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DEPARTMENT OF TRANSPORTATION procedures for the review and clearance Department’s rulemaking process can be of guidance documents; and (3) a found at 49 CFR 5.5. Office of the Secretary General Counsel memorandum, This final rule reflects the existing ‘‘Procedural Requirements for DOT role of the Department’s Regulatory 14 CFR Parts 11, 300, and 302 Enforcement Actions’’ (February 15, Reform Task Force in the development 2019),3 which clarifies the procedural of the Department’s regulatory portfolio 49 CFR Parts 1, 5, 7, 106, 211, 389, 553, requirements governing enforcement and ongoing review of regulations. and 601 actions initiated by the Department, Established in response to Executive including administrative enforcement Order 13777, ‘‘Enforcing the Regulatory RIN 2105–AE84 proceedings and judicial enforcement Reform Agenda’’ (February 24, 2017), Administrative Rulemaking, Guidance, actions brought in Federal court. the Regulatory Reform Task Force is the and Enforcement Procedures This final rule removes the existing Department’s internal body, chaired by procedures on rulemaking, which are the Regulatory Reform Officer, tasked AGENCY: Office of the Secretary of outdated and inconsistent with current with evaluating proposed and existing Transportation (OST), U.S. Department departmental practice, and replaces regulations and making of Transportation (DOT). them with a comprehensive set of recommendations to the Secretary of ACTION: Final rule. procedures that will increase Transportation regarding their transparency, provide for more robust promulgation, repeal, replacement, or SUMMARY: This final rule sets forth a public participation, and strengthen the modification, consistent with applicable comprehensive revision and update of overall quality and fairness of the law. This final rule outlines the the Department’s regulations on Department’s administrative actions. structure, membership, and rulemaking procedures and consolidates This final rule also responds to a responsibilities of the Regulatory all of the Department’s existing December 20, 2018, petition for Reform Task Force at 49 CFR 5.9. administrative procedures in one rulemaking that we received from the This final rule also prescribes the location. This final rule also New Civil Liberties Alliance that asked procedures the Department must follow incorporates and reflects the the Department to promulgate for all stages of the rulemaking process, Department’s current policies and regulations prohibiting departmental including the initiation of new procedures relating to the issuance of components from issuing, relying on, or rulemakings, the development of rulemaking documents. In addition, this defending improper agency guidance. economic analyses, the contents of update codifies the Department’s rulemaking documents, their review and internal procedural requirements Rulemaking Procedures clearance, and the opportunity for fair governing the review and clearance of This final rule incorporates into the and sufficient public participation. The guidance documents and the initiation Code of Federal Regulations at 49 CFR final rule also reflects the Department’s and conduct of enforcement actions, part 5, subpart B, the policies and existing policies regarding contacts with including administrative enforcement procedures found in DOT Order 2100.6, outside parties during the rulemaking proceedings and judicial enforcement titled: ‘‘Policies and Procedures for process as well as the ongoing review of actions brought in Federal court. Rulemakings.’’ All citations to OST or existing regulations. These policies and procedures can be found at 49 CFR 5.11, DATES: Effective on January 27, 2020. OA regulations in this preamble refer to 5.13, and 5.19. FOR FURTHER INFORMATION CONTACT: Jill sections of the Code of Federal Regulations as amended by this final Consistent with the Department’s Laptosky, Office of Regulation, Office of regulatory philosophy that rules the General Counsel, 202–493–0308, rule. The procedures contained in this final imposing the greatest costs on the [email protected]. rule apply to all phases of the public should be subject to heightened SUPPLEMENTARY INFORMATION: This final Department’s rulemaking process, from procedural requirements, this final rule rule substantially incorporates three advance notices of proposed also incorporates the Department’s internal administrative procedure rulemakings to the promulgation of final enhanced procedures for economically directives of the U.S. Department of rules, including substantive rules, rules significant and high-impact Transportation (the Department or DOT) of interpretation, and rules prescribing rulemakings. Economically significant into one place in the Code of Federal agency procedures and practice rulemakings are defined as those rules that would result in a total annualized Regulations (CFR) at 49 CFR part 5: (1) requirements applicable to outside cost on the U.S. economy of $100 DOT Order 2100.6, ‘‘Policies and parties. The final rule outlines the million or more, or a total net loss of at Procedures for Rulemakings’’ (December Department’s regulatory policies, such 1 least 75,000 full-time jobs in the United 20, 2018), which sets forth updated as ensuring that there are no more States over 5 years. 49 CFR 5.17(a)(1). policies and procedures governing the regulations than necessary, that where High-impact rulemakings would result development and issuance of they impose burdens, regulations are in a total annualized cost on the U.S. regulations by the Department’s narrowly tailored to address identified economy of $500 million or more, or a operating administrations and market failures or statutory mandates, total net loss of at least 250,000 full-time components of the Office of the and that they specify performance jobs in the United States over 5 years. Secretary; (2) a General Counsel objectives when appropriate. These and 49 CFR 5.17(a)(2). These costly memorandum, ‘‘Review and Clearance other policies applicable to the of Guidance Documents’’ (December 20, rulemakings may be subject to enhanced 2 rulemaking procedures, such as advance 2018), which establishes enhanced at https://www.transportation.gov/regulations/2018- guidance-memorandum. notices of proposed rulemakings and 1 See U.S. Department of Transportation, DOT 3 See U.S. Department of Transportation, formal hearings. The procedures for Order 2100.6, ‘‘Policies and Procedures for ‘‘Procedural Requirements for DOT Enforcement economically significant and high- Rulemakings,’’ available at https:// Actions,’’ available at https:// impact rulemakings are provided at 49 www.transportation.gov/regulations/2018-dot- www.transportation.gov/sites/dot.gov/files/docs/ rulemaking-order. mission/administrations/office-general-counsel/ CFR 5.17. 2 See U.S. Department of Transportation, ‘‘Review 331596/c1-mem-enforcement-actions-signed- While much of part 5 is outdated in and Clearance of Guidance Documents,’’ available 21519.pdf. light of the Department’s new

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procedures, this final rule will retain part 5, subpart C, the policies and appropriate and practicable. The final and revise some procedures. The procedures found in the General rule also provides a process for Department’s existing procedures for the Counsel’s memorandum, titled: ‘‘Review interested parties to petition the filing of rulemaking petitions will be and Clearance of Guidance Documents.’’ Department for the withdrawal or retained (see 49 CFR 5.13(c)), though we The procedures contained in this final modification of guidance documents. are revising these regulations to give the rule apply to all guidance documents, See 49 CFR 5.43. public greater opportunities to petition which the Department defines as any This final rule also responds to the Department. In addition to petitions statement of agency policy or Executive Order 13891, titled: for rulemaking, our procedures will also interpretation concerning a statute, ‘‘Promoting the Rule of Law Through explicitly allow the public to file regulation, or technical matter within Improved Agency Guidance petitions for the performance of the jurisdiction of the agency that is Documents’’ (October 9, 2019). In that retrospective regulatory reviews. With intended to have general applicability Executive Order, Federal agencies are regard to direct final rules, the and future effect, but which is not required to finalize regulations, or Department will be removing language intended to have the force or effect of amend existing regulations as necessary, that requires the withdrawal of a direct law in its own right and is not otherwise to set forth processes and procedures for final rule if a notice of intent to file an required by statute to satisfy the issuing guidance documents.5 This final adverse comment is received; instead rulemaking procedures of the rule incorporates requirements found in withdrawal will be required upon the Administrative Procedure Act. the Executive Order that were not This final rule codifies the actual receipt of an adverse comment. otherwise provided for in the Department’s existing procedures Individuals who intend to file an Department’s existing procedures, regarding the review and clearance of adverse comment, but do not have primarily a requirement that the guidance documents. These procedures enough time to do so, may instead ask comment period for significant guidance ensure that all guidance documents the Department to extend the comment documents be at least 30 days, except receive legal review and, when period of a direct final rule so that they when the agency for good cause finds appropriate, Office of the Secretary may have more time to file an adverse that notice and public comment are review. Before guidance documents are comment. For this reason, the existing impracticable, unnecessary, or contrary issued, they must be reviewed to ensure direct final rule procedures are to the public interest.6 unnecessarily duplicative of procedures they are written in plain language and that provide for requesting the extension do not impose any substantive legal Enforcement Procedures of a comment period and can be requirements above and beyond statute or regulation. If a guidance document This final rule incorporates into the removed in part 5 and elsewhere Code of Federal Regulations at 49 CFR throughout the Department’s regulations purports to describe, approve, or recommend specific conduct that part 5, subpart D, the policies and issued by its operating administrations.4 procedures found in the General This rulemaking will update stretches beyond what is required by existing law, then it must include a Counsel’s memorandum, titled: references throughout DOT regulations ‘‘Procedural Requirements for DOT as needed to account for updated clear and prominent statement effectively stating that the contents of Enforcement Actions.’’ internal procedures. This final rule will The procedures contained in this final revise the regulations at 14 CFR 300.2 to the guidance document do not have the force and effect of law and are not rule clarify the procedural requirements replace a reference to rescinded DOT governing enforcement actions initiated Order 2100.2 with the current DOT meant to bind the public in any way, and the guidance document is intended by DOT, including administrative Order 2100.6. This final rule also enforcement proceedings and judicial updates the procedures for petitions for only to provide clarity to the public regarding existing requirements under enforcement actions brought in Federal rulemakings found in 14 CFR 302.16, court. The purpose of these procedural including providing that interested the law or agency policies. The procedures for the review and clearance policies is to ensure that DOT parties may file petitions for the enforcement actions satisfy principles of Department to perform retrospective of guidance documents can be found at 49 CFR 5.27, 5.29, and 5.35. due process and remain lawful, reviews. Other minor conforming In recognition of the fact that, even reasonable, and consistent with amendments are being made to our though guidance documents are not Administration policy. The procedures regulations at 49 CFR parts 1 and 7. legally binding, they could nevertheless also fulfill the Department’s goal of Finally, given that this final rule have a substantial economic impact on establishing standard operating codifies the DOT policy regarding regulated entities that alter their procedures within its various contacts with outside parties during the conduct to conform to the guidance, this enforcement programs. rulemaking process (5 CFR 5.19), final rule requires a good faith cost The final rule consolidates these Appendix 1 to 14 CFR part 11, Oral assessment of the impact of the procedural requirements into one Communications With the Public guidance document. This policy is centralized location. The Department is During Rulemaking, is no longer outlined at 49 CFR 5.33. committed to proper due process in necessary and has been removed. This final rule also incorporates other enforcement proceedings and Guidance Document Procedures policies and procedures, such as encourages regulated entities to contact describing when guidance documents This final rule incorporates into the a supervisor or the U.S. Small Business are subject to notice and an opportunity Code of Federal Regulations at 49 CFR Administration, when appropriate, with for public comment and how they will any concerns arising from our duty to 4 Direct final rule procedures for the following be made available to the public after review compliance with the operating administrations are amended: Federal issuance. See 49 CFR 5.31 and 5.39. Department’s regulations related to our Aviation Administration, Pipeline and Hazardous These procedures are intended to ensure authority and jurisdiction. Materials Safety Administration, Federal Railroad that the public has access to guidance Administration, Federal Motor Carrier Safety Administration, National Highway Traffic Safety documents issued by the Department 5 See section 4(a) of Executive Order 13891. Administration, and Federal Transit and a fair and sufficient opportunity to 6 See section 4(a)(iii)(A) of Executive Order Administration. comment on guidance documents when 13891.

