Administrative Rulemaking, Guidance, and Enforcement Procedures |
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Peter Paul Montgomery Buttigieg
U.S. Department of Transportation
2 April 2021
[Federal Register Volume 86, Number 62 (Friday, April 2, 2021)]
[Rules and Regulations]
[Pages 17292-17296]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-06416]
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DEPARTMENT OF TRANSPORTATION
Office of the Secretary
14 CFR Parts 302 and 399
49 CFR Parts 1, 5, and 7
Pipeline and Hazardous Materials Safety Administration
49 CFR Part 106
Federal Motor Carrier Safety Administration
49 CFR Part 389
National Highway Traffic Safety Administration
49 CFR Part 553
Federal Transit Administation
49 CFR Part 601
RIN 2105-AF00
Administrative Rulemaking, Guidance, and Enforcement Procedures
AGENCY: Office of the Secretary of Transportation (OST), Pipeline and
Hazardous Materials Administration, Federal Motor Carrier Safety
Administration, National Highway Traffic Safety Administration, and
Federal Transit Administation, U.S. Department of Transportation (DOT).
ACTION: Final rule.
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SUMMARY: This final rule removes the Department's internal policies and
procedures relating to the issuance of rulemaking and guidance
documents from the Code of Federal Regulations. In addition, this final
rule removes regulations concerning the initiation and conduct of
enforcement actions, including administrative enforcement proceedings
and judicial enforcement actions brought in Federal court.
DATES: Effective on May 3, 2021.
FOR FURTHER INFORMATION CONTACT: Jill Laptosky, Office of Regulation,
Office of the General Counsel, 202-493-0308, Jill.Laptosky@dot.gov.
SUPPLEMENTARY INFORMATION: The Department is issuing this final rule in
response to two recently issued Executive orders. Executive Order
(E.O.) 13992, ``Revocation of Certain Executive Orders Concerning
Federal Regulation'' (January 20, 2021), revokes several executive
orders that directed action by the Federal Government in the context of
rulemaking, guidance, and regulatory enforcement. It also directs the
Director of the Office of Management and Budget and heads of agencies
to promptly take steps to rescind any orders, rules, regulations,
guidelines, or policies, or portions thereof, implementing or enforcing
any of the revoked orders, as appropriate and consistent with
applicable law. E.O. 13990, ``Protecting Public Health and the
Environment and Restoring Science To Tackle the Climate Crisis''
(January 20, 2021), directs all executive departments and agencies to
review immediately and, as appropriate and consistent with applicable
law, take action to address the promulgation of Federal regulations and
other actions that conflict with the objectives stated in E.O. 13990.
On December 27, 2019, the Department published a final rule,
``Administrative Rulemaking, Guidance, and Enforcement Procedures'' (84
FR 71714), that codified at 49 CFR part 5 the Department's internal
procedures relating to the review and clearance of rulemaking and
guidance documents, as well as the initiation and conduct of
enforcement actions. In accordance with 49 CFR 5.21, ``Policy updates
and revisions,'' the Department has reviewed the amendments made to 49
CFR part 5 by that final rule to determine whether any revisions are
necessary in light of E.O. 13992 and E.O. 13990.
Many of the policies and procedures codified at 49 CFR part 5 were
prompted by Executive orders that have since been revoked by E.O.
13992.\1\ As
[[Page 17293]]
a result, the Department will rescind those policies and procedures, or
portions thereof, that implemented or enforced any of the revoked
orders. This final rule removes from 49 CFR part 5 those provisions
that reflect revoked policies and procedures that are no longer in
effect.
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\1\ For purposes of this rulemaking, the relevant revoked
executives orders include the following: E.O. 13771 of January 30,
2017 (Reducing Regulation and Controlling Regulatory Costs), E.O.
