Federal Register / Vol. 61, No. 116 / Friday, June 14, 1996 / Rules and Regulations 30175

Executive Order 12898 (59 FR 7629,

February 16, 1994).

Pursuant to the requirements of the

Regulatory Flexibility Act (5 U.S.C. 601-

612), the Administrator has determined

that regulations establishing new

tolerances or raising tolerance levels or

establishing exemptions from tolerance

requirements do not have a significant

economic impact on a substantial

number of small entities. A certification

statement explaining the factual basis

for this determination was published in

the Federal Register of May 4, 1981 (46

FR 24950).

List of Subjects in 40 CFR Part 180

Environmental protection,

Administrative practice and procedure,

Agricultural commodities, Pesticides

and pests.

List of Subjects in 40 CFR Part 186

Environmental protection, Animals

feeds, Pesticides and pests.

Dated: May 29, 1996.

Stephen L. Johnson,

Director, Registration Division, Office of

Pesticide Programs.

Therefore, 40 CFR chapter I is

amended as follows:

PART 180—[AMENDED]

1. In part 180:

a. The authority citation for part 180

continues to read as follows:

Authority: 21 U.S.C. 346a and 371.

b. In 180.441, by revising paragraph

(c) and adding paragraph (d) to read as

follows:

§ 180.441 Quizalofop ethyl; tolerances for

residues.

* * * * *

(c) Tolerances are established for the

combined residues of the herbicide

quizalofop-p ethyl ester [ethyl (R)-(2-[4-

((6-chloroquinoxalin-2-

yl)oxy)phenoxy)propanoate], and its

acid metabolite quizalofop-p [R-(2-(4-

((6-quinoxalin-2-

yl)oxy)phenoxy)propanoic acid], and

the S enantiomers of both the ester and

the acid, all expressed as quizalofop-pethyl ester, in or on the following raw

agricultural commodities;

Commodity Parts per million

cottonseed ................. 0.1

lentils ......................... 0.05

(d) Time limited tolerances to expire

on June 14, 1999 are established for the

combined residues of the herbicide

quizalofop-p ethyl ester (ethyl (R)-(2-(4-

((6-chloroquinoxalin-2-

yl)oxy)phenoxy)propanoate) and it acid

metabolite quizalofop-p [R-(2-(4-((6-

chloroquinoxalin-2-

yl)oxy)phenoxy)propanoic acid), and

the S enantiomers of both the ester and

the acid, all expressed as quizalofop-pethyl ester in or on the following raw

agricultural commodities:

Commodities Parts per million

foliage of legume

vegetables (except

soybeans).

3.0

legume vegetables

(succulent or dried)

group.

0.25

sugarbeet, root .......... 0.1

sugarbeet, top ........... 0.5

PART 186—[AMENDED]

2. In part 186:

a. The authority for part 186

continues to read as follows:

Authority: 21 U.S.C. 342, 348, and 701.

b. In 186.5250, by redesignating the

existing paragraph and table as

paragraph (a) and adding paragraph (b)

to read as follows:

§ 186.5250 Quizalofop ethyl.

* * * * *

(b) A feed additive regulation to

expire (insert date 3 years from date of

publication in the Federal Register) is

established to permit the combined

residues of the herbicide quizalofop-pethyl ester [ethyl] (R)-2-[4-((6-

chloroquinoxalin-2-

yl)oxy)phenoxy)propanoate], and its

acid metabolite quizalofop-p [R-(2-(4-

((6-chloroquinoxalin-2-

yl)oxy)phenoxy)propanoic acid), and

the S enantiomers of the ester and the

acid, all expressed as quizalofop-p-ethyl

ester in or on sugar beet molasses at 0.2

part per million (ppm)

[FR Doc. 96–15040 Filed 6–13–96; 8:45 am]

BILLING CODE 6560–50–F

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.

