[Federal Register Volume 61, Number 116 (Friday, June 14, 1996)]
[Rules and Regulations]
[Pages 30175-30181]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-14371]
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DEPARTMENT OF TRANSPORTATION
Research and Special Programs Administration
49 CFR Part 106
[Docket No. RSP-1, Amdt. No. 106-11]
RIN 2137-ACXX
Direct Final Rule Procedure; Petitions for Rulemaking
AGENCY: Research and Special Programs Administration (RSPA), DOT.
ACTION: Final rule.
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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 (NPR) and the former Administrative
Conference of the United States, RSPA is implementing a new and more
efficient procedure for adopting noncontroversial rules. This ``direct
final rule'' procedure involves issuing a final rule providing notice
and an opportunity to comment and stating that the rule will become
effective on a specified date without further publication of the text
of the rule if RSPA does not receive an adverse comment or notice of
intent to file an adverse comment. If no adverse comment or notice of
intent to file an adverse comment were received, RSPA would issue a
subsequent notice in the Federal Register to confirm that fact and
reiterate the effective date. If an adverse comment or notice of intent
to file an adverse comment were received, RSPA would issue a subsequent
notice in the Federal Register to confirm that fact and withdraw the
direct final rule before it goes into effect.
RSPA is also amending 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 appropriate Associate Administrator or
the Chief Counsel and that decisions of the Associate Administrator may
be appealed to the Administrator.
EFFECTIVE DATE: July 15, 1996.
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:
I. Background
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
[[Page 30176]]
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 ACUS Recommendation 95-4, an agency would issue a final rule
with a statement that the rule becomes effective automatically at a
specified time, if the agency received no significant adverse comments.
This would eliminate a second 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.)
The Secretary of Transportation has directed administrations within
the Department of Transportation (DOT) to focus on improvements that
can be made in the way in which they propose and adopt regulations.
This is consistent with both the letter and the spirit of the Executive
Order and the NPR Recommendations.
II. Proposed Rule
In its December 18, 1995 Notice of Proposed Rulemaking (NPRM), 60
FR 65210, RSPA proposed to adopt, in a new Sec. 106.39, direct final
rulemaking procedures for noncontroversial rules, such as minor,
substantive changes to regulations; incorporation by reference of the
latest editions of technical or industry standards; and extensions of
compliance dates. RSPA solicited 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.
RSPA stated that if it believed a rulemaking in these categories
would be unlikely to result in significant adverse comment, it would
use its proposed direct final rulemaking procedures. Under those
proposed procedures, a direct final rule would advise the public that
no significant adverse comments are anticipated and, unless a
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 would become effective on a specified
date (generally 90 days after publication). If no significant adverse
comment or notice of intent to file significant adverse comment were
received, RSPA proposed to issue a subsequent document advising the
public of that fact and that the rule would become, or did become,
effective on the date previously specified in the direct final rule.
RSPA stated in the NPRM that direct final rules would not be subject to
petitions for reconsideration under 49 CFR 106.35.
In the NPRM, RSPA also stated that if it received a significant
adverse comment or notice of intent to file a significant adverse
comment, it 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, RSPA proposed to 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, RSPA stated that it could
publish a notice of proposed rulemaking, following the procedures
provided in 49 CFR Secs. 106.11-106.29, which would give an opportunity
to comment to persons who may not have commented earlier because they
wanted the rule to go into effect immediately. RSPA proposed that,
where a significant adverse comment applied to part of a rule and that
part could be severed from the remainder of the rule (for example where
a rule deleted several unrelated regulations), RSPA would adopt as
final those parts of the rule that were not the subject of a
significant adverse comment.
Furthermore, RSPA proposed to adopt ACUS's definition of
``significant adverse comment.'' 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. RSPA noted that
frivolous or insubstantial comments 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 stated why the rule would be ineffective without
the additional change.
RSPA also proposed to amend Sec. 106.3 to clarify that RSPA's Chief
Counsel has the delegated authority to conduct rulemaking proceedings,
Sec. 106.17 to clarify the procedures for participation by interested
parties in the rulemaking process, and Sec. 106.31 to specify in more
detail the required contents of a petition for rulemaking.
