The Crittenden Automotive Library

Rulemaking Procedures Update

Rulemaking Procedures Update

James W. Deck
Federal Motor Carrier Safety Administration
31 December 2020

[Federal Register Volume 85, Number 251 (Thursday, December 31, 2020)]
[Rules and Regulations]
[Pages 86843-86849]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-27854]

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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: Final rule.

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

DATES: This final rule is effective March 1, 2021.
Petitions for Reconsideration of this final rule must be submitted
to the FMCSA Administrator no later than February 1, 2021. You may use
today's amended procedures below in 49 CFR 389.35.

FOR FURTHER INFORMATION CONTACT: Mr. Steven J. LaFreniere, Regulatory
Ombudsman, Federal Motor Carrier Safety Administration, 1200 New Jersey
Avenue SE, Washington, DC 20590-0001, (202) 366-0596,
steven.lafreniere@dot.gov. If you have questions on viewing or
submitting material to the docket, contact Dockets Operations, (202)
366-9826.

SUPPLEMENTARY INFORMATION: This final rule is organized as follows:

I. Rulemaking Documents
A. Availability of Rulemaking Documents
B. Privacy Act
II. Legal Basis for the Rulemaking
III. Discussion of Proposed Rulemaking
IV. Discussion of Comments and Responses
V. International Impacts
VI. Section-By-Section Analysis
VII. Regulatory Analyses
A. Executive Order 12866 Executive Order 12866 (Regulatory
Planning and Review, as Supplemented by E.O. 13563 and DOT
Regulations)
B. Executive Order 13771 Reducing Regulation and Controlling
Regulatory Costs
C. Regulatory Flexibility Act (Small Entities)
D. Assistance for Small Entities
E. Unfunded Mandates Reform Act of 1995
F. Paperwork Reduction Act (Collection of Information)
G. Executive Order 13132 (Federalism)
H. Executive Order 12988 (Civil Justice Reform)
I. Executive Order 13045 (Protection of Children)
J. Executive Order 12630 (Taking of Private Property)
K. Privacy
L. Executive Order 12372 (Intergovernmental Review)
M. Executive Order 13211 (Energy Supply, Distribution, or Use)
N. Executive Order 13175 (Indian Tribal Governments)
O. National Technology Transfer and Advancement Act (Technical
Standards)
P. National Environmental Policy Act of 1969
Q. Executive Order 13783 (Promoting Energy Independence and
Economic Growth)

I. Rulemaking Documents

A. Availability of Rulemaking Documents

For access to docket FMCSA-2016-0341 to read background documents
and comments received, go to http://www.regulations.gov at any time, or
to Dockets Operations at U.S. Department of Transportation, Room W12-
140, 1200 New Jersey Avenue SE, Washington, DC 20590-0001, between 9
a.m. and 5 p.m., Monday through Friday, except Federal holidays. To be
sure someone is there to help you, please call (202) 366-9317 or (202)
366-9826 before visiting Dockets Operations.

B. 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.

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 of a rule. The APA
authorizes changes to 49 CFR part 389, beyond what is required by the
FAST Act.
DOT's regulatory procedures, codified at 49 CFR part 5, also
describe how persons may petition a departmental Operating
Administration, like FMCSA, for a new rulemaking, an exemption from an
existing rule, or a retrospective review. These departmental procedures
apply unless a statute or an Operating Administration's regulations or
procedures provide alternate procedures for processing petitions.
FMCSA's procedures are housed in 49 CFR part 389, and are the subject
of this rulemaking.

[[Page 86844]]

III. Discussion of Proposed Rulemaking

FMCSA published a notice of proposed rulemaking (NPRM) on August 7,
2017 (82 FR 36719) that proposed several changes to the regulatory
procedural requirements found in 49 CFR part 389. These changes fell
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 proposed 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 (CMV)
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
proposed to adopt the definition of a ``major rule'' from the
Congressional Review Act (5 U.S.C. 804). FMCSA would use this
definition to determine whether an ANPRM or negotiated rulemaking
process is necessary.

B. Definition and Processing of a Petition

Prior to this final rule, FMCSA regulations for submitting
petitions (49 CFR part 389) included no regulatory definition of a
petition. Section 5204 of the FAST Act 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 proposed including this definition in part 389.
Additionally, the NPRM proposed a new process for filing and
addressing petitions. These changes were proposed to clarify FMCSA's
procedures for rulemaking, and to make editorial changes.
Finally, FMCSA proposed to add a definition for written or in
writing that would include electronic documentation.