13777 of February 24, 2017 (Enforcing the Regulatory Reform Agenda),
E.O. 13891 of October 9, 2019 (Promoting the Rule of Law Through
Improved Agency Guidance Documents), and E.O. 13892 of October 9,
2019 (Promoting the Rule of Law Through Transparency and Fairness in
Civil Administrative Enforcement and Adjudication).
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With respect to the provisions of 49 CFR part 5 that are not
directly attributable to now-revoked executive orders, the Department
has determined to rescind many of the other regulations promulgated on
December 27, 2019, concerning rulemaking, guidance documents, and
enforcement actions for four primary reasons. First, the Department has
found that a majority of the provisions contained in 49 CFR part 5 not
directly attributable to the now-revoked executive orders solely apply
to the Department's internal operations and thus need not be codified
in the Code of Federal Regulations. Second, the regulations found in 49
CFR part 5 are duplicative of existing procedures contained in internal
departmental procedural directives.\2\ Because these procedures are
already contained in existing internal procedures, it is not necessary
that they also be published in the Code of Federal Regulations in order
for them to be effective. Third, with regard to the regulations on
enforcement matters, many of these provisions are derived from the
Administrative Procedure Act (APA) and significant judicial decisions
and thus need not be adopted by regulation in order to be effective.
Application of the APA and these decisions to enforcement matters can
be accomplished by internal directives as the Department deems
necessary and appropriate. Therefore, 49 CFR part 5, subpart D--
Enforcement Procedures is rescinded in its entirety. Fourth, removing
these provisions from 49 CFR part 5 ensures that the Department is able
to effectively and efficiently promulgate new Federal regulations and
other actions to support the objectives stated in E.O. 13990.
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\2\ See, e.g., U.S. Department of Transportation, DOT Order
2100.6, ``Policies and Procedures for Rulemakings,'' available at
https://www.transportation.gov/regulations/2018-dot-rulemaking-order. Note that, consistent with the authorities described in this
final rule, DOT is also reviewing the procedures and policies
contained in this order to determine what revisions are necessary.
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The Code of Federal Regulations will continue to include those
provisions that impact the public's ability to interact with the
Department on rulemaking matters and activities. For example, the
Department will maintain in 49 CFR part 5 procedures for the public to
petition for rulemakings and exemptions. In addition to rulemakings and
exemptions, the Department's procedures, as amended in 2019, explicitly
provided for the public to petition for retrospective reviews of
existing rules and the modification or rescission of guidance
documents. While the Department is revising its petition procedures to
remove references to retrospective reviews and guidance document
petitions, the Department will nevertheless accept and process these
types of petitions. The revised petition procedures thus define
``rule'' expansively, consistent with the APA, to ensure that the
Department will continue to consider a broad range of requests from the
public regarding our regulatory programs.
E.O. 13992 also directs agencies to take prompt action to rescind
any rules or regulations, or portions thereof, implementing revoked
Executive orders, as appropriate and consistent with applicable law,
that threaten to frustrate the Federal Government's ability to confront
urgent challenges facing the Nation, including the coronavirus disease
2019 pandemic, economic recovery, racial justice, and climate change.
The Department is reviewing its internal procedures (e.g., DOT Order
2100.6) and will revise them accordingly. As a result, departmental
internal procedures will be updated to reflect the call of E.O. 13992
to revoke those procedures that reflect outdated policy that could
hamstring the Department's ability to respond quickly and effectively
to the challenges facing our Nation.
This final rule also makes a number of conforming edits to the
regulations of its subcomponent operating administrations to ensure
that they are updated properly to reflect the repeal of certain
provisions of 49 CFR part 5.
Administrative Procedure Act
Under the Administrative Procedure Act, the normal notice and
comment procedures do not apply to an action that is a rule of agency
organization, procedure, or practice. See 5 U.S.C. 553(b)(A). Since
this final rule revises only internal processes applicable to the
Department's administrative procedures, this is a rule of agency
procedure for which notice and comment are not required.