RSPA further proposed to amend 49 CFR Secs. 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
or the Chief Counsel, who will review and issue determinations granting
or denying the petitions in whole or part. RSPA also proposed to add a
new Sec. 106.38 to provide that any interested party may appeal a
decision of an Associate Administrator or the Chief Counsel to RSPA's
Administrator.
III. Discussion of Comments
RSPA received 25 written comments on the NPRM. The comments were
submitted by chemical manufacturers, trade associations, transporters
and one State agency. Commenters uniformly supported RSPA's efforts to
streamline and clarify rulemaking procedures, cut costs and reduce
regulatory burdens. Twenty-two of the commenters supported RSPA's
proposal, with 14 of them suggesting changes to the proposal or
requesting clarification. Only three commenters opposed the proposal.
Two objected based on their belief that the proposal abrogated notice-
and-comment procedures of the Administrative Procedure Act (APA), 5
U.S.C. 553. The third commenter asserted that RSPA failed to adequately
justify the reasons for the proposed changes to the agency's regulatory
procedures.
A detailed discussion of the comments, and RSPA's response to
[[Page 30177]]
them, is provided in the following summary.
A. ``Noncontroversial'' Rules
In the NPRM, RSPA proposed to implement direct final rulemaking
procedures for adopting ``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 . . . .'' RSPA received numerous requests for
clarification of what constitutes a ``noncontroversial'' rule,
including requests that RSPA provide a list of the types of rules that
it considers noncontroversial. RSPA also received several comments
stating that the proposed rule gives RSPA too much discretion to
determine what is or is not controversial.
First, it would be impossible for RSPA to provide an all-inclusive
list of the types of rules that would be handled under direct final
rulemaking procedures. RSPA cannot accurately envision every type of
rule that the agency might issue in the future. Also, RSPA cannot
accurately predict whether those types of rules might lend themselves
to direct final rulemaking procedures in every instance. Furthermore,
developing such a list could lead to the inadvertent exclusion of some
types of rules that are ideally suited to the direct final rule
process. RSPA will not attempt to develop an all-inclusive list of the
types of rules subject to direct final rule procedures. RSPA will, as
proposed, review each rule on its individual merits to determine
whether the agency believes the rule will be noncontroversial.
Commenters are correct that, as proposed in the NPRM, the agency
has sole discretion in determining whether a rule is or is not
controversial. RSPA does not agree, however, that this discretion is
overly broad or subject to abuse. The nature of the proposed direct
final rule process ensures that RSPA will make a good faith effort to
ascertain which rules are truly noncontroversial. As proposed in the
NPRM, a mere notice of intent to file an adverse comment is sufficient
to terminate the direct final rule process. This alone ensures that
RSPA will not waste its limited resources knowingly trying to
promulgate a controversial rule under direct final rulemaking
procedures. To the extent that the agency miscalculates the
contentiousness of a rule, it will have to withdraw that rule. If the
agency again decides to move forward on the same issue, it either would
be with another direct final rule which addresses the concern voiced in
the adverse comment and is, itself, open to public comment, or with a
notice of proposed rulemaking using traditional notice-and-comment
procedures. Consequently, it is in RSPA's best interest to make every
reasonable effort to accurately determine the contentiousness of a rule
before deciding to use direct final rulemaking procedures.
Several commenters also remarked that the incorporation of
technical standards and industry standards into the Hazardous Materials
Regulations (HMR) may be a controversial agency action. RSPA agrees
that incorporating technical and industry standards into the HMR may be
controversial. On the other hand, there are instances where industry
itself has petitioned the agency to incorporate changes into the HMR,
and the agency has done so by issuing those changes as a final rule--
which was not preceded by an NPRM--without receiving any adverse
comments. See, e.g., RSPA Docket HM-166Z, Transportation of Hazardous
Materials; Miscellaneous Amendments (59 FR 28487; June 2, 1994)
(incorporating by reference the most recent editions of the American
National Standards Institute, Inc. Standard N14.1, American
Pyrotechnics Association Standard 87-1, Association of American
Railroads Specification M-1102, Compressed Gas Association Pamphlet C-
7, and Institute of Makers of Explosives Standard 22). Consequently,
RSPA will continue to incorporate technical and industry standards into
the HMR, without prior opportunity to comment, when the agency
reasonably believes that the rule will be noncontroversial. The direct
final rule process is an additional tool that the agency may use to do
so.
