Motor carriers go on high alert when they learn of a Notice of Proposed Rulemaking (NPRM) originating from the Federal Motor Carrier Safety Administration (FMCSA) or the National Highway Traffic Safety Administration (NHTSA). They know that an NPRM means that FMCSA is seeking comments on what may soon become a new truck safety regulation or that NHTSA has a new vehicle regulation in mind. Filing comments on NPRMs is a carrier’s way of impacting the laws it may be required to follow.
Many times, regulatory agencies give a heads-up of an upcoming rulemaking before laying out the actual regulatory language in an NPRM. There is the Advance Notice of Proposed Rulemaking (ANPRM), where an agency tests out rulemaking ideas, including asking for public feedback. And there is the Information Collection Request (ICR), where an agency seeks permission to gather new information and data from the public. This approach means an agency wants information and data to administer and evaluate a new program or a new regulation. In other words, an ICR signals that something is in the works.
The Paperwork Reduction Act of 1995 requires FMCSA, NHTSA, and other regulatory agencies to issue an ICR when seeking new data. The intent is to “minimize the paperwork burden” on the public and “ensure the greatest possible public benefit from… the information… collected.”
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.
Agencies publish ICRs in the Federal Register. You can file comments on ICRs, just as you comment on NPRMs and ANPRMs. With no regulatory language to read and often with a mind-numbing array of federal estimates on data collection costs, most find it easy to pass on the ICR and await the coming NPRM. Don’t make that mistake! Here’s why:
- An ICR may request information and data that you consider personal or proprietary. When FMCSA sought to implement Item Response Theory to improve its Compliance, Safety Accountability (CSA) program, the ICR asked for motor carrier data on driver wages, turnover rates, and commodities hauled, among other items. “None of your business” was the trucking industry’s response to government.
- An ICR may request information the agency already collected. The previous administration discovered separate regulations requiring truck drivers and motor carriers to review a driver’s safety record annually. The duplication was recently eliminated, but it could have been caught at the ICR stage.
- An ICR may request information that is burdensome to produce or report – even when the purpose is applauded. Many motor carriers and industry associations have welcomed the Infrastructure Bill’s “Apprenticeship Pilot Program” to develop under-21 interstate truck drivers. FMCSA published the ICR on data needed to implement the program. Now, several participating trucking companies have complained that the required reporting is a heavy lift. To be fair, FMCSA filed an emergency ICR with little opportunity for comments.
Miss commenting on an ICR? First, be sure to file comments on any related NPRM. Then, know that agencies must re-open approved ICRs for comment and renewal at least once every three years. Perhaps the information collected turned out not to be needed. Or perhaps the agency discovered another source of the data – a source that doesn’t burden the public. Make your comments then!
Ready to review an ICR? FMCSA recently published a standard ICR. This one is about the Apprenticeship Pilot Program, to replace an earlier ICR. This this is a second chance to comment on what information is truly needed to administer the under-21 interstate truck driver initiative. Comments are due by June 17, 2022.