2015-14517. Organization and Functions of the Board and Delegations of Authority

AGENCY:

National Transportation Safety Board (NTSB or Board).

ACTION:

Notice of proposed rulemaking.

SUMMARY:

The NTSB proposes a new subpart within part 800 of its regulations to outline the NTSB's rulemaking procedures.

DATES:

Comments must be submitted by July 20, 2015.

ADDRESSES:

A copy of this notice, published in the Federal Register (FR), is available for inspection and copying in the NTSB's public reading room, located at 490 L'Enfant Plaza SW., Washington, DC 20594-2003. Alternatively, a copy is available on the government-wide Web site on regulations at http://www.regulations.gov (Docket ID Number NTSB-GC-2012-0002).

FOR FURTHER INFORMATION CONTACT:

David Tochen, General Counsel, [phone].

SUPPLEMENTARY INFORMATION:

I. Background

On June 25, 2012, the NTSB published a proposed rule indicating its intent to undertake a review of all NTSB regulations to ensure they are updated. 77 FR 37865. The NTSB initiated this review in accordance with Executive Order 13579, “Regulation and Independent Regulatory Agencies” (76 FR 41587, July 14, 2011). The purpose of Executive Order 13579 is to ensure all agencies adhere to the key principles found in Executive Order 13563, “Improving Regulation and Regulatory Review” (76 FR 3821, January 21, 2011), which include promoting public participation in rulemaking, improving integration and innovation, promoting flexibility and freedom of choice, and ensuring scientific integrity during the rulemaking process in order to create a regulatory system that protects public health, welfare, safety, and the environment while promoting economic growth, innovation, competitiveness, and job creation. The NTSB is committed to ensuring its regulations remain up-to-date and comply with these principles. This notice describes amendments to part 800 of 49 CFR (Organization and Functions of the Board and Delegations of Authority) that effect the agency's internal policies.

This Notice proposes the addition of a new subpart within part 800: Subpart C, titled “Procedures for Adoption of Rules.” Subpart C describes the agency's rulemaking procedures. As stated above, the NTSB has undertaken a comprehensive review of all its regulations, in order to update them and ensure they accurately reflect the NTSB's current practices and contain correct information. In addition to the ongoing comprehensive review, the NTSB has also proposed and promulgated several changes to part 821 of 49 CFR (Rules of Practice in Air Safety Proceedings) and part 826 of 49 CFR (Rules Implementing the Equal Access to Justice Act). These recent rulemaking activities point out a need for procedural rules describing the NTSB's rulemaking practices. For example, this new subpart includes a section concerning interim final rules, and direct final rulemaking authority. The NTSB believes these sections will be beneficial in assisting public understanding of agency procedures for all types of rulemaking projects.

II. Discussion of Proposed Additions

Many of the new sections we propose are self-explanatory. As the Plain Writing Act of 2010, Public Law 111-274, 5 U.S.C. 301 note, and Executive Orders 12866 at § 1(b)(12) and 12988 at § 3(b)(2) require, the NTSB's proposed language in these new sections is clear and unambiguous. The NTSB has used regulations from the Department of Transportation as a model for the proposed text in this NPRM. See, e.g., 49 CFR 5.1-5.35 (Office of Secretary of Transportation); 49 CFR part 389, subpart B (Federal Motor Carrier Safety Administration).

A. General Rulemaking Provisions: §§ 800.30-800.34

The NTSB proposes § 800.30 to clarify the rules within proposed subpart C will only apply to rulemakings the NTSB initiates under its enabling statute, at 49 U.S.C. 1101-1155. The NTSB notes the agency's specific rulemaking authority is codified at 49 U.S.C. 1113(f); however, we propose a reference to sections 1101-1155 to provide for the possibility of enactment of rulemaking authority within other sections of the NTSB's authorizing legislation.

The NTSB proposes § 800.31 to notify the public of the location of publicly available rulemaking documents. The NTSB utilizes www.regulations.gov for organizing and publishing rulemaking documents and public comments. Proposed § 800.31 apprises the public of the existence of this electronic site.

