[Federal Register Volume 59, Number 191 (Tuesday, October 4, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-24493]


[[Page Unknown]]

[Federal Register: October 4, 1994]


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Part III





Department of Transportation





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Federal Aviation Administration



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14 CFR Part 11




Direct Final Rulemaking Procedure; Proposed Rule
DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 11

[Docket No. 27925; Notice No. 94-30]
RIN 2120-AF55

 
Direct Final Rulemaking Procedure

AGENCY: Federal Aviation Administration, DOT.

ACTION: Notice of proposed rulemaking.

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SUMMARY: In response to the President's Executive Order on Regulatory 
Planning and Review, the Vice President's National Performance Review, 
and the Administration's Civil Aviation Initiative, the FAA proposes to 
implement a new and more efficient procedure for adopting non-
controversial or consensual rules. This ``direct final rulemaking'' 
procedure involves issuing a rule for notice and comment, with a 
statement that if the FAA receives no adverse or negative comment, or 
notice of intent to file such a comment, the rule will become effective 
at the end of a specified period of time after the close of the comment 
period. This new procedure is expected to reduce significantly the time 
needed to publish routine or non-controversial final rules.

DATES: Comments must be received on or before December 5, 1994.

ADDRESSES: Comments on this notice should be mailed in triplicate to: 
Federal Aviation Administration, Office of the Chief Counsel, 
Attention: Rules Docket (AGC-200), Docket No. 800 Independence Avenue 
SW., Washington, DC 20591. Comments delivered must be marked Docket No. 
27925. Comments may be inspected in room 915G weekdays between 8:30 
a.m. and 5 p.m., except on Federal holidays.

FOR FURTHER INFORMATION CONTACT:
Donald P. Byrne, Assistant Chief Counsel for Regulations, AGC-200, 
Federal Aviation Administration, 800 Independence Avenue SW., 
Washington, DC 20591; telephone (202) 267-3073.

SUPPLEMENTARY INFORMATION:

Comments Invited

    Interested persons are invited to participate in this rulemaking by 
submitting such written data, views, or arguments as they may desire. 
Comments relating to the environmental energy, or economic impact that 
might result from adopting the proposals in this notice are also 
invited. Substantive comments should be accompanied by cost estimates. 
Comments should identify the regulatory docket or notice number and 
should be submitted in triplicate to the Rules Docket address specified 
above. All comments received on or before the closing date for comments 
specified will be considered by the Administrator before taking action 
on this proposed rulemaking. The proposals contained in this notice may 
be changed in light of comments received. All comments received will be 
available, both before and after the closing date for comments, in the 
Rules Docket for examination by interested persons. A report 
summarizing each substantive public contact with the Federal Aviation 
Administration (FAA) personnel concerned with this rulemaking will be 
filed in the docket. Commenters wishing the FAA to acknowledge receipt 
of their comments submitted in response to this notice must include a 
preaddressed, stamped postcard on which the following statement is 
made: ``Comments to Docket No. 27925. ``The postcard will be date 
stamped and mailed to the commenter.

Availability of NPRM

    Any person may obtain a copy of this NPRM by submitting a request 
to the Federal Aviation Administration, Office of Public Affairs, 
Attention: Public Inquiry Center, APA-200, 800 Independence Avenue, 
SW., Washington, DC 20591, or by calling (202) 267-3484. Communications 
must identify the notice number of this NPRM.
    Persons interested in being placed in the mailing list for future 
NPRMs should request from the above office, a copy of Advisory Circular 
No. 11-2A, Notice of Proposed Rulemaking Distribution System, which 
describes the application procedure.

