E6-16825. Rules of Practice: Proposed Direct Final Rulemaking Procedures

AGENCY:

Federal Railroad Administration (FRA), DOT.

ACTION:

Notice of proposed rulemaking.

SUMMARY:

FRA is proposing direct final rulemaking procedures to expedite the processing of noncontroversial regulatory changes to which no adverse comment is anticipated. Under the proposed procedures, FRA could choose to make routine or otherwise noncontroversial changes in a direct final rule which would become effective a specified number of days after its publication in the Federal Register, provided that no written adverse comment, or no request for a public hearing, was received before the rule's scheduled effective date. FRA would not use direct final rulemaking for complex or controversial matters.

DATES:

Written comments must be received by December 11, 2006. Comments received after that date will be considered to the extent possible without incurring additional expense or delay.

FRA anticipates being able to resolve this rulemaking without a public, oral hearing. However, if FRA receives a specific request for a public, oral hearing prior to November 13, 2006, one will be scheduled and FRA will publish a supplemental notice in the Federal Register to inform interested parties of the date, time, and location of any such hearing.

ADDRESSES:

Comments: Comments related to Docket No. 2006-24141, may be submitted by any of the following methods:

• Web site: http://dms.dot.gov. Follow the instructions for submitting comments on the DOT electronic docket site.
• Fax: [phone].
• Mail: Docket Management Facility, U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC 20590-001.
• Hand Delivery: Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC between 9 a.m. and 5 p.m. Monday through Friday, except Federal holidays.
• Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting comments.

Instructions: All submissions must include the agency name and docket number or Regulatory Identification Number (RIN) for this rulemaking. Note that all comments received will be posted without change to http://dms.dot.gov including any personal information. Please see the Privacy Act heading in the “SUPPLEMENTARY INFORMATION” section of this document for Privacy Act information related to any submitted comments or materials.

Docket: For access to the docket to read background documents or comments received, go to http://dms.dot.gov at any time or to PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC between 9 a.m. and 5 p.m. Monday through Friday, except Federal Holidays.

FOR FURTHER INFORMATION CONTACT:

Patricia V. Sun, Trial Attorney, Mail Stop 10, Federal Railroad Administration, 1120 Vermont Avenue, NW., Washington, DC 20005 [telephone: [phone]].

SUPPLEMENTARY INFORMATION:

Background

On January 30, 2004, the Office of the Secretary of Transportation (OST) published a final rule adopting direct final rulemaking procedures intended to expedite the rulemaking process for noncontroversial rules. The rule published by OST applies only to regulations issued by the Office of the Secretary of Transportation and does not apply to the various operating administrations within DOT. By using direct final rulemaking, OST can reduce the time necessary to develop, review, clear and publish a rule to which no adverse public comment is anticipated by eliminating the need to publish separate proposed and final rules (69 FR 4455). In this notice, FRA proposes to amend its Rules of Practice (49 CFR Part 211) to adopt similar direct final rulemaking procedures to promulgate specified categories of rules it does not expect to be controversial and that are unlikely to result in adverse comments.

Many agencies have adopted direct final rulemaking procedures, including the Nuclear Regulatory Commission, the Food and Drug Administration, the Environmental Protection Agency, and the Department of Agriculture. For example, in 2003, the Department of Energy issued a direct final rule amending its test procedures for measuring the energy consumption of clothes washers (October 31, 2003, 68 FR 62197), and last year, the Occupational Safety and Health Administration issued a direct final rule to reinstate its original roll-over protective structures standards for the construction and agriculture industries (December 29, 2005, 70 FR 76795).

The Direct Final Rulemaking Process

As stated above, the use of direct final rulemaking would allow FRA to eliminate an unnecessary second round of internal review and clearance, as well as public review, for noncontroversial proposed rules. FRA would employ the direct final rulemaking process for a particular rule if, for example, similar rules had been previously proposed and published without receiving adverse comment. FRA believes that direct final rulemaking would be appropriate for noncontroversial rules, including such rules that:

(1) Affect internal procedures of the Federal Railroad Administration, such as filing requirements and rules governing inspection and copying of documents,

(2) are nonsubstantive clarifications or corrections to existing rules;

(3) update existing forms; and

(4) make minor changes in the substantive rules regarding statistics and reporting requirements, such as a lessening of the reporting frequency (for example, from monthly to quarterly) or elimination of a type of data that no longer needs to be collected by FRA.