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This final rule ensures that DOT procedures as part of its regulatory D. Executive Order 13132 (Federalism) provides affected parties appropriate reform initiative, and has not incurred Executive Order 13132 requires due process in all enforcement actions, any additional resource costs in doing agencies to ensure meaningful and that the Department’s conduct is fair so. The adoption of these practices has timely input by State and local officials and free of bias and concludes with a been accomplished through a in the development of regulatory well-documented decision as to realignment of existing agency policies that may have a substantial, violations alleged and any violations resources, and it is anticipated that the direct effect on the States, on the found to have been committed, that the public will benefit from the resulting relationship between the national penalties or corrective actions imposed increase in efficiency in delivery of government and the States, or on the for such violations are reasonable, and government services. distribution of power and that proper steps needed to ensure responsibilities among the various future compliance were undertaken by This final rule compiles existing procedures on rulemaking as a levels of government. This action has the regulated party. It is in the public been analyzed in accordance with the interest and fundamental to good comprehensive set of regulations that will increase accountability, ensure principles and criteria contained in government that the Department carry Executive Order 13132 (August 4, 1999), out its enforcement responsibilities in a more robust public participation, and strengthen the overall quality and and DOT has determined that this fair and just manner. action will not have a substantial direct fairness of the Department’s This final rule also responds to effect or federalism implications on the administrative actions. The Department Executive Order 13892, titled: States and would not preempt any State has a long history of Federal leadership ‘‘Promoting the Rule of Law Through law or regulation or affect the States’ Transparency and Fairness in Civil in adopting good regulatory practices, ability to discharge traditional State Administrative Enforcement and and this action is consistent with that governmental functions. Therefore, Adjudication’’ (October 9, 2019). Under history. While the direct impact of this consultation with the States is not that Executive Order, Federal agencies rule has already been experienced necessary. are required to provide more internally to the Department in the form transparency to the regulated of streamlined and clarified regulatory E. Executive Order 13175 community when conducting processes, we expect additional This final rule has been analyzed in enforcement actions and adjudications. secondary and positive impacts due to accordance with the principles and This final rule incorporates improved decision making. However, criteria contained in Executive Order requirements found in the Executive these additional impacts will be small 13175, ‘‘Consultation and Coordination Order related to cooperative information because this rule, which has been with Indian Tribal Governments.’’ sharing, the Small Business Regulatory substantively implemented, simply Because this rulemaking does not Enforcement Fairness (SBREFA) Act, reflects the procedures that have significantly or uniquely affect the and ensuring reasonable administrative evolved in response to new rulemaking communities of the Indian tribal 7 inspections. demands. governments or impose substantial direct compliance costs on them, the Administrative Procedure Regulated entities and the public will funding and consultation requirements continue to benefit from these enhanced Under the Administrative Procedure of Executive Order 13175 do not apply. Act, an agency may waive the normal procedures through increased agency notice and comment procedures if the deliberations and more opportunities to F. Paperwork Reduction Act action is a rule of agency organization, comment on rulemakings and guidance The Paperwork Reduction Act of 1995 procedure, or practice. See 5 U.S.C. documents. With regard to the (PRA) (44 U.S.C. 3501 et seq.) requires 553(b)(3)(A). Since this final rule merely enforcement procedures, we anticipate that DOT consider the impact of incorporates existing internal that there will be no additional costs on paperwork and other information procedures applicable to the regulated entities, as individual collection burdens imposed on the Department’s administrative procedures regulations already published by DOT public and, under the provisions of PRA into the Code of Federal Regulations, agencies account for current costs of section 3507(d), obtain approval from notice and comment are not necessary. compliance. This final rule will simply the Office of Management and Budget Rulemaking Analyses and Notices clarify the internal DOT procedural (OMB) for each collection of requirements necessary to ensure fair information it conducts, sponsors, or A. Executive Order 12866 and DOT and reasonable enforcement processes requires through regulations. The DOT Regulatory Policies and Procedures where violations are alleged to have has determined there are no new This rulemaking is not a significant occurred by the regulated community. information collection requirements regulatory action under Executive Order associated with this final rule. B. Executive Order 13771 (Reducing 12866. The Department does not G. National Environmental Policy Act anticipate that this rulemaking will have Regulation and Controlling Regulatory an economic impact on regulated Costs) The agency has analyzed the entities. This is a rule of agency environmental impacts of this action This rule is not an Executive Order pursuant to the National Environmental procedure and practice. The final rule 13771 regulatory action because this describes the Department’s existing Policy Act of 1969 (NEPA) (42 U.S.C. rule is not significant under Executive 4321 et seq.) and has determined that it internal procedures for the Order 12866. promulgation and processing of is categorically excluded pursuant to rulemaking and guidance documents, C. Regulatory Flexibility Act DOT Order 5610.1C, ‘‘Procedures for and for initiating and conducting Considering Environmental Impacts’’ enforcement proceedings. The Since notice and comment (44 FR 56420, October 1, 1979). Department has adopted these internal rulemaking is not necessary for this Categorical exclusions are actions rule, the provisions of the Regulatory identified in an agency’s NEPA 7 See sections 7, 9, and 10, of Executive Order Flexibility Act (Pub. L. 96–354, 5 U.S.C. implementing procedures that do not 13892. 601–612) do not apply. normally have a significant impact on

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the environment and therefore do not Organization and functions (b) * * * require either an environmental (Government agencies). (4) * * * (ii) A rulemaking proceeding assessment (EA) or environmental Issued in Washington, DC, on December 3, impact statement (EIS). The purpose of 2019. involving a hearing as described in paragraph (b)(4)(i) of this section or an this rulemaking is to update the Elaine L. Chao, Department’s administrative procedures exemption proceeding covered by this Secretary. for rulemaking, guidance documents, chapter. (Other rulemaking proceedings and enforcement actions. The agency In consideration of the foregoing, the are covered by the ex parte does not anticipate any environmental Office of the Secretary of Transportation communication policies of DOT Order impacts, and there are no extraordinary amends 14 CFR parts 11, 300, and 302 2100.6 and 49 CFR 5.19.) circumstances present in connection and 49 CFR parts 5, 106, 211, 389, 553, * * * * * with this rulemaking. and 601, as follows: Title 14—Aeronautics and Space PART 302—RULES OF PRACTICE IN Regulation Identifier Number PROCEEDINGS A regulation identifier number (RIN) PART 11—GENERAL RULEMAKING ■ is assigned to each regulatory action PROCEDURES 8. The authority citation for part 302 listed in the Unified Agenda of Federal continues to read as follows: Regulations. The Regulatory Information ■ 1. The authority citation for part 11 Authority: 39 U.S.C. 5402; 42 U.S.C. 4321, Service Center publishes the Unified continues to read as follows: 49 U.S.C. Subtitle I and Chapters 401, 411, Agenda in the spring and fall of each Authority: 49 U.S.C. 106(f), 106(g), 40101, 413, 415, 417, 419, 461, 463, and 471. year. The RIN contained in the heading 40103, 40105, 40109, 40113, 44110, 44502, ■ 9. Revise § 302.16 to read as follows: of this document can be used to cross 44701–44702, 44711, 46102, and 51 U.S.C. reference this action with the Unified 50901–50923. § 302.16 Petitions for rulemaking. Agenda. ■ 2. Amend § 11.13 by revising the last Any interested person may petition the Department for the issuance, List of Subjects sentence to read as follows: amendment, modification, or repeal of 14 CFR Part 11 § 11.13 What is a direct final rule? any regulation or guidance document, or Administrative practice and * * * If we receive an adverse for the Department to perform a procedure, Reporting and recordkeeping comment, we will either publish a retrospective review of an existing rule, requirements. document withdrawing the direct final subject to the provisions of part 5, rule before it becomes effective and may Rulemaking Procedures, of the Office of 14 CFR Part 300 issue an NPRM, or proceed by any other the Secretary regulations (49 CFR Administrative practice and means permitted under the 5.13(c) and 5.43). procedure, Conflicts of interests. Administrative Procedure Act, 5 U.S.C. Title 49—Transportation 551 et seq., consistent with procedures 14 CFR Part 302 at 49 CFR 5.13(l). PART 1—ORGANIZATION AND Administrative practice and § 11.31 [Amended] DELEGATION OF POWERS AND procedure, Air carriers, Airports, Postal DUTIES Service. ■ 3. Amend § 11.31 by removing ‘‘or ■ 49 CFR Part 1 notice of intent to file an adverse 10. The authority citation for part 1 comment’’ in paragraphs (a) continues to read as follows: Authority delegations (Government introductory text, (b), and (c). Authority: 49 U.S.C. 322. agencies), Organization and functions ■ 4. Amend § 11.40 by revising the last ■ 11. Amend § 1.27 by revising (Government agencies). sentence to read as follows: paragraph (e) to read as follows: 49 CFR Part 5 § 11.40 Can I get more information about Administrative practice and a rulemaking? § 1.27 Delegations to the General Counsel. procedure. * * * The Department of * * * * * (e) Respond to petitions for 49 CFR Part 106 Transportation policy regarding public contacts during rulemaking appears at rulemaking or petitions for exemptions Administrative practice and 49 CFR 5.19. in accordance with 49 CFR 5.13(c)(2) procedure, Hazardous materials (Processing of petitions), and notify transportation. Appendix 1 to Part 11 [Removed] petitioners of decisions in accordance 49 CFR Part 211 ■ 5. Remove appendix 1 to part 11. with 49 CFR 5.13(c)(4)(v). * * * * * Administrative practice and PART 300—RULES OF CONDUCT IN ■ 12. Revise part 5 to read as follows: procedure, Railroad safety. DOT PROCEEDINGS UNDER THIS 49 CFR Part 389 CHAPTER PART 5—ADMINISTRATIVE Administrative practice and RULEMAKING, GUIDANCE, AND ■ 6. The authority citation for part 300 ENFORCEMENT PROCEDURES procedure, Highway safety, Motor continues to read as follows: carriers, Motor vehicle safety. Subpart A—GENERAL Authority: 49 U.S.C. subtitle I and chapters 49 CFR Part 553 401, 411, 413, 415, 417, 419, 421, 449, 461, Sec. 5.1 Applicability. Administrative practice and 463, and 465. procedure, Motor vehicle safety. ■ 7. Amend § 300.2 by revising Subpart B—Rulemaking Procedures paragraph (b)(4)(ii) to read as follows: 49 CFR Part 601 5.3 General. 5.5 Regulatory policies. Authority delegations (Government § 300.2 Prohibited Communications. 5.7 Responsibilities. agencies), Freedom of information, * * * * * 5.9 Regulatory Reform Task Force.

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5.11 Initiating a rulemaking. Authority: 49 U.S.C. 322(a). outside of the Department, and which 5.13 General rulemaking procedures. are governed by part 5, subpart C of this 5.15 Unified Agenda of Regulatory and Subpart A—General chapter. Deregulatory Actions (Unified Agenda). 5.17 Special procedures for economically § 5.1 Applicability. § 5.5 Regulatory policies. significant and high-impact rulemakings. (a) This part prescribes general The policies in paragraphs (a) through 5.19 Public contacts in informal procedures that apply to rulemakings, (j) of this section govern the rulemaking. guidance documents, and enforcement development and issuance of 5.21 Policy updates and revisions. actions of the U.S. Department of 5.23 Disclaimer. regulations at DOT: Transportation (the Department or (a) There should be no more Subpart C—Guidance Procedures DOT), including each of its operating regulations than necessary. In 5.25 General. administrations (OAs) and all considering whether to propose a new 5.27 Review and clearance by Chief components of the Office of Secretary of regulation, policy makers should Counsels and the Office of the General Transportation (OST). consider whether the specific problem Counsel. (b) For purposes of this part, to be addressed requires agency action, 5.29 Requirements for clearance. Administrative Procedure Act (APA) is whether existing rules (including 5.31 Public access to effective guidance the Federal statute, codified in scattered documents. standards incorporated by reference) sections of chapters 5 and 7 of title 5, have created or contributed to the 5.33 Good faith cost estimates. United States Code, that governs 5.35 Approved procedures for guidance problem and should be revised or documents identified as ‘‘significant’’ or procedures for agency rulemaking and eliminated, and whether any other ‘‘otherwise of importance to the adjudication and provides for judicial reasonable alternatives exist that obviate Department’s interests.’’ review of final agency actions. the need for a new regulation. 5.37 Definitions of ‘‘significant guidance (b) All regulations must be supported Subpart B—Rulemaking Procedures document’’ and guidance documents that by statutory authority and consistent are ‘‘otherwise of importance to the § 5.3 General. with the Constitution. Department’s interests.’’ (c) Where they rest on scientific, 5.39 Designation procedures. (a) This subpart governs all DOT 5.41 Notice-and-comment procedures. employees and contractors involved technical, economic, or other 5.43 Petitions for guidance with all phases of rulemaking at DOT. specialized factual information, 5.45 Rescinded guidance. (b) Unless otherwise required by regulations should be supported by the 5.47 Exigent circumstances. statute, this subpart applies to all DOT best available evidence and data. 5.49 Reports to Congress and GAO. regulations, which shall include all (d) Regulations should be written in 5.51 No judicial review or enforceable rules of general applicability plain English, should be rights. promulgated by any components of the straightforward, and should be clear. Subpart D—Enforcement Procedures Department that affect the rights or (e) Regulations should be technologically neutral, and, to the 5.53 General. obligations of persons outside the 5.55 Enforcement attorney responsibilities. Department, including substantive extent feasible, they should specify 5.57 Definitions. rules, rules of interpretation, and rules performance objectives, rather than 5.59 Enforcement policy generally. prescribing agency procedures and prescribing specific conduct that 5.61 Investigative functions. practice requirements applicable to regulated entities must adopt. 5.63 Clear legal foundation. outside parties. (f) Regulations should be designed to 5.65 Proper exercise of prosecutorial and (c) Except as provided in paragraph minimize burdens and reduce barriers enforcement discretion. (d) of this section, this subpart applies to market entry whenever possible, 5.67 Duty to review for legal sufficiency. consistent with the effective promotion 5.69 Fair notice. to all regulatory actions intended to lead to the promulgation of a rule and any of safety. Where they impose burdens, 5.71 Separation of functions. regulations should be narrowly tailored 5.73 Avoiding bias. other generally applicable agency 5.75 Formal enforcement adjudications. directives, circulars, or pronouncements to address identified market failures or 5.77 Informal enforcement adjudications. concerning matters within the specific statutory mandates. 5.79 The hearing record. jurisdiction of an OA or component of (g) Unless required by law or 5.81 Contacts with the public. OST that are intended to have the force compelling safety need, regulations 5.83 Duty to disclose exculpatory evidence. or effect of law or that are required by should not be issued unless their 5.85 Use of guidance documents in statute to satisfy the rulemaking benefits are expected to exceed their administrative enforcement cases. costs. For each new significant 5.87 Alternative Dispute Resolution (ADR). procedures specified in 5 U.S.C. 553 or 5 U.S.C. 556. regulation issued, agencies must 5.89 Duty to adjudicate proceedings identify at least two existing regulatory promptly. (d) This subpart does not apply to: 5.91 Agency decisions. (1) Any rulemaking in which a notice burdens to be revoked. 5.93 Settlements. of proposed rulemaking was issued (h) Once issued, regulations and other 5.95 OGC approval required for certain before December 20, 2018, and which agency actions should be reviewed settlement terms. was still in progress on that date; periodically and revised to ensure that 5.97 Basis for civil penalties and (2) Regulations issued with respect to they continue to meet the needs they disclosures thereof. a military or foreign affairs function of were designed to address and remain 5.99 Publication of decisions. the United States; cost-effective and cost-justified. 5.101 Coordination with the Office of (3) Rules addressed solely to internal (i) Full public participation should be Inspector General on criminal matters. agency management or personnel encouraged in rulemaking actions, 5.103 Standard operating procedures. primarily through written comment and 5.105 Cooperative Information Sharing. matters; 5.107 Small Business Regulatory (4) Regulations related to Federal engagement in public meetings. Public Enforcement Fairness Act (SBREFA). Government procurement; or participation in the rulemaking process 5.109 Referral of matters for judicial (5) Guidance documents, which are should be conducted and documented, enforcement. not intended to, and do not in fact, have as appropriate, to ensure that the public 5.111 No third-party rights or benefits. the force or effect of law for parties is given adequate knowledge of