Background

    In Executive Order 12866, ``Regulatory Planning and Review'' (58 FR 
51735, Oct. 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 the limited government resources available for carrying 
out its regulatory functions. In responding to both the letter and the 
spirit of the President's order, 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.
    The Administrative Conference of the United States (ACUS) recently 
observed that the rulemaking process has become increasingly time 
consuming. (Aviation interests in particular have expressed concern to 
the FAA over the time-consuming workings of the regulatory process.) 
ACUS believes that agencies should consider innovative methods for 
developing rules and obtaining public input, including the use of such 
groups as advisory committees and negotiated rulemaking committees. The 
FAA and the industry have been engaged in one such effort for several 
years, through the Aviation Rulemaking Advisory Committee (ARAC).
    In addition to focusing on consensus-based rulemaking, ACUS 
believes that agencies should consider the use of ``direct final'' 
rulemaking where appropriate to eliminate duplicative review of non-
controversial rules. Under the direct final rulemaking procedure, an 
agency issues a final rule with an opportunity for comment and a 
statement that if the agency receives no adverse or negative comments, 
the rule becomes effective automatically at a specified time after 
close of the comment period. If an adverse comment or a notice of 
intent to file such a comment is received, the agency withdraws the 
rule before the effective date and issues a notice of proposed 
rulemaking (NPRM) in the normal manner.
    This expedited process was initially recommended by the Vice 
President in his report on the National Performance Review (``Creating 
a Government That Works Better and Costs Less; Improving Regulatory 
Systems''). Use of the process is encouraged in rulemakings in which 
the agency does not believe there will be adverse public comment, in 
order to help agencies streamline their rulemaking procedures.
    The FAA proposes to use the direct final rulemaking procedure for 
non-controversial rules and for consensual rules, where it believes 
there will be no adverse public comment. The FAA
believes that this expedited process can be used effectively for a 
number of proposed agency rules, including many of the proposed 
regulations based on recommendations of broad-based advisory committee 
groups such as ARAC. The FAA would consider issuing a direct final rule 
where such an advisory committee has involved representatives of all 
interested parties in negotiating a proposed rule; the committee has 
reached a unanimous recommendation; and the nature of the negotiations 
leads the FAA to believe the public will not file adverse comments. The 
FAA would expect this often to be the case, for example, for 
recommendations of the ARAC intended to harmonize FAA and European 
technical standards for the manufacture of aircraft.
    The direct final rulemaking process may also be used to regularly 
issue airworthiness directives, whenever there is broad consensus 
within sections of the aviation community on the FAA's view of the 
appropriate correction for an unsafe condition in an aviation product. 
Other possible uses of the process would include routine regulations 
amending airspace designations and possibly the extension of a 
compliance date that is not expected to be controversial.

The Direct Final Rule Procedure

    When the FAA believes that a proposed regulation is unlikely to 
result in adverse comment, it may choose to use the direct final rule 
process. The direct final rule will advise the public that no adverse 
comments are anticipated, and that unless a written adverse or negative 
comment, or a written notice of intent to submit an adverse comment is 
received within the comment period, the regulation will become 
effective at the end of a specified period of time after close of the 
comment period. If no written adverse or negative comment, or notice of 
intent to submit such a comment is received within the comment period, 
the direct final rule will become effective on the date indicated in 
the direct final rule. The FAA will publish a notice in the Federal 
Register indicating that no adverse comments were received and 
confirming the date on which the final rule will become effective.
    Comments that are outside the scope of the rule will not be 
considered adverse under this procedure. A comment recommending a rule 
change in addition to the direct final rule would not be considered an 
adverse comment, unless the commenter states that the rule would be 
inappropriate as proposed or would be ineffective without the 
additional change. A comment not so qualified would be beyond the scope 
of the rulemaking.
    If the FAA does receive, within the comment period, an adverse or 
negative comment, or written notice of intent to submit such a comment, 
a notice of withdrawal of the direct final rule will be published in 
the Federal Register, and an NPRM will be published with a new comment 
period. Normal procedures for the agency's receipt and consideration of 
comments will then apply.
    Interested persons are encouraged to submit comments on this 
proposed new procedure. In particular, comments are invited on specific 
areas of the FAA's regulations for which this procedure might be 
appropriate.

