[Federal Register Volume 60, Number 242 (Monday, December 18, 1995)]
[Proposed Rules]
[Pages 65210-65212]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-30669]
[[Page 65209]]
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Part V
Department of Transportation
_______________________________________________________________________
Research and Special Programs Administration
_______________________________________________________________________
49 CFR Part 106
Direct Final Rule Procedure; Petitions for Rulemaking; Proposed Rule
Federal Register / Vol. 60, No. 242 / Monday, December 18, 1995 /
Proposed Rules
[[Page 65210]]
DEPARTMENT OF TRANSPORTATION
Research and Special Programs Administration
49 CFR Part 106
[Docket No. RSP-1, Notice No. 95-15]
RIN 2137-AC75
Direct Final Rule Procedure; Petitions for Rulemaking
AGENCY: Research and Special Programs Administration (RSPA), DOT.
ACTION: Notice of proposed rulemaking (NPRM).
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SUMMARY: To further the goals of Executive Order 12866 on Regulatory
Planning and Review, and in response to the recommendations of the
National Performance Review and the Administrative Conference of the
United States, RSPA is proposing to implement a new and more efficient
procedure for adopting noncontroversial rules. This ``direct final
rule'' procedure involves issuing a final rule that provides notice and
an opportunity to comment, with a statement that if RSPA does not
receive a significant adverse comment or notice of an intent to file a
significant adverse comment, the rule will become effective on a
specified date without further publication of the text of the rule.
RSPA would publish a subsequent document in the Federal Register to
confirm that no significant adverse comment was received, and reiterate
the effective date. If a significant adverse comment or notice of an
intent to file a significant adverse comment were received, RSPA would
publish a document in the Federal Register before the effective date of
the direct final rule withdrawing the rule or a part of the rule.
RSPA also proposes to amend its rulemaking procedures to: Specify
in more detail the required contents of a petition for rulemaking; and
provide that petitions for rulemaking and petitions for reconsideration
will be reviewed and acted upon by the Associate Administrator and that
decisions of the Associate Administrator may be appealed to the
Administrator.
DATES: Comments must be submitted no later than February 16, 1995.
ADDRESSES: Address comments to the Dockets Unit (DHM-30), RSPA, U.S.
Department of Transportation, Washington, DC 20590-0001. Comments
should identify the docket and notice number and be submitted, when
possible, in five copies. Persons wishing to receive confirmation of
receipt of their comments should include a self-addressed, stamped
postcard. The Dockets Unit is located in Room 8421 of the Nassif
Building, 400 Seventh Street S.W., Washington, DC 20590-0001. Office
hours are 8:30 am to 5:00 pm Monday through Friday, except on public
holidays when the office is closed.
FOR FURTHER INFORMATION CONTACT: Nancy E. Machado, Office of the Chief
Counsel, RSPA, Department of Transportation, 400 Seventh Street, SW.,
Washington, DC 20590-0001; Telephone (202) 366-4400.
SUPPLEMENTARY INFORMATION: In Executive Order 12866, ``Regulatory
Planning and Review'' (58 FR 51735; October 4, 1993), the President set
forth the Administration's regulatory philosophy and principles. The
Executive Order contemplates an efficient and effective rulemaking
process, including the conservation of limited government resources for
carrying out its regulatory functions. Furthermore, ``Improving
Regulatory Systems,'' an Accompanying Report of the National
Performance Review, recognized the need to streamline the regulatory
process and recommended the use of ``direct final'' rulemaking
procedures to reduce needless double review of noncontroversial rules.
The former Administrative Conference of the United States (ACUS)
adopted Recommendation 95-4, ``Procedures for Noncontroversial and
Expedited Rulemaking,'' which endorses direct final rulemaking as a
procedure that can expedite rules in appropriate cases. (See 60 FR
43108; August 18, 1995.) ACUS studied the efficiency, adequacy and
fairness of the administrative procedures used by Federal agencies in
carrying out administrative programs, and made recommendations for
improvements to the agencies, collectively or individually, and to the
President, Congress, and the Judicial Conference of the United States.
ACUS found direct final rulemaking appropriate where a rule is expected
to generate no significant adverse comment. ACUS defined a significant
adverse comment as one where the commenter explains why the rule would
be inappropriate, including challenges to the rule's underlying premise
or approach, or would be ineffective or unacceptable without a change.