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substantive information relied upon in General Counsel (OGC); oversees the recommendations for regulatory and the rulemaking process. process for DOT rulemakings; provides deregulatory action, and presents (j) The process for issuing a rule legal advice on compliance with APA recommendations to the Leadership should be sensitive to the economic and other administrative law Council. impact of the rule; thus, the requirements and executive orders, (2) The Leadership Council reviews promulgation of rules that are expected related OMB directives, and other the Working Group’s recommendations to impose greater economic costs should procedures for rulemaking and guidance and advises the Secretary. be accompanied by additional documents; circulates regulatory (c) Membership. (1) The Leadership procedural protections and avenues for documents for departmental review and Council comprises the following: public participation. seeks concurrence from reviewing (i) The Regulatory Reform Officer officials; submits regulatory documents (RRO), who serves as Chair; § 5.7 Responsibilities. to the Secretary for approval before (ii) The Department’s Regulatory (a) The Secretary of Transportation issuance or submission to OMB; Policy Officer, designated under section supervises the overall planning, coordinates with the Office of 6(a)(2) of E.O. 12866; direction, and control of the Information and Regulatory Affairs (iii) A representative from the Office Department’s Regulatory Agenda; (OIRA) within OMB on the designation of the Under Secretary of Transportation approves regulatory documents for and review of regulatory documents and for Policy; issuance and submission to the Office of the preparation of the Unified Agenda of (iv) At least three additional senior Management and Budget (OMB) under Regulatory and Deregulatory Actions; agency officials as determined by the Executive Order (E.O.) 12866, publishes the monthly internet report Secretary. ‘‘Regulatory Planning and Review’’ (Oct. on significant rulemakings; and serves (2) The Working Group comprises the 4, 1993); identifies an approximate as a member of the RRTF Working following: regulatory budget for each fiscal year as Group. (i) At least one senior agency official required by E.O. 13771, ‘‘Reducing (g) Pursuant to delegations from the from the Office of the General Counsel, Regulation and Controlling Regulatory Secretary under part 1 of this title, OA including at a minimum the Assistant Costs’’ (Jan. 30, 2017); establishes the Administrators and Secretarial officers General Counsel for Regulation, as Department’s Regulatory Reform Task exercise the Secretary’s rulemaking determined by the RRO; Force (RRTF); and designates the authority under 49 U.S.C. 322(a), and (ii) At least one senior agency official members of the RRTF and the they have responsibility for ensuring from the Office of the Under Secretary Department’s Regulatory Reform Officer that the regulatory data included in the of Transportation for Policy, as (RRO) in accordance with E.O. 13777, Regulatory Management System (RMS), determined by the RRO; ‘‘Enforcing the Regulatory Reform or a successor data management system, (iii) Other senior agency officials from Agenda’’ (Feb. 24, 2017). for their OAs and OST components is the Office of the Secretary, as (b) The Deputy Secretary of accurate and is updated at least once a determined by the RRO. Transportation assists the Secretary in month. (d) Functions and responsibilities. In overseeing overall planning, direction, (h) OA Chief Counsels supervise the addition to the functions and and control of the Department’s legal staffs of the OAs; interpret and responsibilities enumerated in E.O. Regulatory Agenda and approves the provide guidance on all statutes, 13777, the RRTF performs the following initiation of regulatory action, as regulations, executive orders, and other duties: defined in E.O. 12866, by the OAs and legal requirements governing the (1) Reviews each request for a new components of OST. Unless otherwise operation and authorities of their rulemaking action initiated by an OA or designated by the Secretary, the Deputy respective OAs; and review all OST component; and Secretary serves as the Chair of the rulemaking documents for legal (2) Considers each regulation and Leadership Council of the RRTF and as sufficiency. regulatory policy question (which may the Department’s RRO. (i) Each OA or OST component include proposed guidance documents) (c) The General Counsel of DOT is the responsible for rulemaking will have a referred to it and makes a chief legal officer of the Department Regulatory Quality Officer, designated recommendation to the Secretary for its with final authority on all questions of by the Administrator or Secretarial disposition. law for the Department, including the office head, who will have (e) Support. The Office of Regulation OAs and components of OST; serves on responsibility for reviewing all within OGC provides support to the the Leadership Council of the RRTF; rulemaking documents for plain RRTF. and serves as the Department’s language, technical soundness, and (f) Meetings. The Leadership Council Regulatory Policy Officer pursuant to general quality. meets approximately monthly and will section 6(a)(2) of E.O. 12866. hold specially scheduled meetings (d) The RRO of DOT is delegated § 5.9 Regulatory Reform Task Force. when necessary to address particular authority by the Secretary to oversee the (a) Purpose. The Regulatory Reform regulatory matters. The Working Group implementation of the Department’s Task Force (RRTF) evaluates proposed meets approximately monthly with each regulatory reform initiatives and and existing regulations and makes OA and each component of OST with policies to ensure the effective recommendations to the Secretary regulatory authority, and the Working implementation of regulatory reforms, regarding their promulgation, repeal, Group may establish subcommittees, as consistent with E.O. 13777 and replacement, or modification, consistent appropriate, to focus on specific applicable law. with applicable law, E.O. 13777, E.O. regulatory matters. (e) DOT’s noncareer Deputy General 13771, and E.O. 12866. (g) Agenda. The Office of Regulation Counsel is a member of the RRTF and (b) Structure. The RRTF comprises a prepares an agenda for each meeting serves as the Chair of the RRTF Working Leadership Council and a Working and distributes it to the members in Group. Group. advance of the meeting, together with (f) DOT’s Assistant General Counsel (1) The Working Group coordinates any documents to be discussed at the for Regulation supervises the Office of with leadership in the Secretarial offices meeting. The OA or OST component Regulation within the Office of the and OAs, reviews and develops responsible for matters on the agenda

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will be invited to attend to respond to Initiation Request, then the Request is reviewed and cleared by the Office of questions. referred to the Leadership Council for the Secretary. (h) Minutes. The Office of Regulation consideration. In lieu of consideration at (ii) The FAA Administrator may prepares summary minutes following a Leadership Council meeting, the promulgate emergency rules pursuant to each meeting and distributes them to Working Group, at its discretion, may 49 U.S.C. 106(f)(3)(B)(ii) and 49 U.S.C. the meeting’s attendees. submit a memorandum to the RRO 46105(c), without prior approval from seeking approval of the Rulemaking OST; provided that, to the maximum § 5.11 Initiating a rulemaking. Initiation Request. extent practicable and consistent with (a) Before an OA or component of (f) The OA or OST component may law, the FAA Administrator will give OST may proceed to develop a assign a Regulatory Information Number OST advance notice of such emergency regulation, the Administrator of the OA (RIN) to the rulemaking only upon the rules and will allow OST to review the or the Secretarial officer who heads the Leadership Council’s (or RRO’s) rules in accordance with the provisions OST component must consider the approval of the Rulemaking Initiation of this subpart at the earliest regulatory philosophy and principles of Request. opportunity after they are promulgated. regulation identified in section 1 of E.O. (g) The Secretary may initiate a (2) Leadership within the proposing 12866 and the policies set forth in § 5.5 rulemaking on his or her own motion. OA or component of OST shall: of this subpart. If the OA Administrator The process for initiating a rulemaking (i) Ensure that the OA’s or OST or OST component head determines that as described herein may be waived or component’s Regulatory Quality Officer rulemaking is warranted consistent with modified for any rule with the approval reviews all rulemaking documents for those policies and principles, the of the RRO. Unless otherwise plain language, technical soundness, Administrator or component head may determined by the RRO, the and general quality; (ii) Ensure that the OA’s Office of prepare a Rulemaking Initiation Administrator of the Federal Aviation Chief Counsel (or for OST rules, the Request. Administration (FAA) may promulgate Office within OGC responsible for (b) The Rulemaking Initiation Request an emergency rule under 49 U.S.C. providing programmatic advice) reviews should specifically state or describe: 106(f)(3)(B)(ii) or 49 U.S.C. 46105(c), all rulemaking documents for legal (1) A proposed title for the without first submitting a Rulemaking support and legal sufficiency; and rulemaking; Initiation Request. (2) The need for the regulation, (iii) Approve the submission of all (h) Rulemaking Initiation Requests including a description of the market rulemaking documents, including any will be considered on a rolling basis; failure or statutory mandate accompanying analyses (e.g., regulatory however, the Office of Regulation will necessitating the rulemaking; impact analysis), to the Office of (3) The legal authority for the establish deadlines for submission of Regulation through the Regulatory rulemaking; Rulemaking Initiation Requests so that Management System (RMS), or a (4) Whether the rulemaking is new rulemakings may be included in successor data management system, for expected to be regulatory or the Unified Agenda of Regulatory and OST review and clearance. deregulatory; Deregulatory Actions. (3) To effectuate departmental review (5) Whether the rulemaking is § 5.13 General rulemaking procedures. under this subpart, the following expected to be significant or Secretarial offices ordinarily review and (a) Definitions—(1) Significant nonsignificant, as defined by E.O. approve DOT rulemakings: The Office of rulemaking means a regulatory action 12866; the Under Secretary for Policy, the designated by OIRA under E.O. 12866 as (6) Whether the final rule in question Office of Public Affairs, the Office of likely to result in a rule that may: is expected to be an economically Budget and Programs and Chief significant rule or high-impact rule, as (i) Have an annual effect on the U.S. Financial Officer, OGC, and the Office defined in § 5.17(a) of this subpart; economy of $100 million or more or of Governmental Affairs. The Office of (7) A description of the economic adversely affect in a material way the Regulation may also require review and impact associated with the rulemaking, economy, a sector of the economy, clearance by other Secretarial offices including whether the rulemaking is productivity, competition, jobs, the and OAs depending on the nature of the likely to impose quantifiable costs or environment, public health or safety, or particular rulemaking document. cost savings; State, local, or tribal governments or (4) Reviewing offices should provide (8) The tentative target dates for communities; comments or otherwise concur on completing each stage of the (ii) Create a serious inconsistency or rulemaking documents within 7 rulemaking; and otherwise interfere with an action taken calendar days, unless exceptional (9) Whether there is a statutory or or planned by another agency; circumstances apply that require judicial deadline, or some other (iii) Materially alter the budgetary expedited review. urgency, associated with the impact of entitlements, grants, user fees, (5) The Office of Regulation provides rulemaking. or loan programs or the rights and a passback of comments to the (c) The OA or OST component obligations of recipients thereof; or proposing OA or OST component for submits the Rulemaking Initiation (iv) Raise novel legal or policy issues resolution. Comments should be Request to the Office of Regulation, arising out of legal mandates, the resolved and a revised draft submitted together with any other documents that President’s priorities, or the principles to the Office of Regulation by the OA or may assist in the RRTF’s consideration set forth in E.O. 12866. OST component within 14 calendar of the request. (2) Nonsignificant rulemaking means days. (d) The Office of Regulation includes a regulatory action not designated (6) The Office of Regulation prepares the Rulemaking Initiation Request on significant by OIRA. a rulemaking package for the General the agenda for consideration at the OA’s (b) Departmental review process. (1) Counsel to request the Secretary’s or OST component’s next Working OST review and clearance. approval for the rulemaking to be Group meeting. (i) Except as provided herein or as submitted to OMB for review (for (e) If the Working Group recommends otherwise provided in writing by OGC, significant rulemakings) or to the the approval of the Rulemaking all departmental rulemakings are to be Federal Register for publication (for

