80 FR 36487 - Direct Final Rulemaking Procedures

DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration

Federal Register Volume 80, Issue 122 (June 25, 2015)

Page Range		36487-36492
FR Document		2015-15507

NHTSA is establishing direct final rulemaking (DFR) procedures for use in adopting amendments to its regulations on which the agency expects it would receive no adverse public comment were it to publish them as proposals in the Federal Register. This limitation means that NHTSA will not use direct final rule procedures for amendments involving complex or controversial issues. When the agency does not expect adverse public comments on draft amendments, it will issue a direct final rule adopting the amendments and stating that they will become effective in a specified number of days after the date of publication of the rule in the Federal Register, unless NHTSA receives written adverse comment(s) or written notice of intent to submit adverse comment(s) by the specified effective date. Adoption of these new procedures will expedite the promulgation of routine and noncontroversial rules by reducing the time and resources necessary to develop, review, clear and publish separate proposed and final rules.

Federal Register, Volume 80 Issue 122 (Thursday, June 25, 2015)

[Federal Register Volume 80, Number 122 (Thursday, June 25, 2015)]
[Rules and Regulations]
[Pages 36487-36492]
From the Federal Register Online [www.thefederalregister.org]
[FR Doc No: 2015-15507]

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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

49 CFR Part 553

[NHTSA-2013-0042]
RIN 2127-AL32

Direct Final Rulemaking Procedures

AGENCY: National Highway Traffic Safety Administration (NHTSA),
Department of Transportation.

ACTION: Final rule.

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SUMMARY: NHTSA is establishing direct final rulemaking (DFR) procedures
for use in adopting amendments to its regulations on which the agency
expects it would receive no adverse public comment were it to publish
them as proposals in the Federal Register. This limitation means that
NHTSA will not use direct final rule procedures for amendments
involving complex or controversial issues. When the agency does not
expect adverse public comments on draft amendments, it will issue a
direct final rule adopting the amendments and stating that they will
become effective in a specified number of days after the date of
publication of the rule in the Federal Register, unless NHTSA receives
written adverse comment(s) or written notice of intent to submit
adverse comment(s) by the specified effective date. Adoption of these
new procedures will expedite the promulgation of routine and
noncontroversial rules by reducing the time and resources necessary to
develop, review, clear and publish separate proposed and final rules.

DATES: Effective June 25, 2015.

ADDRESSES: Docket: To access the docket and read comments received, go
to http://www.regulations.gov and search by Docket ID number NHTSA-
2013-0042 at any time.
Privacy Act: Anyone is able to search the electronic form of all
comments received in any of our dockets by the name of the individual
submitting the comment (or signing the comment, if submitted on behalf
of an association, business, labor union, etc.). You may review the
U.S. Department of Transportation's (DOT) complete Privacy Act
Statement in the Federal Register published on April 11, 2000 (65 FR
19476) or you may visit http://www.dot.gov/individuals/privacy/privacy-policy.

FOR FURTHER INFORMATION CONTACT: Analiese Marchesseault, Office of
Chief Counsel, National Highway Traffic Safety Administration, 1200 New
Jersey Avenue SE., Washington, DC 20590; Telephone: (202) 366-2992.

SUPPLEMENTARY INFORMATION:

I. Background

On March 26, 2013, NHTSA proposed to establish direct final
rulemaking (DFR) procedures for use in adopting amendments to its
regulations on which no adverse public comment is expected by the
agency.\1\ The procedures were modeled after DFR procedures established
by the Office of the Secretary of Transportation (OST) on

[[Page 36488]]

January 30, 2004 in order to expedite the process adopting non-
controversial rules issued by that office.\2\ The agency also
considered the DFR procedures adopted by several operating
administrations within DOT since 2004.\3\
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\1\ 78 FR 18285 (Mar. 26, 2013).
\2\ See 48 CFR 5.35.
\3\ See 14 CFR 11.31 (Federal Aviation Administration); 49 CFR
106.40 (Pipeline and Hazardous Materials Safety Administration); 49
CFR 211.33 (Federal Railroad Administration); 49 CFR 389.39 (Federal
Motor Carrier Safety Administration); 49 CFR 601.36 (Federal Transit
Administration).
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NHTSA proposed to use the DFR process for a rule when the agency
anticipates that the rule, if proposed, would not generate adverse
comment and the final rule would therefore likely be identical to the
proposal. In those instances, the agency believed that providing notice
and opportunity for comment would not be necessary. Notice and comment
rulemaking procedures are not required under the Administrative
Procedure Act (APA) (5 U.S.C. 553) when an agency finds, for good
cause, that using them would be unnecessary. See 5 U.S.C. 553(b)(3)(B).
NHTSA said that it believed this procedural option would expedite the
issuance of non-controversial rules, and thereby save time and agency
resources. NHTSA emphasized that it would not use direct final rule
procedures for complex or controversial issues.
In this final rule, NHTSA adopts DFR procedures that are similar to
the proposed ones, except that the agency made some changes in response
to public comments received by the agency. NHTSA received 16 comments,
some of which were substantive and prompted NHTSA to change its
proposed DFR procedures. The comments and NHTSA's responses to them are
discussed below.

II. Responses to Comments on the Notice of Proposed Rulemaking

Seven of the 16 comments received by NHTSA contained substantive
reactions, suggestions, and recommendations. They are summarized below,
along with the agency's responses. The remaining nine comments were
nonsubstantive and/or did not apply to anything in the proposal, and
therefore are not discussed below.

A. When the Use of a DFR Would Be Appropriate

Commenters expressed different positions on the circumstances in
which they believed that issuance of a DFR would be most appropriate.
The Alliance of Automobile Manufacturers (the ``Alliance'') and the
Motor & Equipment Manufacturers Association (MEMA) stated that the
primary determining factor in deciding whether a DFR would be
appropriate should be whether the action would generate public
interest, not whether the agency would expect adverse comment. The
Alliance suggested the agency ask whether a rule would be routine,
insignificant, and inconsequential before using the DFR process, and
cited a D.C. Circuit case noting that an agency does not create good
cause to dispense with notice and comment procedures through an
assertion that comments would not be useful.\4\ MEMA suggested the
agency ask whether the action would be so minor that the agency would
expect no comments at all.
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\4\ See Docket No. NHTSA-2013-0042-0013, Alliance of Automobile
Manufacturers Comments at 3, citing Action on Smoking and Health v.
Civil Aeronautics Board, 713 F.2d 795 (D.C. Cir. 1983).
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NHTSA agrees with the Alliance that asking whether an action is
likely to generate public interest is an appropriate first step in
deciding whether to use the DFR process, and that a belief that
comments would not be useful to the agency does not create good cause.
We also agree with the Alliance that ``routine, insignificant, and
inconsequential actions'' could be appropriate for a DFR. However, the
agency also believes that some actions appropriate for a DFR could
sometimes be consequential, like technical corrections that could
generate positive interest and have considerable impact for those
affected by a rule, as EMA suggested in its comments.\5\ Some rules
that could be viewed as ``routine and insignificant,'' in contrast,
could also be more appropriate for a notice of proposed rulemaking
(NPRM) if they happen to be likely to generate adverse comment.
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\5\ Docket No. NHTSA-2013-0042-0012.
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With regard to the comment from MEMA, NHTSA is concerned that
initiating a DFR process only when we anticipate no comments at all
would be too narrow of an inquiry, and could severely and unhelpfully
curtail the usefulness of having DFR procedures. If the agency was
considering a rule that would have a positive impact on stakeholders,
and expected only supportive comments, it would not seem to make sense
to issue an NPRM rather than a DFR simply because there would be
comments.
For the above reasons, NHTSA continues to believe that asking
whether adverse comment is likely serves as the most accurate and
objective barometer of whether an action appropriately falls under the
``unnecessary'' exception to the APA's prior notice and comment
requirement. The use of this barometer is also consistent with the DFR
procedures adopted by other parts of the Department.