Proposed §§ 800.32, 800.33, and 800.34 describe the manner in which the NTSB initiates rulemaking projects, the NTSB's practice of complying with the Administrative Procedure Act's informal rulemaking procedures by publishing notices of proposed rulemaking, and the expected contents of notices of proposed rulemaking. Proposed § 800.33 includes a phrase indicating the NTSB may not issue a notice of proposed rulemaking if the agency finds “notice is impracticable, unnecessary, or contrary to the public interest,” and the agency “incorporates that finding and a brief statement of the reasons for it in the rule.” As discussed below, such a procedure is permissible under the Administrative Procedure Act. While the NTSB does not anticipate engaging in such a procedure with frequency, the agency believes it suitable to provide for the exception in the text of § 800.33. The NTSB also proposes including a reference to the Administrative Procedure Act, at 5 U.S.C. 551, because the statute imposes specific procedures and requirements on agencies who engage in rulemaking.

The NTSB proposes § 800.34 to inform the public of what each notice of proposed rulemaking will contain. For example, this section will require the NTSB provide specific information concerning the availability of rulemaking documents, and dates that apply to comment periods. The NTSB believes this section will ensure the NTSB's notices of proposed rulemaking consistently contain the information necessary to ensure the public may participate in the rulemaking process with ease.

B. Public Participation: §§ 800.35-800.38

The NTSB understands providing for the opportunity for public participation in rulemaking is a hallmark of the Administrative Procedure Act. As a result, the NTSB proposes the addition of regulations describing the procedures for public participation. In § 800.35, the NTSB proposes text stating any interested person may participate in a rulemaking project by submitting written comments. The NTSB emphasizes this invitation is open to all interested individuals. The NTSB also proposes a provision stating the agency may exercise its discretion to invite any interested person to participate in rulemaking procedures. Such an invitation might include the NTSB identifying organizations that might be able to offer expertise in a specific subject matter, and requesting those organizations consider submitting written comments with relevant information. Maintaining discretion to engage in such a practice will ensure the NTSB gains the most relevant, helpful information in promulgating its regulations.

The NTSB also proposes a regulation specifying procedures regarding petitions for extension of time to submit comments, in § 800.36. The NTSB proposes a requirement stating the NTSB must receive such petitions no later than 10 days before the end of the comment period stated in the notice, unless a petitioner establishes good cause exists to extend the time for comments. If the NTSB grants a petition and extends the comment period, the proposed version of § 800.36 will require the NTSB to publish a notice of the extension in the Federal Register. Similar to other agencies, the NTSB proposes a rule concerning the content and format of written comments at § 800.37. The NTSB proposes requiring comments be in English and not exceed 15 pages. The proposed text states the NTSB accepts attachments to comments, and requires adherence to the electronic filing instructions on the Federal Docket Management System Web site when a commenter seeks to submit a comment electronically. In the event the Federal Docket Management System Web site is unserviceable or presents unforeseen problems preventing the timely submission of a comment, the NTSB will err on the side of accepting comments and assisting commenters. In addition, the NTSB proposes a sentence stating it will not accept frivolous, abusive, or repetitious comments.

The NTSB also proposes a statement in § 800.38 that the agency will consider all timely-filed comments before it takes final action on a rulemaking proposal. The NTSB further proposes including a statement that the agency may consider late-filed comments “to the extent practicable.” The NTSB has included these statements in the preambles of notices of proposed rulemaking the agency has recently published. Codifying these concepts in a regulation communicates the NTSB takes seriously its consideration of all comments it receives.