Finally, several commenters expressed concern over RSPA's statement
that minor substantive changes to the HMR may be noncontroversial and,
thus, subject to direct final rulemaking procedures. Commenters
questioned how a change can be minor, substantive and, at the same
time, noncontroversial. On numerous occasions, RSPA has made minor,
substantive changes to the HMR, without generating adverse comment. For
example, in RSPA Docket HM-166Z, discussed above, RSPA revised 49 CFR
173.34(e)(15)(v) to permit cylinders manufactured after December 31,
1945, to be stamped with a five-point star. This action was taken in
order to maintain consistency with 49 CFR 173.34(e)(15)(i), which was
revised in RSPA Docket HM-166X (58 FR 50496; Sept. 27, 1993). As noted
above, no adverse comments were received. Although the change to
Sec. 173.34(e)(15)(v) was substantive, it was minor in that it followed
logically from significant changes that were made to
Sec. 173.34(e)(15)(i), and was necessary to maintain consistency.
Also, in RSPA Docket 222B (61 FR 6478; Feb. 20, 1996) RSPA proposed
to amend 49 CFR 172.402 to add an exception from the requirement for
subsidiary hazard labeling for certain packages of Class 7
(radioactive) materials that also meet the definition of another hazard
class, except Class 9. Only one comment was received to RSPA's proposal
to amend Sec. 172.402, and that comment was fully supportive of RSPA's
proposal. These actions made or proposed to make substantive yet minor
changes to the HMR, and drew no adverse comment. Consequently, as
proposed, RSPA will issue these types of substantive, yet minor
amendments to the HMR through use of direct final rulemaking
procedures.
B. Significant Adverse Comments
RSPA stated in its proposal that if, after publishing a direct
final rule, it received no ``significant adverse comments'' or notice
of an intent to file a significant adverse comment, the rule would
become effective on a specified date without further publication of the
text of the rule. RSPA defined ``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.'' No commenter
objected to the proposed definition of the term ``significant adverse
comment,'' but several commenters objected to the word ``significant,''
stating that the term placed the burden of proof on industry and that
the agency would have too much discretion to determine what is
``significant.'' Because no commenter found the proposed definition
objectionable, only the terminology, RSPA will adopt the definition of
``significant adverse comment'', as proposed, but will delete the word
``significant'' from the term ``significant adverse comment.''
In addition, several commenters asked RSPA to clarify whether
comments alleging increased costs, comments that agree with a proposal
but suggest improvements, or comments requesting clarification would be
considered sufficiently adverse to require withdrawal of a direct final
rule. A comment alleging increased costs would generally be considered
adverse. RSPA will not use the direct final rule process where it can
reasonably anticipate that
[[Page 30178]]
a rule will result in increased costs. However, where the allegation of
increased costs is, for example, clearly erroneous, the comment would
not be considered sufficient to warrant withdrawal of the direct final
rule.
A comment that agrees with the proposal but suggests an improvement
would not generally be considered adverse. RSPA stated in the NPRM that
``a comment recommending a rule change in addition to the rule should
not be considered a significant adverse comment, unless the commenter
states why the rule would be ineffective without the additional
change.'' By that statement, RSPA intended to convey that a comment
would be considered adverse if it states that the rule would be
intrinsically inappropriate without the suggested improvement or if it
states that RSPA would be acting inappropriately if it were to adopt
the rule without the suggested improvement. On the other hand, a
comment might not be considered adverse where RSPA reasonably believes
that incorporating the suggested improvement would be noncontroversial,
e.g., where the commenter identifies a section of the HMR that should
be revised in order to maintain consistency between the identified
section and a section amended in a direct final rule, such as the
changes made in RSPA Docket HM-166Z to 49 CFR 173.34(e)(15)(v),
discussed above. In that instance, after the direct final rule at issue
becomes effective, RSPA would make the technical correction in a
subsequent miscellaneous correction rulemaking.
Comments requesting clarification would not, in all cases, be
considered adverse. For example, a commenter might ask the agency to
clarify a particular proposal and at the same time give its own view of
what it believes the agency intended. If the commenter has correctly
understood the agency's intention, the comment is not adverse and
should not result in the withdrawal of a direct final rule. On the
other hand, if there is a substantive difference between the
commenter's understanding and the agency's intention, and the commenter
urges the agency to adopt the commenter's interpretation, the comment
would more than likely be considered adverse.