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nonsignificant rulemakings). These Floor, Room W12–140, 1200 New Jersey or cost-justified in accordance with rulemaking packages are submitted Avenue SE, Washington, DC 20590; § 5.5(h); through the General Counsel to the (B) Describe the nature of the request (ii) Regulatory flexibility: Whether the Office of the Executive Secretariat. and set forth the text or substance of the regulation has a significant economic (7) The Office of Regulation notifies rule or specify the rule that the impact on a substantial number of small the proposing OA or OST component petitioner seeks to have issued, entities and, thus, requires review under when the Secretary approves or amended, exempted, repealed, or 5 U.S.C. 610 (section 610 of the disapproves the submission of the retrospectively reviewed, as the case Regulatory Flexibility Act); rulemaking to OMB or to the Federal may be; (iii) Innovation: Whether there are Register. (C) Explain the interest of the new or emerging technologies, (8) The Office of Regulation is petitioner in the action requested, especially those that could achieve responsible for coordination with OIRA including, in the case of a petition for current levels of safety at the same or staff on the designation of all an exemption, the nature and extent of lower levels of cost or achieve higher rulemaking documents, submission and the relief sought and a description of the levels of safety, use of which is clearance of all significant rulemaking persons to be covered by the exemption; precluded or limited by the regulation. documents, and all discussions or (D) Contain any information and (iv) General updates: Whether the meetings with OMB concerning these arguments available to the petitioner to regulation may require technical documents. OAs and OST components support the action sought; and corrections, updates (e.g., updated should not schedule their own meetings (E) In the case of a petition for versions of voluntary consensus with OIRA without Office of Regulation exemption, unless good cause is shown standards), revisions, or repeal; involvement. Each OA or OST in that petition, be submitted at least 60 (v) Plain language: Whether the component should coordinate with the days before the proposed effective date regulation requires revisions for plain Office of Regulation before holding any of the exemption. language; and (vi) Other considerations as required discussions with OIRA concerning (ii) Processing. Each petition received regulatory policy or requests to modify by relevant executive orders and laws. under this paragraph (c) is referred to (3) The results of each OA’s or OST regulatory documents. the head of the office responsible for the (c) Petitions for rulemaking, component’s review will be reported subject matter of that petition, the Office annually to the public. exemption, and retrospective review. (1) of Regulation, and the RRO. No public Any person may petition an OA or OST (4) Any member of the public may hearing, argument, or other proceeding petition the Department to conduct a component with rulemaking authority must necessarily be held directly on a to: retrospective review of a regulation by petition for its disposition under this filing a petition in accordance with the (i) Issue, amend, or repeal a rule; section. (ii) Issue an exemption, either procedures contained in paragraph (c) of (iii) Grants. If the OA or component permanently or temporarily, from any this section. of OST with regulatory responsibility requirements of a rule; or (e) Supporting economic analysis. (1) (iii) Perform a retrospective review of over the matter described in the petition Rulemakings shall include, at a an existing rule. determines that the petition contains minimum: (2) When an OA or OST component adequate justification, it may request the (i) An assessment of the potential receives a petition under this paragraph initiation of a rulemaking action under costs and benefits of the regulatory (c), the petition should be filed with the § 5.11 or grant the petition, as action (which may entail a regulatory Docket Clerk in a timely manner. If a appropriate. impact analysis) or a reasoned petition is filed directly with the Docket (iv) Denials. If the OA or component determination that the expected impact Clerk, the Docket Clerk will submit the of OST determines that the petition is is so minimal or the safety need so petition in a timely manner to the OA not justified, the OA or component of significant and urgent that a formal or component of OST with regulatory OST denies the petition in coordination analysis of costs and benefits is not responsibility over the matter described with the Office of Regulation. warranted; and in the petition. (v) Notification. Whenever the OA or (ii) If the regulatory action is expected (3) The OA or component of OST OST component determines that a to impose costs, either a reasoned should provide clear instructions on its petition should be granted or denied, determination that the benefits website to members of the public and after consultation with the Office of outweigh the costs or, if the particular regarding how to submit petitions, Regulation in the case of denial, the rulemaking is mandated by statute or including, but not limited to, an email office concerned prepares a notice of compelling safety need notwithstanding address or Web portal where petitions that grant or denial for issuance to the a negative cost-benefit assessment, a can be submitted, a mailing address petitioner, and issues it to the detailed discussion of the rationale where hard copy requests can be petitioner. supporting the specific regulatory action submitted, and an office responsible for (d) Review of existing regulations. (1) proposed and an explanation of why a coordinating such requests. All departmental regulations are on a less costly alternative is not an option. (4) Unless otherwise provided by 10-year review cycle, except (2) To the extent practicable, statute or in OA regulations or economically significant and high- economic assessments shall quantify the procedures, the following procedures impact rules, which are reviewed every foreseeable annual economic costs and apply to the processing of petitions for 5 years in accordance with § 5.17(f) of cost savings within the United States rulemaking, exemption, or retrospective this subpart. that would likely result from issuance of review: (2) The OA or OST component that the proposed rule and shall be (i) Contents. Each petition filed under issued the regulation will review it for conducted in accordance with the this section must: the following: requirements of sections 6(a)(2)(B) and (A) Be submitted, either by paper (i) Continued cost justification: 6(a)(2)(C) of E.O. 12866 and OMB submission or electronically, to the U.S. Whether the regulation requires Circular A–4, as specified by OIRA in Department of Transportation, Docket adjustment due to changed market consultation with the Office of Operations, West Building Ground conditions or is no longer cost-effective Regulation. If the proposing OA or OST

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component has estimated that the (NPRM) in the Federal Register, unless (ix) All other statements and analyses proposed rule will likely impose a controlling statute provides otherwise required by law, including, without economic costs on persons outside the or unless the RRTF (in consultation limitation, the Regulatory Flexibility United States, such costs should be with OIRA, as appropriate) determines Act (5 U.S.C. 601–612) or any reported separately. that an NPRM is not necessary under amendment thereto. (3) Deregulatory rulemakings established exceptions. (3) Information access and quality. (i) (including nonsignificant rulemakings) (2) Contents. The NPRM shall To inform public comment when the shall be evaluated for quantifiable cost include, at a minimum: NPRM is published, the proposing OA savings. If it is determined that (i) A statement of the time and place or OST component shall place in the quantification of cost savings is not for submission of public comments and docket for the proposed rule and make possible or appropriate, then the the time, place, and nature of related accessible to the public, including by proposing OA or OST component shall public rulemaking proceedings, if any; electronic means, all material provide a detailed justification for the (ii) Reference to the legal authority information relied upon by the OA or lack of quantification upon submission under which the rule is proposed; OST component in considering the of the rulemaking to the Office of (iii) The terms of the proposed rule; proposed rule, unless public disclosure Regulation. Other nonsignificant (iv) A description of information of the information is prohibited by law rulemakings shall include, at a known to the proposing OA or OST or the information would be exempt minimum, the economic cost-benefit component on the subject and issues of from disclosure under 5 U.S.C. 552(b). the proposed rule, including but not analysis described in paragraph (e)(1) of Material provided electronically should limited to: this section. be made available in accordance with (A) A summary of material (f) Regulatory flexibility analysis. All the requirements of 29 U.S.C. 794d information known to the OA or OST rulemakings subject to the requirements (section 508 of the Rehabilitation Act of component concerning the proposed of 5 U.S.C. 603–604 (sections 603–604 1973, as amended). rule and the considerations specified in of the Regulatory Flexibility Act), and (ii) If the proposed rule rests upon § 5.11(a) of this subpart; any amendment thereto, shall include a scientific, technical, or economic (B) A summary of any preliminary information, the proposing OA or OST detailed statement setting forth the risk assessment or regulatory impact required analysis regarding the potential component shall base the proposal on analysis performed by the OA or OST the best and most relevant scientific, impact of the rule on small business component; and entities. technical, and economic information (C) Information specifically reasonably available to the Department (g) Advance notices of proposed identifying all material data, studies, and shall identify the sources and rulemaking. Whenever the OA or OST models, available voluntary consensus availability of such information in the component responsible for a proposed standards and conformity assessment rulemaking is required to publish an NPRM. requirements, and other evidence or (iii) A single copy of any relevant advance notice of proposed rulemaking information considered or used by the (ANPRM) in the Federal Register, or copyrighted material (including OA or OST component in connection consensus standards and other relevant whenever the RRTF determines it with its determination to propose the appropriate to publish an ANPRM, the scientific or technical information) rule; should be placed in the docket for ANPRM shall: (v) A reasoned preliminary analysis of public review if such material was (1) Include a written statement the need for the proposed rule based on relied on as a basis for the rulemaking. identifying, at a minimum: the information described in the (i) Public comment. (1) Following (i) The nature and significance of the preamble to the NPRM, and an publication of an NPRM, the problem the OA or OST component may additional statement of whether a rule is Department will provide interested address with a rule; required by statute; (ii) The legal authority under which a (vi) A reasoned preliminary analysis persons a fair and sufficient opportunity rule may be proposed; and indicating that the expected economic to participate in the rulemaking through (iii) Any preliminary information benefits of the proposed rule will meet submission of written data, analysis, available to the OA or OST component the relevant statutory objectives and views, and recommendations. (2) The Department, in coordination that may support one or another will outweigh the estimated costs of the with OIRA for significant rulemakings, potential approach to addressing the proposed rule in accordance with any identified problem; applicable statutory requirements; will ensure that the public is given an (2) Solicit written data, analysis, (vii) If the rulemaking is significant, a adequate period for comment, taking views, and recommendations from summary discussion of: into account the scope and nature of the interested persons concerning the (A) The alternatives to the proposed issues and considerations involved in information and issues addressed in the rule considered by the OA or OST the proposed regulatory action. ANPRM; and component; (3) Generally, absent special (3) Provide for a reasonably sufficient (B) The relative costs and benefits of considerations, the comment period for period for public comment. those alternatives; nonsignificant DOT rules should be at (h) Notices of proposed rulemaking— (C) Whether the alternatives would least 30 days, and the comment period (1) When required. Before determining meet relevant statutory objectives; and for significant DOT rules should be at to propose a rule, and following (D) Why the OA or OST component least 45 days. completion of the ANPRM process chose not to propose or pursue the (4) Any person may petition the under paragraph (g) of this section, if alternatives; responsible OA or OST component for applicable, the responsible OA or OST (viii) A statement of whether existing an extension of time to submit component shall consult with the RRTF rules have created or contributed to the comments in response to a notice of concerning the need for the potential problem the OA or OST component proposed rulemaking. Petitions must be rule. If the RRTF thereafter determines seeks to address with the proposed rule, received no later than 3 days before the it appropriate to propose a rule, the and, if so, whether or not the OA or OST expiration of the time stated in the proposing OA or OST component shall component proposes to amend or notice. The filing of the petition does publish a notice of proposed rulemaking rescind any such rules and why; and not automatically extend the time for

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comments. The OA or OST component only after consultation with the RRTF. (4) Effective dates for final rules must may grant the petition only if the The final rule, which shall include the adhere to the following: petitioner shows a substantive interest text of the rule as adopted along with a (i) Unless required to address a safety in the proposed rule and good cause for supporting preamble, shall be published emergency or otherwise required by the extension, or if the extension is in the Federal Register and shall satisfy law, approved by the RRTF (or RRO), or otherwise in the public interest. If an the following requirements: approved by the Director of OMB (as extension is granted, it is granted as to (1) The preamble to the final rule appropriate), no regulation may be all persons and published in the Federal shall include: issued by an OA or component of OST Register. (i) A concise, general statement of the if it was not included on the most recent (5) All timely comments are rule’s basis and purpose, including clear version or update of the published considered before final action is taken reference to the legal authority Unified Agenda. on a rulemaking proposal. Late-filed supporting the rule; (ii) No significant regulatory action comments may be considered so far as (ii) A reasoned, concluding may take effect until it has appeared in possible without incurring additional determination by the adopting OA or either the Unified Agenda or the expense or delay. OST component regarding each of the monthly internet report of significant (j) Exemptions from notice and considerations required to be addressed rulemakings for at least 6 months prior comment. (1) Except when prior notice in an NPRM under paragraphs (h)(2)(v) to its issuance, unless good cause exists and an opportunity for public comment through (ix) of this section; for an earlier effective date or the action are required by statute or determined by (iii) A response to each significant is otherwise approved by the RRTF (or the Secretary to be advisable for policy issue raised in the comments to the RRO). or programmatic reasons, the proposed rule; (iii) Absent good cause, major rules responsible OA or OST component may, (iv) If the final rule has changed in (as defined by the Congressional Review subject to the approval of the RRTF (in significant respects from the rule as Act, 5 U.S.C. 801–808) cannot take consultation with OIRA, as appropriate), proposed in the NPRM, an explanation effect until 60 days after publication in publish certain final rules in the Federal of the changes and the reasons why the the Federal Register or submission to Register without prior notice and changes are needed or are more Congress, whichever is later. Nonmajor comment. These may include: appropriate to advance the objectives rules cannot take effect any sooner than (i) Rules of interpretation and rules identified in the rulemaking; and submission to Congress. addressing only DOT organization, (v) A reasoned, final determination (l) Direct final rules. (1) Rules that the procedure, or practice, provided such that the information upon which the OA OA or OST component determines to be rules do not alter substantive obligations or OST component bases the rule noncontroversial and unlikely to result for parties outside the Department; complies with the Information Quality in adverse public comment may be (ii) Rules for which notice and Act (section 515 of Pub. L. 106–554— published as direct final rules. These comment is unnecessary to inform the Appendix C, 114 Stat. 2763A–153–54 include noncontroversial rules that: rulemaking, such as rules correcting de (2001)), or any subsequent amendment (i) Affect internal procedures of the minimis technical or clerical errors or thereto. Department, such as filing requirements rules addressing other minor and (2) If the rule rests on scientific, and rules governing inspection and insubstantial matters, provided the technical, economic, or other copying of documents, reasons to forgo public comment are specialized factual information, the OA (ii) Are nonsubstantive clarifications explained in the preamble to the final or OST component shall base the final or corrections to existing rules, rule; and rule on the best and most relevant (iii) Update existing forms, (iii) Rules that require finalization evidence and data known to the (iv) Make minor changes in the without delay, such as rules to address Department and shall ensure that such substantive rules regarding statistics and an urgent safety or national security information is clearly identified in the reporting requirements, need, and other rules for which it would preamble to the final rule and is (v) Make changes to the rules be impracticable or contrary to public available to the public in the rulemaking implementing the Privacy Act, or policy to accommodate a period of record, subject to reasonable protections (vi) Adopt technical standards set by public comment, provided the for information exempt from disclosure outside organizations. responsible OA or OST component under 5 U.S.C. 552(b). If the OA or OST (2) The Federal Register document makes findings that good cause exists to component intends to support the final will state that any adverse comment forgo public comment and explains rule with specialized factual must be received in writing by the OA those findings in the preamble to the information identified after the close of or OST component within the specified final rule. the comment period, the OA or OST time after the date of publication and (2) Except when required by statute, component shall allow an additional that, if no written adverse comment is issuing substantive DOT rules without opportunity for public comment on received, the rule will become effective completing notice and comment, such information. a specified number of days after the date including as interim final rules (IFRs) (3) All final rules issued by the of publication. and direct final rules (DFRs), must be Department: (3) If no written adverse comment is the exception. IFRs and DFRs are not (i) Shall be written in plain and received by the OA or OST component favored. DFRs must follow the understandable English; within the original or extended procedures in paragraph (l) of this (ii) Shall be based on a reasonable and comment period, the OA or OST section. In most cases where an OA or well-founded interpretation of relevant component will publish a notice in the OST component has issued an IFR, the statutory text and shall not depend Federal Register indicating that no RRTF will expect the OA or OST upon a strained or unduly broad reading adverse comment was received and component to proceed at the earliest of statutory authority; and confirming that the rule will become opportunity to replace the IFR with a (iii) Shall not be inconsistent or effective on the date that was indicated final rule. incompatible with, or unnecessarily in the direct final rule. (k) Final rules. The responsible OA or duplicative of, other Federal (4) If the OA or OST component OST component shall adopt a final rule regulations. receives any written adverse comment

