65210 Federal Register / Vol. 60, No. 242 / Monday, December 18, 1995 / Proposed Rules

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).

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

§ 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
Federal Register / Vol. 60, No. 242 / Monday, December 18, 1995 / Proposed Rules 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-andcomment 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 § 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

§ 106.17 to clarify the procedures for

participation by interested parties in the

rulemaking process.

RSPA also is proposing to amend

§ 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

§ 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

§ 106.38 to provide that any interested

party may appeal a decision of the

Associate Administrator, issued under

§ 106.33 or § 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.

§§ 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 § 106.3, a new paragraph (d)

would be added to read as follows:

§ 106.3 Delegations.

* * * * *

(d) Chief Counsel.

4. In § 106.17, paragraph (a) would be

revised to read as follows:
65212 Federal Register / Vol. 60, No. 242 / Monday, December 18, 1995 / Proposed Rules

§ 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 § 106.31, paragraph (b) would be

revised and new paragraphs (c) and (d)

would be added to read as follows:

§ 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:

§ 106.35 Petitions for reconsideration.

(a) Except as provided in § 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 § 106.38 to read as

follows:

§ 106.38 Appeals.

(a) Any interested person may appeal

a decision of the Associate

Administrator, issued under § 106.33 or

§ 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 § 106.39 to read as

follows:

§ 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 § 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

§§ 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]

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