Administrative Rulemaking, Guidance, and Enforcement Procedures, 71714-71734 [2019-26672]

Agencies

• DEPARTMENT OF TRANSPORTATION
• Office of the Secretary

[Federal Register Volume 84, Number 248 (Friday, December 27, 2019)]
[Rules and Regulations]
[Pages 71714-71734]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-26672]



[[Page 71713]]

Vol. 84

Friday,

No. 248

December 27, 2019

Part VI





Department of Transportation





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 Office of the Secretary





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14 CFR Parts 11, 300, and 302

49 CFR Parts 1, 5, 7, et al.





Administrative Rulemaking, Guidance, and Enforcement Procedures; Final 
Rule

Federal Register / Vol. 84 , No. 248 / Friday, December 27, 2019 / 
Rules and Regulations

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DEPARTMENT OF TRANSPORTATION

Office of the Secretary

14 CFR Parts 11, 300, and 302

49 CFR Parts 1, 5, 7, 106, 211, 389, 553, and 601

RIN 2105-AE84


Administrative Rulemaking, Guidance, and Enforcement Procedures

AGENCY: Office of the Secretary of Transportation (OST), U.S. 
Department of Transportation (DOT).

ACTION: Final rule.

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SUMMARY: This final rule sets forth a comprehensive revision and update 
of the Department's regulations on rulemaking procedures and 
consolidates all of the Department's existing administrative procedures 
in one location. This final rule also incorporates and reflects the 
Department's current policies and procedures relating to the issuance 
of rulemaking documents. In addition, this update codifies the 
Department's internal procedural requirements governing the review and 
clearance of guidance documents and the initiation and conduct of 
enforcement actions, including administrative enforcement proceedings 
and judicial enforcement actions brought in Federal court.

DATES: Effective on January 27, 2020.

FOR FURTHER INFORMATION CONTACT: Jill Laptosky, Office of Regulation, 
Office of the General Counsel, 202-493-0308, [email protected].

SUPPLEMENTARY INFORMATION: This final rule substantially incorporates 
three internal administrative procedure directives of the U.S. 
Department of Transportation (the Department or DOT) into one place in 
the Code of Federal Regulations (CFR) at 49 CFR part 5: (1) DOT Order 
2100.6, ``Policies and Procedures for Rulemakings'' (December 20, 
2018),\1\ which sets forth updated policies and procedures governing 
the development and issuance of regulations by the Department's 
operating administrations and components of the Office of the 
Secretary; (2) a General Counsel memorandum, ``Review and Clearance of 
Guidance Documents'' (December 20, 2018),\2\ which establishes enhanced 
procedures for the review and clearance of guidance documents; and (3) 
a General Counsel memorandum, ``Procedural Requirements for DOT 
Enforcement Actions'' (February 15, 2019),\3\ which clarifies the 
procedural requirements governing enforcement actions initiated by the 
Department, including administrative enforcement proceedings and 
judicial enforcement actions brought in Federal court.
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    \1\ See U.S. Department of Transportation, DOT Order 2100.6, 
``Policies and Procedures for Rulemakings,'' available at https://www.transportation.gov/regulations/2018-dot-rulemaking-order.
    \2\ See U.S. Department of Transportation, ``Review and 
Clearance of Guidance Documents,'' available at https://www.transportation.gov/regulations/2018-guidance-memorandum.
    \3\ See U.S. Department of Transportation, ``Procedural 
Requirements for DOT Enforcement Actions,'' available at https://www.transportation.gov/sites/dot.gov/files/docs/mission/administrations/office-general-counsel/331596/c1-mem-enforcement-actions-signed-21519.pdf.
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    This final rule removes the existing procedures on rulemaking, 
which are outdated and inconsistent with current departmental practice, 
and replaces them with a comprehensive set of procedures that will 
increase transparency, provide for more robust public participation, 
and strengthen the overall quality and fairness of the Department's 
administrative actions. This final rule also responds to a December 20, 
2018, petition for rulemaking that we received from the New Civil 
Liberties Alliance that asked the Department to promulgate regulations 
prohibiting departmental components from issuing, relying on, or 
defending improper agency guidance.

Rulemaking Procedures

    This final rule incorporates into the Code of Federal Regulations 
at 49 CFR part 5, subpart B, the policies and procedures found in DOT 
Order 2100.6, titled: ``Policies and Procedures for Rulemakings.'' All 
citations to OST or OA regulations in this preamble refer to sections 
of the Code of Federal Regulations as amended by this final rule.
    The procedures contained in this final rule apply to all phases of 
the Department's rulemaking process, from advance notices of proposed 
rulemakings to the promulgation of final rules, including substantive 
rules, rules of interpretation, and rules prescribing agency procedures 
and practice requirements applicable to outside parties. The final rule 
outlines the Department's regulatory policies, such as ensuring that 
there are no more regulations than necessary, that where they impose 
burdens, regulations are narrowly tailored to address identified market 
failures or statutory mandates, and that they specify performance 
objectives when appropriate. These and other policies applicable to the 
Department's rulemaking process can be found at 49 CFR 5.5.
    This final rule reflects the existing role of the Department's 
Regulatory Reform Task Force in the development of the Department's 
regulatory portfolio and ongoing review of regulations. Established in 
response to Executive Order 13777, ``Enforcing the Regulatory Reform 
Agenda'' (February 24, 2017), the Regulatory Reform Task Force is the 
Department's internal body, chaired by the Regulatory Reform Officer, 
tasked with evaluating proposed and existing regulations and making 
recommendations to the Secretary of Transportation regarding their 
promulgation, repeal, replacement, or modification, consistent with 
applicable law. This final rule outlines the structure, membership, and 
responsibilities of the Regulatory Reform Task Force at 49 CFR 5.9.
    This final rule also prescribes the procedures the Department must 
follow for all stages of the rulemaking process, including the 
initiation of new rulemakings, the development of economic analyses, 
the contents of rulemaking documents, their review and clearance, and 
the opportunity for fair and sufficient public participation. The final 
rule also reflects the Department's existing policies regarding 
contacts with outside parties during the rulemaking process as well as 
the ongoing review of existing regulations. These policies and 
procedures can be found at 49 CFR 5.11, 5.13, and 5.19.
    Consistent with the Department's regulatory philosophy that rules 
imposing the greatest costs on the public should be subject to 
heightened procedural requirements, this final rule also incorporates 
the Department's enhanced procedures for economically significant and 
high-impact rulemakings. Economically significant rulemakings are 
defined as those rules that would result in a total annualized cost on 
the U.S. economy of $100 million or more, or a total net loss of at 
least 75,000 full-time jobs in the United States over 5 years. 49 CFR 
5.17(a)(1). High-impact rulemakings would result in a total annualized 
cost on the U.S. economy of $500 million or more, or a total net loss 
of at least 250,000 full-time jobs in the United States over 5 years. 
49 CFR 5.17(a)(2). These costly rulemakings may be subject to enhanced 
rulemaking procedures, such as advance notices of proposed rulemakings 
and formal hearings. The procedures for economically significant and 
high-impact rulemakings are provided at 49 CFR 5.17.
    While much of part 5 is outdated in light of the Department's new