C. Proceedings and Documents: §§ 800.39-800.41

The NTSB proposes including in § 800.39 the statement that the agency may initiate any further rulemaking proceedings it finds necessary or desirable. In this proposed rule, we provide the examples of inviting interested persons to make oral arguments; inviting participation in conferences with the agency and interested persons; inviting appearance at informal hearings presided over by officials designated by the agency; or participating “in any other proceeding to assure informed administrative action and to protect the public interest.” The NTSB notes, for such examples, the agency would ensure notes and/or a transcript of the proceedings would be kept. In general, the NTSB would include such items in the rulemaking record in the Federal Docket Management System. The NTSB's inclusion of proposed § 800.39 acknowledges that public participation is critical to its rulemaking process and such participation may take different forms. In addition to initiating various types of rulemaking procedures, the NTSB also is mindful that, with regard to some rules, issuing a written interpretation clarifying or explaining the applicability of a rule may be beneficial. The NTSB may issue such a written interpretation as a Notice published in the Federal Register, to ensure public awareness of the interpretation. The NTSB believes such interpretations assist in promoting transparency and understanding the NTSB's rules, some of which may involve technical information that would benefit from further explanation.

The NTSB proposes §§ 800.40 (“Hearings”) and 800.41 (“Adoption of final rules”) stating the NTSB will only hold “informal” hearings, rather than “formal” hearings specified in 5 U.S.C. 556 and 557. At any such informal hearing, the agency will designate a representative, such as the agency's General Counsel, to conduct the hearing. For clarification, the NTSB notes such rulemaking hearings are distinctive from those described in parts 821 (Rules of Practice in Air Safety Proceedings) and 845 (Rules of Practice in Transportation: Accident/Incident Hearings and Reports) of this chapter. Proposed § 800.41 describes internal agency procedures for adopting and issuing a Final Rule: The program office works with the NTSB's Office of General Counsel to draft the Final Rule and present it to the Board for consideration. If the Board chooses to adopt the Final Rule, the agency will publish the Final Rule in the Federal Register.

D. Petitions for Rulemaking: §§ 800.42-800.43

The NTSB proposes § 800.42 concerning petitions for rulemaking, which any interested person may submit. The proposed text specifies where petitioners must send the petition and requires the petition specify the rule the petitioner seeks to have amended or repealed. Conversely, the proposed section indicates a petition for rulemaking may propose the existence of a new rule. The petition must explain the petitioner's interest in the action he or she requests, as well as information and arguments to support the action sought.

Section 800.43 proposes text describing how the NTSB will handle petitions for rulemaking. The proposed text states the NTSB will not hold hearings, arguments, or other proceedings on issues raised in the petition, unless the NTSB specifies otherwise. The proposed text of the section states the agency may grant or deny a petition for rulemaking, and will notify the petitioner of its decision.

E. Direct and Interim Final Rules: §§ 800.44-800.45

The NTSB proposes sections concerning direct final rulemaking and interim final rules. The NTSB proposes to use the direct final rulemaking procedure to streamline the rulemaking process where the rule is noncontroversial and the agency does not expect adverse comment.

Direct final rulemaking will reduce the time and resources necessary to develop, review, clear, and publish separate proposed and final rules for rulemakings the agency expects to be noncontroversial and unlikely to result in adverse public comment. Several federal agencies use this process, including various Department of Transportation operating administrations. See, e.g., 49 CFR 5.35 (Office of Secretary of Transportation); 49 CFR 11.31 (Federal Aviation Administration); 49 CFR 190.339 (Pipeline and Hazardous Materials Safety Administration); 49 CFR 211.33 (Federal Railroad Administration); 49 CFR 389.39 (Federal Motor Carrier Safety Administration); 49 CFR 601.22 (Federal Transit Administration).

In engaging in the direct final rulemaking procedure for certain rules, the NTSB would first determine whether a particular rulemaking is noncontroversial and unlikely to result in adverse comments based on its experience in previous rulemaking projects. Adverse comments are those comments that are critical of the rule, suggest that the rule should not be adopted, or suggest a change to the rule. The NTSB would not consider adverse comments to be those outside the scope of the rule or those suggesting the rule's policy or requirements should or should not be extended to other agency programs outside the scope of the rule.

