[Federal Register Volume 69, Number 20 (Friday, January 30, 2004)]
[Rules and Regulations]
[Pages 4455-4458]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-1939]


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DEPARTMENT OF TRANSPORTATION

Office of the Secretary

49 CFR Part 5

[Docket No. OST-2004-16970]
RIN 2105-AC11


Use of Direct Final Rulemaking

AGENCY: Office of the Secretary, DOT.

ACTION: Final rule.

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SUMMARY: The Office of the Secretary of Transportation (OST) is 
implementing a rulemaking procedure that will expedite the processing 
of noncontroversial changes to its regulations. OST will publish rules 
that the Secretary judges to be noncontroversial and unlikely to result 
in adverse public comment as ``direct final'' rules. Such direct final 
rules 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, 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. This rule also 
corrects the applicability section to remove reference to modal 
administrations that now have their own rulemaking procedures. These 
changes are made on the initiative of OST.

EFFECTIVE DATE: March 1, 2004.

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) 366-4723.

SUPPLEMENTARY INFORMATION:

Background

    In an August 4, 1995, Notice of Proposed Rulemaking (NPRM), 60 FR 
39919, OST proposed adopting direct final rulemaking procedures for the 
promulgation of specified categories of rules it expects to be 
noncontroversial

[[Page 4456]]

and unlikely to result in adverse comments. Direct final rulemaking, in 
specified cases, eliminates the unnecessary second round of internal 
review and clearance, as well as public review, that presently exists 
for all proposed rules. The National Performance Review, a presidential 
initiative to reorganize and streamline the federal government, and the 
Administrative Conference of the United States both recommended the use 
of ``direct final'' rulemaking to improve the efficiency of agency 
rulemaking procedures.
    OST will determine when it is appropriate to employ direct final 
rulemaking procedures. OST will base its determination that a 
particular rulemaking is noncontroversial and unlikely to result in 
adverse comment upon its experience with similar rules that were 
proposed in the past and did not receive adverse public comment. OST 
will determine whether a comment is ``adverse.'' An ``adverse'' comment 
is one that is critical of the rule, that suggests that the rule should 
not be adopted, or that suggests a change should be made in the rule. A 
comment submitted in support of the rule will 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 will not be 
considered adverse.
    Rules for which OST believes that the direct final rulemaking 
procedure may be appropriate include noncontroversial rules that (1) 
affect internal procedures of OST, such as filing requirements and 
rules governing the 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 lessening of 
the reporting frequency (for example, from monthly to quarterly) or 
eliminating a type of data that no longer needs to be collected by OST; 
(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.
    OST will publish direct final rules 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 comment period, the rule will become effective a 
specified number of days after the date it is published. If no written 
adverse comment or written notice of intent to submit adverse comment 
is received in response to the rule, OST will 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.
    If, however, OST receives any written adverse comment or written 
notice of intent to submit adverse comment, then a notice withdrawing 
the direct final rule will be published in the final rule section of 
the Federal Register and, if the agency decides a rulemaking is still 
warranted, a notice of proposed rulemaking will be published in the 
proposed rule section. The proposed rule will provide for a new comment 
period. 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 incentive for OST to act conservatively in evaluating 
whether to use the procedure for a particular rule.

Response to Comments

    OST received five comments on the NPRM. They were submitted by the 
Advocates For Highway and Auto Safety (Advocates), the Air Transport 
Association of America (ATA), Enron Operations Corp. (EOC), Akzo Nobel 
Chemicals, and Panhandle Eastern Corporation (Panhandle). Although 
commenters expressed general support for the direct final rule 
procedure, they expressed concern over certain aspects of the process. 
OST has decided to adopt the direct final rule procedures proposed in 
the NPRM with some minor modifications to address the concerns raised 
in the comments.
    ATA argued that publishing the direct final rule in the proposed 
rule section of the Federal Register would be more appropriate than 
publishing it in the final rule section. ATA believes that people may 
misunderstand that the direct final rule is a proposal on which they 
may comment if it is published in the final rule section of the Federal 
Register. OST is required to publish final rules in the final rule 
section of the Federal Register in order to codify them in the Code of 
Federal Regulations. The Federal Register's publication procedures 
provide that only proposed rules may be published in the proposed rule 
section of the Federal Register. OST also believes that interested 
parties are more likely to read the final rule section than the 
proposed rule section of the Federal Register. The public is used to 
providing comments in response to interim final rules. Nevertheless, in 
response to the concerns raised, we plan to work with the Federal 
Register to give the public as much notice as possible of the 
opportunity to provide comments. For example, we plan to have the 
``action'' caption read ``direct final rule'' and include language in 
the summary and preamble so that interested parties will be aware of 
their right to comment.
    Akzo Nobel Chemicals, Panhandle Eastern Corp., and ATA all 
expressed concern over whether, in practice, the public would have a 
sufficient opportunity to comment on a direct final rule before the 
rule became final. Panhandle suggested that OST consider establishing a 
standard comment period, such as 30 days, between the date of 
publication and the rule's effective date. Panhandle argued that this 
would better ensure that those wishing to submit comments on the direct 
final rule would have sufficient time to do so. ATA commented that a 
short comment period might create problems since some direct final 
rules may have complex implications that require time to evaluate 
before they can be determined to be noncontroversial. ATA argued that 
this possibility was particularly true for direct final rules that 
addressed technical standards.
    OST normally provides at least a 60-day comment period for all 
rulemakings. In cases where OST provides a shorter comment period for a 
proposed rule, OST explains in the preamble why a shorter comment 
period is necessary. In practice, it is in OST's interest to provide a 
comment period of sufficient length to allow interested parties to 
determine whether they wish or need to submit adverse comments. Too 
short a comment period could stymie the direct final rule process by 
forcing commenters to err on the side of caution and file an intent to 
submit adverse comment to stop the direct final rule process in cases 
involving any uncertainty of the effect of a direct final rule.
    Akzo also expressed concern that the proposed procedures did not 
specify any particular comment period. Akzo proposed that language be 
included in the direct final rule procedure that allows potentially 
impacted parties to submit a notice of preliminary estimate of 
significant impact that would halt the expedited rulemaking process and 
require OST to seek comment. OST believes that its procedures 
adequately address this issue and that such a notice would be 
redundant. The timely submission of an adverse comment or a

[[Page 4457]]

notice of intent to submit adverse comment will immediately halt the 
direct final rulemaking procedure and trigger the rule's withdrawal. 
OST sees no need to include an additional, essentially identical, 
procedure. If a party believes it needs more time to decide whether to 
file even a notice of intent to file adverse comment, it can ask OST to 
extend the comment period (and state that, if we do not, we should 
treat this request as a notice of intent). We stress that we do not 
intend to use these procedures for complex, potentially controversial 
matters, and it is to our disadvantage if we misuse it and have to take 
extra steps as a result.
    ATA also expressed concern that explanations of proposed regulatory 
actions might suffer under the direct final rule procedures. Our 
response is simply that we will try to avoid this and remind ATA that, 
once again, this procedure will only be used for minor, 
noncontroversial rules, which will not usually require much 
explanation. Further, it is in OST's interest to give clear 
explanations for rules. According to the Administrative Procedure Act 
(APA) (5 U.S.C. 553(c)), OST must provide a concise general statement 
of the basis and purpose of any rule, including a direct final rule. 
The use of direct final rulemaking procedures in no way excuses OST 
from complying with the APA and adequately explaining its action in the 
preamble to the direct final rule. Further, OST has every incentive to 
ensure that the direct final rule adequately explains any regulatory 
action since misunderstandings over the effect of a rule could cause 
members of the public to unnecessarily file an adverse comment or an 
intent to submit adverse comment in cases involving uncertainty, 
effectively resulting in the rule's withdrawal and creating more work 
for OST.
    Advocates expressed general support for the direct final rule 
making process, but were concerned with the use of this procedural 
device for the adoption of technical standards developed by private 
organizations, particularly by the Department's modal administrations. 
However, these direct final rulemaking procedures apply only to 
rulemakings done in OST. Rulemakings done in DOT's modal 
administrations, such as FAA, are governed by each modal 
administration's own rules. We agree that technical standards, for the 
most part, are not ministerial issues and thus, very few, will be 
subject to the direct final rule procedure. In addition, if an 
objectionable technical standard is published, the public may object in 
writing and the usual NPRM process will commence immediately.
    Advocates also asked for clarification as to whether the text of 
the adverse comment needs to be submitted to OST within the comment 
period when notice of intent to submit adverse comment has been filed. 
The text of the comment does not have to be submitted within the 
comment period. It may be submitted later, if at all. As long as the 
written notice of intent to file an adverse comment is received by OST 
within the comment period, the direct final rule is withdrawn and, if 
appropriate, the usual NPRM process is initiated and a full notice and 
comment period begins, with its own deadline for comment submission. 
Any adverse comment received would be placed in the docket and 
considered in the NPRM or as part of the process for deciding on a 
final rule.
    Advocates also expressed concern that OST could abuse and exploit 
the direct final rule procedure. We would like to assure Advocates and 
the public that the use of this procedure by OST is purely to save time 
and expense in its enactment of noncontroversial rules where no adverse 
comment is anticipated. If OST tries to use this procedure for rules 
that are in fact controversial, adverse comments serve as a safeguard 
to force the NPRM process. In such a case, OST ends up with more work 
than if it proposed the rule the usual way, hence the incentive is to 
use the process only for rules that are truly anticipated to be 
noncontroversial.
    Panhandle asked whether a request for a clarification of a direct 
final rule would be considered an adverse comment for purposes of 
terminating a direct final rule. Requests for clarification of direct 
final rules will not be considered adverse comments. OST notes, 
however, that during pendency of the comment period, it will answer 
requests for clarification of rules. If the party requesting the 
clarification believes that the clarification is insufficient, the 
party may send a notice of adverse comment, which will end the direct 
final rule process.
    In its comments in support of the direct final rulemaking 
procedure, EOC stated that it believed the direct final rulemaking 
procedure would apply to safety regulations issued by the Research and 
Special Programs Administration (RSPA). This is not the case. RSPA has 
its own direct final rulemaking procedure (see 49 CFR part 190.339) and 
RSPA regulations are not issued under OST's procedures. In light of 
Enron's comment, OST is taking this opportunity to update 49 CFR part 5 
to conform to current practice. In addition, OST is updating the 
applicability section of part 5 to remove the reference to the United 
States Coast Guard. Under the Homeland Security Act of 2002 (Pub. L. 
107-296), the Coast Guard was transferred from the Department of 
Transportation to the Department of Homeland Security.

Regulatory Analyses and Notices

    OST 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 savings in Federal Register publication costs and 
efficiencies for the public and OST personnel in eliminating 
duplicative reviews. This rule will lessen the number of documents they 
must review and comment on. Finally, it will not be used that often and 
not for rules OST anticipates will warrant comment.
    Because this rule will only apply to actions that are not expected 
to result in adverse comment and because it will eliminate an 
unnecessary second round of review, OST certifies that this rule will 
not have a significant economic impact on a substantial number of small 
entities. Moreover, any impact should be positive. OST also has 
determined that there are not sufficient federalism implications to 
warrant consultation on the preparation of a federalism impact 
statement.

Paperwork Reduction Act

    This rule contains no information collection requirements under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

Unfunded Mandates Reform Act of 1995

    OST has determined that the requirements of Title II of the 
Unfunded Mandates Reform Act of 1995 do not apply to this rulemaking.

List of Subjects in 49 CFR Part 5

    Administrative practice and procedure.

0
For the reasons set forth in the preamble, the Office of the Secretary 
amends 49 CFR part 5 as follows:

PART 5--RULEMAKING PROCEDURES

0
1. The authority citation for part 5 continues to read as follows:

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


0
2. In part 5, subpart A, revise paragraph (a) of Sec. 5.1 to read as 
follows:

[[Page 4458]]

Sec. 5.1  Applicability.

    (a) This part prescribes general rulemaking procedures that apply 
to the issuance, amendment, and repeal of rules of the Office of the 
Secretary of Transportation. It does not apply to rules issued by the 
Federal Aviation Administration, Federal Highway Administration, 
Federal Railroad Administration, Federal Transit Administration, 
Maritime Administration, National Highway Traffic Safety 
Administration, Research and Special Programs Administration, St. 
Lawrence Seaway Development Corporation, or Federal Motor Carrier 
Safety Administration.
* * * * *

0
3. In part 5, subpart C, amend Sec. 5.21 by adding paragraph (d), to 
read 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 may be followed.

0
4. In part 5, subpart C, add a new Sec. 5.35, 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 may be published 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,
    (5) Make changes to the rules implementing the Privacy Act, and
    (6) Adopt technical standards set by outside organizations.
    (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 adverse comment within 
the specified time of publication in the Federal Register, a notice 
withdrawing the direct final rule will be published in the final rule 
section of the Federal Register and, if the Office of the Secretary 
decides a rulemaking is warranted, a notice of proposed rulemaking will 
be published in the proposed rule section of the Federal Register.
    (e) An ``adverse'' comment for the purpose of this subpart means 
any comment that the Office of the Secretary determines is critical of 
the rule, 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 January 13, 2004.
Norman Y. Mineta,
Secretary.
[FR Doc. 04-1939 Filed 1-29-04; 8:45 am]
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