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within the specified time of publication develop a proposed rule. The same requirements set forth in § 5.13, an in the Federal Register, the OA or OST person may serve as both convener and NPRM for an economically significant component may proceed as follows: facilitator. rule or a high-impact rule shall include (i) Publish a document withdrawing (4) All charters, membership a discussion explaining an achievable the direct final rule in the rules and appointments, and Federal Register objective for the rule and the metrics by regulations section of the Federal notices must be approved by the which the OA or OST component will Register and, if the OA or OST Secretary. Any operating procedures measure progress toward that objective. component decides a rulemaking is (e.g., bylaws) for negotiated rulemaking (2) Absent unusual circumstances and warranted, a proposed rule; or committees must be approved by OGC. unless approved by the RRTF (in (ii) Any other means permitted under consultation with OIRA, as appropriate), the Administrative Procedure Act. (5) § 5.15 Unified Agenda of Regulatory and the comment period for an economically An ‘‘adverse’’ comment for the purpose Deregulatory Actions (Unified Agenda). significant rule shall be at least 60 days of this subpart means any comment that (a) Fall editions of the Unified Agenda and for a high-impact rule at least 90 the OA or OST component determines include the Regulatory Plan, which days. If a rule is determined to be an is critical of the rule, suggests that the presents the Department’s statement of economically significant rule or high- rule should not be adopted or suggests regulatory priorities for the coming year. impact rule after the publication of the a material change that should be made Fall editions also include the outcome NPRM, the responsible OA or OST in the rule. A comment suggesting that and status of the Department’s reviews component shall publish a notice in the the policy or requirements of the rule of existing regulations, conducted in Federal Register that informs the public should or should not also be extended accordance with § 5.13(d). of the change in classification and to other Departmental programs outside (b) The OAs and components of OST discusses the achievable objective for the scope of the rule is not adverse. A with rulemaking authority must: the rule and the metrics by which the notice of intent to submit an adverse (1) Carefully consider the principles OA or OST component will measure comment is not, in and of itself, an contained in E.O. 13771, E.O. 13777, progress toward that objective, and shall adverse comment. and E.O. 12866 in the preparation of all extend or reopen the comment period (m) Reports to Congress and GAO. For submissions for the Unified Agenda; by not less than 30 days and allow each final rule adopted by DOT, the (2) Ensure that all data pertaining to further public comment as appropriate, responsible OA or OST component shall the OA’s or OST component’s regulatory including comment on the change in submit the reports to Congress and the and deregulatory actions are accurately classification. U.S. Government Accountability Office reflected in the Department’s Unified (d) Procedures for formal hearings— to comply with the procedures specified Agenda submission; and (1) Petitions for hearings. Following (3) Timely submit all data to the by 5 U.S.C. 801 (the Congressional publication of an NPRM for an Office of Regulation in accordance with Review Act), or any subsequent economically significant rule or a high- the deadlines and procedures amendment thereto. impact rule, and before the close of the (n) Negotiated rulemakings. (1) DOT communicated by that office. comment period, any interested party negotiated rulemakings are to be § 5.17 Special procedures for may file in the rulemaking docket a conducted in accordance with the economically significant and high-impact petition asking the proposing OA or Negotiated Rulemaking Act, 5 U.S.C. rulemakings. OST component to hold a formal 561–571, and the Federal Advisory (a) Definitions—(1) Economically hearing on the proposed rule in Committee Act, 5 U.S.C. App. 2, as significant rule means a significant rule accordance with this subsection. applicable. likely to impose: (2) Mandatory hearing for high-impact (2) Before initiating a negotiated (i) A total annual cost on the U.S. rule. In the case of a proposed high- rulemaking process, the OA or OST economy (without regard to estimated impact rule, the responsible OA or OST component should: benefits) of $100 million or more, or component shall grant the petition for a (i) Assess whether using negotiated (ii) A total net loss of at least 75,000 formal hearing if the petition makes a rulemaking procedures for the proposed full-time jobs in the U.S. over the five plausible prima facie showing that: rule in question is in the public interest, years following the effective date of the (i) The proposed rule depends on in accordance with 5 U.S.C. 563(a), and rule (not counting any jobs relating to conclusions concerning one or more present these findings to the RRTF; new regulatory compliance). specific scientific, technical, economic, (ii) Consult with the Office of (2) High-impact rule means a or other complex factual issues that are Regulation on the appropriateness of significant rule likely to impose: genuinely in dispute or that may not negotiated rulemaking and the (i) A total annual cost on the U.S. satisfy the requirements of the procedures therefor; and economy (without regard to estimated Information Quality Act; (iii) Receive the approval of the RRTF benefits) of $500 million or more, or (ii) The ordinary public comment for the use of negotiated rulemaking. (ii) A total net loss of at least 250,000 process is unlikely to provide the OA or (3) Unless otherwise approved by the full-time jobs in the U.S. over the five OST component an adequate General Counsel, all DOT negotiated years following the effective date of the examination of the issues to permit a rulemakings should involve the rule (not counting any jobs relating to fully informed judgment on the dispute; assistance of a convener and a new regulatory compliance). and facilitator, as provided in the Negotiated (b) ANPRM required. Unless directed (iii) The resolution of the disputed Rulemaking Act. A convener is a person otherwise by the RRTF or otherwise factual issues would likely have a who impartially assists the agency in required by law, in the case of a material effect on the costs and benefits determining whether establishment of a rulemaking for an economically of the proposed rule or on whether the negotiated rulemaking committee is significant rule or a high-impact rule, proposed rule would achieve the feasible and appropriate in a particular the proposing OA or OST component statutory purpose. rulemaking. A facilitator is a person shall publish an ANPRM in the Federal (3) Authority to deny hearing for who impartially aids in the discussions Register. economically significant rule. In the and negotiations among members of a (c) Additional requirements for case of a proposed economically negotiated rulemaking committee to NPRM. (1) In addition to the significant rule, the responsible OA or

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OST component may deny a petition for which the OA or OST component for measuring progress toward that a formal hearing that includes the proposes to base the rule. objective; and showing described in paragraph (d)(2) of (iv) Interested parties who have (ii) In accordance with paragraph this section but only if the OA or OST participated in the hearing shall be (d)(7)(iii) of this section, the OA’s or component reasonably determines that: given an opportunity to file statements OST component’s responses to and (i) The requested hearing would not of agreement or objection in response to analysis of the record of any formal advance the consideration of the the hearing officer’s report, and the hearing held under paragraph (d) of this proposed rule and the OA’s or OST complete record of the proceeding shall section. component’s ability to make the be made part of the rulemaking record. (2) Absent exceptional circumstances rulemaking determinations required (7) Actions following hearing. (i) and unless approved by the RRTF or under this subpart; or Following completion of the formal Secretary (in consultation with OIRA, as (ii) The hearing would unreasonably hearing process, the responsible OA or appropriate), the OA or OST component delay completion of the rulemaking in OST component shall consider the shall adopt as a final economically light of a compelling safety need or an record of the hearing and, subject to the significant rule or final high-impact rule express statutory mandate for prompt approval of the RRTF (in consultation the least costly regulatory alternative regulatory action. with OIRA, as appropriate), shall make that achieves the relevant objectives. (4) Denial of petition. If the OA or a reasoned determination whether: (f) Additional requirements for OST component denies a petition for a (A) To terminate the rulemaking; retrospective reviews. For each formal hearing under this subsection in (B) To proceed with the rulemaking as economically significant rule or high- whole or in part, the OA or OST proposed; or impact rule, the responsible OA or OST component shall include a detailed (C) To modify the proposed rule. component shall publish a regulatory explanation of the factual basis for the (ii) If the decision is made to impact report in the Federal Register denial in the rulemaking record, terminate the rulemaking, the OA or every 5 years after the effective date of including findings on each of the the rule while the rule remains in effect. relevant factors identified in paragraph OST component shall publish a notice in the Federal Register announcing the The regulatory impact report shall (d)(2) or (3) of this section. The denial include, at a minimum: of a good faith petition for a formal decision and explaining the reasons therefor. (1) An assessment of the impacts, hearing under this section shall be including any costs, of the rule on disfavored. (iii) If the decision is made to finalize the proposed rule without material regulated entities; (5) Notice and scope of hearing. If the (2) A determination about how the OA or OST component grants a petition modifications, the OA or OST component shall explain the reasons for actual costs and benefits of the rule have for a formal hearing under this section, varied from those anticipated at the time the OA or OST component shall publish its decision and its responses to the hearing record in the preamble to the the rule was issued; and notification of the hearing in the (3) An assessment of the effectiveness final rule, in accordance with paragraph Federal Register not less than 45 days and benefits of the rule in producing the (e) of this section. before the date of the hearing. The regulatory objectives it was adopted to (iv) If the decision is made to modify document shall specify the proposed achieve. rule at issue and the specific factual the proposed rule in material respects, (g) Waiver and modification. The issues to be considered in the hearing. the OA or OST component shall, subject procedures required by this section may The scope of the hearing shall be to the approval of the RRTF (in be waived or modified as necessary with limited to the factual issues specified in consultation with OIRA, as appropriate), the approval of the RRO or the the notice. publish a new or supplemental NPRM Secretary. (6) Hearing process. (i) A formal in the Federal Register explaining the hearing for purposes of this section shall OA’s or OST component’s responses to § 5.19 Public contacts in informal be conducted using procedures and analysis of the hearing record, rulemaking. borrowed from 5 U.S.C. 556 and 5 setting forth the modifications to the (a) Agency contacts with the public U.S.C. 557, or similar procedures as proposed rule, and providing an during informal rulemakings conducted approved by the Secretary, and additional reasonable opportunity for in accordance with 5 U.S.C. 553. (1) interested parties shall have a public comment on the proposed DOT personnel may have meetings or reasonable opportunity to participate in modified rule. other contacts with interested members the hearing through the presentation of (8) Relationship to interagency of the public concerning an informal testimony and written submissions. process. The formal hearing procedures rulemaking under 5 U.S.C. 553 or (ii) The OA or OST component shall under this subsection shall not impede similar procedures at any stage of the arrange for an administrative judge or or interfere with OIRA’s interagency rulemaking process, provided the other neutral administrative hearing review process for the proposed substance of material information officer to preside over the hearing and rulemaking. submitted by the public that DOT relies shall provide a reasonable opportunity (e) Additional requirements for final on in proposing or finalizing the rule is for cross-examination of witnesses at the rules. (1) In addition to the requirements adequately disclosed and described in hearing. set forth in § 5.13(k), the preamble to a the public rulemaking docket such that (iii) After the formal hearing and final economically significant rule or a all interested parties have notice of the before the record of the hearing is final high-impact rule shall include: information and an opportunity to closed, the presiding hearing officer (i) A discussion explaining the OA’s comment on its accuracy and relevance. shall render a report containing findings or OST component’s reasoned final (2) After the issuance of the NPRM and conclusions addressing the determination that the rule as adopted and pending completion of the final disputed issues of fact identified in the is necessary to achieve the objective rule, DOT personnel should avoid hearing notice and specifically advising identified in the NPRM in light of the giving persons outside the Executive on the accuracy and sufficiency of the full administrative record and does not Branch information regarding the factual information in the record deviate from the metrics previously rulemaking that is not available relating to those disputed issues on identified by the OA or OST component generally to the public.

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(3) If DOT receives an unusually large (4) Following the OIRA meeting, the rulemaking procedures specified in 5 number of requests for meetings with attendee(s) from the issuing OA or OST U.S.C. 553 or 5 U.S.C. 556. The term is interested members of the public during component will draft a summary report not confined to formal written the comment period for a proposed rule of the meeting and submit it to the documents; guidance may come in a or after the close of the comment period, Office of Regulation for review. After variety of forms, including (but not the issuing OA or component of OST the report is reviewed and finalized in limited to) letters, memoranda, should consider whether there is a need coordination with the Office of circulars, bulletins, advisories, and may to extend or reopen the comment Regulation, the responsible OA or OST include video, audio, and Web-based period, to allow for submission of a component will place the final report in formats. See OMB Bulletin 07–02, second round of ‘‘reply comments,’’ or the rulemaking docket. ‘‘Agency Good Guidance Practices,’’ to hold a public meeting on the (January 25, 2007) (‘‘OMB Good proposed rule. § 5.21 Policy updates and revisions. Guidance Bulletin’’). (4) If the issuing OA or OST This subpart shall be reviewed from (d) This subpart does not apply to: component meets with interested time to time to reflect improvements in (1) Rules exempt from rulemaking persons on the rulemaking after the the rulemaking process or changes in requirements under 5 U.S.C. 553(a); close of the comment period, it should Administration policy. (2) Rules of agency organization, be open to giving other interested procedure, or practice; § 5.23 Disclaimer. persons a similar opportunity to meet. (3) Decisions of agency adjudications (5) If DOT learns of significant new This subpart is intended to improve under 5 U.S.C. 554 or similar statutory information, such as new studies or the internal management of the provisions; data, after the close of the comment Department. It is not intended to, and (4) Internal executive branch legal period that the issuing OA or OST does not, create any right or benefit, advice or legal advisory opinions component wishes to rely upon in substantive or procedural, enforceable at addressed to executive branch officials; finalizing the rule, the OA or OST law or in equity by any party against the (5) Agency statements of specific component should reopen the comment United States, its agencies or other applicability, including advisory or period to give the public an opportunity entities, officers or employees, or any legal opinions directed to particular to comment on the new information. If other person. In addition, this subpart parties about circumstance-specific the new information is likely to result shall not be construed to create any questions (e.g., case or investigatory in a change to the rule that is not within right to judicial review involving the letters responding to complaints, the scope of the NPRM, the OA or OST compliance or noncompliance with this warning letters), notices regarding component should consider issuing a subpart by the Department, its OAs or particular locations or facilities (e.g., Supplemental NPRM to ensure that the OST components, its 8 officers or guidance pertaining to the use, final rule represents a logical outgrowth employees, or any other person. operation, or control of a government of DOT’s proposal. facility or property), and (b) Contacts during OIRA review. (1) Subpart C—Guidance Procedures correspondence with individual persons E.O. 12866 and E.O. 13563 lay out the or entities (e.g., congressional procedures for review of significant § 5.25 General. (a) This subpart governs all DOT correspondence), except documents regulations by OIRA, which include a ostensibly directed to a particular party process for members of the public to employees and contractors involved with all phases of issuing DOT guidance but designed to guide the conduct of the request meetings with OIRA regarding broader regulated public; rules under OIRA review. Per E.O. documents. (b) Subject to the qualifications and (6) Legal briefs, other court filings, or 12866, OIRA invites the Department to positions taken in litigation or attend these meetings. The Office of exemptions contained in this subpart and in appendix A to the Memorandum enforcement actions; Regulation will forward these (7) Agency statements that do not set on the Review and Clearance of invitations to the appropriate regulatory forth a policy on a statutory, regulatory, Guidance Documents (available online contact in the OA or component of OST or technical issue or an interpretation of at the website of the Office of the responsible for issuing the regulation. a statute or regulation, including (2) If the issuing OA or OST General Counsel’s Office of speeches and individual presentations, component wishes to attend the OIRA- Regulation 1), these procedures apply to editorials, media interviews, press sponsored meeting or if its participation all guidance documents issued by all materials, or congressional testimony is determined to be necessary by the components of the Department after that do not set forth for the first time a Office of Regulation, the regulatory December 20, 2018. new regulatory policy; (c) For purposes of this subpart, the contact should identify to the Office of (8) Guidance pertaining to military or term guidance document includes any Regulation up to two individuals from foreign affairs functions; statement of agency policy or the OA or OST component who will (9) Grant solicitations and awards; interpretation concerning a statute, attend the meeting along with a (10) Contract solicitations and awards; regulation, or technical matter within representative from the Office of or Regulation. Attendance at these the jurisdiction of the agency that is (11) Purely internal agency policies or meetings can be by phone or in person. intended to have general applicability guidance directed solely to DOT These OIRA meetings are generally and future effect, but which is not employees or contractors or to other listening sessions for DOT. intended to have the force or effect of Federal agencies that are not intended to (3) The attending DOT personnel law in its own right and is not otherwise have substantial future effect on the should refrain from debating particular required by statute to satisfy the behavior of regulated parties. points regarding the rulemaking and should avoid disclosing the contents of 8 § 5.27 Review and clearance by Chief a document or proposed regulatory 1 See Appendix A to ‘‘Memorandum on the Counsels and the Office of the General Review and Clearance of Guidance Documents,’’ Counsel. action that has not yet been disclosed to available at https://www.transportation.gov/sites/ the public, but may answer questions of dot.gov/files/docs/regulations/328566/gen-counsel- All DOT guidance documents, as fact regarding a public document. mem-guidance-documents-signed-122018.pdf. defined in § 5.25(c), require review and