C. Direct Final Rulemaking Procedures

Under FMCSA's direct final rulemaking (DFR) procedures in effect at
the time of the NPRM, if the Agency received a notice of intent (NOI)
to file an adverse comment, the DFR would be withdrawn, even if the
comment that was eventually filed did not meet the definition of an
adverse comment found in 49 CFR 389.39(b). The NPRM proposed 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 the comment. Once FMCSA
received the comment, the Agency would determine whether it was
adverse. If it was an adverse comment, FMCSA would withdraw the DFR;
however, if it did not meet the definition of adverse comment in Sec.
389.39(b), the Agency would move forward with the DFR. If the same or
another commenter submitted an NOI at the end of the extended comment
period, FMCSA would 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. Discussion of Comments and Responses

General

FMCSA received comments from 10 commenters: The National Federation
of Independent Business (NFIB); the National Rural Electric Cooperative
Association (NRECA); the National Tank Truck Carriers (NTTC); the
American Fuel and Petrochemical Manufacturers (AFPM); the
Transportation Trades Department of the AFL-CIO; an individual, Mr. Max
Miller; the New York University School of Law (NYU); the National
School Transportation Association (NSTA); and two anonymous commenters.
Generally, all commenters were supportive of the rule, though some
suggested additional regulatory changes.
Two commenters were overall supportive of the rule, stating that
the proposed changes would make the rulemaking process more efficient
and alleviate confusion. In addition, the changes to the DFR procedures
provide the Agency greater flexibility.
AFPM supports the definition of a ``major rule'' and the provisions
requiring advance or negotiated rulemakings for major rules.

Comments Outside the Scope of This Rulemaking

One anonymous commenter appeared to copy and paste a partial
section of Executive Order 13783, Promoting Energy Independence and
Economic Growth, which is outside the scope of this rulemaking.
Another anonymous commenter stated that FMCSA should expand on the
Digital Accountability and Transparency Act, which was enacted to link
Federal agency spending to Federal program activities so that taxpayers
and policymakers can more effectively track Federal spending. That
comment is outside the scope of this rulemaking.

Comments on the Petition Process

NFIB and NYU both suggested changes to the definition of petition.
NFIB said the definition should be revised to include FMCSA's
constitutional obligation to receive petitions for the redress of
grievances. Secondly, FMCSA should receive petitions for any reason
when it comes to issuance, amendment, or repeal of FMCSA rules. NYU
stated that the definition of petition should be revised because it is
too narrowly focused on ``burdensome'' rules. NYU also stated that
FMCSA should provide additional details on its online petition docket
such as including links to the text of the original petitions and
timetables for responses to them.
NYU also provided recommendations from the Administrative
Conference of the United States (ACUS), Recommendations 2014-6,
Petitions for Rulemaking. NYU recommended that the Agency should
explain how it will coordinate consideration of petitions with other
processes used to determine Agency priorities; explain what type of
data and arguments are most useful for petitioners to provide to aid
FMCSA's evaluation; expand on its openness to new evidence by
facilitating communication between Agency personnel and petitioners;
and invite public comment on petitions as appropriate.

FMCSA Response

FMCSA does not limit the scope of stakeholders' petitions for
rulemaking. The purpose of the final rule is to implement the FAST Act
provisions regarding petitions for rulemaking. The First Amendment
right to petition for redress of grievances is available at any time on
any issue. FMCSA notes that in addition to petitions for rulemaking,
departmental regulations provide that interested persons may file
petitions for DOT to issue an exemption from any requirements of a rule
or perform a retrospective review of an existing rule.\1\ However, this
final rule is specific to petitions for rulemaking concerning FMCSA's
regulations.
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\1\ See 49 CFR 5.13(c).
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FMCSA does not agree that the proposed definition of petition, as
defined in the FAST Act, narrowly focuses only on ``burdensome'' rules.
The definition provides perspective on what petitions should focus on.
The fact that the first part in the definition is a request for ``a new
regulation'' without

