[Federal Register Volume 60, Number 150 (Friday, August 4, 1995)]
[Proposed Rules]
[Pages 39919-39921]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-19108]



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DEPARTMENT OF TRANSPORTATION

Office of the Secretary

49 CFR Part 5

[Docket No. OST-95-360; Notice 95-9]
RIN 2105-AC11


Use of Direct Final Rule Making

AGENCY: Department of Transportation; Office of the Secretary.

ACTION: Notice of proposed rulemaking

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SUMMARY: The Office of the Secretary (OST) is proposing to implement a 
new rulemaking procedure that would expedite the processing of 
noncontroversial changes to its regulations. Rules that the Secretary 
judges to be noncontroversial and unlikely to result in adverse public 
comment would be published as ``direct final'' rules. Such direct final 
rules would advise the public that no adverse comment is anticipated, 
and that, unless written adverse comment or written notice of intent to 
submit adverse comment is received within the specified time, the rule 
will become effective a specified number of days after the date it is 
published in the Federal Register. This new procedure should expedite 
the promulgation of routine or otherwise noncontroversial rules by 
reducing the time necessary to develop, review, clear, and publish 
separate proposed and final rules where OST receives no public comment.

DATES: Comments are requested by October 3, 1995. Late-filed comments 
will be considered only to the extent practicable.

ADDRESSES: Comments on this proposal should be sent, preferably in 
triplicate, to Docket Clerk, Docket No. OST-95-360, Department of 
Transportation, 400 7th Street SW., Washington, DC 20590. Comments will 
be available for inspection at this address from 9 a.m. to 5:30 p.m., 
Monday through Friday.
    Commenters who wish the receipt of their comments to be 
acknowledged should include a stamped, self-addressed postcard with 
their comments. The Docket Clerk will date-stamp the postcard and mail 
it back to the commenter.

FOR FURTHER INFORMATION CONTACT: Neil Eisner, Assistant General Counsel 
for Regulation and Enforcement, Office of the General Counsel, U.S. 
Department of Transportation, 400 7th Street SW., Room 10424, 
Washington, DC 20590. (202) 366-9307.

SUPPLEMENTARY INFORMATION:

Background

    The National Performance Review, a recent presidential initiative 
to reorganize and streamline the federal government, and the 
Administrative Conference of the United States identified several 
methods to improve the efficiency of agency rulemaking procedures. One 
was the use of ``direct final'' rulemaking in order to reduce needless 
double review of noncontroversial rules. The use of direct final 
rulemaking can eliminate an unnecessary second round of internal review 
and clearance, as well as public review, that presently exists for all 
proposed rules when the agency receives no adverse comment. The 
Environmental Protection Agency has been using this process for a 
number of years with great success, and other Departments, such as 
Agriculture, have recently adopted this procedure. In order to 
streamline the regulatory process and to fulfill Departmental missions, 
the Office of the Secretary proposes to use the direct final rulemaking 
procedure to promulgate specified categories of rules that are not 
expected to be controversial and that are unlikely to result in adverse 
comments.
The Direct Final Rule Process

    The judgment that a particular rulemaking is noncontroversial and 
unlikely to result in adverse comment will be based upon the Office of 
the Secretary's experience with similar rules that were proposed and 
did not receive adverse public comment in the past. By ``adverse'' 
comment, we are referring to comments that are critical of the rule, 
that suggest that the rule should not be adopted, or that suggest a 
change should be made in the rule. A comment submitted in support of 
the rule would not be considered adverse. In addition, a comment 
suggesting that the policy or requirements of the rule should or should 
not also be extended to other Departmental programs outside the scope 
of the rule would not be considered adverse. The Environmental 

[[Page 39920]]
Protection Agency has used this process in over two hundred cases, with 
great success. The U.S. Department of Agriculture has also recently 
adopted this process and used it in approximately a dozen rulemakings.
    When using the direct final rulemaking procedure, the Office of the 
Secretary will publish the rule in the final rule section of the 
Federal Register. The document will advise the public that no adverse 
comment is anticipated, and that unless written adverse comment or 
written notice of intent to submit adverse comment is received within 
the specified time, the rule will become effective a specified number 
of days after the date it is published. The Administrative Procedure 
Act (5 U.S.C. 553) specifically provides that notice and public comment 
are not required if the agency finds good cause that notice and public 
procedures are unnecessary or contrary to the public interest. If the 
agency is mistaken and someone wishes to file adverse comments, this 
procedure will ensure that the public is given notice of the 
Secretary's intent to adopt the rule if no adverse comment is received, 
and an opportunity to participate in the rulemaking by submitting 
comments.
    If no written adverse comment or written notice of intent to submit 
adverse comment is received in response to the rule, the Office of the 
Secretary would then publish a notice in the Federal Register 
indicating that no adverse comment was received and confirming that the 
rule will become effective a specified number of days after the date 
that the direct final rule was published. However, if the Office of the 
Secretary does receive any written adverse comment or written notice of 
intent to submit adverse comment, then a notice withdrawing the direct 
final rule would be published in the final rule section of the Federal 
Register and a notice of proposed rulemaking would be issued in the 
proposed rule section. The proposed rule would provide for a new 
comment period.
    Rules for which the Office of the Secretary believes that the 
direct final rulemaking procedure may be appropriate are 
noncontroversial rules that (1) affect internal procedures of the 
Office of the Secretary, such as filing requirements and rules 
governing inspection and copying of documents, (2) are nonsubstantive 
clarifications or corrections to existing rules, (3) update existing 
forms (4) make minor changes in the substantive rules regarding 
statistics and reporting requirements, such as a change in the 
reporting sequence (for example, from monthly to quarterly) or 
eliminating a type of data that no longer needs to be collected by the 
Office of the Secretary, (5) make changes to the rules implementing the 
Privacy Act, and (6) adopt technical standards set by outside 
organizations, such as those developed by the Architectural Barriers 
and Compliance Board for determining compliance with the Americans with 
Disabilities Act. We request comments on whether there are any other 
areas for which direct final rulemaking may be beneficial. As stated 
earlier, the direct final rulemaking procedure will only be used in 
circumstances where previous rulemakings indicate that adverse comment 
is unlikely. Even if a rulemaking fits into one of the above 
categories, if adverse comment is anticipated, we would not use the 
direct final rule process. The additional time and effort necessary to 
withdraw the rule and issue a Notice of Proposed Rulemaking if there is 
adverse comment will serve as an incentive for the Office of the 
Secretary to act conservatively in evaluating whether to use the 
procedure for a particular rule.