Under the direct final rulemaking procedure, an agency would issue
a final rule with a statement that, if the agency received no
significant adverse comments, the rule becomes effective automatically
at a specified time after publication of the direct final rule without
going through another round of intra- and inter-agency review. If a
significant adverse comment were received, the agency would withdraw
the rule before the effective date and issue a notice of proposed
rulemaking. As noted in the report, ``this approach avoids the second
round of clearances and review, which otherwise delays rules, wastes
time, and should be superfluous * * * Theoretically, the second review
ought to be very quick, but clearing any document through numerous
government offices takes time. The paper shuffling also wastes
reviewers' time by requiring them to look at something twice when once
would have sufficed.'' (``Improving Regulatory Systems,'' p. 42.)
In responding to both the letter and the spirit of the Executive
Order and the NPR Recommendations, the Secretary of Transportation has
directed administrations within the Department of Transportation to
focus on improvements that can be made in the way in which they propose
and adopt regulations.
RSPA is proposing to adopt a new Sec. 106.39 that provides for the
use of direct final rule procedures for noncontroversial rules, such as
minor, substantive changes to regulations; incorporation by reference
of the latest edition of technical or industry standards; extensions of
compliance dates; and other noncontroversial rules. RSPA intends to
continue issuing certain final rules with no opportunity for comment;
these include editorial changes and designation of hazardous substances
as hazardous materials, as required by the Comprehensive Environmental
Response, Compensation, and Liability Act. RSPA solicits comment on the
advisability of using direct final rules for these categories of rules,
as well as suggestions for other types of rules that could be issued as
direct final rules.
When RSPA believes that a rulemaking in these categories is
unlikely to result in significant adverse comment, it would use the
direct final rule procedure. The direct final rule would advise the
public that no significant adverse comments are anticipated and unless
significant adverse comment or intent to submit a significant adverse
comment is received, in writing, within a certain period of time
(generally 60 days), the rule will become effective on a specified date
(generally 90 days after publication). If no significant adverse
comments are received, RSPA would issue a subsequent document advising
the public that no significant adverse comments were received, and that
the
[[Page 65211]]
rule will become, or did become, effective on the date previously
specified in the direct final rule. Direct final rules would not be
subject to petitions for reconsideration under 49 CFR 106.35.
If RSPA received a significant adverse comment or notice of intent
to file a significant adverse comment, RSPA would publish a document in
the Federal Register withdrawing the direct final rule, in whole or in
part. If RSPA believed it could incorporate the adverse comment in a
subsequent direct final rulemaking, without generating further
significant adverse comment, it could do so. If RSPA believed that the
significant adverse comment raised an issue serious enough to warrant a
substantive response in a notice-and-comment process, it could publish
a notice of proposed rulemaking, following the procedures provided in
49 CFR 106.11-106.29. Publishing the rule as a proposal gives an
opportunity to comment to persons who may not have commented earlier
because they wanted the rule to go into effect immediately. If a
significant adverse comment applies to part of a rule and that part can
be severed from the remainder of the rule (for example where a rule
deletes several unrelated regulations), RSPA would adopt as final those
parts of the rule that were not the subject of a significant adverse
comment.
RSPA is proposing to adopt ACUS's definition of ``significant
adverse comment.'' (The U.S. Coast Guard adopted this definition in its
recently issued final rule on direct final rulemaking, 60 FR 49222;
Sept. 22, 1995.) Specifically, a significant adverse comment would be
one that explains why the rule would be inappropriate, including a
challenge to the rule's underlying premise or approach, or would be
ineffective or unacceptable without a change. Comments that are
frivolous or insubstantial would not be considered adverse under this
procedure. A comment recommending a rule change in addition to the rule
would not be considered a significant adverse comment, unless the
commenter states why the rule would be ineffective without the
additional change.
RSPA would amend Sec. 106.3 to clarify that RSPA's Chief Counsel
has the delegated authority to conduct rulemaking proceedings. This
authority has been delegated to the Chief Counsel in RSPA Order 1100.2A
(May 19, 1992.) Specifically, the Chief Counsel has been delegated
authority to ``develop and issue rulemaking documents, other than final
rules, for procedural rules, such as enforcement, preemption, general
definitions, etc.''
RSPA also proposes to amend Sec. 106.17 to clarify the procedures
for participation by interested parties in the rulemaking process.
