E7-3923. Rules of Practice: Direct Final Rulemaking Procedures

AGENCY:

Federal Railroad Administration (FRA), DOT.

ACTION:

Final rule.

SUMMARY:

In October 2006, FRA proposed to amend its rules of practice by adopting direct final rulemaking procedures intended to expedite the publication of routine or noncontroversial changes. FRA received no comments to this proposal, and in this rule adopts its proposed direct final rulemaking procedures without change.

DATES:

This rule is effective on April 6, 2007.

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 October 11, 2006, FRA proposed to amend its Rules of Practice (49 CFR Part 211) to adopt direct final rulemaking procedures which would expedite its rulemaking process for noncontroversial regulatory changes to which no adverse comment was anticipated (71 FR 59698). The proposed direct final rulemaking procedures, closely modeled upon those of the Office of the Secretary of Transportation (OST) (January 30, 2004, 69 FR 4455), would allow FRA to reduce the time necessary to develop, review, clear and publish routine rules to which no adverse public comment was anticipated by eliminating the requirement to publish separate proposed and final rules. FRA received no comments to the proposal, and in this rule adopts its proposed direct final rulemaking procedures without change.

Other agencies, such as the Nuclear Regulatory Commission, the Food and Drug Administration, the Environmental Protection Agency, the Department of Agriculture, and the Department of Energy (DOE) have adopted and successfully used direct final rulemaking procedures for routine changes. The DOE, for example, amended its test procedures for measuring the energy consumption of clothes washers through a direct final rule (October 31, 2003, 68 FR 62197).

The Direct Final Rulemaking Process

As mentioned above, proceeding through a direct final rulemaking enables FRA to eliminate an unnecessary second round of internal review and clearance, as well as public review, for noncontroversial proposed rules. As proposed, FRA may use direct final rulemaking for noncontroversial rules, including those 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 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 FRA no longer needs to collect.

FRA may also use direct final rulemaking process for a particular rule if similar rules had been previously proposed and published without adverse comment.

If FRA determines that a rule is appropriate for direct final rulemaking, FRA will publish the rule in the final rule section of the Federal Register. In a direct final rule document, the “action” will be captioned “direct final rule” and will 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 will advise the public that FRA anticipates no adverse comment to the rule and that the rule will become effective a specified number of days after the date of publication unless FRA receives 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 is one that is critical of the rule, suggests that the rule should not be adopted, or suggests that a change should be made in the rule. FRA will not consider a comment submitted in support of the rule, or a request for clarification of the rule, to be adverse. FRA will provide sufficient comment time to allow interested parties to determine whether they wish or need to submit adverse comments, and will answer any requests for clarification while the comment period is running. If FRA receives no written adverse comment or request for oral hearing within the comment period, FRA will publish another notice in the Federal Register indicating that no adverse comment has been received and confirming that the rule will become effective on the specified date.

If, however, FRA receives the timely submission of an adverse comment or notice of intent to submit adverse comment, FRA will 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 decides that the rulemaking remains necessary, FRA will 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 will provide for a new public comment period.

The additional time and effort required to withdraw the direct final rule and issue a Notice of Proposed Rulemaking will be an incentive for FRA to act conservatively in evaluating whether to use the direct final rulemaking process for a particular rule. FRA will 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 will 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 will not have a significant impact on a substantial number of small entities. FRA does not believe there are sufficient federalism implications to warrant the preparation of a federalism assessment. Because this rule does not have tribal implications and does not impose direct compliance costs, the funding and consultation requirements of Executive Order 13175 (“Consultation and Coordination with Indian Tribal Governments”) do not apply.

Paperwork Reduction Act

This 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 amends 49 CFR part 211 as follows:

PART 211—[AMENDED]

1. The authority citation for part 211 is amended 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, is amended by adding a new section 211.33, Direct final rulemaking procedures, as follows:

§ 211.33

Direct final rulemaking procedures.

(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 February 27, 2007.

Joseph H. Boardman,

Administrator.