Federal Register / Vol. 85, No. 251 / Thursday, December 31, 2020 / Rules and Regulations 86843 

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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86844 Federal Register / Vol. 85, No. 251 / Thursday, December 31, 2020 / Rules and Regulations 

1See 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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Federal Register / Vol. 85, No. 251 / Thursday, December 31, 2020 / Rules and Regulations 86845 

2See 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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86846 Federal Register / Vol. 85, No. 251 / Thursday, December 31, 2020 / Rules and Regulations 

3See 49 CFR 5.17(b). 

4See 84 FR 71714 (Dec. 27, 2019). 5See 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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Federal Register / Vol. 85, No. 251 / Thursday, December 31, 2020 / Rules and Regulations 86847 

6Regulatory 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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86848 Federal Register / Vol. 85, No. 251 / Thursday, December 31, 2020 / Rules and Regulations 

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 foreignbased 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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Federal Register / Vol. 85, No. 251 / Thursday, December 31, 2020 / Rules and Regulations 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. 

§ 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 Daysat-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/newengland-mid-atlantic. 

You may submit comments on this 

document, identified by NOAA–NMFS– 

2020–0162, by the following method: 


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