• Henry Seaton

Revisions proposed to rulemaking procedures

FMCSA has proposed to amend its rulemaking procedures, in some cases in response to changes made by the Fixing America's Surface Transportation (FAST) Act. The changes are authorized by the FAST Act and the Administrative Procedure Act (APA), the agency said. Comments are due October 6.

The FAST Act required that for major rules, FMCSA either use negotiated rulemaking or issue an advance notice of proposed rulemaking (ANPRM). However, the FAST Act allows FMCSA to waive the requirement in cases where it would be impractical, unnecessary, or contrary to the public interest. FMCSA proposes to use the definition of “major rule” as contained in the Congressional Review Act (5 USC 801).

FMCSA proposes to adopt a definition of a petition and a new process for the filing and review of petitions within Part 389.

The agency also proposes to change its approach to direct final rulemaking (DFR) – proceedings in which FMCSA adopts a rule without soliciting comments. The current practice is to withdraw a DFR if the agency receives files a notice of intent (NOI) to file an adverse comment. Now, FMCSA proposes to extend the comment period upon receiving an NOI and then respond based on its assessment of whether the filed comment really is adverse.

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