B. Examples of Actions for Which a DFR May Be Appropriate

In the NPRM, the agency listed a number of examples of actions for
which a DFR would likely be appropriate, and received various comments
in response. We emphasize that the purpose of the action finalized
today is not to draw parameters around which rulemaking activities are
subject to notice and comment procedures under the APA, but simply to
prescribe specific procedures for the agency to follow with regard to
certain actions that are not subject to notice and comment procedures
under the APA. In light of that, and also to ensure that the agency has
considered all relevant comments, the following discussion groups
comments by the DFR examples in the NPRM, and provides the agency's
response to each:
Non-Substantive Amendments, Such as Clarifications or Corrections, to
an Existing Rule
The Alliance and MEMA stated that a DFR would not be appropriate
for a rule clarifying an existing rule. Instead, both suggested that
the agency use a NPRM or the existing response letter process used for
requests for interpretation. NHTSA agrees that for major
clarifications, a NPRM would best accommodate any potential public
input. The agency also agrees that the existing process of issuing
letter responses continues to adequately address situations where an
interpretation is requested for a particular factual situation.
To be clear, the DFR process is not intended to replace either of
the processes identified by commenters; rather, it can serve a
supplementary role for minor clarifications or corrections that are not
specific to a requestor's particular situation. One hypothetical
example could be if the agency describes reporting details in a final
rule preamble as applicable in all instances, but includes
corresponding regulatory text providing those details for all
applicable provisions except one. A rulemaking better aligning the
appropriate details to all applicable provisions, as described in
preamble but not clear in the regulatory text, could be one such
clarification where a DFR would be appropriate. Therefore, consistent
with the procedures adopted by OST and other parts of the

[[Page 36489]]

Department, NHTSA is retaining this example in the final regulatory
text.
Updates to Existing Forms or Rules, Such as Incorporation by Reference
of the Latest Technical Standards, or Changes Affecting NHTSA's
Internal Procedures
The Alliance suggested that updating forms did not need to be
included in the list because that category is already excluded from
notice and comment procedures under the APA as something that addresses
``agency organization, procedure, or practice.'' The Alliance also
agreed that NHTSA internal procedures would be an appropriate use of
the DFR process.
The Alliance's comment combines two potential uses of a DFR that
could be, but are not necessarily related. First, NHTSA agrees that
forms dealing with rules of agency organization, procedure or practice,
or any other rules dealing with those subjects, would be excluded from
notice and comment procedures under 5 U.S.C. 553(b)(3)(A). Second,
rulemakings regarding forms used by the agency that are not limited to
internal functions, could be excluded from the notice and comment
requirements of the APA under 5 U.S.C. 553(b)(3)(B) if they meet the
parameters described in today's final rule. As described above, today's
action simply prescribes procedures for the agency to follow with
regard to certain actions not subject to notice and comment under the
APA. The procedures established under this rule could conceivably be
applied to actions exempted from notice and comment under 5 U.S.C.
553(b)(3)(A) as well as 5 U.S.C. 553(b)(3)(B).
The Owner-Operator Independent Drivers Association (OOIDA) noted
that not all changes in forms or incorporation of material will be
noncontroversial, and suggested that NHTSA revise the procedures to
specify that it will review each rule and determine whether it is
controversial. The Alliance and the Rubber Manufacturers Association
(RMA) argued that updating industry standards may not be appropriate
for a DFR if the changes are substantive. The Alliance stated that most
revisions to technical standards are substantive. RMA also suggested
that an incorporation by reference of latest technical standards would
raise concerns if a manufacturer was using previous standards based on
earlier NHTSA requirements. In that instance, RMA suggested the use of
initial voluntary compliance dates with a phase-in.
NHTSA appreciates the above concerns raised by commenters. NHTSA
recognizes that the agency has typically deferred making updates to
voluntary consensus standards until the standards have been changed in
a substantively significant way. Again, the listed examples of
situations where a DFR may be appropriate were not intended to imply
that a DFR will always be used in those situations, or that the agency
would shortcut its process of determining whether notice and comment
are unnecessary under the APA. NHTSA will assess every potential DFR
individually to determine whether using the DFR process would be
appropriate. NHTSA will not use the DFR to make updates to existing
forms or rules, such as an incorporation by reference of the latest
technical standards, that would involve complex or controversial
issues. We have added this language to the final regulatory text to
eliminate any confusion. We also emphasize, again, that if NHTSA ever
errs in its judgment and issues a DFR for an action that should have
been issued through an NPRM, the public will have an opportunity to
file an adverse comment stating as such.
For the above reasons, and consistent with the procedures adopted
by OST and other parts of the Department, NHTSA is retaining these
examples in the final regulatory text.
Minor Substantive Rules or Changes to Existing Rules on Which the
Agency Does Not Expect Adverse Comment
The Alliance also argued that the category of ``minor substantive
rules or changes to existing rules on which the agency does not expect
adverse comment'' was too subjective. An individual commenter, Sam
Creasey, also expressed concern with this provision, and stated that it
should not replace the standard comment process. Related to its comment
on when the use of a DFR would be appropriate, the Alliance stated that
the standard should be that no substantive public comments are
expected.
NHTSA disagrees with the Alliance's position. As explained above,
NHTSA is concerned that initiating a DFR process only when we
anticipate no comments at all would be too narrow of an inquiry, and
could severely and unhelpfully curtail the usefulness of having DFR
procedures. Moreover, we could envision a scenario in which a DFR could
be appropriate and we expect to receive only positive comments--whether
substantive or not, if comments are only positive and do not provide
the agency with information that would lead it to issue a final rule
different from what was proposed, there would not appear to be any
utility to going through the notice and comment process. That said,
NHTSA, like other agencies, has broad discretion under the APA to
determine when prior notice and comment are necessary for a rulemaking.
As also explained above, NHTSA will assess every potential DFR
individually, and will rely on notice and comment rulemaking when we
believe that a DFR would not be appropriate. Again, this rule simply
prescribes specific procedures for the agency to follow with regard to
certain actions that are not subject to notice and comment procedures
under the APA. It does not alter which actions are subject to such
procedures. We continue to believe that some types of minor rules or
changes properly fall into the category of actions for which notice and
comment are unnecessary.
The Alliance listed an example of a past proposal on which issues
raised during the comment process were likely unanticipated by NHTSA,
and argued that this supported the Alliance's position that expectation
of adverse comment would not be an appropriate standard for when the
DFR process should be used. Sam Creasey also stated that one of the
important purposes of the comment process is to help inform the agency
of unexpected adverse consequences to its rules. NHTSA agrees that it
is important for it to consider adverse comments, especially when
initially unanticipated by the agency, but believes that the use of a
comment period for DFRs, as established by these procedures, can easily
accomplish this objective. If a situation similar to the example
provided by the Alliance were to occur after issuance of these
procedures, the agency would be required by the procedures to respond
to its receipt of any adverse comment or notice of intent to submit
adverse comment by withdrawing the controversial provisions of the DFR
and, if the agency chose to move forward with the action, proceed with
a new notice of proposed rulemaking, with its attendant notice and
comment period. The standard of anticipated adverse comments would
simply help to answer the question of whether a particular action would
be noncontroversial--it would not completely eliminate the need for
that underlying analysis.
For the above reasons, and consistent with the procedures adopted
by OST and other parts of the Department, NHTSA is retaining this
example in the final regulatory text.