Regulatory Evaluation

    This proposed amendment to part 11 would provide a new and more 
efficient procedure for adopting non-controversial or consensual rules. 
Little or no cost would be associated with the FAA's use of this 
procedure in appropriate instances. Use of this alternative procedure 
is expected to reduce the costs of rulemaking to the FAA by eliminating 
duplicate publication of rule text when no adverse comment was 
received. In cases where the rule would result in cost savings to the 
aviation industry, use of this alternative would allow the industry to 
receive the cost savings sooner than would be the case if current 
rulemaking procedures were used. Accordingly, the FAA has determined 
that because no costs can be foreseen, the expected economic impact of 
the amendment is minimal, and that a full regulatory evaluation is not 
warranted.

International Trade Impact

    The proposed rule is only a change in the FAA's procedures for 
rulemaking, and will have no impact on trade.

Regulatory Flexibility Determination

    The Regulatory Flexibility Act (RFA) of 1980 ensures that small 
entities are not unnecessarily or disproportionately burdened by 
Government regulations. The RFA requires agencies to review rules that 
may have a significant economic impact on a substantial number of small 
entities. The costs associated with this proposed rule are minimal, and 
are well below any threshold established by FAA Order 2100.14A. 
Accordingly, this proposed rule would not have a significant economic 
impact on any small entity.

Federalism Implications

    The regulations proposed herein would not have substantial direct 
effect on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government. Therefore, in 
accordance with Executive Order 12612, it is determined that this 
proposal would not have sufficient federalism implications to warrant 
the preparation of a federalism assessment.

Conclusion

    For the reasons discussed above, I certify that this proposed 
regulation (1) is not a ``significant regulatory action'' under 
Executive Order 12866; (2) is not a ``significant rule'' under the DOT 
Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); 
(3) if promulgated, will not have a significant economic impact on a 
substantial number of small entities under the criteria of the 
Regulatory Flexibility Act; and (4) that because any economic impact 
would be minimal, a full regulatory evaluation is not warranted.

List of Subjects in 14 CFR Part 11

    Air transportation, Aircraft, Aviation safety.

The Proposed Amendment

    The Federal Aviation Administration proposes to amend 14 CFR part 
11 as follows:

PART 11--GENERAL RULEMAKING PROCEDURES

    1. The authority citation for part 11 continues to read as follows:

    Authority: 49 U.S.C. app. 1341(a), 1343(d), 1348, 1354(a), 1401-
1405, 1421-1431, 1481, 1502; 49 U.S.C. 106(g).

    2. A new section 11.17 is added to subpart A to read as follows:


Sec. 11.17  Direct final rule.

    Whenever the FAA anticipates that a proposed regulation is unlikely 
to result in adverse comment, it may choose to issue a direct final 
rule. The direct final rule will advise the public that no adverse or 
negative comments are anticipated, and that unless a written adverse or 
negative comment, or a written notice of intent to submit an adverse or 
negative comment is received within the comment period, the regulation 
will become effective on the date specified in the direct final rule. 
If no written adverse or negative comment, or notice of intent to 
submit such a comment is received within the comment period, the direct 
final rule will become effective on the date indicated in the direct 
final rule. The FAA will publish a document in the Federal Register 
indicating that no adverse or negative comments were received and 
confirming the date on which the final rule will become effective. If 
the FAA does receive, within the comment period, an adverse or negative 
comment, or written notice of intent to submit such a comment, a 
document withdrawing the direct final rule will be published in the 
Federal Register, and a notice of proposed rulemaking will be published 
with a new comment period. Normal procedures for the agency's receipt 
and consideration of comments will then apply.

    Issued in Washington, DC on September 27, 1994.
Mark L. Gerchick,
Chief Counsel.
[FR Doc. 94-24493 Filed 9-29-94; 1:51 pm]
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