Rulemaking Analyses and Notices
A. E.O. 12866 and DOT Regulatory Policies and Procedures
This rulemaking is not a significant regulatory action under
Executive Order 12866. The Department does not anticipate that this
rulemaking will have an economic impact on regulated entities. This is
a rule of agency procedure and practice that does not change the
Department's procedures in and of itself. This action merely removes
duplicative regulations from the Code of Federal Regulations that would
be better managed in departmental operating procedures.
B. Regulatory Flexibility Act
Since notice and comment rulemaking is not necessary for this rule,
the analytical provisions of the Regulatory Flexibility Act (Pub. L.
96-354, 5 U.S.C. 601-612) do not apply.
C. Executive Order 13132 (Federalism)
Executive Order 13132 requires agencies to ensure meaningful and
timely input by State and local officials in the development of
regulatory policies that may have a substantial, direct effect on the
States, on the relationship between the National Government and the
States, or on the distribution of power and responsibilities among the
various levels of government. This action has been analyzed in
accordance with the principles and criteria contained in Executive
Order 13132 (August 4, 1999), and DOT has determined that this action
will not have a substantial direct effect or federalism implications on
the States and would not preempt any State law or regulation or affect
the States' ability to discharge traditional State governmental
functions. Therefore, consultation with the States is not necessary.
D. Executive Order 13175 (Tribal Consultation)
This final rule has been analyzed in accordance with the principles
and criteria contained in Executive Order 13175, ``Consultation and
Coordination with Indian Tribal Governments.'' Because this rulemaking
does not significantly or uniquely affect the communities of the Indian
tribal governments or impose substantial direct compliance costs on
them, the funding and consultation requirements of Executive Order
13175 do not apply.
E. Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et seq.)
requires that DOT consider the impact of paperwork and other
information collection burdens imposed on the public and, under the
provisions of PRA section 3507(d), obtain approval from the Office of
Management and Budget (OMB) for each collection of information it
conducts, sponsors, or
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requires through regulations. The DOT has determined there are no new
information collection requirements associated with this final rule.
F. National Environmental Policy Act
The agency has analyzed the environmental impacts of this action
pursuant to the National Environmental Policy Act of 1969 (NEPA) (42
U.S.C. 4321 et seq.) and has determined that it is categorically
excluded pursuant to DOT Order 5610.1C, ``Procedures for Considering
Environmental Impacts'' (44 FR 56420, October 1, 1979). Categorical
exclusions are actions identified in an agency's NEPA implementing
procedures that do not normally have a significant impact on the
environment and therefore do not require either an environmental
assessment (EA) or environmental impact statement (EIS). The purpose of
this rulemaking is to update the Department's administrative procedures
for rulemaking, guidance documents, and enforcement actions. The agency
does not anticipate any environmental impacts, and there are no
extraordinary circumstances present in connection with this rulemaking.
Regulation Identifier Number
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
the spring and fall of each year. The RIN contained in the heading of
this document can be used to cross reference this action with the
Unified Agenda.
List of Subjects
14 CFR Part 302
Administrative practice and procedure, Air carriers, Airports,
Postal Service.
14 CFR Part 399
Administrative practice and procedure, Air carriers, Air rates and
fares, Air taxis, Consumer protection, Law enforcement, Policies,
Rulemaking procedures, Small businesses.
49 CFR Part 1
Authority delegations (Government agencies), Organization and
functions (Government agencies).
49 CFR Part 5
Administrative practice and procedure.
49 CFR Part 7
Freedom of information, Reporting and recordkeeping requirements.
49 CFR Part 106
Administrative practice and procedure, Hazardous materials
transportation.
49 CFR Part 389
Administrative practice and procedure, Highway safety, Motor
carriers, Motor vehicle safety.
49 CFR Part 553
Administrative practice and procedure, Motor vehicle safety.
49 CFR Part 601
Authority delegations (Government agencies), Freedom of
information, Organization and functions (Government agencies).