[[Page 36490]]

C. Definition of Adverse Comment

Several commenters disagreed with NHTSA's explanation of adverse
comment in the preamble, although they supported the proposed
regulatory text. The Alliance and MEMA argued that if a comment
recommended additional changes, it should be considered adverse whether
or not the comment explained why the notice would be ineffective
without the change. The commenters argued that NHTSA's proposed
treatment of such a comment would be inconsistent with the Department's
Office of the Secretary (OST) DFR procedures, and would inappropriately
transfer to the public a burden of ``proving'' that incorporation of
their comment would be needed to make the proposed action effective.
Both commenters stated that the proposed regulatory text, which, unlike
the preamble, did not include the ``why'' language, appeared more
consistent with the OST DFR procedures and the commenters' own
preferences. Global Automakers expressed similar concerns, arguing that
a DFR could be effective without a change but also unwise or
undesirable, in which case it should be considered adverse without
commenters having to prove ineffectiveness.
NHTSA agrees that the proposed regulatory text was not intended to
impose any obligation or expectation that a commenter ``prove''
anything related to a comment on a DFR, including effectiveness of the
notice without it. We also agree that an action could be effective
without a suggested additional change, but still have unanticipated
adverse consequences. A comment on a DFR could conceivably alert the
agency to such effects without having to explain why the notice would
be ineffective without the change. NHTSA is therefore maintaining the
regulatory definition of ``adverse comment'' as proposed. This
definition aligns with the definition adopted by OST in its DFR
procedures and is consistent with the definitions adopted by other
parts of the Department.
That said, however, we continue to believe that not all comments
recommending additional actions should be automatically considered
adverse. For example, it may not be appropriate to halt finalization of
a necessary and noncontroversial action simply because it led a
commenter to suggest an additional action that would also be
beneficial. Several DOT operating administrations \6\ specify in the
regulatory text of their DFR procedures that a comment recommending
additional rule changes would not be considered adverse unless it
explained that the notice would be ineffective without the change. RMA
suggested that NHTSA revise this explanation to state that the agency
would not consider a comment recommending additional actions or changes
``outside the scope of the rule'' to be adverse, unless the comment
also stated why the DFR would be ineffective without the additional
actions or changes. We believe that this revision appropriately
addresses both the commenters' and the agency's concerns, and are
therefore adopting it.
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\6\ The Federal Motor Carrier Safety Administration (FMCSA), the
Federal Aviation Administration (FAA), and the Pipeline and
Hazardous Materials Safety Administration (PHMSA).
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Global Automakers asked NHTSA to follow the Administrative
Conference of the United States (ACUS) recommendation \7\ that ``in
determining whether a significant adverse comment is sufficient to
terminate a direct final rulemaking, agencies should consider whether
the comment raises an issue serious enough to warrant a substantive
response in a notice-and-comment process.'' We agree that such an
adverse comment would appropriately result in a withdrawal of the
portion of a DFR to which it applied. By the same reasoning, a
frivolous or irrelevant comment would not result in a withdrawal, just
as it would also not raise an issue serious enough to warrant a
substantive response in a notice-and-comment rulemaking. We agree with
this logic. We also believe these assessments will occur as part of the
analysis of whether a potential action is complex or controversial. As
stated in the proposal, NHTSA will not use the DFR process for complex
or controversial actions.
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\7\ Administrative Conference of the United States
Recommendation number 95-4 (January 15, 1995), ``Procedures for
Noncontroversial and Expedited Rulemaking,'' at 3. http://www.acus.gov/recommendation/procedures-noncontroversial-and-expeditedrulemaking.
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RMA requested that NHTSA specify that objections about an effective
or implementation date, cost or benefits estimates would be adverse
comments. RMA also asked how NHTSA would treat general support but
opposition to an effective date because of unnecessary burden without
benefit--specifically, whether NHTSA would amend the effective date in
the revised DFR or open another rulemaking. We would consider an
effective or implementation date to be a ``provision of the rule,'' and
therefore a comment objecting to an effective or implementation date
would be considered a comment critical to a provision of the rule, and
thus adverse. We believe that a comment objecting to cost or benefits
estimates that also contained an objection to the adoption of the rule
or any provision of the rule, including an objection based solely on
the cost or benefits, would be adverse. However, an objection to the
cost or benefits estimates alone would likely not be considered
adverse.
OOIDA requested that NHTSA confirm that comments submitted through
the Web site regulations.gov would be considered ``received in
writing'' under the DFR procedures. We confirm this understanding.

D. Content and Issuance of a DFR

Several commenters asked for greater specification on the timing of
different stages of a DFR. MEMA stated that NHTSA must specify and
follow uniform timeliness throughout the issuance of a DFR. The
Alliance asked for more clarification of when the ``order is issued''
for purposes of judicial review, and recommended that NHTSA state in
the notice that the date of confirmation of rule is considered the
promulgation date. We do not believe this would be consistent with what
we consider the date of issuance for other rulemakings. As with other
final rules, the date of publication of a direct final rule in the
Federal Register is considered the date of issuance. Thus, for direct
final rules, NHTSA would consider the publication date as the starting
point for the purpose of calculating judicial review.
Global Automakers and MEMA requested that NHTSA specify it will
always provide at least 30 days for comment. OOIDA and RMA requested
that NHTSA specify a minimum 60-day comment period. RMA further asked
that NHTSA explain in the rulemaking why a shorter period is necessary
if 30 days are used instead. OOIDA also argued that failing to set any
minimum comment period without noting what circumstances would affect
the comment period length does not provide sufficient notice to the
public. MEMA stated that if the agency believed more than 30 days were
needed, a DFR may not be appropriate.
NHTSA believes that a minimum 30-day comment period is reasonable,
and that the certainty of a minimum comment period could be useful to
potential stakeholders. Therefore, we are amending the regulatory text
to state that at least 30 days will be provided for comments. We do not
agree that a minimum of 60 days should be mandatory, because in many
instances, such as for actions with no anticipated stakeholder
interest, a longer comment

