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New shorter rulemaking procedure announced by FMCSA, but only for those deemed ‘non-controversial’

WASHINGTON — The Federal Motor Carrier Safety Administration published May 28 a notice that would mean some rules would bypass the notice of proposed rulemaking (NPRM) process and go directly to the final rule classification. Clearly there won’t be an Hours of Service, Electronic On-Board Recorder, cell phone ban, or similar regulation made using this process.

The rule, called “Direct Final Rulemaking Procedures” amends FMCSA regulations by establishing direct final rulemaking procedures for use on “routine or non-controversial rules,” and is also effective May 28.

FMCSA stated that it will make regulatory changes that will become effective a specified number of days after the date of publication in the Federal Register, unless it receives written adverse comment(s) by the date specified in the direct final rule.

According to FMCSA, the new procedures will expedite the promulgation of routine or non-controversial rules by reducing the time and resources necessary to develop, review, clear, and publish separate proposed and final rules.

“FMCSA will not use the direct final rule procedures for complex or controversial issues,” the agency stated in the publish rule.

“The Administrative Procedure Act (APA) specifically provides that notice and comment rulemaking procedures are not required where the Agency determines that there is good cause to dispense with them,” the final rule stated. “Generally, good cause exists where the procedures are impracticable, unnecessary, or contrary to the public interest. FMCSA proposes to use direct final rulemaking to streamline the process where the rule is non-controversial and the Agency does not expect adverse comment.”

During a 30-day comment period on this final rule, FMCSA received three comments its proposed rule.

The Commercial Vehicle Safety Alliance, Advocates for Highway and Auto Safety (Advocates), and the American Trucking Associations submitted comments in support of this new rulemaking procedure.

Advocates added that FMCSA should not use direct final rule procedures on safety-related rules, as these rules should be considered controversial and subject to full public notice and comment proceedings.

So what happens if a final rule is published and FMCSA finds that it’s controversial?

“In the event that FMCSA publishes a direct final rule on an action that proves to be controversial, the public will have sufficient time and opportunity to submit adverse comments, or submit notices of intent to file adverse comments by the date specified in the direct final rule,” FMCSA stated. “If this occurs, FMCSA will publish a notice in the Federal Register withdrawing the direct final rule before it goes into effect.”

FMCSA stated the things it thinks will be non-controversial and follow the path of this new rule include:

Make non-substantive clarifications or corrections to existing rules Incorporate by reference the latest or otherwise updated versions of technical or industry standards Affect internal FMCSA procedures such as filing requirements and rules governing inspection and copying of documents Update existing forms, and Make minor changes to rules regarding statistics and reporting requirements, such as a change in reporting period (for example, from quarterly to annually) or eliminating a type of data collection no longer necessary.
An adverse comment is one that FMCSA judges to be critical of the rule, to suggest that the rule should not be adopted, or to suggest that a change should be made to the rule.

Finally, if FMCSA withdraws a direct final rule because of an adverse comment, the Agency may issue a notice of proposed rulemaking if it decides to pursue it, FMCSA stated.   

Barb Kampbell of The Trucker staff can be reached for comment at [email protected] .

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