Rulemaking Procedures Update
| Published date | 31 December 2020 |
| Citation | 85 FR 86843 |
| Record Number | 2020-27854 |
| Section | Rules and Regulations |
| Court | Federal Motor Carrier Safety Administration |
86843
Federal Register / Vol. 85, No. 251 / Thursday, December 31, 2020 / Rules and Regulations
these additional ‘‘covered materials’’ in
the Federal Register.
§ 328.104 Investigations and injunctions;
penalties.
(a) To administer or enforce this part,
the Administrator may exercise the
authorities available under section 705
of the Defense Production Act of 1950,
as amended, 50 U.S.C. 4555, including
the conduct of investigations, requests
for information or testimony, and
inspections of records or premises.
Before such authorities are utilized, the
Administrator will determine the scope
and purpose of the investigation,
inspection, or inquiry, and be assured
that no adequate and authoritative data
are available from any Federal or other
responsible agency.
(b) Whenever, in the judgment of the
Administrator, any person has engaged
or is about to engage in any acts or
practices that constitute or will
constitute a violation of any provision of
this part, or order issued thereunder, the
Administrator may exercise the
authorities available under section 706
of the Defense Production Act of 1950,
as amended, 50 U.S.C. 4556, including
applying for a preliminary, permanent,
or temporary injunction, restraining
order, or other order to enforce
compliance with this part.
(c) Any person who willfully engages
in violations of this part is subject to
penalties available under section 103 of
the Defense Production Act of 1950, as
amended, 50 U.S.C. 4513, or other
available authority.
Pete Gaynor,
Administrator, Federal Emergency
Management Agency.
[FR Doc. 2020–29060 Filed 12–30–20; 8:45 am]
BILLING CODE 9111–19–P
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.
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.
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See 49 CFR 5.13(c).
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 § 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.
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
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See 84 FR 71714 (Dec. 27, 2019).
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 § 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
§ 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 § 389.31 and in
§ 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
§ 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 § 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 § 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 § 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
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See 49 CFR 5.17(b).
4
See 84 FR 71714 (Dec. 27, 2019).
5
See 84 FR 71714 (Dec. 27, 2019).
‘‘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.
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 § 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
§ 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.
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 § 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 § 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.
Paragraph (b) of § 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 § 389.15 and §389.15(a)
are changed by removing the space
between ‘‘rule’’ and ‘‘making.’’
Section 389.21 Submission of Written
Comments
FMCSA revises § 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 § 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 § 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 § 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 § 389.31(a) to more
accurately describe when an interested
person may petition the Administrator.
In § 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 § 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
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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.
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.
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
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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
■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.
■2. Amend § 389.3 by adding the
definitions for ‘‘Major rule’’, ‘‘Petition’’,
and ‘‘Written or in writing’’, in
alphabetical order to read as follows:
§ 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.
§ 389.7 [Amended]
■3. Amend § 389.7 by replacing the
term ‘‘rule making’’ with ‘‘rulemaking’’.
■4. Revise § 389.13 to read as follows:
§ 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
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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.
§ 389.15 [Amended]
■5. The title of § 389.15 and paragraphs
(a) and (b)(1) are revised by removing
the term ‘‘rule making’’ and replacing it
with the term ‘‘rulemaking.’’
■6. Revise § 389.21 to read as follows:
§ 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.
■7. Revise § 389.29 to read as follows:
§ 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.
■8. Revise § 389.31 to read as follows:
§ 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.
■9. Revise § 389.35 paragraph (a) to
read as follows:
§ 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 § 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
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 648
[Docket No. 201222–0352]
RIN 0648–BK16
Fisheries of the Northeastern United
States; Increase in Sector Carryover of
2019 Annual Catch Entitlements and
Carryover of Unused Leased-In Days-
at-Sea by Common Pool Vessels
AGENCY
: National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION
: Temporary rule; emergency
action.
SUMMARY
: This temporary rule
implements emergency measures under
the authority of the Magnuson-Stevens
Fishery Conservation and Management
Act to revise portions of the fishing year
2019 carryover provisions in the
Northeast Multispecies Fishery
Management Plan into fishing year
2020. This action is necessary to address
an emergency presenting conservation
and management plans to the fishery.
This action is intended to mitigate
economic harm to the Northeast
multispecies fishery participants by
providing the opportunity to use sector
Annual Catch Entitlement and unused
leased-in Days-at-Sea that would have
otherwise may have gone unused.
DATES
: This action is effective December
31, 2020, through June 29, 2021.
Comments must be received by
February 1, 2021.
ADDRESSES
: For this action, NMFS
developed a Supplemental Impact
Report (SIR) for the Environmental
Assessment (EA) for Framework
Adjustment 59 to the Northeast
Multispecies Fishery Management Plan
(FMP) that describes the measures in
this temporary rule. Copies of the SIR
and the Regulatory Impact Review of
this rulemaking are available on the
internet at https://
www.fisheries.noaa.gov/region/new-
england-mid-atlantic.
You may submit comments on this
document, identified by NOAA–NMFS–
2020–0162, by the following method:
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