[[Page 36491]]

period would not provide additional benefit. However, we continue to
believe it is appropriate for the agency to use its discretion in
providing a longer comment period when 30 days is anticipated to be
insufficient for any reason. This will allow the agency to use a longer
period for actions that may require more time for review either due to
the nature of the action, or, as suggested by OOIDA, to ensure access
for a key stakeholder group.
In establishing its DFR procedures, OST declined to specify any
minimum comment period in the regulatory test, explaining that ``In
practice, it is in OST's interest to provide a comment period of
sufficient length to allow interested parties to determine whether they
wish or need to submit adverse comments. Too short a comment period
could stymie the direct final rule process by forcing commenters to err
on the side of caution and file an intent to submit adverse comment to
stop the direct final rule process in cases involving any uncertainty
of the effect of a direct final rule.'' 69 FR 4456.
Stating that it would be consistent with an ACUS recommendation,
Global Automakers requested that NHTSA specify in the final rule either
that (1) the agency will issue a second notice confirming the DFR will
go into effect at least 30 days after the first notice; or (2) unless
the agency issues a notice withdrawing a DFR-issued rule by a
particular date, the rule will be effective no less than 30 days after
the specified date. MEMA requested that the regulatory text of the
procedures specify exactly when a DFR would go into effect, and that a
notice be published within 15 days either confirming no comments were
received or noting the withdrawal of the notice due to comments
received.
We agree that further specification would be useful, and believe
the suggestion from Global Automakers would accomplish this
effectively. Therefore, the regulatory text has been revised to state
that if no written adverse comment or written notice of intent to
submit adverse comment is received, the rule will become effective no
less than 45 days after the date of publication of the DFR. The
regulatory text also specifies that NHTSA will publish a notice in the
Federal Register if no adverse comment was received that confirms the
rule will become effective on the date indicated in the DFR. The agency
will either specify in the text of the DFR the exact period after which
the rule will become effective, or issue a second notice confirming
which date the DFR will go into effect. We believe that the minimum 45
day period between publication and effective dates will allow the
agency to properly assess whether adverse comments were received, and
to issue a confirmation notice if appropriate.
The Alliance stated that it supported the agency's proposed
procedures for withdrawing a DFR either in whole or in part. RMA stated
that this language was unprecedented in the DFR procedures of other DOT
modes, and requested that NHTSA specify which parts of a DFR would be
severable and which would be treated as whole units. RMA argued that if
the agency did not do so, it would create uncertainty and could
generate unnecessary comments where there otherwise would not have been
any. An example given was a commenter that may object to only parts of
a DFR being implemented.
NHTSA disagrees that language specifying that a DFR may be
withdrawn in whole or in part is unprecedented in other DOT modes; the
Federal Aviation Administration established DFR procedures with such a
provision in 2000.\8\ NHTSA agrees with RMA that it would alleviate
uncertainty for the agency to know as precisely as possible which parts
of the DFR should be severable in the case of adverse comments.
However, we believe the potential variations of severability within a
given notice could be endless, ranging from notices that are not
severable at all to notices where each provision is severable.
Therefore, it would be preferable for a commenter to specify to which
aspects of the notice they intended their comment to apply than for the
agency to outline every provision to be considered as a ``whole'' or
``part.'' NHTSA intends to remind commenters of the importance of
specifying to which aspects of the notice their comment applies, to
ensure that the agency withdraws only those areas that receive adverse
comment.
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\8\ 14 CFR 11.31; 65 FR 50850.
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OOIDA requested that NHTSA confirm it understands that the use of
the DFR procedure would not relieve the agency of any obligation to
perform a regulatory flexibility, Paperwork Reduction Act, or cost/
benefit analysis for a given notice. NHTSA confirms this understanding.
Global Automakers asked NHTSA to adopt an ACUS recommendation \9\
that a DFR include the full text of the regulation and supporting
materials. NHTSA's proposed procedures simply applied the existing
requirement for notices of proposed rulemakings to DFRs, which is that
rules provide ``a description of the subjects and issues involved or
the substance and terms of the rule.'' NHTSA understands this concern.
A DFR is, after all, a final rule, meaning that technically, the
agency, under the proposed language, would not need to include the
regulatory text in the notice, which would be problematic in the
assumed ordinary instance where the agency does not receive adverse
comment and does not need to pull back the initial final rule. NHTSA
believes that its longstanding interpretation of the requirement is
consistent with the ACUS recommendation, and, therefore, believes that
this instance will not occur for DFRs. However, in order to alleviate
any potential concerns, the agency has added new subsection (c) to make
clear that all DFRs will include the full regulatory text of the final
rule.
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\9\ Administrative Conference of the United States
Recommendation number 95-4 (January 15, 1995), ``Procedures for
Noncontroversial and Expedited Rulemaking,'' at 2. http://www.acus.gov/recommendation/procedures-noncontroversial-and-expeditedrulemaking.
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RMA requested that NHTSA include the phrase ``Direct Final Rule''
under the ``action'' caption of DFRs. NHTSA agrees with this request
and will do so.

III. Statutory and Executive Orders

Executive Orders 12866 and 13563

NHTSA has determined that this action is not a significant
regulatory action under Executive Orders 12866 and 13563, or under the
Department's Regulatory Policies and Procedures. There are no costs
associated with the rule. There will be some cost savings in Federal
Register publication costs and efficiencies for the public and NHTSA
personnel in eliminating duplicative reviews.

Regulatory Flexibility Act

NHTSA certifies that this rule will not have a significant impact
on a substantial number of small entities.

Executive Order 13132

NHTSA does not believe that there will be sufficient federalism
implications to warrant the preparation of a federalism assessment.

Paperwork Reduction Act

The rule does not contain any information collection requirements
under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

Unfunded Mandates Reform Act of 1995

NHTSA has determined that the requirements of Title II of the
Unfunded Mandates Reform Act of 1995 do not apply to this rulemaking.

[[Page 36492]]

National Technology Transfer Advancement Act

Section 12(d) of the National Technology Transfer and Advancement
Act (NTTAA) requires NHTSA to evaluate and use existing voluntary
consensus standards in its regulatory activities unless doing so would
be inconsistent with applicable law (e.g., the statutory provisions
regarding NHTSA's vehicle safety authority) or otherwise impractical.
Voluntary consensus standards are technical standards developed or
adopted by voluntary consensus standards bodies. Technical standards
are defined by the NTTAA as ``performance-based or design-specific
technical specification and related management systems practices.''
They pertain to ``products and processes, such as size, strength, or
technical performance of a product, process or material.''
Examples of organizations generally regarded as voluntary consensus
standards bodies include the American Society for Testing and Materials
(ASTM), the Society of Automotive Engineers (SAE), and the American
National Standards Institute (ANSI). If NHTSA does not use available
and potentially applicable voluntary consensus standards, we are
required by the Act to provide Congress, through OMB, an explanation of
the reasons for not using such standards.
NHTSA has not identified any applicable voluntary consensus
standards for this procedural rule.

Privacy Act

Anyone is able to search the electronic form of all comments
received into any of our dockets by the name of the individual
submitting the comments (or signing the comment, if submitted on behalf
of an association, business, labor union, etc.). For more information
on DOT's implementation of the Privacy Act, please visit: http://www.dot.gov/privacy.