RSPA also is proposing to amend Sec. 106.31 to specify in more
detail the required contents of a petition for rulemaking. In this way,
RSPA hopes to provide clear guidance to those who would like to
participate in the rulemaking process by availing themselves of this
mechanism. Establishing clear procedures will reduce the number of
incomplete petitions filed with RSPA; furthermore, well-prepared,
detailed petitions will ease RSPA's job and enable it to process
petitions in a timely and efficient manner. In particular, proposed
Sec. 106.31(c) would state that, if the proposed action has a potential
impact on the regulated industry or other entities, the Associate
Administrator may request the petitioner to submit information and data
concerning that impact to assist in rulemaking analyses required under
Executive Orders 12866 and 12612, the Regulatory Flexibility Act, the
Paperwork Reduction Act and the National Environmental Policy Act. This
proposal is consistent with ACUS Recommendation 86-6, Petitions for
Rulemaking, which suggests how agencies may improve the handling of
petitions for the issuance of rules. See 51 FR 46985; Dec. 30, 1986.
RSPA also proposes to amend 49 CFR 106.31, 106.33, 106.35 and
106.37 to provide that petitions for rulemaking and petitions for
reconsideration be filed with the appropriate Associate Administrator,
who will review and issue determinations granting or denying the
petitions in whole or part. RSPA also proposes to add a new Sec. 106.38
to provide that any interested party may appeal a decision of the
Associate Administrator, issued under Sec. 106.33 or Sec. 106.37, to
the Administrator.
Rulemaking Analyses and Notices
Executive Order 12866 and DOT Regulatory Policies and Procedures
This proposed rule is not considered a significant regulatory
action under section 3(f) of Executive Order 12866 and was not reviewed
by the Office of Management and Budget. The rule is not considered a
significant rule under the Regulatory Policies and Procedures of the
Department of Transportation [44 FR 11034]. Because of the minimal
economic impact of this proposed rule, preparation of a regulatory
impact analysis or a regulatory evaluation is not warranted.
Executive Order 12612
This action has been analyzed in accordance with Executive Order
12612 (``Federalism''), and RSPA has determined that preparation of a
federalism assessment is not warranted.
Regulatory Flexibility Act
I certify that this proposal will not, if promulgated, have a
significant economic impact on a substantial number of small entities.
This certification is subject to modification as a result of a review
of comments received in response to this proposal.
Paperwork Reduction Act
There are no information collection requirements in this proposed
rule.
Regulation Identifier Number (RIN)
A regulation identifier number (RIN) is assigned to each regulatory
action listed in the Unified Agenda of Federal Regulations. The
Regulatory Information Service Center publishes the Unified Agenda in
April and October of each year. The RIN number contained in the heading
of this document can be used to cross-reference this action with the
Unified Agenda.
List of Subjects in 49 CFR Part 106
Administrative practice and procedure, Hazardous materials
transportation, Oil, Pipeline safety.
In consideration of the foregoing, 49 CFR Part 106 is proposed to
be amended as follows:
PART 106--RULEMAKING PROCEDURES
1. The authority citation for part 106 would continue to read as
follows:
Authority: 33 U.S.C. 1321; 49 U.S.C. 5101-5127, 40113, 60101-
60125; 49 CFR 1.53.
Secs. 106.31, 106.33, 106.35, 106.37 [Amended]
2. Sections 106.31(a), 106.33, 106.35(b), (c), and (d) and 106.37
would be amended by adding the word ``Associate'' immediately before
the word ``Administrator'' wherever it appears.
3. In Sec. 106.3, a new paragraph (d) would be added to read as
follows:
Sec. 106.3 Delegations.
* * * * *
(d) Chief Counsel.
4. In Sec. 106.17, paragraph (a) would be revised to read as
follows:
[[Page 65212]]
Sec. 106.17 Participation by interested persons.
(a) Any interested person may participate in rulemaking proceedings
by submitting comments in writing containing information, views or
arguments in accordance with instructions for participation in the
rulemaking document.
* * * * *
5. In Sec. 106.31, paragraph (b) would be revised and new
paragraphs (c) and (d) would be added to read as follows:
Sec. 106.31 Petitions for rulemaking.