[[Page 71715]]

procedures, this final rule will retain and revise some procedures. The 
Department's existing procedures for the filing of rulemaking petitions 
will be retained (see 49 CFR 5.13(c)), though we are revising these 
regulations to give the public greater opportunities to petition the 
Department. In addition to petitions for rulemaking, our procedures 
will also explicitly allow the public to file petitions for the 
performance of retrospective regulatory reviews. With regard to direct 
final rules, the Department will be removing language that requires the 
withdrawal of a direct final rule if a notice of intent to file an 
adverse comment is received; instead withdrawal will be required upon 
the actual receipt of an adverse comment. Individuals who intend to 
file an adverse comment, but do not have enough time to do so, may 
instead ask the Department to extend the comment period of a direct 
final rule so that they may have more time to file an adverse comment. 
For this reason, the existing direct final rule procedures are 
unnecessarily duplicative of procedures that provide for requesting the 
extension of a comment period and can be removed in part 5 and 
elsewhere throughout the Department's regulations issued by its 
operating administrations.\4\
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    \4\ Direct final rule procedures for the following operating 
administrations are amended: Federal Aviation Administration, 
Pipeline and Hazardous Materials Safety Administration, Federal 
Railroad Administration, Federal Motor Carrier Safety 
Administration, National Highway Traffic Safety Administration, and 
Federal Transit Administration.
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    This rulemaking will update references throughout DOT regulations 
as needed to account for updated internal procedures. This final rule 
will revise the regulations at 14 CFR 300.2 to replace a reference to 
rescinded DOT Order 2100.2 with the current DOT Order 2100.6. This 
final rule also updates the procedures for petitions for rulemakings 
found in 14 CFR 302.16, including providing that interested parties may 
file petitions for the Department to perform retrospective reviews. 
Other minor conforming amendments are being made to our regulations at 
49 CFR parts 1 and 7. Finally, given that this final rule codifies the 
DOT policy regarding contacts with outside parties during the 
rulemaking process (5 CFR 5.19), Appendix 1 to 14 CFR part 11, Oral 
Communications With the Public During Rulemaking, is no longer 
necessary and has been removed.

Guidance Document Procedures

    This final rule incorporates into the Code of Federal Regulations 
at 49 CFR part 5, subpart C, the policies and procedures found in the 
General Counsel's memorandum, titled: ``Review and Clearance of 
Guidance Documents.''
    The procedures contained in this final rule apply to all guidance 
documents, which the Department defines as any statement of agency 
policy or interpretation concerning a statute, regulation, or technical 
matter within the jurisdiction of the agency that is intended to have 
general applicability and future effect, but which is not intended to 
have the force or effect of law in its own right and is not otherwise 
required by statute to satisfy the rulemaking procedures of the 
Administrative Procedure Act.
    This final rule codifies the Department's existing procedures 
regarding the review and clearance of guidance documents. These 
procedures ensure that all guidance documents receive legal review and, 
when appropriate, Office of the Secretary review. Before guidance 
documents are issued, they must be reviewed to ensure they are written 
in plain language and do not impose any substantive legal requirements 
above and beyond statute or regulation. If a guidance document purports 
to describe, approve, or recommend specific conduct that stretches 
beyond what is required by existing law, then it must include a clear 
and prominent statement effectively stating that the contents of the 
guidance document do not have the force and effect of law and are not 
meant to bind the public in any way, and the guidance document is 
intended only to provide clarity to the public regarding existing 
requirements under the law or agency policies. The procedures for the 
review and clearance of guidance documents can be found at 49 CFR 5.27, 
5.29, and 5.35.
    In recognition of the fact that, even though guidance documents are 
not legally binding, they could nevertheless have a substantial 
economic impact on regulated entities that alter their conduct to 
conform to the guidance, this final rule requires a good faith cost 
assessment of the impact of the guidance document. This policy is 
outlined at 49 CFR 5.33.
    This final rule also incorporates other policies and procedures, 
such as describing when guidance documents are subject to notice and an 
opportunity for public comment and how they will be made available to 
the public after issuance. See 49 CFR 5.31 and 5.39. These procedures 
are intended to ensure that the public has access to guidance documents 
issued by the Department and a fair and sufficient opportunity to 
comment on guidance documents when appropriate and practicable. The 
final rule also provides a process for interested parties to petition 
the Department for the withdrawal or modification of guidance 
documents. See 49 CFR 5.43.
    This final rule also responds to Executive Order 13891, titled: 
``Promoting the Rule of Law Through Improved Agency Guidance 
Documents'' (October 9, 2019). In that Executive Order, Federal 
agencies are required to finalize regulations, or amend existing 
regulations as necessary, to set forth processes and procedures for 
issuing guidance documents.\5\ This final rule incorporates 
requirements found in the Executive Order that were not otherwise 
provided for in the Department's existing procedures, primarily a 
requirement that the comment period for significant guidance documents 
be at least 30 days, except when the agency for good cause finds that 
notice and public comment are impracticable, unnecessary, or contrary 
to the public interest.\6\
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    \5\ See section 4(a) of Executive Order 13891.
    \6\ See section 4(a)(iii)(A) of Executive Order 13891.
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Enforcement Procedures

    This final rule incorporates into the Code of Federal Regulations 
at 49 CFR part 5, subpart D, the policies and procedures found in the 
General Counsel's memorandum, titled: ``Procedural Requirements for DOT 
Enforcement Actions.''
    The procedures contained in this final rule clarify the procedural 
requirements governing enforcement actions initiated by DOT, including 
administrative enforcement proceedings and judicial enforcement actions 
brought in Federal court. The purpose of these procedural policies is 
to ensure that DOT enforcement actions satisfy principles of due 
process and remain lawful, reasonable, and consistent with 
Administration policy. The procedures also fulfill the Department's 
goal of establishing standard operating procedures within its various 
enforcement programs.
    The final rule consolidates these procedural requirements into one 
centralized location. The Department is committed to proper due process 
in enforcement proceedings and encourages regulated entities to contact 
a supervisor or the U.S. Small Business Administration, when 
appropriate, with any concerns arising from our duty to review 
compliance with the Department's regulations related to our authority 
and jurisdiction.