In the NPRM, RSPA stated that frivolous or insubstantial comments
would not be considered adverse. Several commenters asked RSPA to
clarify those terms. Webster's Ninth New Collegiate Dictionary (1991)
defines ``frivolous'' as ``1: of little weight or importance 2 a:
lacking in seriousness * * *.'' ``Insubstantial'' is defined as
``lacking in substance or material nature.'' RSPA will only consider
comments to be adverse where the commenter demonstrates some minimum
level of seriousness of purpose--if RSPA would have responded to a
comment in the course of a notice-and-comment rulemaking proceeding, it
will consider that comment adverse under the direct final rule
procedures. See, e.g., Center for Auto Safety v. Peck, 751 F.2d 1336,
1355 n. 15 (D.C. Cir. 1985) (agency need not respond to remote or
insignificant comments); Portland Cement Ass'n v. Ruckelshaus, 486 F.2d
375, 394 (D.C. Cir. 1973) (``lack of agency response or consideration
becomes of concern'' when comment is ``significant enough to step over
the threshold requirement of materiality.'')
One commenter suggested that adverse comments be published in the
Federal Register. As proposed, RSPA will publish a document in the
Federal Register advising the public that an adverse comment or notice
of intent to file an adverse comment has been received and that the
direct final rule is being withdrawn. RSPA will not publish the full
text of an adverse comment in that document, but will identify the
commenter and the substance of its adverse comment. The full text of
all comments will be available to the public through RSPA's public
docket room, Room 8419, Department of Transportation, 400 Seventh
Street, SW., Washington, DC 20590-0001.
Finally, several commenters expressed concern with regard to RSPA's
statement in the NPRM that ``[i]f RSPA believed it could incorporate
[an] adverse comment in a subsequent direct final rulemaking, without
generating further significant adverse comment, it could do so.'' Two
commenters stated that this would circumvent notice-and-comment
procedures under the APA. Another stated that a ``proposed'' direct
final rule should look the same as the ``final'' direct final rule.
RSPA believes that the commenters misconstrued RSPA's statement to mean
that it might incorporate an adverse comment into a direct final rule
that would not be subject to further public comment. RSPA merely
intended to indicate by that statement that if the agency received an
adverse comment, it would terminate the direct final rule at issue but
might later initiate another direct final rule proceeding which
incorporated the adverse comment. This second direct final rule
proceeding, like the first, would be open for public comment.
C. Notice of Intent To File a Significant Adverse Comment
In the notice, RSPA proposed that the filing of a notice of intent
to submit an adverse comment would be sufficient to cause the agency to
withdraw a direct final rule. One commenter cautioned against giving
the public an open-ended opportunity to halt a direct final rule
proceeding on the strength of a notice of intent to file an adverse
comment. The commenter suggested that RSPA set a time-frame by which an
entity filing a notice of intent to file an adverse comment must
actually submit its adverse comment; failure to actually submit the
adverse comment would allow the direct final rule proceeding to
continue, in the absence of any other adverse comments. Another
commenter stated that a notice of intent to file an adverse comment
should not derail a direct final rule, and argued that a minimum 60-day
comment period was sufficient for the filing of substantive comments.
The same commenter also noted that comments following a notice of
intent to file adverse comments might not actually be adverse. A third
commenter suggested that, in lieu of allowing commenters to file a
notice of intent to file an adverse comment, the agency allow
commenters to request an extension of the comment period when
necessary.
RSPA has considered the comments on this issue and will adopt its
original proposal. Nevertheless, RSPA will revisit this issue in a
future rulemaking if it finds that commenters are abusing the procedure
by failing to file adverse comments after they have notified the agency
that they intend to do so and after the agency has withdrawn a direct
final rule.
D. Severability
RSPA stated in the NPRM that if an 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 the adverse comment. Three commenters expressed the opinion that
RSPA should only sever provisions of a direct final rule when they are
clearly unrelated to the portion of the rule that was the subject of
the adverse comment. RSPA agrees with the commenters that unless a
provision of a direct final rule is clearly unrelated to a provision
that is the subject of an adverse comment, as where a rule deletes
several unrelated regulations, it will withdraw the entire rule.
