Direct Final Rule Procedure; Petitions for Rulemaking

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 Sec. 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

[[Page 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-and-comment 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 Sec. 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 Sec. 106.17 to clarify the procedures

for participation by interested parties in the rulemaking process.

RSPA also is proposing to amend Sec. 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

Sec. 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 Sec. 106.38

to provide that any interested party may appeal a decision of the

Associate Administrator, issued under Sec. 106.33 or Sec. 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.

Secs. 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 Sec. 106.3, a new paragraph (d) would be added to read as

follows:

Sec. 106.3 Delegations.

* * * * *

(d) Chief Counsel.

4. In Sec. 106.17, paragraph (a) would be revised to read as

follows:

[[Page 65212]]

Sec. 106.17 Participation by interested persons.

(a) Any interested person may participate in rulemaking proceedings

by submitting comments in writing containing information, views or

arguments in accordance with instructions for participation in the

rulemaking document.

* * * * *

5. In Sec. 106.31, paragraph (b) would be revised and new

paragraphs (c) and (d) would be added to read as follows:

Sec. 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:

Sec. 106.35 Petitions for reconsideration.

(a) Except as provided in Sec. 106.39(d), any interested person may

petition the Associate Administrator for reconsideration of any

regulation issued under this part. * * *

* * * * *

7. Part 106 would be amended by adding a new Sec. 106.38 to read as

follows:

Sec. 106.38 Appeals.

(a) Any interested person may appeal a decision of the Associate

Administrator, issued under Sec. 106.33 or Sec. 106.37, to the

Administrator.

(b) An appeal must be received within 20 days of service of written

notice to petitioner of the Associate Administrator's 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 Sec. 106.39 to read as

follows:

Sec. 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 Sec. 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 Secs. 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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