List of Subjects in 49 CFR Part 553

Administrative practice and procedure, Motor vehicle safety.

Regulatory Text

For the reasons set forth in the preamble, the National Highway
Traffic Safety Administration is amending 49 CFR part 553 as follows:

PART 553--RULEMAKING PROCEDURES

0
1. The authority citation for part 553 is revised to read as follows:

Authority: 49 U.S.C. 322, 1657, 30103, 30122, 30124, 30125,
30127, 30146, 30162, 32303, 32502, 32504, 32505, 32705, 32901,
32902, 33102, 33103, and 33107; delegation of authority at 49 CFR
1.95.

0
2. Add Sec. 553.14 to read as follows:

Sec. 553.14 Direct final rulemaking.

If the Administrator, for good cause, finds that notice is
unnecessary, and incorporates that finding and a brief statement of the
reasons for it in the rule, a direct final rule may be issued according
to the following procedures.
(a) Rules that the Administrator judges to be non-controversial and
unlikely to result in adverse public comment may be published as direct
final rules. These may include rules that:
(1) Are non-substantive amendments, such as clarifications or
corrections, to an existing rule;
(2) Update existing forms or rules, such as incorporations by
reference of the latest technical standards where the standards have
not been changed in a complex or controversial way;
(3) Affect NHTSA's internal procedures, such as filing requirements
and rules governing inspection and copying of documents;
(4) Are minor substantive rules or changes to existing rules on
which the agency does not expect adverse comment.
(b) The Federal Register document will state that any adverse
comment or notice of intent to submit adverse comment must be received
in writing by NHTSA within the specified time after the date of
publication of the direct final rule and that, if no written adverse
comment or written notice of intent to submit adverse comment is
received in that period, the rule will become effective a specified
number of days (no less than 45) after the date of publication of the
direct final rule. NHTSA will provide a minimum comment period of 30
days.
(c) If no written adverse comment or written notice of intent to
submit adverse comment is received by NHTSA within the specified time
after the date of publication in the Federal Register, NHTSA will
publish a document in the Federal Register indicating that no adverse
comment was received and confirming that the rule will become effective
on the date that was indicated in the direct final rule.
(d) If NHTSA receives any written adverse comment or written notice
of intent to submit adverse comment within the specified time after
publication of the direct final rule in the Federal Register, the
agency will publish a document withdrawing the direct final rule, in
whole or in part, in the final rule section of the Federal Register. If
NHTSA decides to proceed with a provision on which adverse comment was
received, the agency will publish a notice of proposed rulemaking in
the proposed rule section of the Federal Register to provide another
opportunity to comment.
(e) An ``adverse'' comment, for the purpose of this subpart, means
any comment that NHTSA determines is critical of any provision of the
rule, suggests that the rule should not be adopted, or suggests a
change that should be made in the rule. A comment suggesting that the
policy or requirements of the rule should or should not also be
extended to other Departmental programs outside the scope of the rule
is not adverse.

0
3. In Sec. 553.15, revise the section heading and paragraphs (a),
(b)(1), and (b)(3) to read as follows:

Sec. 553.15 Contents of notices of proposed rulemaking and direct
final rules.

(a) Each notice of proposed rulemaking, and each direct final rule,
is published in the Federal Register, unless all persons subject to it
are named and are personally served with a copy of it.
(b) * * *
(1) A statement of the time, place, and nature of the rulemaking
proceeding;
* * * * *
(3) A description of the subjects and issues involved or the
substance and terms of the rule.
(c) In the case of a direct final rule, the agency will also
include the full regulatory text in the document published in the
Federal Register;
* * * * *

0
4. Revise Sec. 553.23 to read as follows:

Sec. 553.23 Consideration of comments received.

All timely comments are considered before final action is taken on
a rulemaking proposal or direct final rule. Late filed comments will be
considered to the extent practicable.

Issued in Washington, DC, on June 18, 2015 under authority
delegated in 49 CFR 1.95.
Mark R. Rosekind,
Administrator.
[FR Doc. 2015-15507 Filed 6-24-15; 8:45 am]
BILLING CODE 4910-59-P

36488 Federal Register / Vol. 80, No. 122 / Thursday, June 25, 2015 / Rules and Regulations

January 30, 2004 in order to expedite Equipment Manufacturers Association the APA’s prior notice and comment
the process adopting non-controversial (MEMA) stated that the primary requirement. The use of this barometer
rules issued by that office.2 The agency determining factor in deciding whether is also consistent with the DFR
also considered the DFR procedures a DFR would be appropriate should be procedures adopted by other parts of the
adopted by several operating whether the action would generate Department.
administrations within DOT since public interest, not whether the agency
B. Examples of Actions for Which a DFR
2004.3 would expect adverse comment. The
NHTSA proposed to use the DFR May Be Appropriate
Alliance suggested the agency ask
process for a rule when the agency whether a rule would be routine, In the NPRM, the agency listed a
anticipates that the rule, if proposed, insignificant, and inconsequential number of examples of actions for
would not generate adverse comment before using the DFR process, and cited which a DFR would likely be
and the final rule would therefore likely a D.C. Circuit case noting that an agency appropriate, and received various
be identical to the proposal. In those does not create good cause to dispense comments in response. We emphasize
instances, the agency believed that with notice and comment procedures that the purpose of the action finalized
providing notice and opportunity for through an assertion that comments today is not to draw parameters around
comment would not be necessary. would not be useful.4 MEMA suggested which rulemaking activities are subject
Notice and comment rulemaking the agency ask whether the action to notice and comment procedures
procedures are not required under the would be so minor that the agency under the APA, but simply to prescribe
Administrative Procedure Act (APA) (5 would expect no comments at all. specific procedures for the agency to
U.S.C. 553) when an agency finds, for NHTSA agrees with the Alliance that follow with regard to certain actions
good cause, that using them would be asking whether an action is likely to that are not subject to notice and
unnecessary. See 5 U.S.C. 553(b)(3)(B). generate public interest is an comment procedures under the APA. In
NHTSA said that it believed this appropriate first step in deciding light of that, and also to ensure that the
procedural option would expedite the whether to use the DFR process, and agency has considered all relevant
issuance of non-controversial rules, and that a belief that comments would not comments, the following discussion
thereby save time and agency resources. be useful to the agency does not create groups comments by the DFR examples
NHTSA emphasized that it would not good cause. We also agree with the in the NPRM, and provides the agency’s
use direct final rule procedures for Alliance that ‘‘routine, insignificant, response to each:
complex or controversial issues. and inconsequential actions’’ could be
In this final rule, NHTSA adopts DFR Non-Substantive Amendments, Such as
appropriate for a DFR. However, the
procedures that are similar to the Clarifications or Corrections, to an
agency also believes that some actions
proposed ones, except that the agency Existing Rule
appropriate for a DFR could sometimes
made some changes in response to be consequential, like technical The Alliance and MEMA stated that a
public comments received by the corrections that could generate positive DFR would not be appropriate for a rule
agency. NHTSA received 16 comments, interest and have considerable impact clarifying an existing rule. Instead, both
some of which were substantive and for those affected by a rule, as EMA suggested that the agency use a NPRM
prompted NHTSA to change its suggested in its comments.5 Some rules or the existing response letter process
proposed DFR procedures. The that could be viewed as ‘‘routine and used for requests for interpretation.
comments and NHTSA’s responses to insignificant,’’ in contrast, could also be NHTSA agrees that for major
them are discussed below. more appropriate for a notice of clarifications, a NPRM would best
II. Responses to Comments on the proposed rulemaking (NPRM) if they accommodate any potential public
Notice of Proposed Rulemaking happen to be likely to generate adverse input. The agency also agrees that the
comment. existing process of issuing letter
Seven of the 16 comments received by With regard to the comment from responses continues to adequately
NHTSA contained substantive reactions, MEMA, NHTSA is concerned that address situations where an
suggestions, and recommendations. initiating a DFR process only when we interpretation is requested for a
They are summarized below, along with anticipate no comments at all would be particular factual situation.
the agency’s responses. The remaining too narrow of an inquiry, and could To be clear, the DFR process is not
nine comments were nonsubstantive severely and unhelpfully curtail the intended to replace either of the
and/or did not apply to anything in the usefulness of having DFR procedures. If processes identified by commenters;
proposal, and therefore are not the agency was considering a rule that rather, it can serve a supplementary role
discussed below. would have a positive impact on for minor clarifications or corrections
A. When the Use of a DFR Would Be stakeholders, and expected only that are not specific to a requestor’s
Appropriate supportive comments, it would not particular situation. One hypothetical
seem to make sense to issue an NPRM example could be if the agency
Commenters expressed different
rather than a DFR simply because there describes reporting details in a final rule
positions on the circumstances in which
would be comments. preamble as applicable in all instances,
they believed that issuance of a DFR
For the above reasons, NHTSA but includes corresponding regulatory
would be most appropriate. The
continues to believe that asking whether text providing those details for all
Alliance of Automobile Manufacturers
adverse comment is likely serves as the applicable provisions except one. A
(the ‘‘Alliance’’) and the Motor &
most accurate and objective barometer rulemaking better aligning the
of whether an action appropriately falls appropriate details to all applicable
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2 See
48 CFR 5.35.
3 See
14 CFR 11.31 (Federal Aviation
under the ‘‘unnecessary’’ exception to provisions, as described in preamble but
Administration); 49 CFR 106.40 (Pipeline and not clear in the regulatory text, could be
4 See Docket No. NHTSA–2013–0042–0013,
Hazardous Materials Safety Administration); 49 one such clarification where a DFR
CFR 211.33 (Federal Railroad Administration); 49 Alliance of Automobile Manufacturers Comments at
CFR 389.39 (Federal Motor Carrier Safety 3, citing Action on Smoking and Health v. Civil would be appropriate. Therefore,
Administration); 49 CFR 601.36 (Federal Transit Aeronautics Board, 713 F.2d 795 (D.C. Cir. 1983). consistent with the procedures adopted
Administration). 5 Docket No. NHTSA–2013–0042–0012. by OST and other parts of the