In consideration of the foregoing, the Office of the Secretary of
Transportation amends 14 CFR parts 302 and 399, and 49 CFR parts 1, 5,
7, 106, 389, 553, and 601, as follows:
Title 14--Aeronautics and Space
PART 302--RULES OF PRACTICE IN PROCEEDINGS
0
1. The authority citation for part 302 continues to read as follows:
Authority: 39 U.S.C. 5402; 42 U.S.C. 4321, 49 U.S.C. Subtitle I
and Chapters 401, 411, 413, 415, 417, 419, 461, 463, and 471.
0
2. Revise Sec. 302.16 to read as follows:
Sec. 302.16 Petitions for rulemaking.
Any interested person may petition the Department for the issuance,
amendment, modification, or repeal of any regulation or guidance
document, subject to the provisions of 49 CFR 5.3.
PART 399--STATEMENTS OF GENERAL POLICY
0
3. The authority citation for part 399 continues to read as follows:
Authority: 49 U.S.C. 41712, 40113(a).
0
4. Amend Sec. 399.75 by revising paragraph (b) introductory text to
read as follows:
Sec. 399.75 Rulemakings relating to unfair and deceptive practices.
* * * * *
(b) Procedural requirements. When issuing a proposed regulation
under paragraph (a) of this section, unless the regulation is
specifically required by statute, the Department shall adhere to the
following procedural requirements:
* * * * *
Sec. 399.79 [Amended]
0
5. Amend Sec. 399.79 by removing the first sentence of paragraph
(e)(1).
Title 49--Transportation
PART 1--ORGANIZATION AND DELEGATION OF POWERS AND DUTIES
0
6. The authority citation for part 1 continues to read as follows:
Authority: 49 U.S.C. 322.
0
7. Amend Sec. 1.27 by revising paragraph (e) to read as follows:
Sec. 1.27 Delegations to the General Counsel.
* * * * *
(e) Respond to petitions for rulemaking or petitions for exemptions
in accordance with 49 CFR 5.3, and notify petitioners of decisions in
accordance with 49 CFR 5.3(d)(5).
* * * * *
0
8. Revise part 5 to read as follows:
PART 5--ADMINISTRATIVE PROCEDURES
Subpart A--GENERAL
Sec. 5.1 Applicability.
Subpart B--Rulemaking Procedures
5.3 Petitions.
5.5 Public contacts in informal rulemaking.
5.7 Policy updates and revisions.
5.9 Disclaimer.
Authority: 49 U.S.C. 322(a).
Subpart A--General
Sec. 5.1 Applicability.
(a) This part prescribes general procedures that apply to
rulemakings of the U.S. Department of Transportation (the Department or
DOT), including each of its operating administrations (OAs) and all
components of the Office of Secretary of Transportation (OST).
(b) For purposes of this part, Administrative Procedure Act (APA)
is the Federal statute, codified in scattered sections of chapters 5
and 7 of title 5, United States Code, that governs procedures for
agency rulemaking and adjudication and provides for judicial review of
final agency actions.
Subpart B--Rulemaking Procedures
Sec. 5.3 Petitions.
(a) Any person may petition an OA or OST component with rulemaking
authority to:
(1) Issue, amend, or repeal a rule, as defined in 5 U.S.C. 551; or
(2) Issue an exemption, either permanently or temporarily, from any
requirements of a rule, consistent with applicable statutory or
regulatory provisions.
(b) When an OA or OST component receives a petition under this
section, the petition should be filed with the
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Docket Clerk in a timely manner. If a petition is filed directly with
the Docket Clerk, the Docket Clerk will submit the petition in a timely
manner to the OA or component of OST with regulatory responsibility
over the matter described in the petition.
(c) The OA or component of OST should provide clear instructions on
its website to members of the public regarding how to submit petitions,
including, but not limited to, an email address or Web portal where
petitions can be submitted, a mailing address where hard copy requests
can be submitted, and an office responsible for coordinating such
requests.
