[Federal Register Volume 77, Number 122 (Monday, June 25, 2012)]
[Proposed Rules]
[Pages 37865-37867]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-15327]


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NATIONAL TRANSPORTATION SAFETY BOARD

49 CFR Chapter VIII

[Docket No. NTSB-GC-2012-001]


Plan for Retrospective Analysis of Existing Rules

AGENCY: National Transportation Safety Board (NTSB).

ACTION: Request for information.

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SUMMARY: Pursuant to Executive Order 13579, ``Regulation and 
Independent Regulatory Agencies,'' issued July 11, 2011, the NTSB is 
announcing it is undertaking a review of all NTSB regulations. The 
purpose of Executive Order 13579 is to ensure all agencies adhere to 
the key principles found in Executive Order 13563, ''Improving 
Regulation and Regulatory Review,''

[[Page 37866]]

issued January 18, 2011, which include promoting public participation 
in rulemaking, improving integration and innovation, promoting 
flexibility and freedom of choice, and ensuring scientific integrity 
during the rulemaking process in order to create a regulatory system 
that protects public health, welfare, safety, and the environment while 
promoting economic growth, innovation, competitiveness, and job 
creation. The NTSB is committed to ensuring its regulations remain 
updated and comply with these principles, and in accordance with 
Executive Order 13579, will review all NTSB regulations to ensure 
adherence to the principles. This notice describes the plan of review 
the NTSB will undertake.

DATES: Comments should be received on or before August 24, 2012. Late-
filed comments will be considered to the extent practicable.

ADDRESSES: You may submit written comments to Docket NTSB-GC-2012-001 
by any of the following methods:
    Federal eRulemaking Portal: Go to http://www.regulations.gov and 
follow the instructions for sending your comments electronically.
    Mail, Hand Delivery or Courier: NTSB Office of General Counsel, 490 
L'Enfant Plaza, Washington, DC 20594.
    Fax: (202) 314-6090.

FOR FURTHER INFORMATION CONTACT: David Tochen, NTSB General Counsel, at 
(202) 314-6080.

SUPPLEMENTARY INFORMATION:

I. Executive Order 13579

    In order to ensure independent agencies' regulations are consistent 
with the key principles articulated in Executive Order 13563 (76 FR 
3821, January 21, 2011), Executive Order 13579 (76 FR 41587, July 14, 
2011) requests independent agencies issue public plans for periodic 
retrospective analysis of their existing ``significant regulations.'' 
The executive order further advises agencies to undertake such analyses 
to identify any significant regulations that may be outmoded, 
ineffective, insufficient, or excessively burdensome, and subsequently 
plan to modify, streamline, expand, or repeal them in order to achieve 
regulatory objective. Executive Order 13563 also emphasized the 
importance of maintaining a consistent culture of retrospective review 
and analysis by agencies of their regulatory programs. In this regard, 
the executive order included a ``look-back'' requirement for agencies 
to develop preliminary plans under which they will periodically review 
existing significant regulations to determine whether any should be 
modified, streamlined, expanded or repealed in order to make the 
agency's regulations more effective and less burdensome.
    In a more recent Executive Order, the President directed Executive 
departments and agencies to allow for public participation in 
retrospective reviews; prioritize their reviews by first addressing the 
regulations that will provide the most significant monetary savings or 
in reductions in paperwork burdens; and regularly report the status of 
retrospective reviews to OIRA. Executive Order 13610, ``Identifying and 
Reducing Regulatory Burdens,'' issued May 10, 2012, (77 FR 28469, May 
14, 2012).
    As described above, Executive Order 13579 encourages independent 
agencies to review ``significant regulations''; however, the executive 
order does not define what agencies should consider to be ``significant 
regulations.'' The NTSB has therefore decided to utilize the definition 
of a ``significant regulatory action'' provided in Executive Order 
12866 (``Regulatory Planning and Review''), which is the executive 
order that established the current regulatory review structure.\1\ 
Consistent with the approach other independent agencies have taken, the 
NTSB also considered the definition of ``major rules'' in section 251 
of the Small Business Regulatory Enforcement Fairness Act of 1996 
(SBREFA, 5 U.S.C. 801(e)(2)) to guide our review of what regulations 
might be ``significant'' under the executive order. In this regard, 5 
U.S.C. 610(a) provides for a 10-year review of rules that have a 
``significant economic impact upon a substantial number of small 
entities.'' The NTSB, however, has determined that a very limited 
number of the NTSB's rules are ``major rules,'' because they do not 
have a ``significant economic impact upon a substantial number of small 
entities.'' In addition, the NTSB is not primarily a regulatory agency; 
as a result, its regulations typically address procedures to further 
the agency's statutory responsibilities to investigate the facts, 
circumstances, and cause of transportation accidents or implement 
governmentwide statutes, such as the Freedom of Information Act and the 
Privacy Act. This plan, therefore, describes only the NTSB regulations 
that could, when viewed in the broadest sense, have a significant 
economic impact upon a substantial number of small entities.
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    \1\ 58 FR 51735, October 4, 1993. Section 3(f) of Executive 
Order 12866 defines ``significant regulatory action'' as one that is 
likely to result in a rule that may: (1) Have an annual effect on 
the economy of $100 million or more or adversely affect in a 
material way the economy, a sector of the economy, productivity, 
competition, jobs, the environment, public health or safety, or 
State, local, or tribal governments or communities; (2) Create a 
serious inconsistency or otherwise interfere with an action taken or 
planned by another agency; (3) Materially alter the budgetary impact 
of entitlements, grants, user fees, or loan programs or the rights 
and obligations of recipients thereof; or (4) Raise novel, legal or 
policy issues arising out of legal mandates, the President's 
priorities, or the principles set forth in this Executive Order.
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II. The NTSB's Plan

    The NTSB has recently taken action on some parts of its 
regulations. For example, the NTSB finalized a new version of 49 CFR 
part 801 (Public Availability of Information) in 2007 (72 FR 18915, 
April 16, 2007); rescinded out-of-date regulations in 49 CFR part 805 
(Employee Responsibilities and Conduct) in 2011 (76 FR 71910, November 
21, 2011); issued some changes and additions to two sections within 49 
CFR part 830 (notification and reporting of aircraft incidents and 
accidents) (75 FR 927, January 7, 2010; 75 FR 35330, June 22, 2010); 
and, most recently, issued a Notice of Proposed Rulemaking subsequent 
to an Advance Notice of Proposed Rulemaking suggesting several changes 
to 49 CFR parts 821 (Rules of Practice in Air Safety Proceedings) and 
826 (Rules Implementing the Equal Access to Justice Act of 1980) (77 FR 
6760, February 9, 2012). The NTSB undertook these rulemaking activities 
after noting many of the rules in the parts described above were out-
of-date. None of these aforementioned parts, however, contain 
regulations that are ``significant'' under Executive Order 12866.

Review of 49 CFR Part 831

    The NTSB has identified one regulatory portion that may contain 
``significant regulations'' pursuant to the definition contemplated 
above: 49 CFR part 831. This part, entitled ``Accident/Incident 
Investigation Procedures,'' contains a set of 14 sections describing 
the NTSB's ``party process.'' This process involves the NTSB's 
invitation to outside entities to assist with an investigation as a 
``party.'' The NTSB typically extends party status to those 
organizations that can provide the necessary technical assistance to 
the investigation. The investigator-in-charge (IIC), for example, often 
confers party status to the operator, aircraft, systems, and powerplant 
manufacturers, and labor organizations involved because of the accident 
circumstances. The IIC designates all other parties as participants, 
subject to the discretion of the IIC, with the exception of the Federal 
Aviation Administration (FAA). By statute, the FAA is automatically a