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clearance in accordance with this § 5.31 Public access to effective guidance should conduct and publish a subpart. documents. Regulatory Impact Analysis of the sort (a) Guidance proposed to be issued by Each OA and component of OST that would accompany an economically an OA of the Department must be responsible for issuing guidance significant rulemaking, to the extent reviewed and cleared by the OA’s Office documents shall: reasonably possible. of Chief Counsel. In addition, as (a) Ensure all effective guidance documents, identified by a unique § 5.35 Approved procedures for guidance provided elsewhere in this subpart, documents identified as ‘‘significant’’ or some OA guidance documents will identifier which includes, at a ‘‘otherwise of importance to the require review and clearance by OGC. minimum, the document’s title and date Department’s interests.’’ of issuance or revision and its Z–RIN, if (b) Guidance proposed to be issued by (a) For guidance proposed to be applicable, are on its website in a single, a component of OST must be reviewed issued by an OA, if there is a reasonable searchable, indexed database, and and cleared by OGC. possibility the guidance may be available to the public in accordance considered ‘‘significant’’ or ‘‘otherwise § 5.29 Requirements for clearance. with 49 CFR 7.12(a)(2); of importance to the Department’s (b) Note on its website that guidance DOT’s review and clearance of interests’’ within the meaning of § 5.37 documents lack the force and effect of or if the OA is uncertain whether the guidance shall ensure that each law, except as authorized by law or as guidance document proposed to be guidance may qualify as such, the OA incorporated into a contract; should email a copy of the proposed issued by an OA or component of OST (c) Maintain and advertise on its satisfies the following requirements: guidance document (or a summary of it) website a means for the public to to the Office of Regulation for review (a) The guidance document complies comment electronically on any guidance and further direction before issuance. with all relevant statutes and regulation documents that are subject to the notice- Unless exempt under appendix A to the (including any statutory deadlines for and-comment procedures described in Memorandum on the Review and agency action); § 5.39 and to submit requests Clearance of Guidance Documents,3 (b) The guidance document identifies electronically for issuance, each proposed DOT guidance document or includes: reconsideration, modification, or determined to be significant or (1) The term ‘‘guidance’’ or its rescission of guidance documents in otherwise of importance to the functional equivalent; accordance with § 5.41; and Department’s interests must be (d) Designate an office to receive and (2) The issuing OA or component of approved by the Secretary before address complaints from the public that OST; issuance. In such instances, the Office of the OA or OST component is not Regulation will request that the (3) A unique identifier, including, at following the requirements of OMB’s a minimum, the date of issuance and proposing OA or component of OST Good Guidance Bulletin or is obtain a Z–RIN for departmental review title of the document and its Z–RIN, if improperly treating a guidance applicable; and clearance through the Regulatory document as a binding requirement. Management System (RMS), or a (4) The activity or entities to which successor data management system, and the guidance applies; § 5.33 Good faith cost estimates. Even though not legally binding, some OGC will coordinate submission of the (5) Citations to applicable statutes and agency guidance may result in a proposed guidance document to the regulations; substantial economic impact. For Secretary for approval. (b) As with significant regulations, (6) A statement noting whether the example, the issuance of agency OGC will submit significant DOT guidance is intended to revise or replace guidance may induce private parties to guidance documents to OMB for any previously issued guidance and, if alter their conduct to conform to coordinated review. In addition, OGC so, sufficient information to identify the recommended standards or practices, may determine that it is appropriate to previously issued guidance; and thereby incurring costs beyond the costs coordinate with OMB in the review of (7) A short summary of the subject of complying with existing statutes and guidance documents that are otherwise matter covered in the guidance regulations. While it may be difficult to of importance to the Department’s document at the top of the document. predict with precision the economic interests. (c) The guidance document avoids impact of voluntary guidance, the (c) If the guidance document is using mandatory language, such as proposing OA or component of OST determined not to be either significant ‘‘shall,’’ ‘‘must,’’ ‘‘required,’’ or shall, to the extent practicable, make a or otherwise of importance to the ‘‘requirement,’’ unless the language is good faith effort to estimate the likely Department’s interests within the describing an established statutory or economic cost impact of the guidance meaning of § 5.37, the Office of regulatory requirement or is addressed document to determine whether the Regulation will advise the proposing to DOT staff and will not foreclose the document might be significant. When an OA or component of OST to proceed Department’s consideration of positions OA or OST component is assessing or with issuance of the guidance either advanced by affected private parties; explaining whether it believes a through the Office of the Executive (d) The guidance document is written guidance document is significant, it Secretariat (for Federal Register notices) in plain and understandable English; should, at a minimum, provide the same or through its standard clearance level of analysis that would be required process. For each guidance document (e) All guidance documents include a for a major determination under the clear and prominent statement declaring coordinated through the Office of the Congressional Review Act.2 When an that the contents of the document do not Executive Secretariat, the issuing OA or agency determines that a guidance component of OST should include a have the force and effect of law and are document will be economically not meant to bind the public in any significant, the OA or OST component way, and the document is intended only 3 See Appendix A to ‘‘Memorandum on the Review and Clearance of Guidance Documents,’’ to provide clarity to the public regarding 2 See OMB Memorandum M–19–14, Guidance on available at https://www.transportation.gov/sites/ existing requirements under the law or Compliance with the Congressional Review Act dot.gov/files/docs/regulations/328566/gen-counsel- agency policies. (April 11, 2019). mem-guidance-documents-signed-122018.pdf.

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statement in the action memorandum Committees of Congress, States or as appropriate, on its website, either indicating that the guidance document Indian tribes, the White House or other before or when the guidance document has been reviewed and cleared in departments of the Executive Branch, is finalized and issued. accordance with this process. courts, consumer or public interest (b) The requirements of paragraph (a) groups, or leading representatives of of this section will not apply to any § 5.37 Definitions of ‘‘significant guidance industry. document’’ and guidance documents that significant guidance document or are ‘‘otherwise of importance to the § 5.39 Designation procedures. categories of significant guidance documents for which OGC finds, in Department’s interests.’’ (a) The Office of Regulation may (a) The term ‘‘significant guidance consultation with OIRA, the proposing request an OA or OST component to OA or component of OST, and the document’’ means a guidance document prepare a designation request for certain that will be disseminated to regulated Secretary, good cause that notice and guidance documents. Designation public procedure thereon are entities or the general public and that requests must include the following may reasonably be anticipated: impracticable, unnecessary, or contrary information: to the public interest (and incorporates (1) To lead to an annual effect on the (1) A summary of the guidance the finding of good cause and a brief economy of $100 million or more or document; and adversely affect in a material way the (2) The OA or OST component’s statement of reasons therefor in the U.S. economy, a sector of the U.S. recommended designation of ‘‘not guidance issued). Unless OGC advises economy, productivity, competition, significant,’’ ‘‘significant,’’ or otherwise in writing, the categories of jobs, the environment, public health or guidance documents listed in appendix ‘‘economically significant,’’ as well as a 5 safety, or State, local, or tribal justification for that designation. A will be exempt from the governments or communities; (b) Except as otherwise provided in requirements of paragraph (a) of this (2) To create serious inconsistency or paragraph (c) of this section, the Office section. otherwise interfere with an action taken of Regulation will seek significance (c) Where appropriate, OGC or the or planned by another Federal agency; determinations from OIRA for certain proposing OA or component of OST (3) To alter materially the budgetary guidance documents, as appropriate, in may recommend to the Secretary that a impact of entitlements, grants, user fees, the same manner as for rulemakings. particular guidance document that is or loan programs or the rights and Prior to publishing these guidance otherwise of importance to the obligations of recipients thereof; or documents, and with sufficient time to Department’s interests shall also be (4) To raise novel legal or policy allow OIRA to review the document in subject to the informal notice-and- issues arising out of legal mandates, the the event that a significance comment procedures described in President’s priorities, or the principles determination is made, the Office of paragraph (a) of this section. set forth in E.O. 12866, as further Regulation should provide OIRA with § 5.43 Petitions for guidance. amended. an opportunity to review the (b) The term ‘‘significant guidance designation request or the guidance Any person may petition an OA or document’’ does not include the document, if requested, to determine if OST component to withdraw or modify categories of documents excluded by it meets the definition of ‘‘significant’’ a particular guidance document by § 5.25(b) or any other category of or ‘‘economically significant’’ under using the procedures found in § 5.13(c). guidance documents exempted in Executive Order 13891. The OA or OST component should writing by OGC in consultation with (c) Unless they present novel issues, respond to all requests in a timely OMB’s Office of Information and significant risks, interagency manner, but no later than 90 days after Regulatory Affairs (OIRA). considerations, unusual circumstances, receipt of the request. (c) Significant and economically or other unique issues, the categories of § 5.45 Rescinded guidance. significant guidance documents must be guidance documents found in appendix reviewed by OIRA under E.O. 12866 A 4 do not require designation by OIRA. No OA or component of OST may before issuance; and and must cite, use, or rely on guidance documents demonstrate compliance with the § 5.41 Notice-and-comment procedures. that are rescinded, except to establish applicable requirements for regulations (a) Except as provided in paragraph historical facts. (b) of this section, all proposed DOT or rules, including significant regulatory § 5.47 Exigent circumstances. actions, set forth in E.O. 12866, E.O. guidance documents determined to be a 13563, E.O. 13609, E.O. 13771, and E.O. ‘‘significant guidance document’’ within In emergency situations or when the 13777. the meaning of § 5.37 shall be subject to issuing OA or component of OST is (d) Even if not ‘‘significant,’’ a the following informal notice-and- required by statutory deadline or court guidance document will be considered comment procedures. The issuing OA or order to act more quickly than normal ‘‘otherwise of importance to the component of OST shall publish a review procedures allow, the issuing Department’s interests’’ within the notice in the Federal Register OA or component of OST shall meaning of this paragraph if it may announcing that a draft of the proposed coordinate with OGC to notify OIRA as reasonably be anticipated: guidance document is publicly soon as possible and, to the extent (1) To relate to a major program, available, shall post the draft guidance practicable, shall comply with the policy, or activity of the Department or document on its website, shall invite requirements of this subpart at the a high-profile issue pending for decision public comment on the draft document earliest opportunity. Wherever before the Department; for a minimum of 30 days, and shall practicable, the issuing OA or (2) To involve one of the Secretary’s prepare and post a public response to component of OST should schedule its top policy priorities; major concerns raised in the comments, proceedings to permit sufficient time to (3) To garner significant press or congressional attention; or 4 See Appendix A to ‘‘Memorandum on the 5 See Appendix A to ‘‘Memorandum on the Review and Clearance of Guidance Documents,’’ Review and Clearance of Guidance Documents,’’ (4) To raise significant questions or available at https://www.transportation.gov/sites/ available at https://www.transportation.gov/sites/ concerns from constituencies of dot.gov/files/docs/regulations/328566/gen-counsel- dot.gov/files/docs/regulations/328566/gen-counsel- importance to the Department, such as mem-guidance-documents-signed-122018.pdf. mem-guidance-documents-signed-122018.pdf.