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    This final rule ensures that DOT provides affected parties 
appropriate due process in all enforcement actions, that the 
Department's conduct is fair and free of bias and concludes with a 
well-documented decision as to violations alleged and any violations 
found to have been committed, that the penalties or corrective actions 
imposed for such violations are reasonable, and that proper steps 
needed to ensure future compliance were undertaken by the regulated 
party. It is in the public interest and fundamental to good government 
that the Department carry out its enforcement responsibilities in a 
fair and just manner.
    This final rule also responds to Executive Order 13892, titled: 
``Promoting the Rule of Law Through Transparency and Fairness in Civil 
Administrative Enforcement and Adjudication'' (October 9, 2019). Under 
that Executive Order, Federal agencies are required to provide more 
transparency to the regulated community when conducting enforcement 
actions and adjudications. This final rule incorporates requirements 
found in the Executive Order related to cooperative information 
sharing, the Small Business Regulatory Enforcement Fairness (SBREFA) 
Act, and ensuring reasonable administrative inspections.\7\
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    \7\ See sections 7, 9, and 10, of Executive Order 13892.
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Administrative Procedure

    Under the Administrative Procedure Act, an agency may waive the 
normal notice and comment procedures if the action is a rule of agency 
organization, procedure, or practice. See 5 U.S.C. 553(b)(3)(A). Since 
this final rule merely incorporates existing internal procedures 
applicable to the Department's administrative procedures into the Code 
of Federal Regulations, notice and comment are not necessary.

Rulemaking Analyses and Notices

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

    This rulemaking is not a significant regulatory action under 
Executive Order 12866. The Department does not anticipate that this 
rulemaking will have an economic impact on regulated entities. This is 
a rule of agency procedure and practice. The final rule describes the 
Department's existing internal procedures for the promulgation and 
processing of rulemaking and guidance documents, and for initiating and 
conducting enforcement proceedings. The Department has adopted these 
internal procedures as part of its regulatory reform initiative, and 
has not incurred any additional resource costs in doing so. The 
adoption of these practices has been accomplished through a realignment 
of existing agency resources, and it is anticipated that the public 
will benefit from the resulting increase in efficiency in delivery of 
government services.
    This final rule compiles existing procedures on rulemaking as a 
comprehensive set of regulations that will increase accountability, 
ensure more robust public participation, and strengthen the overall 
quality and fairness of the Department's administrative actions. The 
Department has a long history of Federal leadership in adopting good 
regulatory practices, and this action is consistent with that history. 
While the direct impact of this rule has already been experienced 
internally to the Department in the form of streamlined and clarified 
regulatory processes, we expect additional secondary and positive 
impacts due to improved decision making. However, these additional 
impacts will be small because this rule, which has been substantively 
implemented, simply reflects the procedures that have evolved in 
response to new rulemaking demands.
    Regulated entities and the public will continue to benefit from 
these enhanced procedures through increased agency deliberations and 
more opportunities to comment on rulemakings and guidance documents. 
With regard to the enforcement procedures, we anticipate that there 
will be no additional costs on regulated entities, as individual 
regulations already published by DOT agencies account for current costs 
of compliance. This final rule will simply clarify the internal DOT 
procedural requirements necessary to ensure fair and reasonable 
enforcement processes where violations are alleged to have occurred by 
the regulated community.

B. Executive Order 13771 (Reducing Regulation and Controlling 
Regulatory Costs)

    This rule is not an Executive Order 13771 regulatory action because 
this rule is not significant under Executive Order 12866.

C. Regulatory Flexibility Act

    Since notice and comment rulemaking is not necessary for this rule, 
the provisions of the Regulatory Flexibility Act (Pub. L. 96-354, 5 
U.S.C. 601-612) do not apply.

D. Executive Order 13132 (Federalism)

    Executive Order 13132 requires agencies to ensure meaningful and 
timely input by State and local officials in the development of 
regulatory policies that may have a substantial, direct effect on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. This action has been analyzed in 
accordance with the principles and criteria contained in Executive 
Order 13132 (August 4, 1999), and DOT has determined that this action 
will not have a substantial direct effect or federalism implications on 
the States and would not preempt any State law or regulation or affect 
the States' ability to discharge traditional State governmental 
functions. Therefore, consultation with the States is not necessary.

E. Executive Order 13175

    This final rule has been analyzed in accordance with the principles 
and criteria contained in Executive Order 13175, ``Consultation and 
Coordination with Indian Tribal Governments.'' Because this rulemaking 
does not significantly or uniquely affect the communities of the Indian 
tribal governments or impose substantial direct compliance costs on 
them, the funding and consultation requirements of Executive Order 
13175 do not apply.

F. Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et seq.) 
requires that DOT consider the impact of paperwork and other 
information collection burdens imposed on the public and, under the 
provisions of PRA section 3507(d), obtain approval from the Office of 
Management and Budget (OMB) for each collection of information it 
conducts, sponsors, or requires through regulations. The DOT has 
determined there are no new information collection requirements 
associated with this final rule.