After determining that a rule would be appropriate for direct final rulemaking, FRA would publish the rule in the final rule section of the Federal Register. In each direct final rule document, the “action” would be captioned “direct final rule” and would include language in the summary and preamble informing interested parties of their right to comment and their right to request an oral hearing, if such opportunity is required. The direct final rule notice would advise the public that FRA anticipates no adverse comment to the rule and that the rule would become effective a specified number of days after the date of publication unless FRA received written adverse comment or a request for an oral hearing (if such opportunity is required by statute) within the specified comment period. An “adverse” comment would be one that is critical of the rule, one that suggests that the rule should not be adopted, or one that suggests that a change should be made in the rule. FRA would not consider a comment submitted in support of the rule, or a request for clarification of the rule, to be adverse.

FRA would provide sufficient comment time to allow interested parties to determine whether they wish or need to submit adverse comments, and would answer any requests for clarification while the comment period was running. If FRA received no written adverse comment or request for oral hearing within the comment period, FRA would publish another notice in the Federal Register indicating that no adverse comment had been received and confirming that the rule would become effective on the specified date.

If, however, FRA received the timely submission of an adverse comment or notice of intent to submit adverse comment, FRA would stop the direct final rulemaking process and withdraw the direct final rule by publishing a notice in the final rule section of the Federal Register. If FRA decided that the rulemaking remained necessary, FRA would recommence the rulemaking under its standard rulemaking procedures by publishing a notice proposing the rule in the proposed rules section of the Federal Register. The proposed rule would provide for a new public comment period.

FRA believes that the additional time and effort required to withdraw the direct final rule and issue a Notice of Proposed Rulemaking would be an incentive for FRA to act conservatively in evaluating whether to use the direct final rulemaking process for a particular rule. As stated above, FRA would not use direct final rulemaking for complex or potentially controversial matters.

Regulatory Analyses and Notices

FRA has determined that this action is not a significant regulatory action under Executive Order 12866 or under the Department's Regulatory Policies and Procedures. There are no costs associated with the proposed rule. There would be some cost savings in Federal Register publication costs and efficiencies for the public and FRA personnel in eliminating duplicative reviews. FRA certifies that this rule, if adopted, would not have a significant impact on a substantial number of small entities. FRA does not believe that there would be sufficient federalism implications to warrant the preparation of a federalism assessment.

Paperwork Reduction Act

The proposed rule contains no information collection requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

Unfunded Mandates Reform Act of 1995

FRA has determined that the requirements of Title II of the Unfunded Mandates Reform Act of 1995 do not apply to this rulemaking.

List of Subjects in 49 CFR Part 211

• Administrative practice and procedure
• Rules of practice

In consideration of the foregoing, FRA proposes to amend 49 CFR part 211 as follows:

PART 211—[AMENDED]

1. The authority citation for part 211 would continue to read as follows:

Authority: 49 U.S.C. 20103, 20107, 20114, 20306, 20502-20504, and 49 CFR 1.49.

2. In part 211, Subpart B—Rulemaking Procedures, would be amended by adding a new § 211.33, Procedures for direct final rulemaking, as follows:

§ 211.33

Procedures for direct final rulemaking.

(a) Rules that the Administrator judges to be noncontroversial and unlikely to result in adverse public comment may be published in the final rule section of the Federal Register as direct final rules. These include noncontroversial rules that:

(1) Affect internal procedures of the Federal Railroad Administration, such as filing requirements and rules governing inspection and copying of documents,

(2) Are nonsubstantive clarifications or corrections to existing rules,

(3) Update existing forms, and

(4) Make minor changes in the substantive rules regarding statistics and reporting requirements.

(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 the Federal Railroad Administration within the specified time after the date of publication and that, if no written adverse comment or request for oral hearing (if such opportunity is required by statute) is received, the rule will become effective a specified number of days after the date of publication.

(c) If no adverse comment or request for oral hearing is received by the Federal Railroad Administration within the specified time of publication in the Federal Register, the Federal Railroad Administration will publish a notice 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 the Federal Railroad Administration receives any written adverse comment or request for oral hearing within the specified time of publication in the Federal Register, a notice withdrawing the direct final rule will be published in the final rule section of the Federal Register and, if the Federal Railroad Administration decides a rulemaking is warranted, a notice of proposed rulemaking will be published in the proposed rule section of the Federal Register.

(e) An “adverse” comment for the purpose of this subpart means any comment that the Federal Railroad Administration determines is critical of the rule, suggests that the rule should not be adopted, or suggests a change that should be made in the rule.

Issued in Washington, DC, on September 29, 2006.

Joseph H. Boardman,

Administrator.