* * * * *
(b) Each petition filed under this section must--
(1) Summarize the proposed action and explain its purpose;
(2) State the text of the proposed rule or amendment, or specify
the rule proposed to be repealed;
(3) Explain the petitioner's interest in the proposed action and
the interest of any party the petitioner represents; and
(4) Provide information and arguments that support the proposed
action, including relevant technical, scientific or other data as
available to the petitioner, and any specific known cases that
illustrate the need for the proposed action.
(c) If the potential impact of the proposed action is substantial,
and information and data related to that impact are available to the
petitioner, the Associate Administrator may request the petitioner to
provide--
(1) The costs and benefits to society and identifiable groups
within society, quantifiable and otherwise;
(2) The direct effects (including preemption effects) of the
proposed action on States, on the relationship between the Federal
Government and the States, and on the distribution of power and
responsibilities among the various levels of government;
(3) The regulatory burden on small businesses, small organizations
and small governmental jurisdictions;
(4) The recordkeeping and reporting requirements and to whom they
would apply; and
(5) Impacts on the quality of the natural and social environments.
(d) The Associate Administrator may return a petition that does not
comply with the requirements of this section, accompanied by a written
statement indicating the deficiencies in the petition.
6. Section 106.35 would be amended by revising the first sentence
of paragraph (a) to read as follows:
Sec. 106.35 Petitions for reconsideration.
(a) Except as provided in Sec. 106.39(d), any interested person may
petition the Associate Administrator for reconsideration of any
regulation issued under this part. * * *
* * * * *
7. Part 106 would be amended by adding a new Sec. 106.38 to read as
follows:
Sec. 106.38 Appeals.
(a) Any interested person may appeal a decision of the Associate
Administrator, issued under Sec. 106.33 or Sec. 106.37, to the
Administrator.
(b) An appeal must be received within 20 days of service of written
notice to petitioner of the Associate Administrator's decision, or
within 20 days from the date of publication of the Associate
Administrator's decision in the Federal Register.
(c) It is requested, but not required, that three copies of the
appeal be submitted to the Administrator.
(d) Unless the Administrator otherwise provides, the filing of an
appeal under this section does not stay the effectiveness of any rule.
8. Part 106 would be amended by adding a new Sec. 106.39 to read as
follows:
Sec. 106.39 Direct final rulemaking.
(a) Where practicable, RSPA will use direct final rulemaking to
issue the following types of rules:
(1) Minor, substantive changes to regulations;
(2) Incorporation by reference of the latest edition of technical
or industry standards;
(3) Extensions of compliance dates; and
(4) Other noncontroversial rules where RSPA determines that use of
direct final rulemaking is in the public interest and that a regulation
is unlikely to result in adverse comment.
(b) The direct final rule document that is published in the Federal
Register will state that unless RSPA receives a significant adverse
comment, or notice of intent to file a significant adverse comment,
within a specified time, generally 60 days after publication, the rule
will become effective on a specified date, generally 90 days after
publication.
(c) For purposes of this section, a significant adverse comment is
one which explains why the rule would be inappropriate, including a
challenge to the rule's underlying premise or approach, or would be
ineffective or unacceptable without a change. Comments that are
frivolous or insubstantial will not be considered adverse under this
procedure. A comment recommending a rule change in addition to the rule
will not be considered a significant adverse comment, unless the
commenter states why the rule would be ineffective without the
additional change.
(d) If no significant adverse comment or notice of intent to file a
significant adverse comment is received, RSPA will issue a subsequent
document advising the public of that fact and that the rule will
become, or did become, effective on the date previously specified.
Direct final rules issued under this section are not subject to
petitions for reconsideration under Sec. 106.35.
(e) If RSPA receives a significant adverse comment or notice of
intent to file a significant adverse document, RSPA will publish a
document in the Federal Register withdrawing the direct final rule in
whole or in part, and may incorporate the adverse comment into a
subsequent direct final rule or may publish a notice of proposed
rulemaking. A notice of proposed rulemaking will provide an opportunity
for public comment, generally a minimum of 60 days, and will be
processed in accordance with Secs. 106.11-106.29.
Issued in Washington, D.C. under the authority delegated in 49
CFR part 1.53 and RSPA Order 1100.2A (May 19, 1992).
Dated: December 12, 1995.
Judith S. Kaleta,
Chief Counsel.
[FR Doc. 95-30669 Filed 12-15-95; 8:45 am]
BILLING CODE 4910-60-P