G. National Environmental Policy Act

    The agency has analyzed the environmental impacts of this action 
pursuant to the National Environmental Policy Act of 1969 (NEPA) (42 
U.S.C. 4321 et seq.) and has determined that it is categorically 
excluded pursuant to DOT Order 5610.1C, ``Procedures for Considering 
Environmental Impacts'' (44 FR 56420, October 1, 1979). Categorical 
exclusions are actions identified in an agency's NEPA implementing 
procedures that do not normally have a significant impact on

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the environment and therefore do not require either an environmental 
assessment (EA) or environmental impact statement (EIS). The purpose of 
this rulemaking is to update the Department's administrative procedures 
for rulemaking, guidance documents, and enforcement actions. The agency 
does not anticipate any environmental impacts, and there are no 
extraordinary circumstances present in connection with this rulemaking.

Regulation Identifier Number

    A regulation identifier number (RIN) is assigned to each regulatory 
action listed in the Unified Agenda of Federal Regulations. The 
Regulatory Information Service Center publishes the Unified Agenda in 
the spring and fall of each year. The RIN contained in the heading of 
this document can be used to cross reference this action with the 
Unified Agenda.

List of Subjects

14 CFR Part 11

    Administrative practice and procedure, Reporting and recordkeeping 
requirements.

14 CFR Part 300

    Administrative practice and procedure, Conflicts of interests.

14 CFR Part 302

    Administrative practice and procedure, Air carriers, Airports, 
Postal Service.

49 CFR Part 1

    Authority delegations (Government agencies), Organization and 
functions (Government agencies).

49 CFR Part 5

    Administrative practice and procedure.

49 CFR Part 106

    Administrative practice and procedure, Hazardous materials 
transportation.

49 CFR Part 211

    Administrative practice and procedure, Railroad safety.

49 CFR Part 389

    Administrative practice and procedure, Highway safety, Motor 
carriers, Motor vehicle safety.

49 CFR Part 553

    Administrative practice and procedure, Motor vehicle safety.

49 CFR Part 601

    Authority delegations (Government agencies), Freedom of 
information, Organization and functions (Government agencies).

    Issued in Washington, DC, on December 3, 2019.
Elaine L. Chao,
Secretary.

    In consideration of the foregoing, the Office of the Secretary of 
Transportation amends 14 CFR parts 11, 300, and 302 and 49 CFR parts 5, 
106, 211, 389, 553, and 601, as follows:

Title 14--Aeronautics and Space

PART 11--GENERAL RULEMAKING PROCEDURES

0
1. The authority citation for part 11 continues to read as follows:

    Authority: 49 U.S.C. 106(f), 106(g), 40101, 40103, 40105, 40109, 
40113, 44110, 44502, 44701-44702, 44711, 46102, and 51 U.S.C. 50901-
50923.


0
2. Amend Sec.  11.13 by revising the last sentence to read as follows:


Sec.  11.13  What is a direct final rule?

    * * * If we receive an adverse comment, we will either publish a 
document withdrawing the direct final rule before it becomes effective 
and may issue an NPRM, or proceed by any other means permitted under 
the Administrative Procedure Act, 5 U.S.C. 551 et seq., consistent with 
procedures at 49 CFR 5.13(l).


Sec.  11.31  [Amended]

0
3. Amend Sec.  11.31 by removing ``or notice of intent to file an 
adverse comment'' in paragraphs (a) introductory text, (b), and (c).

0
4. Amend Sec.  11.40 by revising the last sentence to read as follows:


Sec.  11.40  Can I get more information about a rulemaking?

    * * * The Department of Transportation policy regarding public 
contacts during rulemaking appears at 49 CFR 5.19.

Appendix 1 to Part 11 [Removed]

0
5. Remove appendix 1 to part 11.

PART 300--RULES OF CONDUCT IN DOT PROCEEDINGS UNDER THIS CHAPTER

0
6. The authority citation for part 300 continues to read as follows:

    Authority: 49 U.S.C. subtitle I and chapters 401, 411, 413, 415, 
417, 419, 421, 449, 461, 463, and 465.


0
7. Amend Sec.  300.2 by revising paragraph (b)(4)(ii) to read as 
follows:


Sec.  300.2  Prohibited Communications.

* * * * *
    (b) * * *
    (4) * * *
    (ii) A rulemaking proceeding involving a hearing as described in 
paragraph (b)(4)(i) of this section or an exemption proceeding covered 
by this chapter. (Other rulemaking proceedings are covered by the ex 
parte communication policies of DOT Order 2100.6 and 49 CFR 5.19.)
* * * * *

PART 302--RULES OF PRACTICE IN PROCEEDINGS

0
8. The authority citation for part 302 continues to read as follows:

    Authority:  39 U.S.C. 5402; 42 U.S.C. 4321, 49 U.S.C. Subtitle I 
and Chapters 401, 411, 413, 415, 417, 419, 461, 463, and 471.


0
9. Revise Sec.  302.16 to read as follows:


Sec.  302.16  Petitions for rulemaking.

    Any interested person may petition the Department for the issuance, 
amendment, modification, or repeal of any regulation or guidance 
document, or for the Department to perform a retrospective review of an 
existing rule, subject to the provisions of part 5, Rulemaking 
Procedures, of the Office of the Secretary regulations (49 CFR 5.13(c) 
and 5.43).

Title 49--Transportation

PART 1--ORGANIZATION AND DELEGATION OF POWERS AND DUTIES

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

    Authority: 49 U.S.C. 322.


0
11. Amend Sec.  1.27 by revising paragraph (e) to read as follows:


Sec.  1.27  Delegations to the General Counsel.

* * * * *
    (e) Respond to petitions for rulemaking or petitions for exemptions 
in accordance with 49 CFR 5.13(c)(2) (Processing of petitions), and 
notify petitioners of decisions in accordance with 49 CFR 
5.13(c)(4)(v).
* * * * *

0
12. Revise part 5 to read as follows:

PART 5--ADMINISTRATIVE RULEMAKING, GUIDANCE, AND ENFORCEMENT 
PROCEDURES

Subpart A--GENERAL
Sec.
5.1 Applicability.
Subpart B--Rulemaking Procedures
5.3 General.
5.5 Regulatory policies.
5.7 Responsibilities.
5.9 Regulatory Reform Task Force.