(d) Unless otherwise provided by statute or in OA regulations or
procedures, the following procedures apply to the processing of
petitions for rulemaking or exemption:
(1) Contents. Each petition filed under this section must:
(i) Be submitted, either by paper submission to the U.S. Department
of Transportation, Docket Operations, West Building Ground Floor, Room
W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590, or
electronically by emailing: regulationC50.law@dot.gov;
(ii) Describe the nature of the request and set forth the text or
substance of the rule, or specify the rule that the petitioner seeks to
have issued, amended, exempted, or repealed, as the case may be;
(iii) Explain the interest of the petitioner in the action
requested, including, in the case of a petition for an exemption, the
nature and extent of the relief sought and a description of the persons
to be covered by the exemption;
(iv) Contain any information and arguments available to the
petitioner to support the action sought; and
(v) In the case of a petition for exemption, unless good cause is
shown in that petition, be submitted at least 60 days before the
proposed effective date of the exemption, as appropriate.
(2) Processing. Each petition received under this section is
referred to the head of the office responsible for the subject matter
of that petition, and the Office of Regulation.
(3) Grants. If the OA or component of OST with regulatory
responsibility over the matter described in the petition determines
that the petition contains adequate justification, it may request the
initiation of a rulemaking action in accordance with departmental
procedures or grant the petition, as appropriate.
(4) Denials. If the OA or component of OST determines that the
petition is not justified, the OA or component of OST denies the
petition in coordination with the Office of Regulation.
(5) Notification. Whenever the OA or OST component determines that
a petition should be granted or denied, and after consultation with the
Office of Regulation in the case of denial, the office concerned
prepares a notice of that grant or denial for issuance to the
petitioner, and issues it to the petitioner.
Sec. 5.5 Public contacts in informal rulemaking.
(a) Agency contacts with the public during informal rulemakings
conducted in accordance with 5 U.S.C. 553. (1) DOT personnel may have
meetings or other contacts with interested members of the public
concerning an informal rulemaking under 5 U.S.C. 553 or similar
procedures at any stage of the rulemaking process, provided the
substance of material information submitted by the public that DOT
relies on in proposing or finalizing the rule is adequately disclosed
and described in the public rulemaking docket such that all interested
parties have notice of the information and an opportunity to comment on
its accuracy and relevance.
(2) During the pendency of a rulemaking proceeding, DOT personnel
must avoid giving persons outside the executive branch information
regarding the rulemaking that is not available generally to the public.
(3) If DOT receives an unusually large number of requests for
meetings with interested members of the public during the comment
period for a proposed rule or after the close of the comment period,
the issuing OA or component of OST should consider whether there is a
need to extend or reopen the comment period, to allow for submission of
a second round of ``reply comments,'' or to hold a public meeting on
the proposed rule.
(4) If the issuing OA or OST component meets with interested
persons on the rulemaking after the close of the comment period, it
should be open to giving other interested persons a similar opportunity
to meet.
(5) If DOT learns of significant new information, such as new
studies or data, after the close of the comment period that the issuing
OA or OST component wishes to rely upon in finalizing the rule, the OA
or OST component should reopen the comment period to give the public an
opportunity to comment on the new information. If the new information
is likely to result in a change to the rule that is not within the
scope of the notice of proposed rulemaking (NPRM), the OA or OST
component should consider issuing a supplemental NPRM to ensure that
the final rule represents a logical outgrowth of DOT's proposal.
(b) [Reserved]
Sec. 5.7 Policy updates and revisions.
This subpart shall be reviewed from time to time to reflect
improvements in the rulemaking process or changes in Administration
policy.
Sec. 5.9 Disclaimer.
This subpart is intended to improve the internal management of the
Department. It is not intended to, and does not, create any right or
benefit, substantive or procedural, enforceable at law or in equity by
any party against the United States, its agencies or other entities,
officers or employees, or any other person. In addition, this subpart
shall not be construed to create any right to judicial review involving
the compliance or noncompliance with this subpart by the Department,
its OAs or OST components, its officers or employees, or any other
person.