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
30176 Federal Register / Vol. 61, No. 116 / Friday, June 14, 1996 / Rules and Regulations

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 § 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

§§ 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 § 106.3

to clarify that RSPA’s Chief Counsel has

the delegated authority to conduct

rulemaking proceedings, § 106.17 to

clarify the procedures for participation

by interested parties in the rulemaking

process, and § 106.31 to specify in more

detail the required contents of a petition

for rulemaking.

RSPA further proposed 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 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

§ 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
Federal Register / Vol. 61, No. 116 / Friday, June 14, 1996 / Rules and Regulations 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 allinclusive 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

§ 173.34(e)(15)(v) was substantive, it

was minor in that it followed logically

from significant changes that were made

to § 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 § 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
30178 Federal Register / Vol. 61, No. 116 / Friday, June 14, 1996 / Rules and Regulations

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-andcomment 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.
Federal Register / Vol. 61, No. 116 / Friday, June 14, 1996 / Rules and Regulations 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 crossreference 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 § 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-andcomment 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 noticeand-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 § 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 § 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
30180 Federal Register / Vol. 61, No. 116 / Friday, June 14, 1996 / Rules and Regulations

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

§ 106.38 to provide that any interested

party may appeal a decision of an

Associate Administrator under § 106.33

or § 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 § 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 § 106.3, a new paragraph (d) is

added to read as follows:

§ 106.3 Delegations.

* * * * *

(d) Chief Counsel.

3. In § 106.17, paragraph (a) is revised

to read as follows:

§ 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:

§ 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
Federal Register / Vol. 61, No. 116 / Friday, June 14, 1996 / Rules and Regulations 30181

1The ICC Termination Act of 1995, Pub. L. No.

104–88, 109 Stat. 803 (the ICCTA), which was

enacted on December 29, 1995, and took effect on

January 1, 1996, abolished the Interstate Commerce

Commission (ICC or Commission) and transferred

certain functions and proceedings to the Surface

Transportation Board (Board). While section

204(b)(1) of the ICCTA provides, in general, that

proceedings pending before the ICC on the effective

date of that legislation shall be decided under the

law in effect prior to January 1, 1996, insofar as they

involve functions retained by the ICCTA, the action

at issue here, the adoption of new rules with

application to future transportation and future tariff

filings, necessitates analysis under the new law,

and, therefore, this document applies the law in

effect after enactment of the ICCTA. Citations are

to the current sections of the statute, unless

otherwise indicated. This document relates to a

proceeding that was pending with the ICC prior to

January 1, 1996, and to functions that are subject

to Board jurisdiction pursuant to 49 U.S.C. 13701–

02 and 13521.

(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.

§ 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:

§ 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 § 106.35, the first sentence of

paragraph (a) is revised 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, 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. * * *

* * * * *

§ 106.35 [Amended]

8. In addition, in § 106.35, paragraphs

(b), (c), and (d), the word

‘‘Administrator’’ is amended to read

‘‘Associate Administrator or the Chief

Counsel’’ wherever it appears.

§ 106.37 [Amended]

9. In § 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 § 106.38 to read as follows:

§ 106.38 Appeals.

(a) Any interested person may appeal

a decision of the Associate

Administrator or the Chief Counsel,

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 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 § 106.39 to read as follows:

§ 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 § 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

§§ 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

Surface Transportation Board 1

49 CFR Part 1312

[Ex Parte No. MC–220]

The Municipality of Anchorage, AK—

Notices for Rate Increases for Alaska

Intermodal Motor/Water Traffic;

Petition for Rulemaking

AGENCY: Surface Transportation Board.

ACTION: Final rule.

SUMMARY: The Board is adopting a

change in its regulations to require

carriers filing new short-notice

publications to send the filings to the

subscriber not later than the time the

copies for official filing are sent to the

Board (unless the subscriber agrees in

advance in writing that the publication

may be sent to the subscriber within 5

working days after the time the copies

are sent to the Board). This change will

give subscribers earlier notice before the

new rate goes into effect.

EFFECTIVE DATE: The final rule is

effective July 14, 1996.