[[Page 71718]]

5.11 Initiating a rulemaking.
5.13 General rulemaking procedures.
5.15 Unified Agenda of Regulatory and Deregulatory Actions (Unified 
Agenda).
5.17 Special procedures for economically significant and high-impact 
rulemakings.
5.19 Public contacts in informal rulemaking.
5.21 Policy updates and revisions.
5.23 Disclaimer.
Subpart C--Guidance Procedures
5.25 General.
5.27 Review and clearance by Chief Counsels and the Office of the 
General Counsel.
5.29 Requirements for clearance.
5.31 Public access to effective guidance documents.
5.33 Good faith cost estimates.
5.35 Approved procedures for guidance documents identified as 
``significant'' or ``otherwise of importance to the Department's 
interests.''
5.37 Definitions of ``significant guidance document'' and guidance 
documents that are ``otherwise of importance to the Department's 
interests.''
5.39 Designation procedures.
5.41 Notice-and-comment procedures.
5.43 Petitions for guidance
5.45 Rescinded guidance.
5.47 Exigent circumstances.
5.49 Reports to Congress and GAO.
5.51 No judicial review or enforceable rights.
Subpart D--Enforcement Procedures
5.53 General.
5.55 Enforcement attorney responsibilities.
5.57 Definitions.
5.59 Enforcement policy generally.
5.61 Investigative functions.
5.63 Clear legal foundation.
5.65 Proper exercise of prosecutorial and enforcement discretion.
5.67 Duty to review for legal sufficiency.
5.69 Fair notice.
5.71 Separation of functions.
5.73 Avoiding bias.
5.75 Formal enforcement adjudications.
5.77 Informal enforcement adjudications.
5.79 The hearing record.
5.81 Contacts with the public.
5.83 Duty to disclose exculpatory evidence.
5.85 Use of guidance documents in administrative enforcement cases.
5.87 Alternative Dispute Resolution (ADR).
5.89 Duty to adjudicate proceedings promptly.
5.91 Agency decisions.
5.93 Settlements.
5.95 OGC approval required for certain settlement terms.
5.97 Basis for civil penalties and disclosures thereof.
5.99 Publication of decisions.
5.101 Coordination with the Office of Inspector General on criminal 
matters.
5.103 Standard operating procedures.
5.105 Cooperative Information Sharing.
5.107 Small Business Regulatory Enforcement Fairness Act (SBREFA).
5.109 Referral of matters for judicial enforcement.
5.111 No third-party rights or benefits.

    Authority: 49 U.S.C. 322(a).

Subpart A--General


Sec.  5.1  Applicability.

    (a) This part prescribes general procedures that apply to 
rulemakings, guidance documents, and enforcement actions of the U.S. 
Department of Transportation (the Department or DOT), including each of 
its operating administrations (OAs) and all components of the Office of 
Secretary of Transportation (OST).
    (b) For purposes of this part, Administrative Procedure Act (APA) 
is the Federal statute, codified in scattered sections of chapters 5 
and 7 of title 5, United States Code, that governs procedures for 
agency rulemaking and adjudication and provides for judicial review of 
final agency actions.

Subpart B--Rulemaking Procedures


Sec.  5.3  General.

    (a) This subpart governs all DOT employees and contractors involved 
with all phases of rulemaking at DOT.
    (b) Unless otherwise required by statute, this subpart applies to 
all DOT regulations, which shall include all rules of general 
applicability promulgated by any components of the Department that 
affect the rights or obligations of persons outside the Department, 
including substantive rules, rules of interpretation, and rules 
prescribing agency procedures and practice requirements applicable to 
outside parties.
    (c) Except as provided in paragraph (d) of this section, this 
subpart applies to all regulatory actions intended to lead to the 
promulgation of a rule and any other generally applicable agency 
directives, circulars, or pronouncements concerning matters within the 
jurisdiction of an OA or component of OST that are intended to have the 
force or effect of law or that are required by statute to satisfy the 
rulemaking procedures specified in 5 U.S.C. 553 or 5 U.S.C. 556.
    (d) This subpart does not apply to:
    (1) Any rulemaking in which a notice of proposed rulemaking was 
issued before December 20, 2018, and which was still in progress on 
that date;
    (2) Regulations issued with respect to a military or foreign 
affairs function of the United States;
    (3) Rules addressed solely to internal agency management or 
personnel matters;
    (4) Regulations related to Federal Government procurement; or
    (5) Guidance documents, which are not intended to, and do not in 
fact, have the force or effect of law for parties outside of the 
Department, and which are governed by part 5, subpart C of this 
chapter.


Sec.  5.5  Regulatory policies.

    The policies in paragraphs (a) through (j) of this section govern 
the development and issuance of regulations at DOT:
    (a) There should be no more regulations than necessary. In 
considering whether to propose a new regulation, policy makers should 
consider whether the specific problem to be addressed requires agency 
action, whether existing rules (including standards incorporated by 
reference) have created or contributed to the problem and should be 
revised or eliminated, and whether any other reasonable alternatives 
exist that obviate the need for a new regulation.
    (b) All regulations must be supported by statutory authority and 
consistent with the Constitution.
    (c) Where they rest on scientific, technical, economic, or other 
specialized factual information, regulations should be supported by the 
best available evidence and data.
    (d) Regulations should be written in plain English, should be 
straightforward, and should be clear.
    (e) Regulations should be technologically neutral, and, to the 
extent feasible, they should specify performance objectives, rather 
than prescribing specific conduct that regulated entities must adopt.
    (f) Regulations should be designed to minimize burdens and reduce 
barriers to market entry whenever possible, consistent with the 
effective promotion of safety. Where they impose burdens, regulations 
should be narrowly tailored to address identified market failures or 
specific statutory mandates.
    (g) Unless required by law or compelling safety need, regulations 
should not be issued unless their benefits are expected to exceed their 
costs. For each new significant regulation issued, agencies must 
identify at least two existing regulatory burdens to be revoked.
    (h) Once issued, regulations and other agency actions should be 
reviewed periodically and revised to ensure that they continue to meet 
the needs they were designed to address and remain cost-effective and 
cost-justified.
    (i) Full public participation should be encouraged in rulemaking 
actions, primarily through written comment and engagement in public 
meetings. Public participation in the rulemaking process should be 
conducted and documented, as appropriate, to ensure that the public is 
given adequate knowledge of

[[Page 71719]]

substantive information relied upon in the rulemaking process.
    (j) The process for issuing a rule should be sensitive to the 
economic impact of the rule; thus, the promulgation of rules that are 
expected to impose greater economic costs should be accompanied by 
additional procedural protections and avenues for public participation.