[[Page 37867]]

participant in Safety Board investigations. 49 U.S.C. 1132(c). The role 
of the FAA representatives is to support the Safety Board's 
investigation and determine if immediate regulatory action is necessary 
to prevent another accident. The NTSB directs FAA representatives to 
refrain from using their participation to develop information for 
punitive actions or issuing violations.
    The parties involved in NTSB investigations could be small 
entities, and, depending on the scope and circumstances of the 
investigation, the NTSB could request these small entities to be 
available for the on-scene portion of an investigation, as well as 
follow-up meetings and/or tasks. The NTSB does not reimburse 
investigation participants for the amount of time expended for an NTSB 
investigation, nor does the NTSB pay for any travel costs that arise 
out of such participation. As a result, it is remotely possible that a 
combination of NTSB investigations could result in costs that exceed 
$100 million.

Biennial Review

    Although this interpretation of 49 CFR part 831 as containing 
``significant regulatory actions'' is based on a broad reading of 
``significant,'' and the NTSB has not yet overseen any investigations 
that singly or in combination exceed the aforementioned threshold, the 
NTSB nevertheless is committed to reviewing its regulations within 49 
CFR part 831, in the interest of ensuring none are ``outmoded, 
ineffective, insufficient, or excessively burdensome'' under Executive 
Orders 13563 and 13579. In this regard, the NTSB herein proposes to 
review 49 CFR part 831 within the next 6 months to determine if any 
sections within part 831 could be modified, streamlined, expanded, or 
repealed, pursuant to the direction of Executive Order 13579. The 
NTSB's findings will form the basis for the NTSB's decision concerning 
whether the NTSB should make any changes to part 831. The NTSB is 
committed to issuing a Notice of Proposed Rulemaking within 6 months of 
the published findings, should the findings counsel in favor of 
changing any sections of part 831.
    After the conclusion of any rulemaking activity, the NTSB will 
undertake a biennial review of part 831 to ensure no regulations are 
outmoded, ineffective, insufficient, or excessively burdensome. If the 
NTSB determines no changes to part 831 are necessary, the NTSB will 
begin computing time for its biennial review following the date of its 
publication of findings. The NTSB believes review on a biennial basis 
is appropriate for the subject matter contained in part 831, as the 
NTSB's party process is familiar to regular party participants, and 
party participants have not articulated concerns with the process that 
would warrant a change in regulations.
    Following each biennial review, the NTSB will make its findings 
available for public comment, providing an opportunity for public input 
as to which of the regulations that are ripe for evaluation warrant a 
formal public review. This input, in addition to the NTSB's 
recommendation, will inform the NTSB's decision as to which regulations 
will be the subject of a formal public review. This public review could 
be initiated by a notice seeking public comment on whether the 
regulations continue to meet their original objectives or by a proposal 
of specific changes to the regulations.

Cultural Change

    As indicated by the number of recent rulemaking activities, the 
NTSB is committed to developing a strong culture of retrospective 
analysis of its existing regulations. The NTSB currently is undertaking 
a review of other regulations that would not be considered 
``significant,'' in which it is examining regulations to ensure they 
continue to be appropriate to meet the goal of the regulations without 
imposing an undue burden. In addition, the NTSB will seek to expand its 
effort to conduct regulatory reform and to make suggestions to modify, 
improve, or repeal regulations that may further the purpose of 
Executive Orders 13563, 13579, and 13610. The NTSB also encourages 
public comment on any of its regulations in title 49, Code of Federal 
Regulations, chapter VIII, in addition to 49 CFR part 831, consistent 
with the objectives of these Executive Orders. The NTSB will also 
consider the spirit of these Executive Orders when evaluating possible 
new regulations. With this change in the overall outlook concerning its 
regulations, the NTSB believes it will achieve the general objectives 
of these Executive Orders with regard to every part of its regulations, 
notwithstanding the fact that the vast majority of them are not 
``significant'' under Executive Order 12866.

    Dated: June 19, 2012.
Deborah A.P. Hersman,
Chairman.
[FR Doc. 2012-15327 Filed 6-22-12; 8:45 am]
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