[[Page 30179]]
E. Publication of Direct Final Rule in Federal Register
Two commenters suggested that RSPA follow the U.S. Coast Guard's
procedure for publishing a direct final rule in the Federal Register--
specifically, they suggest that RSPA publish the text of a direct final
rule in the ``Rules'' section of the Federal Register and a cross-
reference in the ``Proposed Rules'' section to ensure adequate public
notice. RSPA will not adopt the recommended procedure at this time.
However, if RSPA finds that publication of direct final rules in the
``Rules'' section of the Federal Register is not providing adequate
notice to the public, the agency will revisit this issue.
F. Effective Date of Direct Final Rule
Section 553(d) of the APA states,
The required publication or service of a substantive rule shall
be made not less than 30 days before its effective date, except--
(1) a substantive rule which grants or recognizes an exemption
or relieves a restriction;
(2) interpretative rules and statements of policy; or
(3) as otherwise provided by the agency for good cause found and
published with the rule.
5 U.S.C. 553(d). Two commenters questioned whether RSPA's proposal
would satisfy the 30-day notice requirement of Sec. 553(d).
Specifically, if no adverse comment or notice of intent to file one
were received, RSPA proposed to 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 in the direct final rule.
RSPA agrees that its proposed procedure might result in less than 30
days' notice because the document advising that a direct final rule
will or did become effective might be published less than 30 days
before the effective date of the direct final rule. One of the
commenters suggested that RSPA (1) Identify in each direct final rule a
date after the close of the comment period by which RSPA will notify
the public when or if the rule will become effective and (2) specify an
effective date that is at least 30 days after the public notice date.
RSPA believes that the commenter's suggestion is a good one and,
therefore, will adopt it as part of its direct final rule procedures.
G. Petitions for Reconsideration
Several commenters objected to RSPA's proposal not to allow
petitions for reconsideration of direct final rules. They argued that
the expedited nature of the direct final rule procedure dictates that
petition for reconsideration procedures be kept in place to protect the
public interest. After reviewing the comments on this issue, RSPA
agrees that a party who has filed what it believes to be adverse
comments with the agency may petition the agency for reconsideration if
a direct final rule becomes effective despite its comments. Because of
the expedited nature of direct final rule procedures, however,
petitions for reconsideration of a direct final rule will not be
accepted from anyone who did not participate in the comment phase of
the direct final rule proceeding. The public interest is adequately
protected by commenters' ability to cause the withdrawal of a direct
final rule by the filing of a notice of intent to file adverse
comments.
H. Administrative Procedure Act
Two commenters argued that direct final rule procedures abrogate
the protections afforded to the public under the APA. One commenter
stated that ``procedural due process protections afforded in the [APA]
should not be truncated by unilateral agency action. Prior notice-and-
comment rulemaking is an essential element of regulatory justice and
provides legitimacy for agency actions.'' The other commenter stated
that RSPA's proposal would ``curtail the procedural protections of the
[APA] and simultaneously restrict review of actions taken under the new
procedure.''
In recommending that agencies adopt direct final rule procedures,
ACUS recognized and discussed the issue of compliance with APA notice-
and-comment requirements. In Recommendation 95-4, ACUS stated,
Under current law, direct final rulemaking is supported by two
rationales. First, it is justified by the Administrative Procedure
Act's ``good cause'' exemption from notice-and-comment procedures
where they are found to be ``unnecessary.'' The agency's
solicitation of public comment does not undercut this argument, but
rather is used to validate the agency's initial determination.
Alternatively, direct final rulemaking also complies with the basic
notice-and-comment requirements in section 553 of the APA. The
agency provides notice and opportunity to comment on the rule
through its Federal Register notice; the publication requirements
are met, although the information has been published earlier in the
process than normal; and the requisite advance notice of the
effective date required by the APA is provided.
60 FR 43111
The direct final rule procedures that RSPA is adopting are
justified by the APA's ``good cause'' exemption from notice-and-comment
procedures. Nevertheless, the procedures adopted by RSPA also give the
public the opportunity to submit comments--where no adverse comments
are received, the agency's determination that the rule would be
noncontroversial is validated. Consequently, the interests of the
public in the rulemaking process are adequately protected under RSPA's
direct final rule procedures.