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Federal Register / Vol. 80, No. 122 / Thursday, June 25, 2015 / Rules and Regulations 36489

Department, NHTSA is retaining this recognizes that the agency has typically the notice and comment process. That
example in the final regulatory text. deferred making updates to voluntary said, NHTSA, like other agencies, has
consensus standards until the standards broad discretion under the APA to
Updates to Existing Forms or Rules,
have been changed in a substantively determine when prior notice and
Such as Incorporation by Reference of
significant way. Again, the listed comment are necessary for a
the Latest Technical Standards, or
examples of situations where a DFR may rulemaking.
Changes Affecting NHTSA’s Internal
be appropriate were not intended to
Procedures As also explained above, NHTSA will
imply that a DFR will always be used in
The Alliance suggested that updating assess every potential DFR individually,
those situations, or that the agency
forms did not need to be included in the and will rely on notice and comment
would shortcut its process of
list because that category is already determining whether notice and rulemaking when we believe that a DFR
excluded from notice and comment comment are unnecessary under the would not be appropriate. Again, this
procedures under the APA as something APA. NHTSA will assess every potential rule simply prescribes specific
that addresses ‘‘agency organization, DFR individually to determine whether procedures for the agency to follow with
procedure, or practice.’’ The Alliance using the DFR process would be regard to certain actions that are not
also agreed that NHTSA internal appropriate. NHTSA will not use the subject to notice and comment
procedures would be an appropriate use DFR to make updates to existing forms procedures under the APA. It does not
of the DFR process. or rules, such as an incorporation by alter which actions are subject to such
The Alliance’s comment combines reference of the latest technical procedures. We continue to believe that
two potential uses of a DFR that could standards, that would involve complex some types of minor rules or changes
be, but are not necessarily related. First, or controversial issues. We have added properly fall into the category of actions
NHTSA agrees that forms dealing with this language to the final regulatory text for which notice and comment are
rules of agency organization, procedure to eliminate any confusion. We also unnecessary.
or practice, or any other rules dealing emphasize, again, that if NHTSA ever The Alliance listed an example of a
with those subjects, would be excluded errs in its judgment and issues a DFR for past proposal on which issues raised
from notice and comment procedures an action that should have been issued
under 5 U.S.C. 553(b)(3)(A). Second, during the comment process were likely
through an NPRM, the public will have unanticipated by NHTSA, and argued
rulemakings regarding forms used by an opportunity to file an adverse
the agency that are not limited to that this supported the Alliance’s
comment stating as such. position that expectation of adverse
internal functions, could be excluded For the above reasons, and consistent
from the notice and comment comment would not be an appropriate
with the procedures adopted by OST
requirements of the APA under 5 U.S.C. and other parts of the Department, standard for when the DFR process
553(b)(3)(B) if they meet the parameters NHTSA is retaining these examples in should be used. Sam Creasey also stated
described in today’s final rule. As the final regulatory text. that one of the important purposes of
described above, today’s action simply the comment process is to help inform
prescribes procedures for the agency to Minor Substantive Rules or Changes to the agency of unexpected adverse
follow with regard to certain actions not Existing Rules on Which the Agency consequences to its rules. NHTSA
subject to notice and comment under Does Not Expect Adverse Comment agrees that it is important for it to
the APA. The procedures established The Alliance also argued that the consider adverse comments, especially
under this rule could conceivably be category of ‘‘minor substantive rules or when initially unanticipated by the
applied to actions exempted from notice changes to existing rules on which the agency, but believes that the use of a
and comment under 5 U.S.C. agency does not expect adverse comment period for DFRs, as
553(b)(3)(A) as well as 5 U.S.C. comment’’ was too subjective. An established by these procedures, can
553(b)(3)(B). individual commenter, Sam Creasey, easily accomplish this objective. If a
The Owner-Operator Independent also expressed concern with this situation similar to the example
Drivers Association (OOIDA) noted that provision, and stated that it should not provided by the Alliance were to occur
not all changes in forms or replace the standard comment process. after issuance of these procedures, the
incorporation of material will be Related to its comment on when the use agency would be required by the
noncontroversial, and suggested that of a DFR would be appropriate, the procedures to respond to its receipt of
NHTSA revise the procedures to specify Alliance stated that the standard should any adverse comment or notice of intent
that it will review each rule and be that no substantive public comments to submit adverse comment by
determine whether it is controversial. are expected. withdrawing the controversial
The Alliance and the Rubber NHTSA disagrees with the Alliance’s provisions of the DFR and, if the agency
Manufacturers Association (RMA) position. As explained above, NHTSA is chose to move forward with the action,
argued that updating industry standards concerned that initiating a DFR process proceed with a new notice of proposed
may not be appropriate for a DFR if the only when we anticipate no comments rulemaking, with its attendant notice
changes are substantive. The Alliance at all would be too narrow of an inquiry,
and comment period. The standard of
stated that most revisions to technical and could severely and unhelpfully
anticipated adverse comments would
standards are substantive. RMA also curtail the usefulness of having DFR
simply help to answer the question of
suggested that an incorporation by procedures. Moreover, we could
whether a particular action would be
reference of latest technical standards envision a scenario in which a DFR
noncontroversial—it would not
would raise concerns if a manufacturer could be appropriate and we expect to
receive only positive comments— completely eliminate the need for that
was using previous standards based on
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whether substantive or not, if comments underlying analysis.
earlier NHTSA requirements. In that
instance, RMA suggested the use of are only positive and do not provide the For the above reasons, and consistent
initial voluntary compliance dates with agency with information that would with the procedures adopted by OST
a phase-in. lead it to issue a final rule different from and other parts of the Department,
NHTSA appreciates the above what was proposed, there would not NHTSA is retaining this example in the
concerns raised by commenters. NHTSA appear to be any utility to going through final regulatory text.