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comply with the procedures set forth in direction and supervision of the General Enforcement action means an action this subpart. Counsel. taken by the Department upon its own initiative or at the request of an affected § 5.49 Reports to Congress and GAO. § 5.57 Definitions. party in furtherance of its statutory Unless otherwise determined in Administrative enforcement authority and responsibility to execute writing by OGC, it is the policy of the proceeding is to be interpreted broadly, and ensure compliance with applicable Department that upon issuing a consistent with applicable law and laws. Such actions include guidance document determined to be regulations, and includes, but is not administrative enforcement ‘‘significant’’ within the meaning of limited to, administrative civil penalty proceedings, enforcement adjudications, § 5.37, the issuing OA or component of proceedings; proceedings involving and judicial enforcement proceedings. OST will submit a report to Congress potential cease-and-desist or corrective Enforcement adjudication is the and GAO in accordance with the action orders; preemption proceedings; administrative process undertaken by procedures described in 5 U.S.C. 801 safety rating appeals; pilot and the agency to resolve the legal rights and (the ‘‘Congressional Review Act’’). mechanic revocation proceedings; grant obligations of specific parties with suspensions, terminations, or other regard to a particular enforcement issue § 5.51 No judicial review or enforceable actions to remedy violations of grant pending before an agency. The outcome rights. conditions; and similar enforcement- of an enforcement adjudication is a This subpart is intended to improve related proceedings. formal or informal decision issued by an the internal management of the Administrative law judges (ALJs) are appropriate decision maker. Department of Transportation. As such, adjudicatory hearing officers appointed Enforcement adjudications require the it is for the use of DOT personnel only by a department head to serve as triers opportunity for participation by directly and is not intended to, and does not, of fact in formal and informal affected parties and the right to present create any right or benefit, substantive administrative proceedings and to issue a response to a decision maker, or procedural, enforceable at law or in recommended decisions in including relevant evidence and equity by any party against the United adjudications. At DOT, ALJs are to be reasoned arguments. States, its agencies or other entities, its appointed by the Secretary of Formal enforcement adjudication officers or employees, or any other Transportation and assigned to the means an adjudication required by person. Office of Hearings. statute to be conducted ‘‘on the record.’’ Adversarial personnel are those The words ‘‘on the record’’ generally Subpart D—Enforcement Procedures persons who represent a party refer to a decision issued by an agency (including the agency) or a position or § 5.53 General. after a proceeding conducted before an interest at issue in an enforcement ALJ (or the agency head sitting as judge The requirements set forth in this action taken or proposed to be taken by or other presiding employee who is not subpart apply to all enforcement actions or for an agency. They include the an ALJ) using trial-type procedures. It is taken by each DOT operating agency’s employees who investigate, usually the agency’s enabling act, not administration (OA) and each prosecute, or advocate on behalf of the the APA, that determines whether a component of the Office of the Secretary agency in connection with the formal hearing is required. of Transportation (OST) with enforcement action. Informal enforcement adjudication enforcement authority. Decisional personnel are employees of means an adjudication that is not the agency responsible for issuing required to be conducted ‘‘on the § 5.55 Enforcement attorney decisions arising out of the agency’s responsibilities. record’’ with trial-like procedures. The enforcement actions, which include APA provides agencies with a All attorneys of OST and the OAs formal or informal enforcement substantial degree of flexibility in involved in enforcement activities are adjudications. These employees include establishing practices and procedures responsible for carrying out and ALJs, hearing officers, Administrative for the conduct of informal adhering to the policies set forth in this Judges (AJs), and agency employees who adjudications. subpart. All supervising attorneys with advise and assist such decision makers. Investigators, inspectors, and special responsibility over enforcement Due process means procedural rights agents refer to those agency employees adjudications, administrative and protections afforded by the or agents responsible for the enforcement proceedings, and other Government to affected parties to investigation and review of an affected enforcement actions are accountable for provide for a fair process in the party’s compliance with the regulations the successful implementation of these enforcement of legal obligations, and other legal requirements policies and for reviewing and including in connection with agency administered by the agency. monitoring compliance with this actions determining a violation of law, Judicial enforcement proceeding subpart by the employees under their assessing a civil penalty, requiring a means a proceeding conducted in an supervision. These responsibilities party to take corrective action or to Article III court, in which the include taking all steps necessary to cease and desist from conduct, or Department is seeking to enforce an ensure that the Department provides a otherwise depriving a party of a applicable statute, regulation, or order. fair and impartial process at each stage property or liberty interest. Due process Procedural regulations are agency of enforcement actions. The Office of always includes two essential elements regulations setting forth the procedures Litigation and Enforcement within the for a party subject to an agency to be followed during adjudications Office of the General Counsel (OGC) is enforcement action: adequate notice of consistent with the agency’s enabling delegated authority to interpret this the proposed agency enforcement action act, the APA, and other applicable laws. subpart and provide guidance on and a meaningful opportunity to be compliance with the policies contained heard by the agency decision maker. § 5.59 Enforcement policy generally. herein. The Office of Litigation and Enabling act means the Federal It is the policy of the Department to Enforcement shall exercise this statute that defines the scope of an provide affected parties appropriate due authority in coordination with the Chief agency’s authority and authorizes it to process in all enforcement actions. In Counsels of the OAs and subject to the undertake an enforcement action. the course of such actions and

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proceedings, the Department’s conduct § 5.63 Clear legal foundation. authorities.6 If, in the opinion of the must be fair and free of bias and should All DOT enforcement actions against responsible agency component or its conclude with a well-documented counsel, the evidence is sufficient to affected parties seeking redress for decision as to violations alleged and any support the assertion of violation(s), asserted violations of a statute or violations found to have been then the agency may proceed with the committed, the penalties or corrective regulation must be founded on a grant enforcement action. If the evidence is actions to be imposed for such of statutory authority in the relevant not sufficient to support the proposed violations, and the steps needed to enabling act. The authority to prosecute enforcement action, the agency may ensure future compliance. It is in the the asserted violation and the authority modify or amend the charges and bring public interest and fundamental to good to impose monetary penalties, if sought, an enforcement action in line with the government that the Department carry must be clear in the text of the statute. evidence or return the case to the out its enforcement responsibilities in a Unless the terms of the relevant statute enforcement staff for additional fair and just manner. No person should or regulation with government-wide investigation. The reviewing attorney or be subject to an administrative applicability, such as 2 CFR part 180, agency component may also recommend enforcement action or adjudication clearly and expressly authorize the OA the closure of the case for lack of absent prior public notice of both the or component of OST to enforce the sufficient evidence.7 The Department enforcing agency’s jurisdiction over relevant legal requirement directly will not initiate enforcement actions as particular conduct and the legal through an administrative enforcement a ‘‘fishing expedition’’ to find potential standards applicable to that conduct. proceeding, the proper forum for the violations of law in the absence of The Department should, where feasible, enforcement action is Federal court, and sufficient evidence in hand to support foster greater private-sector cooperation the enforcement action must be initiated the assertion of a violation. in enforcement, promote information in court by attorneys of the Department § 5.69 Fair notice. sharing with the private sector, and of Justice acting in coordination with Notice to the regulated party is a due establish predictable outcomes for DOT counsel. private conduct. process requirement. All documents § 5.65 Proper exercise of prosecutorial initiating an enforcement action shall § 5.61 Investigative functions. and enforcement discretion. ensure notice reasonably calculated to DOT’s investigative powers must be inform the regulated party of the nature used in a manner consistent with due The Department’s attorneys and and basis for the action being taken to process, basic fairness, and respect for policy makers have broad discretion in allow an opportunity to challenge the individual liberty and private property. deciding whether to initiate an action and to avoid unfair surprise. The Congress has granted the Secretary (and enforcement action. Nevertheless, in notice should include legal authorities, by delegation from the Secretary to the exercising discretion to initiate an statutes or regulations allegedly OAs) and the FAA Administrator broad enforcement action and in the pursuit of violated, basic issues, key facts alleged, investigative powers, and it is an that action, agency counsel must not a clear statement of the grounds for the essential part of DOT’s safety and adopt or rely upon overly broad or agency’s action, and a reference to or consumer protection mission to unduly expansive interpretations of the recitation of the procedural rights investigate compliance with the statutes governing statutes or regulations, and available to the party to challenge the and regulations administered by the should ensure that the law is interpreted agency action, including appropriate Department, including through periodic and applied according to its text. DOT procedure for seeking administrative inspections. The OAs and components will not rely on judge-made rules of and judicial review. of OST with enforcement authority are judicial discretion, such as the Chevron appropriately given broad discretion in doctrine, as a device or excuse for § 5.71 Separation of functions. determining whether and how to straining the limits of a statutory grant For those OAs or OST components conduct investigations, periodic of enforcement authority. All decisions whose regulations provide for a inspections, and other compliance by DOT to prosecute or not to prosecute separation of decisional personnel from reviews, and these investigative an enforcement action should be based adversarial personnel in an functions are often performed by agency upon a reasonable interpretation of the 6 investigators or inspectors in the field. law about which the public has received Though it may not always be feasible or The employees and contractors of DOT necessary for agency personnel to consult with fair notice and should be made with due counsel before initiating an enforcement action, responsible for inspections and other regard for fairness, the facts and particularly since the OAs utilize a variety of investigative functions must not use evidence adduced through an enforcement personnel to staff their enforcement these authorities as a game of ‘‘gotcha’’ appropriate investigation or compliance programs, including personnel located in the fields, with regulated entities and should agency personnel should ensure that the basis for review, the availability of scarce an enforcement action is legally sufficient before follow existing statutes and regulations. resources, the administrative needs of initiating it. Rather, to the maximum extent the responsible OA or OST component, 7 Attorneys at many of the OAs issue Notices of consistent with protecting the integrity Administration policy, and the Probable Violations, Notice of Claims, or Demand of the investigation, the representatives Letters to initiate enforcement proceedings. At other importance of the issues involved to the of DOT should promptly disclose to the OAs, these documents are issued by non-attorney fulfillment of the Department’s statutory program officials. The duty to review applies affected parties the reasons for the responsibilities. equally to all agency attorneys whether deciding to investigative review and any issue a document to initiate enforcement compliance issues identified or findings § 5.67 Duty to review for legal sufficiency. proceedings or to continue to prosecute based upon made in the course of the review. The a document previously issued by a non-attorney In accordance with established agency program official. In the latter situation, it is responsible enforcement attorneys important that attorneys provide legal input, within the relevant OA or component of procedures, enforcement actions should training, and review of the work product of the OST shall provide effective legal be reviewed by the responsible agency program office. At all times, DOT attorneys are guidance to investigators and inspectors component for legal sufficiency under encouraged to exercise their best professional applicable statutes and regulations, judgment in deciding to initiate, continue, or to ensure adherence to the policies and recommend closing a case, consistent with procedures set forth herein. judicial decisions, and other appropriate applicable legal and ethical standards.

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administrative enforcement proceeding, any), adequate notice and an identify themselves as employees of the any agency personnel who have taken opportunity to be heard on the matter Department, including the OA or an active part in investigating, under review, either through an oral component of OST in which they work; prosecuting, or advocating in the presentation or through a written they should properly show official enforcement action should not serve as submission. Except in cases of a safety identification if the contact is made in a decision maker and should not advise emergency or when the clear text of the person; and they should clearly state the or assist the decision maker in that same relevant enabling act or government- nature of their business and the reasons or a related case. In such proceedings, wide regulation, such as 2 CFR part 180, for the contact. All contacts by DOT the agency’s adversarial personnel expressly authorizes exigent personnel with the public shall be should not furnish ex parte advice or enforcement action without a prior professional, fair, honest, direct, and factual materials to decisional hearing, the responsible OA or consistent with all applicable ethical personnel. When and as necessary, component of OST shall give the standards. agency employees involved in regulated entity appropriate advance enforcement actions should consult notice of the proposed enforcement § 5.83 Duty to disclose exculpatory evidence. legal counsel and applicable regulations action and shall advise the entity of the and ethical standards for further opportunity for an informal hearing in It is the Department’s policy that each guidance on these requirements. a manner and sufficiently in advance responsible OA or component of OST that the entity’s representatives have a will voluntarily follow in its civil § 5.73 Avoiding bias. fair opportunity to prepare for and to enforcement actions the principle Consistent with all applicable laws participate in the hearing, whether in articulated in Brady v. Maryland, 8 in and ethical standards relating to person or by writing. The notice should which the Supreme Court held that the recusals and disqualifications, no be in plain language and, when Due Process Clause of the Fifth Federal employee or contractor may appropriate, contain basic information Amendment requires disclosure of participate in a DOT enforcement action about the applicable adjudicatory exculpatory evidence ‘‘material to guilt in any capacity, including as ALJ, process. In all informal adjudications, or punishment’’ known to the adjudication counsel, adversarial the responsible OA or component of government but unknown to the personnel, or decisional personnel, if OST shall adhere faithfully and defendant in criminal cases. Adopting that person has: consistently to the procedures the ‘‘Brady rule’’ and making affirmative (a) A financial or other personal established in any applicable procedural disclosures of exculpatory evidence in interest that would be affected by the regulations. all enforcement actions will contribute outcome of the enforcement action; to the Department’s goal of open and (b) Personal animus against a party to § 5.79 The hearing record. fair investigations and administrative the action or against a group to which In formal hearings, the agency shall enforcement proceedings. This policy a party belongs; comply with the APA and shall include requires the agency’s adversarial (c) Prejudgment of the adjudicative in the record of the hearing the personnel to disclose materially facts at issue in the proceeding; or testimony, exhibits, papers, and exculpatory evidence in the agency’s (d) Any other prohibited conflict of requests that are filed by parties to the possession to the representatives of the interest. hearing, in addition to the ALJ’s or regulated entity whose conduct is the hearing officer’s decision or the decision subject of the enforcement action. These § 5.75 Formal enforcement adjudications. on appeal. For informal hearings, the affirmative disclosures should include When a case is referred by the record shall include the information any material evidence known to the decision maker to the Office of Hearings that the agency considered ‘‘at the time Department’s adversarial personnel that or another designated hearing officer for it reached the decision’’ and its may be favorable to the regulated entity formal adjudication (an ‘‘on the record’’ contemporaneous findings. The in the enforcement action—including hearing), the assigned ALJ or hearing administrative record does not include evidence that tends to negate or officer should use trial-type procedures privileged documents, such as attorney- diminish the party’s responsibility for a consistent with applicable legal client communications or deliberative violation or that could be relied upon to provisions. In formal adjudication, the or draft documents. Agencies are reduce the potential fine or other APA requires findings and reasons on encouraged to make the record available penalties. The regulated entity need not all material issues of fact, law, or to all interested parties to the fullest request such favorable information; it discretion (policy). In all formal extent allowed by law, consistent with should be disclosed as a matter of adjudications, the responsible OA or appropriate protections for the handling course. Agency counsel should component of OST shall adhere of confidential information. recommend appropriate remedies to faithfully and consistently to the DOT decision makers where a Brady § 5.81 Contacts with the public. procedures established in the relevant rule violation has occurred, using the procedural regulations. Agency counsel After the initiation of an enforcement factors identified by courts when engaged in formal adjudications on proceeding, communications between applying the Brady rule in the criminal behalf of DOT are accountable for persons outside the agency and agency context. compliance with the requirements of decisional personnel should occur on this subpart. the record. Consistent with applicable § 5.85 Use of guidance documents in regulations and procedures, if oral, administrative enforcement cases. § 5.77 Informal enforcement adjudications. written, or electronic ex parte Guidance documents cannot create Even though informal adjudications communications occur, they should be binding requirements that do not do not require trial-type procedures, the placed on the record as soon as already exist by statute or regulation. responsible OA or component of OST practicable. Notice should be given to Accordingly, the Department may not should ordinarily afford the applicant or the parties that such communications use its enforcement authority to convert the regulated entity that is the subject of are being placed into the record. When agency guidance documents into the adjudication (as the case may be), as performing departmental functions, all well as other directly affected parties (if DOT employees should properly 8 Brady v. Maryland, 373 U.S. 83 (1963).

