[Federal Register Volume 60, Number 150 (Friday, August 4, 1995)]
[Proposed Rules]
[Pages 39919-39921]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-19108]
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DEPARTMENT OF TRANSPORTATION
Office of the Secretary
49 CFR Part 5
[Docket No. OST-95-360; Notice 95-9]
RIN 2105-AC11
Use of Direct Final Rule Making
AGENCY: Department of Transportation; Office of the Secretary.
ACTION: Notice of proposed rulemaking
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SUMMARY: The Office of the Secretary (OST) is proposing to implement a
new rulemaking procedure that would expedite the processing of
noncontroversial changes to its regulations. Rules that the Secretary
judges to be noncontroversial and unlikely to result in adverse public
comment would be published as ``direct final'' rules. Such direct final
rules would advise the public that no adverse comment is anticipated,
and that, unless written adverse comment or written notice of intent to
submit adverse comment is received within the specified time, the rule
will become effective a specified number of days after the date it is
published in the Federal Register. This new procedure should expedite
the promulgation of routine or otherwise noncontroversial rules by
reducing the time necessary to develop, review, clear, and publish
separate proposed and final rules where OST receives no public comment.
DATES: Comments are requested by October 3, 1995. Late-filed comments
will be considered only to the extent practicable.
ADDRESSES: Comments on this proposal should be sent, preferably in
triplicate, to Docket Clerk, Docket No. OST-95-360, Department of
Transportation, 400 7th Street SW., Washington, DC 20590. Comments will
be available for inspection at this address from 9 a.m. to 5:30 p.m.,
Monday through Friday.
Commenters who wish the receipt of their comments to be
acknowledged should include a stamped, self-addressed postcard with
their comments. The Docket Clerk will date-stamp the postcard and mail
it back to the commenter.
FOR FURTHER INFORMATION CONTACT: Neil Eisner, Assistant General Counsel
for Regulation and Enforcement, Office of the General Counsel, U.S.
Department of Transportation, 400 7th Street SW., Room 10424,
Washington, DC 20590. (202) 366-9307.
SUPPLEMENTARY INFORMATION:
Background
The National Performance Review, a recent presidential initiative
to reorganize and streamline the federal government, and the
Administrative Conference of the United States identified several
methods to improve the efficiency of agency rulemaking procedures. One
was the use of ``direct final'' rulemaking in order to reduce needless
double review of noncontroversial rules. The use of direct final
rulemaking can eliminate an unnecessary second round of internal review
and clearance, as well as public review, that presently exists for all
proposed rules when the agency receives no adverse comment. The
Environmental Protection Agency has been using this process for a
number of years with great success, and other Departments, such as
Agriculture, have recently adopted this procedure. In order to
streamline the regulatory process and to fulfill Departmental missions,
the Office of the Secretary proposes to use the direct final rulemaking
procedure to promulgate specified categories of rules that are not
expected to be controversial and that are unlikely to result in adverse
comments.
The Direct Final Rule Process
The judgment that a particular rulemaking is noncontroversial and
unlikely to result in adverse comment will be based upon the Office of
the Secretary's experience with similar rules that were proposed and
did not receive adverse public comment in the past. By ``adverse''
comment, we are referring to comments that are critical of the rule,
that suggest that the rule should not be adopted, or that suggest a
change should be made in the rule. A comment submitted in support of
the rule would not be considered adverse. In addition, a comment
suggesting that the policy or requirements of the rule should or should
not also be extended to other Departmental programs outside the scope
of the rule would not be considered adverse. The Environmental
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Protection Agency has used this process in over two hundred cases, with
great success. The U.S. Department of Agriculture has also recently
adopted this process and used it in approximately a dozen rulemakings.
When using the direct final rulemaking procedure, the Office of the
Secretary will publish the rule in the final rule section of the
Federal Register. The document will advise the public that no adverse
comment is anticipated, and that unless written adverse comment or
written notice of intent to submit adverse comment is received within
the specified time, the rule will become effective a specified number
of days after the date it is published. The Administrative Procedure
Act (5 U.S.C. 553) specifically provides that notice and public comment
are not required if the agency finds good cause that notice and public
procedures are unnecessary or contrary to the public interest. If the
agency is mistaken and someone wishes to file adverse comments, this
procedure will ensure that the public is given notice of the
Secretary's intent to adopt the rule if no adverse comment is received,
and an opportunity to participate in the rulemaking by submitting
comments.