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36490 Federal Register / Vol. 80, No. 122 / Thursday, June 25, 2015 / Rules and Regulations

C. Definition of Adverse Comment the regulatory text of their DFR provision of the rule, and thus adverse.
Several commenters disagreed with procedures that a comment We believe that a comment objecting to
NHTSA’s explanation of adverse recommending additional rule changes cost or benefits estimates that also
comment in the preamble, although they would not be considered adverse unless contained an objection to the adoption
supported the proposed regulatory text. it explained that the notice would be of the rule or any provision of the rule,
The Alliance and MEMA argued that if ineffective without the change. RMA including an objection based solely on
a comment recommended additional suggested that NHTSA revise this the cost or benefits, would be adverse.
changes, it should be considered explanation to state that the agency However, an objection to the cost or
adverse whether or not the comment would not consider a comment benefits estimates alone would likely
explained why the notice would be recommending additional actions or not be considered adverse.
ineffective without the change. The changes ‘‘outside the scope of the rule’’ OOIDA requested that NHTSA
commenters argued that NHTSA’s to be adverse, unless the comment also confirm that comments submitted
proposed treatment of such a comment stated why the DFR would be ineffective through the Web site regulations.gov
would be inconsistent with the without the additional actions or would be considered ‘‘received in
Department’s Office of the Secretary changes. We believe that this revision writing’’ under the DFR procedures. We
(OST) DFR procedures, and would appropriately addresses both the confirm this understanding.
inappropriately transfer to the public a commenters’ and the agency’s concerns, D. Content and Issuance of a DFR
burden of ‘‘proving’’ that incorporation and are therefore adopting it.
Global Automakers asked NHTSA to Several commenters asked for greater
of their comment would be needed to specification on the timing of different
make the proposed action effective. follow the Administrative Conference of
the United States (ACUS) stages of a DFR. MEMA stated that
Both commenters stated that the NHTSA must specify and follow
proposed regulatory text, which, unlike recommendation 7 that ‘‘in determining
whether a significant adverse comment uniform timeliness throughout the
the preamble, did not include the issuance of a DFR. The Alliance asked
‘‘why’’ language, appeared more is sufficient to terminate a direct final
rulemaking, agencies should consider for more clarification of when the
consistent with the OST DFR ‘‘order is issued’’ for purposes of
procedures and the commenters’ own whether the comment raises an issue
serious enough to warrant a substantive judicial review, and recommended that
preferences. Global Automakers NHTSA state in the notice that the date
expressed similar concerns, arguing that response in a notice-and-comment
process.’’ We agree that such an adverse of confirmation of rule is considered the
a DFR could be effective without a promulgation date. We do not believe
change but also unwise or undesirable, comment would appropriately result in
a withdrawal of the portion of a DFR to this would be consistent with what we
in which case it should be considered consider the date of issuance for other
adverse without commenters having to which it applied. By the same
reasoning, a frivolous or irrelevant rulemakings. As with other final rules,
prove ineffectiveness. the date of publication of a direct final
NHTSA agrees that the proposed comment would not result in a
withdrawal, just as it would also not rule in the Federal Register is
regulatory text was not intended to
raise an issue serious enough to warrant considered the date of issuance. Thus,
impose any obligation or expectation
a substantive response in a notice-and- for direct final rules, NHTSA would
that a commenter ‘‘prove’’ anything
comment rulemaking. We agree with consider the publication date as the
related to a comment on a DFR,
this logic. We also believe these starting point for the purpose of
including effectiveness of the notice
assessments will occur as part of the calculating judicial review.
without it. We also agree that an action Global Automakers and MEMA
could be effective without a suggested analysis of whether a potential action is
complex or controversial. As stated in requested that NHTSA specify it will
additional change, but still have always provide at least 30 days for
unanticipated adverse consequences. A the proposal, NHTSA will not use the
DFR process for complex or comment. OOIDA and RMA requested
comment on a DFR could conceivably that NHTSA specify a minimum 60-day
alert the agency to such effects without controversial actions.
RMA requested that NHTSA specify comment period. RMA further asked
having to explain why the notice would
that objections about an effective or that NHTSA explain in the rulemaking
be ineffective without the change.
implementation date, cost or benefits why a shorter period is necessary if 30
NHTSA is therefore maintaining the
estimates would be adverse comments. days are used instead. OOIDA also
regulatory definition of ‘‘adverse
RMA also asked how NHTSA would argued that failing to set any minimum
comment’’ as proposed. This definition
treat general support but opposition to comment period without noting what
aligns with the definition adopted by
an effective date because of unnecessary circumstances would affect the
OST in its DFR procedures and is
burden without benefit—specifically, comment period length does not
consistent with the definitions adopted
whether NHTSA would amend the provide sufficient notice to the public.
by other parts of the Department.
That said, however, we continue to effective date in the revised DFR or MEMA stated that if the agency believed
believe that not all comments open another rulemaking. We would more than 30 days were needed, a DFR
recommending additional actions consider an effective or implementation may not be appropriate.
date to be a ‘‘provision of the rule,’’ and NHTSA believes that a minimum 30-
should be automatically considered
therefore a comment objecting to an day comment period is reasonable, and
adverse. For example, it may not be
effective or implementation date would that the certainty of a minimum
appropriate to halt finalization of a
be considered a comment critical to a comment period could be useful to
necessary and noncontroversial action
potential stakeholders. Therefore, we
simply because it led a commenter to
are amending the regulatory text to state
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suggest an additional action that would Hazardous Materials Safety Administration
(PHMSA). that at least 30 days will be provided for
also be beneficial. Several DOT 7 Administrative Conference of the United States comments. We do not agree that a
operating administrations 6 specify in Recommendation number 95–4 (January 15, 1995), minimum of 60 days should be
‘‘Procedures for Noncontroversial and Expedited
6 The Federal Motor Carrier Safety Rulemaking,’’ at 3. http://www.acus.gov/
mandatory, because in many instances,
Administration (FMCSA), the Federal Aviation recommendation/procedures-noncontroversial-and- such as for actions with no anticipated
Administration (FAA), and the Pipeline and expeditedrulemaking. stakeholder interest, a longer comment