I. Petitions for Rulemaking
In proposed Sec. 106.31(c), RSPA stated that where the potential
impact of an action proposed in a petition for rulemaking is
substantial, and information and data related to that impact are
available to the petitioner, the agency may request the petitioner to
provide information and data 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.
RSPA stated that it may request a petitioner to provide specific
information regarding costs and benefits, direct effects, regulatory
burdens, recordkeeping and reporting requirements, and environmental
impacts of its proposed action, where such information is ``available
to the petitioner.'' By ``available,'' RSPA means that the information
is in petitioner's possession or obtainable by the petitioner. RSPA's
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.
Several commenters supported RSPA's proposal while several others
objected to RSPA's proposal as a shifting of governmental functions to
industry.
The APA requires Federal agencies to give interested persons the
right to petition for the issuance, amendment or repeal of a rule and
requires that Federal agencies give prompt notice of a denial of a
petition, including a brief statement of the grounds for the denial. 5
U.S.C. 555(e). RSPA encourages the filing of well-supported petitions
for rulemaking with the agency, and will consider all petitions that
meet the criteria set forth in proposed Sec. 106.31. RSPA's proposed
requirements are intended to provide the agency with information that
is essential to the agency's review of petitions for rulemaking that
have a substantial impact on the public.
The APA does not require agencies to accept all petitions for
rulemaking. Consequently, the agency will not consider a petition for
rulemaking that is frivolous, that is unsupported, or that fails to
adequately set forth information that the agency deems critical to a
thorough evaluation of the petition. In
[[Page 30180]]
filing a petition for rulemaking, the burden is on the petitioner to
provide supporting information and arguments as to why the agency
should commit itself to the rulemaking proceeding being advocated by
the petitioner.
J. Appeal to Administrator
RSPA received only one comment with respect to its proposal to add
a new Sec. 106.38 to provide that any interested party may appeal a
decision of an Associate Administrator under Sec. 106.33 or Sec. 106.37
(concerning petitions for rulemaking and petitions for reconsideration,
respectively) to the Administrator. The commenter supported RSPA's
proposal but noted a lack of detail as to the required contents of a
written appeal document. This final rule adopts Sec. 106.38 as proposed
and adds the right to appeal a decision of the Chief Counsel to the
Administrator. At the appeal stage, all relevant documents that were
considered by an Associate Administrator or the Chief Counsel in
reaching his decision will be provided by the Associate Administrator
or Chief Counsel to the Administrator for review; the party appealing
the decision need not provide that information to the agency again. An
appeal to the Administrator should identify the decision that is being
appealed, state with particularity the aspects of the decision being
appealed, and include any new information or arguments that the
Administrator is being asked to consider.
K. Miscellaneous
One commenter asked RSPA to distinguish between the interim final
rule procedures the agency has used in the past and the agency's
proposed direct final rule procedures. Essentially, when an agency uses
interim final rulemaking, it adopts a rule without prior public input,
makes it immediately effective, and then invites post-promulgation
comments directed towards the issue of whether the rule should be
changed sometime in the future. The receipt of comments adverse to the
interim final rule will not necessarily cause the agency to withdraw
the interim final rule, but may lead to future amendments if the agency
is persuaded that amendments are necessary. On the other hand, when an
agency proposes a rule using direct final rule procedures, a single
adverse comment or notice of intent to file an adverse comment will
cause the agency to withdraw the rule, whether or not the agency is
persuaded that amendments to the rule are necessary.
IV. Rulemaking Analysis and Notices
Executive Order 12866 and DOT Regulatory Policies and Procedures
This final rule is not considered a significant regulatory action
under section 3(f) of Executive Order 12866 and, therefore, was not
reviewed by the Office of Management and Budget. The rule is not
significant according to the Regulatory Policies and Procedures of the
Department of Transportation (44 FR 11034). The changes adopted in this
rule do not result in any additional costs but result in modest cost
savings to the public and to the agency. Because of the minimal
economic impact of this rule, preparation of a regulatory evaluation is
not warranted.
