
rule or any comment extension document. The confirmation rule document
tells the public the effective date of the rule.
(e) Withdrawal of a direct final rule. (1) If FMCSA receives an
adverse

[[Page 36724]]

comment within the original or extended 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 under authority delegated in 49 CFR 1.87 on: July 31,
2017.
Daphne Y. Jefferson,
Deputy Administrator.
[FR Doc. 2017-16452 Filed 8-4-17; 8:45 am]
BILLING CODE 4910-EX-P