If no written adverse comment or written notice of intent to submit
adverse comment is received in response to the rule, the Office of the
Secretary would then publish a notice in the Federal Register
indicating that no adverse comment was received and confirming that the
rule will become effective a specified number of days after the date
that the direct final rule was published. However, if the Office of the
Secretary does receive any written adverse comment or written notice of
intent to submit adverse comment, then a notice withdrawing the direct
final rule would be published in the final rule section of the Federal
Register and a notice of proposed rulemaking would be issued in the
proposed rule section. The proposed rule would provide for a new
comment period.
Rules for which the Office of the Secretary believes that the
direct final rulemaking procedure may be appropriate are
noncontroversial rules that (1) affect internal procedures of the
Office of the Secretary, 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 (4) make minor changes in the substantive rules regarding
statistics and reporting requirements, such as a change in the
reporting sequence (for example, from monthly to quarterly) or
eliminating a type of data that no longer needs to be collected by the
Office of the Secretary, (5) make changes to the rules implementing the
Privacy Act, and (6) adopt technical standards set by outside
organizations, such as those developed by the Architectural Barriers
and Compliance Board for determining compliance with the Americans with
Disabilities Act. We request comments on whether there are any other
areas for which direct final rulemaking may be beneficial. As stated
earlier, the direct final rulemaking procedure will only be used in
circumstances where previous rulemakings indicate that adverse comment
is unlikely. Even if a rulemaking fits into one of the above
categories, if adverse comment is anticipated, we would not use the
direct final rule process. The additional time and effort necessary to
withdraw the rule and issue a Notice of Proposed Rulemaking if there is
adverse comment will serve as an incentive for the Office of the
Secretary to act conservatively in evaluating whether to use the
procedure for a particular rule.
Regulatory Analyses and Notices
The Department 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
this rule. There will be some cost savings in Federal Register
publication costs and efficiencies for the public and OST personnel in
eliminating duplicative reviews. The Department certifies that this
rule, if adopted, would not have a significant economic impact on a
substantial number of small entities. The Department does not believe
that there would be sufficient federalism implications to warrant the
preparation of a federalism assessment.
List of Subjects in 49 CFR Part 5
Administrative practice and procedure. For the reasons set forth in
the preamble, the Office of the Secretary proposes to amend 49 CFR Part
5 as follows:
PART 5--[AMENDED]
1. The authority citation for Part 5 continues to read as follows:
Authority: Sec. 9, 80 Stat. 944 (49 U.S.C. 1657).
2. Section 5.21 would be amended by adding paragraph (d), as
follows:
Sec. 5.21 General.
* * * * *
(d) For rules for which the Secretary determines that notice is
unnecessary because no adverse public comment is anticipated, the
direct final rulemaking procedure described in Sec. 5.35 of this
subpart will be followed.
3. A new Sec. 5.35, Procedure for direct final rulemaking, would be
added to read, as follows:
Sec. 5.35 Procedures for direct final rulemaking.
(a) Rules that the Secretary judges to be noncontroversial and
unlikely to result in adverse public comment will 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 Office of the Secretary, 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,
(4) Make minor changes in the substantive rules regarding
statistics and reporting requirements, such as a change in the
reporting sequence (for example, from monthly to quarterly) or
eliminating a type of data that no longer needs to be collected by the
Office of the Secretary,
(5) Make changes to the rules implementing the Privacy Act, and
(6) Adopt technical standards set by outside organizations, such as
those developed by the Architectural Barriers and Compliance Board for
determining compliance with the Americans with Disabilities Act.
(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 Office of the Secretary within the specified time
after the date of publication, and that if no written adverse comment
or written notice of intent to submit adverse comment is received, the
rule will become effective a specified number of days after the date of
publication.
(c) If no written adverse comment or written notice of intent to
submit adverse comment is received by the Office of the Secretary
within the specified time of publication in the Federal Register, the
Office of the Secretary 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 Office of the Secretary receives any written adverse
comment or written notice of intent to submit
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adverse comment within the specified time period, a notice withdrawing
the direct final rule will be published in the final rule section of
the Federal Register and a notice of proposed rulemaking will be issued
in the proposed rule section of the Federal Register.
(e) An ``adverse'' comment for the purpose of this subpart means
any comment that is critical of the rule, that suggests that the rule
should not be adopted, or suggests a change that should be made in the
rule. A comment suggesting that the policy or requirements of the rule
should or should not also be extended to other Departmental programs
outside the scope of the rule is not adverse.
Issued in Washington, DC on this 19th day of July, 1995.-----
Federico Pena,
Secretary.
[FR Doc. 95-19108 Filed 8-3-95; 8:45 am]
BILLING CODE 4910-62-U