Regulatory Analyses and Notices

    The Department has determined that this action is not a significant 
regulatory action under Executive Order 12866 or under the Department's 
Regulatory Policies and Procedures. There are no costs associated with 
this rule. There will be some cost savings in Federal Register 
publication costs and efficiencies for the public and OST personnel in 
eliminating duplicative reviews. The Department certifies that this 
rule, if adopted, would not have a significant economic impact on a 
substantial number of small entities. The Department does not believe 
that there would be sufficient federalism implications to warrant the 
preparation of a federalism assessment.

List of Subjects in 49 CFR Part 5

    Administrative practice and procedure. For the reasons set forth in 
the preamble, the Office of the Secretary proposes to amend 49 CFR Part 
5 as follows:

PART 5--[AMENDED]
    1. The authority citation for Part 5 continues to read as follows:

    Authority: Sec. 9, 80 Stat. 944 (49 U.S.C. 1657).

    2. Section 5.21 would be amended by adding paragraph (d), as 
follows:


Sec. 5.21  General.

* * * * *
    (d) For rules for which the Secretary determines that notice is 
unnecessary because no adverse public comment is anticipated, the 
direct final rulemaking procedure described in Sec. 5.35 of this 
subpart will be followed.
    3. A new Sec. 5.35, Procedure for direct final rulemaking, would be 
added to read, as follows:


Sec. 5.35  Procedures for direct final rulemaking.

    (a) Rules that the Secretary judges to be noncontroversial and 
unlikely to result in adverse public comment will be published in the 
final rule section of the Federal Register as direct final rules. These 
include noncontroversial rules that:
    (1) Affect internal procedures of the Office of the Secretary, such 
as filing requirements and rules governing inspection and copying of 
documents,
    (2) Are nonsubstantive clarifications or corrections to existing 
rules,
    (3) Update existing forms,
    (4) Make minor changes in the substantive rules regarding 
statistics and reporting requirements, such as a change in the 
reporting sequence (for example, from monthly to quarterly) or 
eliminating a type of data that no longer needs to be collected by the 
Office of the Secretary,
    (5) Make changes to the rules implementing the Privacy Act, and
    (6) Adopt technical standards set by outside organizations, such as 
those developed by the Architectural Barriers and Compliance Board for 
determining compliance with the Americans with Disabilities Act.
    (b) The Federal Register document will state that any adverse 
comment or notice of intent to submit adverse comment must be received 
in writing by the Office of the Secretary within the specified time 
after the date of publication, and that if no written adverse comment 
or written notice of intent to submit adverse comment is received, the 
rule will become effective a specified number of days after the date of 
publication.
    (c) If no written adverse comment or written notice of intent to 
submit adverse comment is received by the Office of the Secretary 
within the specified time of publication in the Federal Register, the 
Office of the Secretary will publish a notice in the Federal Register 
indicating that no adverse comment was received and confirming that the 
rule will become effective on the date that was indicated in the direct 
final rule.
    (d) If the Office of the Secretary receives any written adverse 
comment or written notice of intent to submit 

[[Page 39921]]
adverse comment within the specified time period, a notice withdrawing 
the direct final rule will be published in the final rule section of 
the Federal Register and a notice of proposed rulemaking will be issued 
in the proposed rule section of the Federal Register.
    (e) An ``adverse'' comment for the purpose of this subpart means 
any comment that is critical of the rule, that suggests that the rule 
should not be adopted, or suggests a change that should be made in the 
rule. A comment suggesting that the policy or requirements of the rule 
should or should not also be extended to other Departmental programs 
outside the scope of the rule is not adverse.

    Issued in Washington, DC on this 19th day of July, 1995.-----
Federico Pena,
Secretary.
[FR Doc. 95-19108 Filed 8-3-95; 8:45 am]
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