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Rulemaking 101: The process behind FMCSA’s regulatory agenda

Ever wondered what exactly the Federal Motor Carrier Safety Administration’s rulemaking process actually is? And how it gets off course or delayed in pushing out a rule, like the current situation with the electronic logging device mandate?

Federal law dictates how agencies make regulations, but numerous factors affect that process.

For example, the Federal Motor Carrier Safety Administration’s current regulatory roster includes rulemaking ordered by the 2005 transportation omnibus act. Last year’s transportation reauthorization added to that, directing agency officials to complete 29 rulemakings to over 27 months.

Some rulemaking activity is prolonged, such as regarding an electronic logging device mandate. Stipulated under the 2012 Moving Ahead for Progress in the 21st Century, it is one of more than a dozen significant proposals the FMCSA is considering. But related rulemaking dates as early as 1994, long before MAP-21 required ELD rulemaking that includes safeguards against drivers being pressured to work under unsafe conditions.

The Administrative Procedure Act sets requirements for “notice-and-comment rulemaking” or informal rulemaking, often satisfied by publishing a Notice of Proposed Rulemaking and accepting public comment on it.

Officials frequently accept feedback for 30 to 60 days, but may allow more time for complex rulemakings or because of public request. They also can extend or reopen a comment period if not satisfied with feedback quality or if comments raise issues not discussed in the initial proposed rule.

During this period, agencies can gain additional public reaction through hearings, webcasts and interactive Internet sessions. While not required, these efforts can provide additional time for the FMCSA to accept comments that responded to earlier feedback.

Officials must consider public reaction before publishing a final rule in the Federal Register, the “legal newspaper” of the U.S. government.

At any stage, the rulemaking process may become bogged down or screech to a halt for many reasons. Many factors may slow progress, such as difficulty coordinating efforts between agencies, lack of resources and encountering unexpected issues that merit consideration.

The final rule often becomes effective at least 30 days after publication, although public interest can implement the change earlier. The opposite is true for significant rules, which are required to have a 60-day delayed effective date.

But agencies can publish interim or direct final rules without a NPRM first appearing in the Federal Register. Exemptions include when the notice-and-comment period would be unnecessary or impracticable to address an emergency.

Early in the rulemaking process, agencies sometimes seek initial reactions to a proposal through publishing an Advanced Notice of Public Rulemaking. Conversely, a Supplement Notice of Proposed Rulemaking is warranted when persuasive new data or arguments emerge. The FMCSA’s current SNPRM on ELDs is an example of the agency using supplement notice to reflect new information.

On Aug. 7, the Office of Secretary of Transportation forwarded this SNPRM to the White House Office of Management and Budget.  Adding to the agency’s nearly 3-year-old NPRM, it address issues raised by the 2011 appellate court decision that vacated a final rule for not safeguarding against driver harassment.

FMCSA also plan to send a NPRM on driver coercion to the OMB this month, before publishing it March 26 with a 60-day comment period. MAP-21 requires the agency to include safeguards against drivers against being pressured to work under unsafe conditions.

Executive order limits OMB review to 90 days, but that can be extended by the agency or the White House. The OMB reviews draft regulations before publication and analyzes proposed final rules that significantly impact economics or policy.

If the office returns a draft rule to the OST without requiring major revision, the FMCSA soon can publish the rulemaking. Later, the FMCSA can publish the final rule in the Federal Register, summarizing why the rule is necessary and when it will become effective.

A congressional mandate, successful litigation or new data or technology regarding an existing issue can result in agency rulemaking. The FMCSA can use rulemaking to address a recommendation from the Governmental Accountability Office or another federal entity. Also, it can draft regulations after concluding it agrees with a public petition that such action is necessary.

A current example is a proposal to require speed limiting devices. The American Trucking Associations and Roadsafe America, an organization that advocates trucking safety, petitioned to mandate these on trucks with gross vehicle weight exceeding 26,000 pounds. Later, the National Highway Traffic Safety Administration received thousands of comments supporting the plan.

Additionally, agencies may publish interpretive rules, policy statements, and other guidance after publishing a final rule to help explain how the new regulation applies to them.

The FMCSA publishes its United Agenda to alert the public of future rulemaking activities. It publishes its regulatory plan each fall and regulatory and deregulatory agenda in the spring and fall. The plan and agenda often are referred to as the Unified Agenda.

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