After making the determination a rule would be appropriate for direct final rulemaking, the NTSB would publish the rule as a direct final rule in the Federal Register. The document would state in the preamble that the agency does not anticipate adverse comments and that, unless it receives written adverse comments or written notice of intent to submit adverse comments, the rule would become effective a specified number of days after the date of its publication in the Federal Register. If the NTSB receives adverse comments, or receives notice of intent to file adverse comments by the date specified in the direct final rule, it would publish a rule in the Federal Register withdrawing the direct final rule before it goes into effect. The NTSB may then publish a notice of proposed rulemaking with a new comment period if the agency decides to go forward with the rulemaking. If no adverse comments or written notice of intent to submit adverse comments are received by the date specified in the direct final rule, the NTSB would publish the rule in the Federal Register stating that it did not receive any adverse comments and confirming the effective date of the rule.

Proposed § 800.44 sets forth the process outlined above and describes noncontroversial rules appropriate for final rulemaking. Noncontroversial rules include technical clarifications or corrections to existing rules, incorporation by reference, rules that affect internal procedures of the NTSB, such as filing requirements, and rules governing inspection and copying of documents. The NTSB may also use direct final rulemaking for a particular rule if similar rules had been previously proposed and published without adverse comment. Even if a rulemaking falls into one of the above categories, if adverse comments are anticipated, the NTSB would not use the direct final rulemaking process. The NTSB believes the additional time and resources expended to withdraw the rule and republish it for comment will serve as an incentive for the agency to make careful determinations as to whether this procedure is appropriate.

Finally, the NTSB proposes § 800.45 to describe interim final rules. The NTSB may issue an interim final rule, which is an immediately effective rule, when it is in the public interest to promulgate an effective rule while keeping the rulemaking open for further refinement. The NTSB's proposed text includes the examples of when “normal procedures for notice and comment prior to issuing an effective rule are not required, minor changes to the final rule may be necessary after the interim rule has been in place for some time, or the interim rule only implements portions of a proposed rule, while other portions of the proposed rule are still under development.” This list of examples is not exhaustive; indeed, in 2012, the NTSB issued an interim final rule to amend certain procedural rules related to aviation certificate enforcement appeals. 77 FR 63242 (Oct. 16, 2012). Such rules needed to take effect quickly, as the changes were required by the enactment of Pilot's Bill of Rights. Public Law 112-53, 126 Stat. 1159 (Aug. 3, 2012). As a result, the NTSB utilized the interim final rulemaking process to ensure compliance with the legislative changes. The NTSB believes the proposed text of § 800.45 explains the interim final rulemaking process to ensure the public is aware of the process and when the NTSB might issue interim final rules.

List of Subjects in 49 CFR Part 800

• Administrative practice and procedure
• Authority delegations (Government agencies)
• Government employees
• Organization and functions (Government agencies)

For the reasons discussed in the preamble, the NTSB proposes to amend 49 CFR part 800 as follows:

PART 800—ADMINISTRATIVE RULES

1. Revise the authority citation for 49 CFR part 800 to read as follows:

Authority: 49 U.S.C. 1113(f), unless otherwise noted.

2. Revise the part heading to read as set forth above.

3. Add subpart C to 49 CFR part 800 to read as follows:

Subpart C—Procedures for Adoption of Rules

800.30

Applicability.

800.31

Public reading room.

800.32

Initiation of rulemaking.

800.33

Notice of proposed rulemaking.

800.34

Contents of notices of proposed rulemaking.

800.35

Participation of interested persons.

800.36

Petitions for extension of time to comment.

800.37

Contents of written comments.

800.38

Consideration of comments received.

800.39

Additional rulemaking proceedings.

800.40

Hearings.

800.41

Adoption of final rules.

800.42

Petitions for rulemaking.

800.43

Processing of petition.

800.44

Direct final rulemaking procedures.

800.45

Interim rulemaking procedures.

Subpart C—Procedures for Adoption of Rules

§ 800.30

Applicability.

This subpart prescribes rulemaking procedures that apply to the issuance, amendment, and revocation of rules pursuant to 49 U.S.C. 1101-1155.

§ 800.31

Public reading room.