Executive Order 12612
This final rule has been analyzed in accordance with the principles
and criteria in Executive Order 12612 (``Federalism'') and does not
have sufficient Federalism impacts to warrant the preparation of a
federalism assessment.
Regulatory Flexibility Act
I certify that this final rule will not have a significant economic
impact on a substantial number of small entities. This rule does not
impose any new requirements; thus, there are no direct or indirect
adverse economic impacts for small units of government, businesses or
other organizations.
Paperwork Reduction Act
There are no new information collection requirements in this final
rule.
Regulation Identifier Number
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 amended as
follows:
PART 106--RULEMAKING PROCEDURES
1. The authority citation for part 106 continues to read as
follows:
Authority: 33 U.S.C. 1321; 49 U.S.C. 5101-5127, 40113, 60101-
60125; 49 CFR 1.53.
2. In Sec. 106.3, a new paragraph (d) is added to read as follows:
Sec. 106.3 Delegations.
* * * * *
(d) Chief Counsel.
3. In Sec. 106.17, paragraph (a) is revised to read as follows:
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.
* * * * *
4. Section 106.31 is revised to read as follows:
Sec. 106.31 Petitions for rulemaking.
(a) Any interested person may petition the Associate Administrator
to establish, amend, or repeal a substantive regulation, or may
petition the Chief Counsel to establish, amend, or repeal a procedural
regulation in parts 106 or 107.
(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 or the Chief Counsel 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
[[Page 30181]]
(5) Impacts on the quality of the natural and social environments.
(d) The Associate Administrator or Chief Counsel 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.
Sec. 106.33 [Amended]
5. Section 106.33 is amended by replacing the word
``Administrator'' with the words ``Associate Administrator or the Chief
Counsel'' wherever it appears.
6. Section 106.33, paragraph (d) is revised to read as follows:
Sec. 106.33 Processing of Petition.
* * * * *
(d) Notification. The Associate Administrator or the Chief Counsel
will notify a petitioner, in writing, of his decision to grant or deny
a petition for rulemaking.
7. In Sec. 106.35, the first sentence of paragraph (a) is revised
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, or may petition the Chief Counsel
for reconsideration of any procedural regulation issued under this part
and contained in this part or in Part 107 of this Chapter. * * *
* * * * *
Sec. 106.35 [Amended]
8. In addition, in Sec. 106.35, paragraphs (b), (c), and (d), the
word ``Administrator'' is amended to read ``Associate Administrator or
the Chief Counsel'' wherever it appears.
Sec. 106.37 [Amended]
9. In Sec. 106.37, the word ``Administrator'' is amended to read
``Associate Administrator or the Chief Counsel'' wherever it appears.
10. Part 106 is 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 or the Chief Counsel, 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 or the Chief
Counsel's decision, or within 20 days from the date of publication of
the decision in the Federal Register, and should set forth the
contested aspects of the decision as well as any new arguments or
information.
(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.
11. Part 106 is amended by adding a new Sec. 106.39 to read as
follows:
Sec. 106.39 Direct final rulemaking.
(a) Where practicable, the Administrator 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 the Administrator 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 will state an effective date. The direct
final rule will also state that unless an adverse comment or notice of
intent to file an adverse comment is received within the specified
comment period, generally 60 days after publication of the direct final
rule in the Federal Register, the Administrator will issue a
confirmation document, generally within 15 days after the close of the
comment period, advising the public that the direct final rule will
either become effective on the date stated in the direct final rule or
at least 30 days after the publication date of the confirmation
document, whichever is later.
(c) For purposes of this section, an 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 an adverse comment, unless the commenter states why the rule
would be ineffective without the additional change.
(d) Only parties who filed comments to a direct final rule issued
under this section may petition under Sec. 106.35 for reconsideration
of that direct final rule.
(e) If an adverse comment or notice of intent to file an adverse
comment is received, a timely document will be published in the Federal
Register advising the public and withdrawing the direct final rule in
whole or in part. The Administrator may then 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. on May 31, 1996, under the authority
delegated in 49 CFR part 1.53 and RSPA Order 1100.2A (May 19, 1992).
Kelley S. Coyner,
Deputy Administrator.
[FR Doc. 96-14371 Filed 6-13-96; 8:45 am]
BILLING CODE 4910-60-P
