Click here to read “How Federal Trucking Regulations Become Law, Part 1.

Who first expressed concern about “unelected bureaucrats” running our lives? Was it Barry Goldwater in 1964, Ronald Reagan in 1980 or Donald Trump in 2016? No, it was none of those presidents. You have to go all the way back to the early 1940’s, during the administration of Franklin D. Roosevelt.

To guide the country out of the Great Depression, the Roosevelt administration hired an unprecedented number of government experts to fix the economy. The president granted them unfettered powers and each federal agency and department did things its own way. When Congress asked Harry Hopkins, head of the Federal Emergency Relief Administration to explain how he allocated federal funds, he simply declined to answer.

Congress responded by passing the Administrative Procedure Act in 1946. The APA provided uniform procedures for all federal agencies in the adoption of regulations and the adjudication of disputes. The APA also laid the foundation for judicial review of agency decisions.

How federal trucking regulations are developed.

When a federal agency, like the Federal Motor Carrier Safety Administration (FMCSA), the National Highway Traffic Safety Administration (NHTSA), or the Substance Abuse and Mental Health Services Administration (SAMHSA), proposes so-called “legislative rules,” it means regulations that are made pursuant to the agency’s Congressional charter or Congress’s specific direction. The agency must then follow the “informal rulemaking procedures” outlined in the APA. Most people recognize these “informal” procedures as the “notice-and-comment” steps of federal rulemaking.

These “informal” or “notice-and-comment” procedures are the standard approach when it comes to rulemaking. However, other paths do exist under APA, such as:

  • The rarely-used “formal” procedure with hearings held before an official, and cross-examination of witnesses allowed
  • The “direct final rule,” in which an agency adopts a necessary regulation quickly with no opposition expected
  • A “negotiated rulemaking” with the agency requesting interested parties to reach a compromise and then submitting that compromise for public comment

The goals of the APA include public participation in rulemaking, clarity of the rulemaking process, and public understanding of the final result – things that today we would call “transparency.” To achieve those goals, the APA requires publication of a Notice of Proposed Rulemaking (NPRM) in the Federal Register. That NPRM must contain “(1) the time, place, and nature of public rulemaking proceedings; (2) reference to the legal authority under which the rule is proposed; and (3) either the terms or substance of the proposed rule or a description of the subjects and issues involved.”

Once the agency gives adequate notice that a regulation is being considered, the public must have ample opportunity to submit comments. The APA does not set a minimum time period in which an agency must accept comments, but in most cases at least 60 days are allowed. The agency must read and account for the comments (“data, views, or arguments”), though courts have only obligated agencies to directly respond to “significant” comments.

The agency then publishes a final rule, in which it is required to consider “relevant matter presented” and explain the reason for the result in terms the public can understand. In general, the agency must publish the final rule in the Federal Register not less than 30 days before the rule’s effective date. That 30-day delay is intended to give the public time to adjust to the new regulation.

As we have seen with FMCSA regulations, the effective date of a new rule may occur more than 30 days in the future to allow for training by motor carriers, drivers and enforcement personnel. Federal, state and private entities may also need time to adjust data communication channels.

FMCSA follows that APA process, as does NHTSA when issuing regulations for new cars and trucks. SAMHSA adheres to APA when issuing regulations for drug and alcohol testing.

Know the acronyms used in developing trucking regulations.

Motor carriers would do well to know a few additional rulemaking acronyms. First, an Information Collection Request (ICR) reduces the paperwork burden on the public. Before any federal agency can require the public to provide data or other information, it must get approval from the White House Office of Management and Budget (OMB) under the terms of the Paperwork Reduction Act.

An ICR includes:

  • A description of the information to be collected;
  • The reason the information is needed; and
  • An estimate of the time and cost for the public to answer the request.

An agency must publish the ICR in the Federal Register. You can comment on an ICR, just like commenting on an NPRM. The requested information may be data needed by FMCSA, or other agencies, to justify or administer a new regulation.

You can also comment on an ANPRM – an Advance Notice of Proposed Rulemaking. An ANPRM is a published notice in the Federal Register used by an agency to test out a proposal or solicit ideas before it drafts its NPRM. An ANPRM is an opportunity to get comments in on the ground floor before the agency commits to a course of action.

ANPRMs have just become more important. Recent U.S. Transportation Department and FMCSA rulemakings fulfilled a Congressional Review Act (CRA) requirement that all “major” rules begin with either an ANPRM or a negotiated rulemaking. In other words, Congress wants more public input before a regulatory agency does something “big.”

The CRA facilitates Congressional review of all regulations. But “major” rules (also called “significant” rules) get close scrutiny. By definition, a “major” rule is expected to have an annual effect on the economy of: $100,000,000 or more, major increases in costs or prices, or a significant impact on U.S. competitiveness.

Making that determination – your final acronym – is OIRA, the Office of Information and Regulatory Affairs at OMB. OIRA reviews “significant” regulatory actions at both the proposed and final rule stage, with particular focus on cost/benefit analysis and procedural regularity. OIRA may also solicit comments by other regulatory agencies for consistency across the government. An agency is prohibited from issuing a final rule while the OIRA review is ongoing.

In the third and final part of this blog series, we will guide you in crafting effective comments to a regulatory agenda. In the meantime, read the part one, in which we compare regulations to other forms of government action, including laws. We also share how you can find which regulations the government intends to pursue and where to locate the regulatory proposals currently under consideration. Finally we look at the sources of proposed regulations, as well as the limitations on what any regulatory agency can do.