Sec.  5.7  Responsibilities.

    (a) The Secretary of Transportation supervises the overall 
planning, direction, and control of the Department's Regulatory Agenda; 
approves regulatory documents for issuance and submission to the Office 
of Management and Budget (OMB) under Executive Order (E.O.) 12866, 
``Regulatory Planning and Review'' (Oct. 4, 1993); identifies an 
approximate regulatory budget for each fiscal year as required by E.O. 
13771, ``Reducing Regulation and Controlling Regulatory Costs'' (Jan. 
30, 2017); establishes the Department's Regulatory Reform Task Force 
(RRTF); and designates the members of the RRTF and the Department's 
Regulatory Reform Officer (RRO) in accordance with E.O. 13777, 
``Enforcing the Regulatory Reform Agenda'' (Feb. 24, 2017).
    (b) The Deputy Secretary of Transportation assists the Secretary in 
overseeing overall planning, direction, and control of the Department's 
Regulatory Agenda and approves the initiation of regulatory action, as 
defined in E.O. 12866, by the OAs and components of OST. Unless 
otherwise designated by the Secretary, the Deputy Secretary serves as 
the Chair of the Leadership Council of the RRTF and as the Department's 
RRO.
    (c) The General Counsel of DOT is the chief legal officer of the 
Department with final authority on all questions of law for the 
Department, including the OAs and components of OST; serves on the 
Leadership Council of the RRTF; and serves as the Department's 
Regulatory Policy Officer pursuant to section 6(a)(2) of E.O. 12866.
    (d) The RRO of DOT is delegated authority by the Secretary to 
oversee the implementation of the Department's regulatory reform 
initiatives and policies to ensure the effective implementation of 
regulatory reforms, consistent with E.O. 13777 and applicable law.
    (e) DOT's noncareer Deputy General Counsel is a member of the RRTF 
and serves as the Chair of the RRTF Working Group.
    (f) DOT's Assistant General Counsel for Regulation supervises the 
Office of Regulation within the Office of the General Counsel (OGC); 
oversees the process for DOT rulemakings; provides legal advice on 
compliance with APA and other administrative law requirements and 
executive orders, related OMB directives, and other procedures for 
rulemaking and guidance documents; circulates regulatory documents for 
departmental review and seeks concurrence from reviewing officials; 
submits regulatory documents to the Secretary for approval before 
issuance or submission to OMB; coordinates with the Office of 
Information and Regulatory Affairs (OIRA) within OMB on the designation 
and review of regulatory documents and the preparation of the Unified 
Agenda of Regulatory and Deregulatory Actions; publishes the monthly 
internet report on significant rulemakings; and serves as a member of 
the RRTF Working Group.
    (g) Pursuant to delegations from the Secretary under part 1 of this 
title, OA Administrators and Secretarial officers exercise the 
Secretary's rulemaking authority under 49 U.S.C. 322(a), and they have 
responsibility for ensuring that the regulatory data included in the 
Regulatory Management System (RMS), or a successor data management 
system, for their OAs and OST components is accurate and is updated at 
least once a month.
    (h) OA Chief Counsels supervise the legal staffs of the OAs; 
interpret and provide guidance on all statutes, regulations, executive 
orders, and other legal requirements governing the operation and 
authorities of their respective OAs; and review all rulemaking 
documents for legal sufficiency.
    (i) Each OA or OST component responsible for rulemaking will have a 
Regulatory Quality Officer, designated by the Administrator or 
Secretarial office head, who will have responsibility for reviewing all 
rulemaking documents for plain language, technical soundness, and 
general quality.


Sec.  5.9  Regulatory Reform Task Force.

    (a) Purpose. The Regulatory Reform Task Force (RRTF) evaluates 
proposed and existing regulations and makes recommendations to the 
Secretary regarding their promulgation, repeal, replacement, or 
modification, consistent with applicable law, E.O. 13777, E.O. 13771, 
and E.O. 12866.
    (b) Structure. The RRTF comprises a Leadership Council and a 
Working Group.
    (1) The Working Group coordinates with leadership in the 
Secretarial offices and OAs, reviews and develops recommendations for 
regulatory and deregulatory action, and presents recommendations to the 
Leadership Council.
    (2) The Leadership Council reviews the Working Group's 
recommendations and advises the Secretary.
    (c) Membership. (1) The Leadership Council comprises the following:
    (i) The Regulatory Reform Officer (RRO), who serves as Chair;
    (ii) The Department's Regulatory Policy Officer, designated under 
section 6(a)(2) of E.O. 12866;
    (iii) A representative from the Office of the Under Secretary of 
Transportation for Policy;
    (iv) At least three additional senior agency officials as 
determined by the Secretary.
    (2) The Working Group comprises the following:
    (i) At least one senior agency official from the Office of the 
General Counsel, including at a minimum the Assistant General Counsel 
for Regulation, as determined by the RRO;
    (ii) At least one senior agency official from the Office of the 
Under Secretary of Transportation for Policy, as determined by the RRO;
    (iii) Other senior agency officials from the Office of the 
Secretary, as determined by the RRO.
    (d) Functions and responsibilities. In addition to the functions 
and responsibilities enumerated in E.O. 13777, the RRTF performs the 
following duties:
    (1) Reviews each request for a new rulemaking action initiated by 
an OA or OST component; and
    (2) Considers each regulation and regulatory policy question (which 
may include proposed guidance documents) referred to it and makes a 
recommendation to the Secretary for its disposition.
    (e) Support. The Office of Regulation within OGC provides support 
to the RRTF.
    (f) Meetings. The Leadership Council meets approximately monthly 
and will hold specially scheduled meetings when necessary to address 
particular regulatory matters. The Working Group meets approximately 
monthly with each OA and each component of OST with regulatory 
authority, and the Working Group may establish subcommittees, as 
appropriate, to focus on specific regulatory matters.
    (g) Agenda. The Office of Regulation prepares an agenda for each 
meeting and distributes it to the members in advance of the meeting, 
together with any documents to be discussed at the meeting. The OA or 
OST component responsible for matters on the agenda

[[Page 71720]]

will be invited to attend to respond to questions.
    (h) Minutes. The Office of Regulation prepares summary minutes 
following each meeting and distributes them to the meeting's attendees.


