Rulemaking Procedures Update, 86843-86849 [2020-27854]

Agencies

• Federal Motor Carrier Safety Administration
• DEPARTMENT OF TRANSPORTATION

[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, 
[email protected]. 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 https://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 https://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: https://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