[[Page 86845]]

any constraints around it, means that Congress is not focused on only
removing ``burdensome'' rules.
With respect to NYU's comment, FMCSA agrees that the Agency should
provide more transparent and timely information on the status of
petitions that have been filed. While FMCSA has not made any changes to
the regulatory text, the Agency currently provides information
concerning the status of petitions via its website, https://www.fmcsa.dot.gov/petitions. Interested parties can review information
on petitions that have been submitted, the date the Agency acknowledged
the petition, and the date of Agency decisions and rulemaking actions
initiated in response to the petitions. The Agency is committed to
continuing to provide such information in the future.
FMCSA has already implemented many of the ACUS recommendations,
such as coordinating within FMCSA offices on the prioritization of
petitions, and the Agency already invites public comment on petitions
as appropriate.
Comments on Section 389.31
NTTC stated that FMCSA's proposed definition of written or in
writing includes any method of electronic documentation such as email,
but that an email address was not included in proposed Sec. 389.31.
FMCSA should specify an email address or submission form for electronic
petitions for rulemaking to be consistent with the definition of
written or in writing.
NTTC also stated that in proposed Sec. 389.31(a), FMCSA should add
the words ``interpret or clarify,'' between ``amend,'' and
``withdraw.'' AFPM supported the definition of a petition, but noted
that including ``a regulatory interpretation or clarification'' in the
definition would change the scope of the current regulations, with
potentially ``negative impacts on FMCSA's ability to provide needed
guidance in a timely manner to stakeholders.'' Additionally, AFPM
stated that the NPRM did not include FAST Act requirements from section
5204(a)(1)-(5) for transparency, incorporating process timelines, and
petition prioritization.
FMCSA Response
FMCSA currently accepts petitions submitted electronically and
agrees that petitioners should be able to submit petitions
electronically. FMCSA has provided explicit procedures for stakeholders
to use for electronically submitting petitions in Sec. 389.31 and in
Sec. 389.35. Petitions should be submitted by mail to the
Administrator or electronically by using www.regulations.gov.
Despite AFPM's concern about its effect, the term ``a regulatory
interpretation or clarification'' is one of the elements of the
statutory definition of petition in section 5204(c) and cannot be
omitted.
FMCSA is aware of the requirements on the processing of petitions
imposed by section 5204(a)(1)-(5) of the FAST Act. FMCSA determined
that inclusion of these requirements in the regulations would make
future changes more difficult if alternate methods prove to be more
efficient or transparent. However, the Agency will provide more
information in the future, once it determines the best path forward to
ensure maximum transparency.
Comments on the Comments Process
NFIB requested that FMCSA revise Sec. 389.21 to allow itself to
solicit comments in a language other than English, should the need
arise.
NFIB also stated that FMCSA should permit commenters to incorporate
by reference laws referred to in the comment, instead of requiring
submission of copies of such materials.
FMCSA Response
FMCSA does not see a need to add regulatory text to allow
submission of comments in a language other than English. Should the
need arise for comments in another language, the Federal Register
document soliciting those comments can make such an exception.
With regard to incorporation by reference, FMCSA can readily obtain
copies of State or Federal statutes or regulations mentioned in
comments. However, it would be in the petitioners' best interest to
quote or provide copies of any other material essential to their
argument.
Comments on the Rulemaking Process
NFIB stated that FMCSA should eliminate confusion about when a rule
is a final rule in Sec. 389.29. The commenter said that if a final
rule is prepared and submitted to the Administrator for consideration,
and then, if appropriate, to the Office of Management and Budget (OMB),
it is not a final rule.
NYU stated that FMCSA should consider comments to ANPRMs on
benefits as well as costs.
The Transportation Trades Department of the AFL-CIO objected to the
FAST Act mandates requiring an ANPRM or negotiated rulemaking for all
major rules, but recognized the Agency has limited discretion. However,
this commenter believed the Agency could make some changes, and
suggested the following:
(1) Additional clarification of the term ``significant adverse
effect,'' which the commenter believes is vague;
(2) Additional consideration on how FMCSA plans to ensure that
major regulations are promulgated in a timely manner; and
(3) Judicious use of the waiver provisions, for example where
review of a major rule by the Office of Information and Regulatory
Affairs (OIRA) took more than 100 days.
FMCSA Responses
NFIB should note that the changes proposed in Sec. 389.29 are
about the various offices within FMCSA that prepare final rules as
opposed to a select few FMCSA offices. The process for preparing final
rules and submitting them to the Administrator, and if necessary OMB,
was codified in the CFR in 1970 and amended in 1988. Although a final
rule is not legally binding until its effective date, FMCSA drafts the
document with the intent of making it final. The term final rule is
therefore appropriate.
FMCSA agrees with NYU and has added the term ``benefits'' to the
regulatory text of Sec. 389.13(b)(1)(iii).
Regarding AFL-CIO's comments:
(1) FMCSA will continue to interpret the terms within the
definition of ``major rule'' as it has done when interpreting 5 U.S.C.
804, using guidance provided by OIRA, the Small Business Administration
(SBA), and the Department of Transportation;
(2) FMCSA will continue to use its prioritization tools to ensure
that delays in rulemaking proceedings do not impose or prolong safety
risks; and
(3) FMCSA acknowledges that the example provided by the commenter
may present a scenario where use of the waiver provision would be
necessary, but the Agency cannot commit to any specific use of the
waiver at this time. The Administrator will determine, on a case-by-
case basis whether to rely upon the waiver for any particular
rulemaking proceeding.
Since the publication of the NPRM, DOT published a final rule on
Administrative Rulemaking, Guidance, and Enforcement Procedures,\2\
which applies to FMCSA's rulemaking procedures. These DOT procedures
also require the publication of ANPRMs for the Department's costliest
rulemakings (i.e., those rulemakings considered to be either
``economically significant'' or