Sec.  5.11  Initiating a rulemaking.

    (a) Before an OA or component of OST may proceed to develop a 
regulation, the Administrator of the OA or the Secretarial officer who 
heads the OST component must consider the regulatory philosophy and 
principles of regulation identified in section 1 of E.O. 12866 and the 
policies set forth in Sec.  5.5 of this subpart. If the OA 
Administrator or OST component head determines that rulemaking is 
warranted consistent with those policies and principles, the 
Administrator or component head may prepare a Rulemaking Initiation 
Request.
    (b) The Rulemaking Initiation Request should specifically state or 
describe:
    (1) A proposed title for the rulemaking;
    (2) The need for the regulation, including a description of the 
market failure or statutory mandate necessitating the rulemaking;
    (3) The legal authority for the rulemaking;
    (4) Whether the rulemaking is expected to be regulatory or 
deregulatory;
    (5) Whether the rulemaking is expected to be significant or 
nonsignificant, as defined by E.O. 12866;
    (6) Whether the final rule in question is expected to be an 
economically significant rule or high-impact rule, as defined in Sec.  
5.17(a) of this subpart;
    (7) A description of the economic impact associated with the 
rulemaking, including whether the rulemaking is likely to impose 
quantifiable costs or cost savings;
    (8) The tentative target dates for completing each stage of the 
rulemaking; and
    (9) Whether there is a statutory or judicial deadline, or some 
other urgency, associated with the rulemaking.
    (c) The OA or OST component submits the Rulemaking Initiation 
Request to the Office of Regulation, together with any other documents 
that may assist in the RRTF's consideration of the request.
    (d) The Office of Regulation includes the Rulemaking Initiation 
Request on the agenda for consideration at the OA's or OST component's 
next Working Group meeting.
    (e) If the Working Group recommends the approval of the Rulemaking 
Initiation Request, then the Request is referred to the Leadership 
Council for consideration. In lieu of consideration at a Leadership 
Council meeting, the Working Group, at its discretion, may submit a 
memorandum to the RRO seeking approval of the Rulemaking Initiation 
Request.
    (f) The OA or OST component may assign a Regulatory Information 
Number (RIN) to the rulemaking only upon the Leadership Council's (or 
RRO's) approval of the Rulemaking Initiation Request.
    (g) The Secretary may initiate a rulemaking on his or her own 
motion. The process for initiating a rulemaking as described herein may 
be waived or modified for any rule with the approval of the RRO. Unless 
otherwise determined by the RRO, the Administrator of the Federal 
Aviation Administration (FAA) may promulgate an emergency rule under 49 
U.S.C. 106(f)(3)(B)(ii) or 49 U.S.C. 46105(c), without first submitting 
a Rulemaking Initiation Request.
    (h) Rulemaking Initiation Requests will be considered on a rolling 
basis; however, the Office of Regulation will establish deadlines for 
submission of Rulemaking Initiation Requests so that new rulemakings 
may be included in the Unified Agenda of Regulatory and Deregulatory 
Actions.


Sec.  5.13  General rulemaking procedures.

    (a) Definitions--(1) Significant rulemaking means a regulatory 
action designated by OIRA under E.O. 12866 as likely to result in a 
rule that may:
    (i) Have an annual effect on the U.S. economy of $100 million or 
more or adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities;
    (ii) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (iii) Materially alter the budgetary impact of entitlements, 
grants, user fees, or loan programs or the rights and obligations of 
recipients thereof; or
    (iv) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
E.O. 12866.
    (2) Nonsignificant rulemaking means a regulatory action not 
designated significant by OIRA.
    (b) Departmental review process. (1) OST review and clearance.
    (i) Except as provided herein or as otherwise provided in writing 
by OGC, all departmental rulemakings are to be reviewed and cleared by 
the Office of the Secretary.
    (ii) The FAA Administrator may promulgate emergency rules pursuant 
to 49 U.S.C. 106(f)(3)(B)(ii) and 49 U.S.C. 46105(c), without prior 
approval from OST; provided that, to the maximum extent practicable and 
consistent with law, the FAA Administrator will give OST advance notice 
of such emergency rules and will allow OST to review the rules in 
accordance with the provisions of this subpart at the earliest 
opportunity after they are promulgated.
    (2) Leadership within the proposing OA or component of OST shall:
    (i) Ensure that the OA's or OST component's Regulatory Quality 
Officer reviews all rulemaking documents for plain language, technical 
soundness, and general quality;
    (ii) Ensure that the OA's Office of Chief Counsel (or for OST 
rules, the Office within OGC responsible for providing programmatic 
advice) reviews all rulemaking documents for legal support and legal 
sufficiency; and
    (iii) Approve the submission of all rulemaking documents, including 
any accompanying analyses (e.g., regulatory impact analysis), to the 
Office of Regulation through the Regulatory Management System (RMS), or 
a successor data management system, for OST review and clearance.
    (3) To effectuate departmental review under this subpart, the 
following Secretarial offices ordinarily review and approve DOT 
rulemakings: The Office of the Under Secretary for Policy, the Office 
of Public Affairs, the Office of Budget and Programs and Chief 
Financial Officer, OGC, and the Office of Governmental Affairs. The 
Office of Regulation may also require review and clearance by other 
Secretarial offices and OAs depending on the nature of the particular 
rulemaking document.
    (4) Reviewing offices should provide comments or otherwise concur 
on rulemaking documents within 7 calendar days, unless exceptional 
circumstances apply that require expedited review.
    (5) The Office of Regulation provides a passback of comments to the 
proposing OA or OST component for resolution. Comments should be 
resolved and a revised draft submitted to the Office of Regulation by 
the OA or OST component within 14 calendar days.
    (6) The Office of Regulation prepares a rulemaking package for the 
General Counsel to request the Secretary's approval for the rulemaking 
to be submitted to OMB for review (for significant rulemakings) or to 
the Federal Register for publication (for

[[Page 71721]]

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

[[Page 71722]]