PART 7--PUBLIC AVAILABILITY OF INFORMATION
0
9. The authority citation for part 7 continues to read as follows:
Authority: 5 U.S.C. 552; 31 U.S.C. 9701; 49 U.S.C. 322; E.O.
12600; E.O. 13392.
0
10. Amend Sec. 7.12 by revising paragraph (a)(2) to read as follows:
Sec. 7.12 What records are available in reading rooms, and how are
they accessed?
(a) * * *
(2) Statements of policy and interpretations that have been adopted
by DOT;
* * * * *
PART 106--RULEMAKING PROCEDURES
0
11. The authority citation for part 106 continues to read as follows:
Authority: 49 U.S.C. 5101-5128; 49 CFR 1.81 and 1.97.
0
12. Amend Sec. 106.40 by revising paragraph (d)(1) to read as follows:
Sec. 106.40 Direct final rule.
* * * * *
(d) * * *
(1) If we receive an adverse comment, we will either publish a
document withdrawing the direct final rule before it becomes effective
and may issue an NPRM, or proceed by any other means permitted under
the Administrative Procedure Act.
* * * * *
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PART 389--RULEMAKING PROCEDURES--FEDERAL MOTOR CARRIER SAFETY
REGULATIONS
0
13. The authority citation for part 389 continues to read as follows:
Authority: 49 U.S.C. 113, 501 et seq., subchapters I and III of
chapter 311, chapter 313, and 31502; sec. 5204 of Pub. L. 114-94,
129 Stat. 1312, 1536; 42 U.S.C. 4917; and 49 CFR 1.87.
Sec. 389.13 [Amended]
0
14. Amend Sec. 389.13 by removing the first sentence of paragraph (a).
0
15. Amend Sec. 389.39 by revising paragraph (d)(1) to read as follows:
Sec. 389.39 Direct final rulemaking procedures.
* * * * *
(d) * * *
(1) If FMCSA receives an adverse comment within the comment period,
it will either publish a document withdrawing the direct final rule
before it becomes effective and may issue an NPRM, or proceed by any
other means permitted under the Administrative Procedure Act.
* * * * *
PART 553--RULEMAKING PROCEDURES
0
16. The authority citation for part 553 continues to read as follows:
Authority: 49 U.S.C. 322, 30103, 30122, 30124, 30125, 30127,
30146, 30162, 32303, 32502, 32504, 32505, 32705, 32901, 32902,
33102, 33103, and 33107; delegation of authority at 49 CFR 1.95.
0
17. Amend Sec. 553.14 by revising paragraphs (d) to read as follows:
Sec. 553.14 Direct final rulemaking.
* * * * *
(d) If NHTSA receives any written adverse comment within the
specified time after publication of the direct final rule in the
Federal Register, the agency will either publish a document withdrawing
the direct final rule before it becomes effective and may issue an
NPRM, or proceed by any other means permitted under the Administrative
Procedure Act.
* * * * *
PART 601--ORGANIZATION, FUNCTIONS, AND PROCEDURES
0
18. The authority citation for part 601 continues to read as follows:
Authority: 5 U.S.C. 552; 49 U.S.C. 5334; 49 CFR 1.91.
0
19. Amend Sec. 601.36 by revising paragraph (d) to read as follows:
Sec. 601.36 Procedures for direct final rulemaking.
* * * * *
(d) If FTA receives any written adverse comment within the
specified time of publication in the Federal Register, FTA will either
publish a document withdrawing the direct final rule before it becomes
effective and may issue an NPRM, or proceed by any other means
permitted under the Administrative Procedure Act.
* * * * *
Signed in Washington, DC, on March 24, 2021.
Peter Paul Montgomery Buttigieg,
Secretary.
[FR Doc. 2021-06416 Filed 4-1-21; 8:45 am]
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