A direct final rule makes regulatory changes and states that those changes will take effect on a specified date unless FMCSA receives an adverse comment or notice of intent to file an adverse comment by the date specified in the direct final rule published in the Federal Register.
(a) Types of actions appropriate for direct final rulemaking. Rules that the Administrator determines to be non-controversial and unlikely to result in adverse public comments may be published in the final rule section of the Federal Register as direct final rules. These include non-controversial rules that:
(1) Make non-substantive clarifications or corrections to existing rules;
(2) Incorporate by reference the latest or otherwise updated versions of technical or industry standards;
(3) Affect internal FMCSA procedures such as filing requirements and rules governing inspection and copying of documents;
(4) Update existing forms; and
(5) Make minor changes to rules regarding statistics and reporting requirements, such as a change in reporting period (for example, from quarterly to annually) or eliminating a type of data collection no longer necessary.
(b) Adverse comment. An adverse comment is a comment that FMCSA judges to be critical of the rule, to suggest that the rule should not be adopted, or to suggest that a change should be made to the rule. Under the direct final rule process, FMCSA does not consider the following types of comments to be adverse:
(1) Comments recommending another rule change, unless the commenter states that the direct final rule will be ineffective without the change;
(2) Comments outside the scope of the rule and comments suggesting that the rule's policy or requirements should or should not be extended to other Agency programs outside the scope of the rule;
(3) Comments in support of the rule; or
(4) Comments requesting clarification.
(c) Confirmation of effective date. FMCSA will publish a confirmation rule document in the Federal Register, if it has not received an adverse comment or notice of intent to file an adverse comment by the date specified in the direct final rule. The confirmation rule document tells the public the effective date of the rule.
(d) Withdrawal of a direct final rule. (1) If FMCSA receives an adverse comment or a notice of intent to file an adverse comment within the comment period, it will publish a rule document in the Federal Register, before the effective date of the direct final rule, advising the public and withdrawing the direct final rule.
(1) If FMCSA receives an adverse comment or a notice of intent to file an adverse comment within the comment period, it will publish a rule document in the Federal Register, before the effective date of the direct final rule, advising the public and withdrawing the direct final rule.
(2) If FMCSA withdraws a direct final rule because of an adverse comment, the Agency may issue a notice of proposed rulemaking if it decides to pursue the rulemaking. [75 FR 29916, May 28, 2010]
Sec. Appendix A to Part 389
AFFIDAVIT IN SUPPORT OF REQUEST FOR CONFIDENTIALITY
I, _______, pursuant to the provisions of 49 CFR part 389, section 389.9, state as follows:
(1) I am [insert official's name, title] and I am authorized by [insert name of entity] to execute this Affidavit on its behalf;
(2) I certify that the information contained in the document(s) attached to this Affidavit is submitted voluntarily, with the claim that the information is entitled to confidential treatment under 5 U.S.C. 552(b)(4);
(3) I certify that the information contained in the documents attached to this Affidavit is of a type not customarily disclosed to the general public by [insert name of entity];
(4) I certify that, to the best of my knowledge, information and belief, the information contained in the documents attached to this Affidavit, for which confidential treatment is claimed, has never been released to the general public or been made available to any unauthorized person outside [insert name of entity];
(5) I certify that this information satisfies the substantive criteria set forth in the notice published in the Federal Register on ___[insert date of rule-specific publication in month/day/year format] under FMCSA Docket Number [insert docket number].
(6) I make no representations beyond those made in this Affidavit, and, in particular, I make no representations as to whether this information may become available outside [insert name of entity] due to unauthorized or inadvertent disclosure; and
(7) I certify under penalties of perjury that the foregoing statements are true and correct.
Executed on this __day of __, __.
_________(signature of official) [80 FR 32865, June 10, 2015]