Home Page About Us Contribute




Escort, Inc.



Tweets by @CrittendenAuto






By accessing/using The Crittenden Automotive Library/CarsAndRacingStuff.com, you signify your agreement with the Terms of Use on our Legal Information page. Our Privacy Policy is also available there.

Direct Final Rulemaking Procedures

American Government Special Collections Reference Desk

American Government

Direct Final Rulemaking Procedures

Mark R. Rosekind
National Highway Traffic Safety Administration
June 25, 2015


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


=======================================================================
-----------------------------------------------------------------------

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.

-----------------------------------------------------------------------

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\
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \5\ Docket No. NHTSA-2013-0042-0012.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \6\ The Federal Motor Carrier Safety Administration (FMCSA), the 
Federal Aviation Administration (FAA), and the Pipeline and 
Hazardous Materials Safety Administration (PHMSA).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \8\ 14 CFR 11.31; 65 FR 50850.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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

Connect with The Crittenden Automotive Library

The Crittenden Automotive Library on Facebook The Crittenden Automotive Library on Instagram The Crittenden Automotive Library at The Internet Archive The Crittenden Automotive Library on Pinterest The Crittenden Automotive Library on Twitter The Crittenden Automotive Library on Tumblr


The Crittenden Automotive Library

Home Page    About Us    Contribute