[[Page 86846]]

``high impact'').\3\ FMCSA anticipates that if a rule is a ``major
rule,'' then it would likely also qualify as an ``economically
significant'' or ``high impact'' rulemaking, as defined by the
Department's procedures at 49 CFR 5.17(a). FMCSA's publication of an
ANPRM for these ``major rules'' would thus satisfy both the
requirements of the FAST Act, FMCSA's procedures in part 389, and DOT's
procedures in part 5. Unlike FMCSA's part 389 procedures, the ANPRM
requirement found in DOT procedures, however, may only be waived by the
Secretary of Transportation, the Department's Regulatory Reform
Officer, Regulatory Reform Task Force, or unless otherwise required by
law.
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\2\ See 84 FR 71714 (Dec. 27, 2019).
\3\ See 49 CFR 5.17(b).
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Comments on the Direct Final Rule Process
AFPM did not object to the change to the Notice of Intent/Direct
Final Rule (NOI/DFR) procedures in Sec. 389.39 but questioned the need
to make the change. It contended that the proposal was not adequately
discussed in the NPRM and did not follow the DFR procedures of other
DOT modes.
FMCSA Response
FMCSA is not including any changes to the Direct Final Rule
procedures in Sec. 389.39 in today's final rule. Since the publication
of the NPRM, the Department's final rule on Administrative Rulemaking,
Guidance, and Enforcement Procedures \4\ revised all direct final rule
procedures to ensure consistency across DOT Operating Administrations,
including FMCSA's procedures at 49 CFR part 389. In that final rule,
the Department removed language that requires FMCSA to withdraw a
direct final rule if a notice of intent to file an adverse comment is
received; instead, withdrawal is required only upon the actual receipt
of an adverse comment. Individuals who intend to file an adverse
comment, but do not have enough time to do so, may instead ask to
extend the comment period of a direct final rule so that they may have
more time to file an adverse comment.
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\4\ See 84 FR 71714 (Dec. 27, 2019).
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V. 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 they operate in, unless an international agreement states
otherwise. Drivers and carriers should be aware of the regulatory
differences amongst nations.

VI. Section-By-Section Analysis

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

Section 389.3 Definitions

FMCSA adds new definitions of major rule, petition, and written or
in writing to Sec. 389.3.
FMCSA slightly revises the definition of major rule to ensure that
the term ``geographic area'' is not modified by the terms ``Federal,
state, or local government agencies.'' The Agency believes this matches
the intent of the statutory definition found in the CRA. This change is
not intended to create a new category of rules that might be deemed
major under the CRA but not major under the FMCSA regulations, or vice
versa. In applying this definition, FMCSA will adhere to the same
guidance used to determine whether a rule is major under the CRA.

Section 389.13 Initiation of Rulemaking

In Sec. 389.13, FMCSA redesignates the existing text as paragraph
(a) and adds paragraphs (b)(1) through (c).
Paragraph (a) is revised to align the FMCSA regulations with the
DOT final rule on Administrative Rulemaking, Guidance, and Enforcement
Procedures,\5\ which requires that the Office of the Secretary approve
all new FMCSA rulemakings.
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\5\ See 84 FR 71714 (Dec. 27, 2019).
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Paragraph (b) of Sec. 389.13 and its subparagraphs include the
advanced public participation requirements from section 5202 of the
FAST Act. Additionally, based on comments to the NPRM, the term
``benefits'' has been added to further describe the type of information
FMCSA would like to receive if a proposed rule is likely to lead to the
promulgation of a major rule. Paragraph (c) includes the waiver
provision for bypassing the advanced public participation requirements
in certain cases, and a cross reference to the DOT requirements for
economically significant and high-impact rules, found in 49 CFR 5.17.

Section 389.15 Contents of Notices of Proposed Rulemaking

The title of Sec. 389.15 and Sec. 389.15(a) are changed by
removing the space between ``rule'' and ``making.''

Section 389.21 Submission of Written Comments

FMCSA revises Sec. 389.21 to include directions on how comments
should be submitted. The Agency removes the text regarding
incorporation by reference because it is not relevant to the topic of
comment submission. FMCSA also renames the section heading ``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'' is replaced with
``withdraw'' to more accurately describe the removal of a regulation.
In paragraph (b)(1) the word ``duplicate'' is replaced with ``writing''
to make use of and follow the definition of this term in Sec. 389.3.
This change reflects that the Agency no longer requires duplicate
submissions. As a result of comments to the NPRM, FMCSA adds the terms
``interpret'' and ``clarify'' to Sec. 389.31(a) to more accurately
describe when an interested person may petition the Administrator.
In Sec. 389.31(b)(1), FMCSA added a means for persons wishing to
submit petitions electronically to do so.

Section 389.35 Petitions for Reconsideration

In Sec. 389.35(a), FMCSA added a means for persons wishing to
submit petitions electronically to do so.

VII. Regulatory Analyses

A. Executive Order 12866 (Regulatory Planning and Review, as
Supplemented by E.O. 13563 and DOT Regulations)

This final rule is not a significant regulatory action under
section 3(f) of Executive Order 12866, Regulatory Planning and Review,
as supplemented by Executive Order 13563 (76 FR 3821, Jan. 21, 2011).
In addition, this rule is not significant within the meaning of DOT
regulations (49 CFR 5.13(a)). Accordingly, OMB has not reviewed it
under that Order.
This rule is procedural in nature, primarily impacting FMCSA's
process for promulgation of regulations. Therefore, there are no costs
associated with this final rule.

B. Executive Order 13771 Reducing Regulation and Controlling Regulatory
Costs

Executive Order 13771, ``Reducing Regulation and Controlling
Regulatory Costs,'' does not apply to this action because it is not a
significant regulatory

[[Page 86847]]

action, as defined in section 3(f) of Executive Order 12866.

C. 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.\6\
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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\6\ 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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As FMCSA believes there are no costs associated with this rule, the
Agency does not expect this final rule 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.

D. 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 final rule so that they can better evaluate its
effects on themselves and participate in the rulemaking initiative. If
the final rule 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. Steven LaFreniere, listed in the For Further Information
Contact section of this final rule.
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.

E. 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. Specifically, 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 $168 million (which is the
value equivalent of $100 million in 1995, adjusted for inflation to
2019 levels) or more in any one year. As the final 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.

F. Paperwork Reduction Act (Collection of Information)

This final rule calls for no new collection of information under
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). Any changes
to existing collections are de minimis.

G. Executive Order 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 final
rule does not have substantial direct costs on or for States, nor does
it limit the policymaking discretion of States. Nothing in this
document preempts any State law or regulation. Therefore, this final
rule does not have sufficient federalism implications to warrant the
preparation of a Federalism Impact Statement.

H. Executive Order 12988 (Civil Justice Reform)

This final rule meets applicable standards in sections 3(a) and
3(b) (2) of Executive Order 12988, Civil Justice Reform, to minimize
litigation, eliminate ambiguity, and reduce burden.

I. Executive Order 13045 (Protection of Children)

Executive Order 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 final rule 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.

J. Executive Order 12630 (Taking of Private Property)

FMCSA reviewed this final rule in accordance with Executive Order
12630, Governmental Actions and Interference with Constitutionally
Protected Property Rights, and has determined it does not effect a
taking of private property or otherwise have taking implications.

K. 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 final rule does not require the
collection of personally identifiable information.
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 a 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 due to this final rule. Therefore, FMCSA did
not conduct a PIA.

L. Executive Order 12372 (Intergovernmental Review)

The regulations implementing Executive Order 12372 regarding
intergovernmental consultation on Federal programs and activities do
not apply to this final rule.