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period would not provide additional between publication and effective dates applied the existing requirement for
benefit. However, we continue to will allow the agency to properly assess notices of proposed rulemakings to
believe it is appropriate for the agency whether adverse comments were DFRs, which is that rules provide ‘‘a
to use its discretion in providing a received, and to issue a confirmation description of the subjects and issues
longer comment period when 30 days is notice if appropriate. involved or the substance and terms of
anticipated to be insufficient for any The Alliance stated that it supported the rule.’’ NHTSA understands this
reason. This will allow the agency to the agency’s proposed procedures for concern. A DFR is, after all, a final rule,
use a longer period for actions that may withdrawing a DFR either in whole or meaning that technically, the agency,
require more time for review either due in part. RMA stated that this language under the proposed language, would not
to the nature of the action, or, as was unprecedented in the DFR need to include the regulatory text in
suggested by OOIDA, to ensure access procedures of other DOT modes, and the notice, which would be problematic
for a key stakeholder group. requested that NHTSA specify which in the assumed ordinary instance where
In establishing its DFR procedures, parts of a DFR would be severable and the agency does not receive adverse
OST declined to specify any minimum which would be treated as whole units.
comment and does not need to pull back
comment period in the regulatory test, RMA argued that if the agency did not
the initial final rule. NHTSA believes
explaining that ‘‘In practice, it is in do so, it would create uncertainty and
that its longstanding interpretation of
OST’s interest to provide a comment could generate unnecessary comments
period of sufficient length to allow where there otherwise would not have the requirement is consistent with the
interested parties to determine whether been any. An example given was a ACUS recommendation, and, therefore,
they wish or need to submit adverse commenter that may object to only parts believes that this instance will not occur
comments. Too short a comment period of a DFR being implemented. for DFRs. However, in order to alleviate
could stymie the direct final rule NHTSA disagrees that language any potential concerns, the agency has
process by forcing commenters to err on specifying that a DFR may be added new subsection (c) to make clear
the side of caution and file an intent to withdrawn in whole or in part is that all DFRs will include the full
submit adverse comment to stop the unprecedented in other DOT modes; the regulatory text of the final rule.
direct final rule process in cases Federal Aviation Administration RMA requested that NHTSA include
involving any uncertainty of the effect established DFR procedures with such a the phrase ‘‘Direct Final Rule’’ under
of a direct final rule.’’ 69 FR 4456. provision in 2000.8 NHTSA agrees with the ‘‘action’’ caption of DFRs. NHTSA
Stating that it would be consistent RMA that it would alleviate uncertainty agrees with this request and will do so.
with an ACUS recommendation, Global for the agency to know as precisely as
Automakers requested that NHTSA possible which parts of the DFR should III. Statutory and Executive Orders
specify in the final rule either that (1) be severable in the case of adverse Executive Orders 12866 and 13563
the agency will issue a second notice comments. However, we believe the
confirming the DFR will go into effect potential variations of severability NHTSA has determined that this
at least 30 days after the first notice; or within a given notice could be endless, action is not a significant regulatory
(2) unless the agency issues a notice ranging from notices that are not action under Executive Orders 12866
withdrawing a DFR-issued rule by a severable at all to notices where each and 13563, or under the Department’s
particular date, the rule will be effective provision is severable. Therefore, it Regulatory Policies and Procedures.
no less than 30 days after the specified would be preferable for a commenter to There are no costs associated with the
date. MEMA requested that the specify to which aspects of the notice rule. There will be some cost savings in
regulatory text of the procedures specify they intended their comment to apply Federal Register publication costs and
exactly when a DFR would go into than for the agency to outline every efficiencies for the public and NHTSA
effect, and that a notice be published provision to be considered as a ‘‘whole’’ personnel in eliminating duplicative
within 15 days either confirming no or ‘‘part.’’ NHTSA intends to remind reviews.
comments were received or noting the commenters of the importance of
withdrawal of the notice due to specifying to which aspects of the notice Regulatory Flexibility Act
comments received. their comment applies, to ensure that
We agree that further specification the agency withdraws only those areas NHTSA certifies that this rule will not
would be useful, and believe the that receive adverse comment. have a significant impact on a
suggestion from Global Automakers OOIDA requested that NHTSA substantial number of small entities.
would accomplish this effectively. confirm it understands that the use of Executive Order 13132
Therefore, the regulatory text has been the DFR procedure would not relieve
revised to state that if no written the agency of any obligation to perform NHTSA does not believe that there
adverse comment or written notice of a regulatory flexibility, Paperwork will be sufficient federalism
intent to submit adverse comment is Reduction Act, or cost/benefit analysis implications to warrant the preparation
received, the rule will become effective for a given notice. NHTSA confirms this of a federalism assessment.
no less than 45 days after the date of understanding.
publication of the DFR. The regulatory Global Automakers asked NHTSA to Paperwork Reduction Act
text also specifies that NHTSA will adopt an ACUS recommendation 9 that
publish a notice in the Federal Register The rule does not contain any
a DFR include the full text of the
if no adverse comment was received information collection requirements
regulation and supporting materials.
that confirms the rule will become under the Paperwork Reduction Act of
NHTSA’s proposed procedures simply
effective on the date indicated in the 1995 (44 U.S.C. 3501–3520).
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DFR. The agency will either specify in 8 14 CFR 11.31; 65 FR 50850. Unfunded Mandates Reform Act of 1995
the text of the DFR the exact period after 9 Administrative Conference of the United States
which the rule will become effective, or Recommendation number 95–4 (January 15, 1995), NHTSA has determined that the
‘‘Procedures for Noncontroversial and Expedited
issue a second notice confirming which Rulemaking,’’ at 2. http://www.acus.gov/
requirements of Title II of the Unfunded
date the DFR will go into effect. We recommendation/procedures-noncontroversial-and- Mandates Reform Act of 1995 do not
believe that the minimum 45 day period expeditedrulemaking. apply to this rulemaking.

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Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Rules and Regulations
Action		Final rule.
Dates		Effective June 25, 2015.
Contact		Analiese Marchesseault, Office of Chief Counsel, National Highway Traffic Safety Administration, 1200 New Jersey Avenue SE., Washington, DC 20590; Telephone: (202) 366-2992.
FR Citation		80 FR 36487
RIN Number		2127-AL32
CFR Associated		Administrative Practice and Procedure and Motor Vehicle Safety

80 FR 36487 - Direct Final Rulemaking Procedures

DEPARTMENT OF TRANSPORTATIONNational Highway Traffic Safety Administration

Federal Register Volume 80, Issue 122 (June 25, 2015)

DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration