[Federal Register Volume 71, Number 196 (Wednesday, October 11, 2006)]
[Proposed Rules]
[Pages 59698-59700]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-16825]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 211

[Docket No. 2006-24141, Notice No. 1]
RIN 2130-AB77


Rules of Practice: Proposed Direct Final Rulemaking Procedures

AGENCY: Federal Railroad Administration (FRA), DOT.

ACTION: Notice of proposed rulemaking.

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SUMMARY: FRA is proposing direct final rulemaking procedures to 
expedite the processing of noncontroversial regulatory changes to which 
no adverse comment is anticipated. Under the proposed procedures, FRA 
could choose to make routine or otherwise noncontroversial changes in a 
direct final rule which would become effective a specified number of 
days after its publication in the Federal Register, provided that no 
written adverse comment, or no request for a public hearing, was 
received before the rule's scheduled effective date. FRA would not use 
direct final rulemaking for complex or controversial matters.

DATES: Written comments must be received by December 11, 2006. Comments 
received after that date will be considered to the extent possible 
without incurring additional expense or delay.
    FRA anticipates being able to resolve this rulemaking without a 
public, oral hearing. However, if FRA receives a specific request for a 
public, oral hearing prior to November 13, 2006, one will be scheduled 
and FRA will publish a supplemental notice in the Federal Register to 
inform interested parties of the date, time, and location of any such 
hearing.

ADDRESSES: Comments: Comments related to Docket No. 2006-24141, may be 
submitted by any of the following methods:
     Web site: http://dms.dot.gov. Follow the instructions for 
submitting comments on the DOT electronic docket site.
     Fax: 202-493-2251.
     Mail: Docket Management Facility, U.S. Department of 
Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, 
Washington, DC 20590-001.
     Hand Delivery: Room PL-401 on the plaza level of the 
Nassif Building, 400 Seventh Street, SW., Washington, DC between 9 a.m. 
and 5 p.m. Monday through Friday, except Federal holidays.
     Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the

[[Page 59699]]

online instructions for submitting comments.
    Instructions: All submissions must include the agency name and 
docket number or Regulatory Identification Number (RIN) for this 
rulemaking. Note that all comments received will be posted without 
change to http://dms.dot.gov including any personal information. Please 
see the Privacy Act heading in the ``SUPPLEMENTARY INFORMATION'' 
section of this document for Privacy Act information related to any 
submitted comments or materials.
    Docket: For access to the docket to read background documents or 
comments received, go to http://dms.dot.gov at any time or to PL-401 on 
the plaza level of the Nassif Building, 400 Seventh Street, SW., 
Washington, DC between 9 a.m. and 5 p.m. Monday through Friday, except 
Federal Holidays.

FOR FURTHER INFORMATION CONTACT: Patricia V. Sun, Trial Attorney, Mail 
Stop 10, Federal Railroad Administration, 1120 Vermont Avenue, NW., 
Washington, DC 20005 [telephone: (202) 493-6038].

SUPPLEMENTARY INFORMATION:

Background

    On January 30, 2004, the Office of the Secretary of Transportation 
(OST) published a final rule adopting direct final rulemaking 
procedures intended to expedite the rulemaking process for 
noncontroversial rules. The rule published by OST applies only to 
regulations issued by the Office of the Secretary of Transportation and 
does not apply to the various operating administrations within DOT. By 
using direct final rulemaking, OST can reduce the time necessary to 
develop, review, clear and publish a rule to which no adverse public 
comment is anticipated by eliminating the need to publish separate 
proposed and final rules (69 FR 4455). In this notice, FRA proposes to 
amend its Rules of Practice (49 CFR Part 211) to adopt similar direct 
final rulemaking procedures to promulgate specified categories of rules 
it does not expect to be controversial and that are unlikely to result 
in adverse comments.
    Many agencies have adopted direct final rulemaking procedures, 
including the Nuclear Regulatory Commission, the Food and Drug 
Administration, the Environmental Protection Agency, and the Department 
of Agriculture. For example, in 2003, the Department of Energy issued a 
direct final rule amending its test procedures for measuring the energy 
consumption of clothes washers (October 31, 2003, 68 FR 62197), and 
last year, the Occupational Safety and Health Administration issued a 
direct final rule to reinstate its original roll-over protective 
structures standards for the construction and agriculture industries 
(December 29, 2005, 70 FR 76795).

The Direct Final Rulemaking Process

    As stated above, the use of direct final rulemaking would allow FRA 
to eliminate an unnecessary second round of internal review and 
clearance, as well as public review, for noncontroversial proposed 
rules. FRA would employ the direct final rulemaking process for a 
particular rule if, for example, similar rules had been previously 
proposed and published without receiving adverse comment. FRA believes 
that direct final rulemaking would be appropriate for noncontroversial 
rules, including such rules that:
    (1) Affect internal procedures of the Federal Railroad 
Administration, 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; and
    (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 
elimination of a type of data that no longer needs to be collected by 
FRA.
    After determining that a rule would be appropriate for direct final 
rulemaking, FRA would publish the rule in the final rule section of the 
Federal Register. In each direct final rule document, the ``action'' 
would be captioned ``direct final rule'' and would include language in 
the summary and preamble informing interested parties of their right to 
comment and their right to request an oral hearing, if such opportunity 
is required. The direct final rule notice would advise the public that 
FRA anticipates no adverse comment to the rule and that the rule would 
become effective a specified number of days after the date of 
publication unless FRA received written adverse comment or a request 
for an oral hearing (if such opportunity is required by statute) within 
the specified comment period. An ``adverse'' comment would be one that 
is critical of the rule, one that suggests that the rule should not be 
adopted, or one that suggests that a change should be made in the rule. 
FRA would not consider a comment submitted in support of the rule, or a 
request for clarification of the rule, to be adverse.
    FRA would provide sufficient comment time to allow interested 
parties to determine whether they wish or need to submit adverse 
comments, and would answer any requests for clarification while the 
comment period was running. If FRA received no written adverse comment 
or request for oral hearing within the comment period, FRA would 
publish another notice in the Federal Register indicating that no 
adverse comment had been received and confirming that the rule would 
become effective on the specified date.
    If, however, FRA received the timely submission of an adverse 
comment or notice of intent to submit adverse comment, FRA would stop 
the direct final rulemaking process and withdraw the direct final rule 
by publishing a notice in the final rule section of the Federal 
Register. If FRA decided that the rulemaking remained necessary, FRA 
would recommence the rulemaking under its standard rulemaking 
procedures by publishing a notice proposing the rule in the proposed 
rules section of the Federal Register. The proposed rule would provide 
for a new public comment period.
    FRA believes that the additional time and effort required to 
withdraw the direct final rule and issue a Notice of Proposed 
Rulemaking would be an incentive for FRA to act conservatively in 
evaluating whether to use the direct final rulemaking process for a 
particular rule. As stated above, FRA would not use direct final 
rulemaking for complex or potentially controversial matters.

Regulatory Analyses and Notices

    FRA 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 the 
proposed rule. There would be some cost savings in Federal Register 
publication costs and efficiencies for the public and FRA personnel in 
eliminating duplicative reviews. FRA certifies that this rule, if 
adopted, would not have a significant impact on a substantial number of 
small entities. FRA does not believe that there would be sufficient 
federalism implications to warrant the preparation of a federalism 
assessment.

Paperwork Reduction Act

    The proposed 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

    FRA has determined that the requirements of Title II of the 
Unfunded

[[Page 59700]]

Mandates Reform Act of 1995 do not apply to this rulemaking.

List of Subjects in 49 CFR Part 211

    Administrative practice and procedure, Rules of practice.

    In consideration of the foregoing, FRA proposes to amend 49 CFR 
part 211 as follows:

PART 211--[AMENDED]

    1. The authority citation for part 211 would continue to read as 
follows:

    Authority: 49 U.S.C. 20103, 20107, 20114, 20306, 20502-20504, 
and 49 CFR 1.49.

    2. In part 211, Subpart B--Rulemaking Procedures, would be amended 
by adding a new Sec.  211.33, Procedures for direct final rulemaking, 
as follows:


Sec.  211.33  Procedures for direct final rulemaking.

    (a) Rules that the Administrator judges to be noncontroversial and 
unlikely to result in adverse public comment may 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 Federal Railroad 
Administration, 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, and
    (4) Make minor changes in the substantive rules regarding 
statistics and reporting requirements.
    (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 Federal Railroad Administration within the specified 
time after the date of publication and that, if no written adverse 
comment or request for oral hearing (if such opportunity is required by 
statute) is received, the rule will become effective a specified number 
of days after the date of publication.
    (c) If no adverse comment or request for oral hearing is received 
by the Federal Railroad Administration within the specified time of 
publication in the Federal Register, the Federal Railroad 
Administration 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 Federal Railroad Administration receives any written 
adverse comment or request for oral hearing 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 Federal Railroad Administration 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 Federal Railroad Administration 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.

    Issued in Washington, DC, on September 29, 2006.
Joseph H. Boardman,
Administrator.
[FR Doc. E6-16825 Filed 10-10-06; 8:45 am]
BILLING CODE 4910-06-P