M. Executive Order 13211 (Energy Supply, Distribution, or Use)

FMCSA has analyzed this final rule under Executive Order 13211,
Actions

[[Page 86848]]

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 Executive Order
13211. The Administrator of OIRA has not designated it as a significant
energy action. Therefore, it does not require a Statement of Energy
Effects under Executive Order 13211.

N. Executive Order 13175 (Indian Tribal Governments)

This final rule does not have Tribal implications under Executive
Order 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.

O. 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 final rule does
not use technical standards. Therefore, FMCSA did not consider the use
of voluntary consensus standards.

P. National Environmental Policy Act of 1969

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, Mar. 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 final action
would not have any effect on the quality of the environment.

Q. Executive Order 13783 (Promoting Energy Independence and Economic
Growth)

Executive Order 13783 directs executive departments and agencies to
review existing regulations that potentially burden the development or
use of domestically produced energy resources, and to appropriately
suspend, revise, or rescind those that unduly burden the development of
domestic energy resources. In accordance with Executive Order 13783,
DOT prepared and submitted a report to the Director of OMB that
provides specific recommendations that, to the extent permitted by law,
could alleviate or eliminate aspects of agency action that burden
domestic energy production. This final rule was not identified by DOT
under Executive Order 13783 as potentially causing or alleviating
unnecessary burdens on domestic energy production.

List of Subjects in 49 CFR Part 389

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

In consideration of the foregoing, FMCSA amends 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: 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 the definitions for ``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, geographic regions, or Federal, State, or local government
agencies; 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;
(i) A regulatory interpretation or clarification; or
(ii) A determination made by the Administrator that a regulation
should be modified or eliminated because it is:
(A) No longer:
(1) Consistent and clear;
(2) Current with the operational realities of the motor carrier
industry; or
(3) Uniformly enforced;
(B) Ineffective; or
(C) 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 replacing the term ``rule making'' with
``rulemaking''.

0
4. Revise Sec. 389.13 to read as follows:

Sec. 389.13 Initiation of rulemaking.

(a) Rulemakings are initiated in accordance with the procedures
found in 49 CFR 5.11. The Administrator may recommend the initiation of
a rulemaking to the Office of the Secretary 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

[[Page 86849]]

or technical information relevant to analyzing potential regulatory
alternatives;
(iii) Requests public comment on the available data, benefits, 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.
(c) Paragraph (b) of this section 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. A
proposed rule subject to paragraph (b) of this section should also be
evaluated to determine the applicability of 49 CFR 5.17.

Sec. 389.15 [Amended]

0
5. The title of Sec. 389.15 and paragraphs (a) and (b)(1) are revised
by removing the term ``rule making'' and replacing it with the term
``rulemaking.''

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: Dockets Operations, 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 and forwarded, as necessary, to the Office of
the Secretary for review and approval. Once approved by the Office of
the Secretary, and, if necessary, by the Office of Management and
Budget's Office of Information and Regulatory Affairs, the final rule
is signed by the Administrator. All final rules must be 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, interpret, clarify, or withdraw a rule.
(b) Each petition filed under this section must:
(1) Be submitted in writing by mail to the Administrator, Federal
Motor Carrier Safety Administration, 1200 New Jersey Ave. SE,
Washington, DC 20590-0001 or electronically at www.regulations.gov,
using the general petitions for rulemaking docket listed on FMCSA's
website at www.FMCSA.gov.
(2) Set forth the text or substance of the rule or amendment
proposed, or specify the rule that the petitioner seeks to have
interpreted, clarified or withdrawn, 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. Revise Sec. 389.35 paragraph (a) to read as follows:

Sec. 389.35 Petitions for reconsideration.

(a) Any interested person may petition the Administrator for
reconsideration of any rule issued under this part. The petition for
reconsideration must be in English and submitted to the Administrator,
Federal Motor Carrier Safety Administration, 1200 New Jersey Ave. SE,
Washington, DC 20590-0001, or electronically submitted using the docket
for the rulemaking at www.regulations.gov, and received not later than
thirty (30) days after publication of the rule in the Federal Register.
Petitions for reconsideration filed after that time will be considered
as petitions for rulemakings filed under Sec. 389.31 of this part. The
petition for reconsideration must contain a brief statement of the
complaint and an explanation as to why compliance with the rule is not
practicable, is unreasonable, or is not in the public interest.
* * * * *

Issued under authority delegated in 49 CFR 1.87.
James W. Deck,
Deputy Administrator.

[FR Doc. 2020-27854 Filed 12-30-20; 8:45 am]
BILLING CODE 4910-EX-P