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binding rules. Likewise, enforcement agreement, consent order, or consent ‘‘available for public inspection and attorneys may not use noncompliance decree should be used to adopt or copying.’’ Agencies are strongly with guidance documents as a basis for impose new regulatory obligations for encouraged to publish all formal proving violations of applicable law. entities that are not parties to the decisions on Westlaw, Lexis, or similar Guidance documents can do no more, settlement. Unless required by law, legal services. with respect to prohibition of conduct, settlement agreements are not than articulate the agency or confidential and are subject to public § 5.101 Coordination with the Office of Department’s understanding of how a disclosure. Inspector General on criminal matters. statute or regulation applies to § 5.95 OGC approval required for certain All Department employees must particular circumstances. The comply with the operative DOT Order(s) Department may cite a guidance settlement terms. addressing referrals of potential document to convey this understanding Whenever a proposed settlement criminal matters to the Office of in an administrative enforcement action agreement, consent order, or consent or adjudication only if it has notified the decree would impose behavioral Inspector General (OIG), consistent with public of such document in advance commitments or obligations on a the respective roles of the OIG and DOT through publication in the Federal regulated entity that go beyond the OAs and components of OST in Register or on the Department’s website. requirements of relevant statutes and criminal investigations and the OIG’s Additional procedures related to regulations, including the appointment investigative procedures under the guidance documents are contained in of an independent monitor or the Inspector General Act of 1978, as part 5, subpart C, of this chapter. imposition of novel, unprecedented, or amended. extraordinary obligations, the § 5.87 Alternative Dispute Resolution responsible OA or OST component § 5.103 Standard operating procedures. (ADR). should obtain the approval of OGC All legal offices that participate in or The OAs and the components of OST before finalizing the settlement with enforcement authority are render advice in connection with agreement, consent order, or consent enforcement actions should, to the encouraged to use ADR to resolve decree. enforcement cases where appropriate. extent practicable, operate under The Department’s ADR policy describes § 5.97 Basis for civil penalties and standard operating procedures. Such a variety of problem-solving processes disclosures thereof. offices include, but are not limited to, that can be used in lieu of litigation or No civil penalties will be sought in those that oversee investigatory matters other adversarial proceedings to resolve any DOT enforcement action except and serve as adversarial personnel in disputes over compliance. when and as supported by clear the agency’s enforcement matters. These statutory authority and sufficient standard operating procedures, which § 5.89 Duty to adjudicate proceedings can be contained in manuals, can be promptly. findings of fact. Where applicable statutes vest the agency with discretion used to outline step-by-step Agency attorneys should promptly with regard to the amount or type of requirements for attorney actions in the initiate proceedings or prosecute penalty sought or imposed, the penalty investigative stage and the prosecution matters referred to them. In addition, should reflect due regard for fairness, stage; the role of an attorney as cases should not be allowed to linger the scale of the violation, the violator’s counselor, adjudicator, or litigator; the unduly after the adjudicatory process knowledge and intent, and any rulemaking process; and the process for has begun. Attorneys should seek to mitigating factors (such as whether the settle matters where possible or refer the issuance of guidance documents, letters case to a decision maker for proper violator is a small business). The of interpretation, preemption decisions, disposition when settlement assessment of proposed or final legislative guidance, contract negotiations have reached an impasse. penalties in a DOT enforcement action administration, and a variety of other shall be communicated in writing to the legal functions performed in the legal § 5.91 Agency decisions. subject of the action, along with a full office. Each DOT OA and each OST Agency counsel may be used in the explanation of the basis for the component that conducts administrative conduct of informal hearings and to calculation of asserted penalties. In inspections shall operate under those prepare initial recommended decisions addition, the agency shall voluntarily procedures governing such inspections for the agency decision maker. The share penalty calculation worksheets, and shall adopt such administrative agency must notify the directly affected manuals, charts, or other appropriate inspection procedures if they do not parties of its decision, and the decision materials that shed light on the way exist. Those procedures shall be must reasonably inform the parties in a penalties are calculated to ensure updated in a timely manner as needed. timely manner of the additional fairness in the process and to encourage procedural rights available to them. a negotiated resolution where possible. § 5.105 Cooperative Information Sharing. § 5.93 Settlements. § 5.99 Publication of decisions. The Department, as appropriate and Settlement conferences may be The agency’s decisions in informal to the extent practicable and permitted handled by appropriate agency counsel adjudications are not required to be by law, shall: without the involvement of the agency’s published under the APA. However, (a) Encourage voluntary self-reporting decision maker. Once a matter is settled where the agency intends to rely on its of regulatory violations by regulated by compromise, that agreement should opinions in future cases, those opinions parties in exchange for reduction or be reviewed and accepted by an must generally be made available on waivers of civil penalties; appropriate supervisor. The responsible agency websites or in agency reading OA or component of OST should issue rooms (and publication on Westlaw, (b) Encourage voluntary information an order adopting the terms of the Lexis, or similar legal services is also sharing by regulated parties; and settlement agreement as the final agency highly recommended). The APA has (c) Provide pre-enforcement rulings to decision, where and as authorized by been read to require that opinions in regulated parties (formal and informal statute or regulation. No DOT settlement formal adjudications must be made interpretations).

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§ 5.107 Small Business Regulatory (2) Statements of policy and become effective a specified number of Enforcement Fairness Act Compliance interpretations, including guidance days after the date of publication. (SBREFA). documents as defined in 49 CFR 5.25(c), * * * * * The Department shall comply with that have been adopted by DOT; the terms of SBREFA when conducting * * * * * PART 389—RULEMAKING administrative inspections and PROCEDURES—FEDERAL MOTOR adjudications, including section 223 of PART 106—RULEMAKING CARRIER SAFETY REGULATIONS SBREFA (reduction or waivers of civil PROCEDURES penalties, where appropriate). The ■ 17. The authority citation for part 389 Department will also cooperate with the ■ 13. The authority citation for part 106 continues to read as follows: Small Business Administration (SBA) continues to read as follows: Authority: 49 U.S.C. 113, 501 et seq., subchapters I and III of chapter 311, chapter when a small business files a comment Authority: 49 U.S.C. 5101–5127; 49 CFR 313, and 31502; 42 U.S.C. 4917; and 49 CFR or complaint related to DOT’s 1.53. inspection authority and when 1.87. requested to answer SBREFA ■ 14. Amend § 106.40 by revising the ■ 18. Amend § 389.39 by revising the compliance requests. introductory text, the first sentence of introductory text and paragraphs (c) and paragraph (c), and paragraph (d)(1) to (d)(1) to read as follows: § 5.109 Referral of matters for judicial read as follows: enforcement. § 389.39 Direct final rulemaking In considering whether to refer a § 106.40 Direct final rule. procedures. matter for judicial enforcement by the A direct final rule makes regulatory A direct final rule makes regulatory Department of Justice, DOT attorneys changes and states that the regulatory changes and states that those changes should consult the applicable changes will take effect on a specified will take effect on a specified date procedures set forth by the General date unless PHMSA receives an adverse unless FMCSA receives an adverse Counsel, including in the document comment within the comment period— comment by the date specified in the entitled ‘‘Partnering for Excellence: generally 60 days after the direct final direct final rule published in the Coordination of Legal Work Within the rule is published in the Federal Federal Register. U.S. Department of Transportation,’’ Register. * * * * * and any update or supplement to such * * * * * (c) Confirmation of effective date. FMCSA will publish a confirmation rule document issued hereafter by the (c) Confirmation of effective date. We document in the Federal Register, if it General Counsel. The specific will publish a confirmation document has not received an adverse comment by procedures for initiating an affirmative in the Federal Register, generally within the date specified in the direct final litigation request are currently found in 15 days after the comment period rule. The confirmation rule document the coordination document at Section closes, if we have not received an tells the public the effective date of the 11.B.l., ‘‘Affirmative Litigation Requests adverse comment. * * * to the Department of Justice.’’ In most rule. instances, requests to commence (d) * * * (d) * * * affirmative litigation must be reviewed (1) If we receive an adverse comment, (1) If FMCSA receives an adverse by OGC, with such reviews coordinated we will either publish a document comment within the comment period, it through the Office of Litigation and withdrawing the direct final rule before will either publish a document Enforcement. it becomes effective and may issue an withdrawing the direct final rule before NPRM, or proceed by any other means it becomes effective and may issue an § 5.111 No third-party rights or benefits. permitted under the Administrative NPRM, or proceed by any other means This subpart is intended to improve Procedure Act, consistent with permitted under the Administrative the internal management of the procedures at 49 CFR 5.13(l). Procedure Act, consistent with Department. As such, it is for the use of * * * * * procedures at 49 CFR 5.13(l). DOT personnel only and is not intended * * * * * to, and does not, create any right or PART 211—RULES OF PRACTICE benefit, substantive or procedural, PART 553—RULEMAKING enforceable at law or in equity by any ■ 15. The authority citation for part 211 PROCEDURES party against the United States, its is revised to read as follows: ■ agencies, officers, or any person. 19. The authority citation for part 553 Authority: 49 U.S.C. 20103, 20107, 20114, is revised to read as follows: 20306, 20502–20504, and 49 CFR 1.89. Title 49—Transportation Authority: 49 U.S.C. 322, 30103, 30122, ■ 16. Amend § 211.33 by revising PART 7—PUBLIC AVAILABILITY OF 30124, 30125, 30127, 30146, 30162, 32303, paragraph (b) to read as follows: 32502, 32504, 32505, 32705, 32901, 32902, INFORMATION 33102, 33103, and 33107; delegation of § 211.33 Direct final rulemaking authority at 49 CFR 1.95. ■ 11. The authority citation for part 7 procedures. ■ 20. Amend § 553.14 by revising continues to read as follows: * * * * * paragraphs (b), (c), and (d) to read as Authority: 5 U.S.C. 552; 31 U.S.C. 9701; 49 (b) The Federal Register document follows: U.S.C. 322; E.O. 12600; E.O. 13392. will state that any adverse comment § 553.14 Direct final rulemaking. ■ 12. Amend § 7.12 by revising must be received in writing by the paragraph (a)(2) to read as follows: Federal Railroad Administration within * * * * * the specified time after the date of (b) The Federal Register document § 7.12 What records are available in publication and that, if no written will state that any adverse comment reading rooms, and how are they adverse comment or request for oral must be received in writing by NHTSA accessed? hearing (if such opportunity is required within the specified time after the date (a) * * * by statute) is received, the rule will of publication of the direct final rule

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and that, if no written adverse comment Procedure Act, consistent with number of days after the date of is received in that period, the rule will procedures at 49 CFR 5.13(l). publication. become effective a specified number of * * * * * (c) If no written adverse comment is days (no less than 45) after the date of received by FTA within the specified publication of the direct final rule. PART 601—ORGANIZATION, time of publication in the Federal NHTSA will provide a minimum FUNCTIONS, AND PROCEDURES Register, FTA will publish a notice in comment period of 30 days. the Federal Register indicating that no (c) If no written adverse comment is ■ 21. The authority citation for part 601 adverse comment was received and received by NHTSA within the specified is revised to read as follows: confirming that the rule will become time after the date of publication in the Authority: 5 U.S.C. 552; 49 U.S.C. 5334; 49 effective on the date that was indicated Federal Register, NHTSA will publish a CFR 1.91. in the direct final rule. document in the Federal Register ■ 22. Amend § 601.36 by revising (d) If FTA receives any written indicating that no adverse comment was paragraphs (b), (c), and (d) to read as adverse comment within the specified received and confirming that the rule follows: time of publication in the Federal will become effective on the date that Register, FTA will either publish a was indicated in the direct final rule. § 601.36 Procedures for direct final document withdrawing the direct final (d) If NHTSA receives any written rulemaking. rule before it becomes effective and may adverse comment within the specified * * * * * issue an NPRM, or proceed by any other time after publication of the direct final (b) The Federal Register document means permitted under the rule in the Federal Register, the agency will state that any adverse comment Administrative Procedure Act, will either publish a document must be received in writing by FTA consistent with procedures at 49 CFR withdrawing the direct final rule before within the specified time after the date 5.13(l). it becomes effective and may issue an of publication and that, if no written * * * * * NPRM, or proceed by any other means adverse comment is received, the rule [FR Doc. 2019–26672 Filed 12–26–19; 8:45 am] permitted under the Administrative will become effective a specified BILLING CODE 4910–9X–P

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