Information and data deemed relevant by the NTSB relating to rulemaking actions, including notices of proposed rulemaking; comments received in response to notices; petitions for rulemaking and reconsideration; denials of petitions for rulemaking; and final rules are maintained in the NTSB's public reading room, located at 490 L'Enfant Plaza SW., Washington, DC 20594-2003.

§ 800.32

Initiation of rulemaking.

The NTSB may initiate rulemaking either on its own motion or on petition by any interested person after a determination that grant of the petition is advisable. The NTSB may also consider the recommendations of other agencies of the United States.

§ 800.33

Notice of proposed rulemaking.

Unless the NTSB, for good cause, finds notice is impracticable, unnecessary, or contrary to the public interest, and incorporates that finding and a brief statement of the reasons for it in the rule, a notice of proposed rulemaking is issued and interested persons are invited to participate in the rulemaking proceedings under applicable provisions of 5 U.S.C. 551.

§ 800.34

Contents of notices of proposed rulemaking.

(a) Each notice of proposed rulemaking is published in the Federal Register.

(b) Each notice includes:

(1) A statement of the time, place, and nature of the proposed rulemaking proceeding;

(2) A reference to the authority under which it is issued;

(3) A description of the subjects and issues involved or the substance and terms of the proposed rule;

(4) A statement of the time within which written comments must be submitted; and

(5) A statement of how and to what extent interested persons may participate in the proceedings.

§ 800.35

Participation of interested persons.

(a) Any interested person may participate in rulemaking proceeding by submitting comments in writing containing information, views or arguments.

(b) In its discretion, the agency may invite any interested person to participate in the rulemaking procedures described in this subpart.

§ 800.36

Petitions for extension of time to comment.

A petition for extension of the time to submit comments must be received not later than 10 days before the end of the comment period stated in the notice. The petition must be submitted to: General Counsel, National Transportation Safety Board, 490 L'Enfant Plaza SW., Washington, DC 20594-2003. The filing of the petition does not automatically extend the time for petitioner's comments. Such a petition is granted only if the petitioner shows good cause for the extension, and if the extension is consistent with the public interest. If an extension is granted, it is granted to all persons, and the NTSB will publish a notice of the extension of the comment period in the Federal Register.

§ 800.37

Contents of written comments.

All written comments shall be in English. Unless otherwise specified in a notice requesting comments, comments may not exceed 15 pages in length, but necessary attachments may be appended to the submission without regard to the 15-page limit. Any commenter shall submit as a part of his or her written comments all material he or she considers relevant to any statement of fact made in the comment. Commenters should avoid incorporation by reference. However, if incorporation by reference is necessary, the incorporated material shall be identified with respect to document and page. The NTSB may reject comments if they are frivolous, abusive, or repetitious. The NTSB may also reject comments filed electronically if the commenter does not adhere to the electronic filing instructions at the Federal Docket Management System Web site.

§ 800.38

Consideration of comments received.

All timely comments are considered before final action is taken on a rulemaking proposal. Late filed comments may be considered to the extent practicable.

§ 800.39

Additional rulemaking proceedings.

The NTSB may initiate any further rulemaking proceedings it finds necessary or desirable. For example, interested persons may be invited to make oral arguments, to participate in conferences between the Board or a representative of the Board and interested persons at which minutes of the conference are kept, to appear at informal hearings presided over by officials designated by the Board, at which a transcript or minutes are kept, or participate in any other proceeding to assure informed administrative action and to protect the public interest.

§ 800.40

Hearings.

(a) Sections 556 and 557 of title 5, United States Code, do not apply to hearings held under this part. Unless otherwise specified, hearings held under this part are informal, fact-finding proceedings, at which there are no formal pleadings or adverse parties. Any rule issued in a case in which an informal hearing is held is not necessarily based exclusively on the record of the hearing.

(b) The NTSB designates a representative to conduct any hearing held under this part. The General Counsel or a designated member of his or her staff may serve as legal officer at the hearing.

§ 800.41

Adoption of final rules.

