[Federal Register Volume 60, Number 242 (Monday, December 18, 1995)]
[Proposed Rules]
[Pages 65210-65212]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-30669]




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Part V





Department of Transportation





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Research and Special Programs Administration



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49 CFR Part 106



Direct Final Rule Procedure; Petitions for Rulemaking; Proposed Rule

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

[[Page 65210]]


DEPARTMENT OF TRANSPORTATION

Research and Special Programs Administration

49 CFR Part 106

[Docket No. RSP-1, Notice No. 95-15]
RIN 2137-AC75


Direct Final Rule Procedure; Petitions for Rulemaking

AGENCY: Research and Special Programs Administration (RSPA), DOT.

ACTION: Notice of proposed rulemaking (NPRM).

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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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