Final rules are prepared by representatives of the office concerned and the Office of the General Counsel. The rule is then submitted to the Board for its consideration. If the Board adopts the rule, it is published in the Federal Register, unless all persons subject to it are named and are personally served with a copy of it.

§ 800.42

Petitions for rulemaking.

(a) Any interested person may petition the Chairman to establish, amend, or repeal a rule.

(b) Each petition filed under this section must:

(1) Be submitted in duplicate to the Chairman, National Transportation Safety Board, 490 L'Enfant Plaza SW., Washington, DC 20594-0003;

(2) Set forth the text or substance of the rule or amendment proposed, or specify the rule the petitioner seeks to have repealed, as the case may be;

(3) Explain the interest of the petitioner in the action requested; and

(4) Contain any information and arguments available to the petitioner to support the action sought.

§ 800.43

Processing of petition.

(a) Unless the NTSB otherwise specifies, no public hearing, argument, or other proceeding is held directly on a petition before its disposition under this section.

(b) Grants. If the agency determines the petition contains adequate justification, it initiates rule making action this Subpart C.

(c) Denials. If the agency determines the petition does not justify rulemaking, it denies the petition.

(d) Notification. Whenever the agency determines a petition should be granted or denied, the Office of the General Counsel prepares a notice of the grant or denial for issuance to the petitioner, and the agency issues it to the petitioner.

§ 800.44

Direct final rulemaking procedures.

A direct final rule makes regulatory changes and states those changes will take effect on a specified date unless the NTSB receives an adverse comment or notice of intent to file an adverse comment by the date specified in the direct final rule published in the Federal Register.

(a) Types of actions appropriate for direct final rulemaking. Rules the Board determines to be non-controversial and unlikely to result in adverse public comments may be published in the final rule section of the Federal Register as direct final rules. These include non-controversial rules that:

(1) Make non-substantive clarifications or corrections to existing rules;

(2) Incorporate by reference the latest or otherwise updated versions of technical or industry standards;

(3) Affect internal NTSB procedures;

(4) Update existing forms; and

(5) Make minor changes to rules regarding statistics and reporting requirements, such as a change in reporting period (for example, from quarterly to annually) or eliminating a type of data collection no longer necessary.

(b) Adverse comment. An adverse comment is a comment the NTSB judges to be critical of the rule, to suggest the rule should not be adopted, or to suggest a change should be made to the rule. Under the direct final rule process, the NTSB does not consider the following types of comments to be adverse:

(1) Comments recommending another rule change, unless the commenter states the direct final rule will be ineffective without the change;

(2) Comments outside the scope of the rule and comments suggesting the rule's policy or requirements should or should not be extended to other topics outside the scope of the rule;

(3) Comments in support of the rule; or

(4) Comments requesting clarification.

(c) Confirmation of effective date. The NTSB will publish a confirmation rule document in the Federal Register, if it has not received an adverse comment or notice of intent to file an adverse comment by the date specified in the direct final rule. The confirmation rule document informs the public of the effective date of the rule.

(d) Withdrawal of a direct final rule. (1) If the NTSB receives an adverse comment or a notice of intent to file an adverse comment within the comment period, it will publish a rule document in the Federal Register, before the effective date of the direct final rule, advising the public and withdrawing the direct final rule.

(2) If the NTSB withdraws a direct final rule because of an adverse comment, the NTSB may issue a notice of proposed rulemaking if it decides to pursue the rulemaking.

§ 800.45

Interim rulemaking procedures.

(a) An interim rule may be issued when it is in the public interest to promulgate an effective rule while keeping the rulemaking open for further refinement. For example, an interim rule may be issued in instances when normal procedures for notice and comment prior to issuing an effective rule are not required, minor changes to the final rule may be necessary after the interim rule has been in place for some time, or the interim rule only implements portions of a proposed rule, while other portions of the proposed rule are still under development.

(b) An interim rule will be published in the Federal Register with an effective date on or after the date of publication. After the effective date, an interim rule is enforceable and is codified in the next annual revision of the Code of Federal Regulations.

Christopher A. Hart,

Chairman.