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

[[Page 71723]]

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

[[Page 71724]]

within the specified time of publication in the Federal Register, the 
OA or OST component may proceed as follows:
    (i) Publish a document withdrawing the direct final rule in the 
rules and regulations section of the Federal Register and, if the OA or 
OST component decides a rulemaking is warranted, a proposed rule; or
    (ii) Any other means permitted under the Administrative Procedure 
Act. (5) An ``adverse'' comment for the purpose of this subpart means 
any comment that the OA or OST component determines is critical of the 
rule, suggests that the rule should not be adopted or suggests a 
material change that should be made in the rule. A comment suggesting 
that the policy or requirements of the rule should or should not also 
be extended to other Departmental programs outside the scope of the 
rule is not adverse. A notice of intent to submit an adverse comment is 
not, in and of itself, an adverse comment.
    (m) Reports to Congress and GAO. For each final rule adopted by 
DOT, the responsible OA or OST component shall submit the reports to 
Congress and the U.S. Government Accountability Office to comply with 
the procedures specified by 5 U.S.C. 801 (the Congressional Review 
Act), or any subsequent amendment thereto.
    (n) Negotiated rulemakings. (1) DOT negotiated rulemakings are to 
be conducted in accordance with the Negotiated Rulemaking Act, 5 U.S.C. 
561-571, and the Federal Advisory Committee Act, 5 U.S.C. App. 2, as 
applicable.
    (2) Before initiating a negotiated rulemaking process, the OA or 
OST component should:
    (i) Assess whether using negotiated rulemaking procedures for the 
proposed rule in question is in the public interest, in accordance with 
5 U.S.C. 563(a), and present these findings to the RRTF;
    (ii) Consult with the Office of Regulation on the appropriateness 
of negotiated rulemaking and the procedures therefor; and
    (iii) Receive the approval of the RRTF for the use of negotiated 
rulemaking.
    (3) Unless otherwise approved by the General Counsel, all DOT 
negotiated rulemakings should involve the assistance of a convener and 
a facilitator, as provided in the Negotiated Rulemaking Act. A convener 
is a person who impartially assists the agency in determining whether 
establishment of a negotiated rulemaking committee is feasible and 
appropriate in a particular rulemaking. A facilitator is a person who 
impartially aids in the discussions and negotiations among members of a 
negotiated rulemaking committee to develop a proposed rule. The same 
person may serve as both convener and facilitator.
    (4) All charters, membership appointments, and Federal Register 
notices must be approved by the Secretary. Any operating procedures 
(e.g., bylaws) for negotiated rulemaking committees must be approved by 
OGC.


Sec.  5.15   Unified Agenda of Regulatory and Deregulatory Actions 
(Unified Agenda).

    (a) Fall editions of the Unified Agenda include the Regulatory 
Plan, which presents the Department's statement of regulatory 
priorities for the coming year. Fall editions also include the outcome 
and status of the Department's reviews of existing regulations, 
conducted in accordance with Sec.  5.13(d).
    (b) The OAs and components of OST with rulemaking authority must:
    (1) Carefully consider the principles contained in E.O. 13771, E.O. 
13777, and E.O. 12866 in the preparation of all submissions for the 
Unified Agenda;
    (2) Ensure that all data pertaining to the OA's or OST component's 
regulatory and deregulatory actions are accurately reflected in the 
Department's Unified Agenda submission; and
    (3) Timely submit all data to the Office of Regulation in 
accordance with the deadlines and procedures communicated by that 
office.


Sec.  5.17  Special procedures for economically significant and high-
impact rulemakings.

    (a) Definitions--(1) Economically significant rule means a 
significant rule likely to impose:
    (i) A total annual cost on the U.S. economy (without regard to 
estimated benefits) of $100 million or more, or
    (ii) A total net loss of at least 75,000 full-time jobs in the U.S. 
over the five years following the effective date of the rule (not 
counting any jobs relating to new regulatory compliance).
    (2) High-impact rule means a significant rule likely to impose:
    (i) A total annual cost on the U.S. economy (without regard to 
estimated benefits) of $500 million or more, or
    (ii) A total net loss of at least 250,000 full-time jobs in the 
U.S. over the five years following the effective date of the rule (not 
counting any jobs relating to new regulatory compliance).
    (b) ANPRM required. Unless directed otherwise by the RRTF or 
otherwise required by law, in the case of a rulemaking for an 
economically significant rule or a high-impact rule, the proposing OA 
or OST component shall publish an ANPRM in the Federal Register.
    (c) Additional requirements for NPRM. (1) In addition to the 
requirements set forth in Sec.  5.13, an NPRM for an economically 
significant rule or a high-impact rule shall include a discussion 
explaining an achievable objective for the rule and the metrics by 
which the OA or OST component will measure progress toward that 
objective.
    (2) Absent unusual circumstances and unless approved by the RRTF 
(in consultation with OIRA, as appropriate), the comment period for an 
economically significant rule shall be at least 60 days and for a high-
impact rule at least 90 days. If a rule is determined to be an 
economically significant rule or high-impact rule after the publication 
of the NPRM, the responsible OA or OST component shall publish a notice 
in the Federal Register that informs the public of the change in 
classification and discusses the achievable objective for the rule and 
the metrics by which the OA or OST component will measure progress 
toward that objective, and shall extend or reopen the comment period by 
not less than 30 days and allow further public comment as appropriate, 
including comment on the change in classification.
    (d) Procedures for formal hearings--(1) Petitions for hearings. 
Following publication of an NPRM for an economically significant rule 
or a high-impact rule, and before the close of the comment period, any 
interested party may file in the rulemaking docket a petition asking 
the proposing OA or OST component to hold a formal hearing on the 
proposed rule in accordance with this subsection.
    (2) Mandatory hearing for high-impact rule. In the case of a 
proposed high-impact rule, the responsible OA or OST component shall 
grant the petition for a formal hearing if the petition makes a 
plausible prima facie showing that:
    (i) The proposed rule depends on conclusions concerning one or more 
specific scientific, technical, economic, or other complex factual 
issues that are genuinely in dispute or that may not satisfy the 
requirements of the Information Quality Act;
    (ii) The ordinary public comment process is unlikely to provide the 
OA or OST component an adequate examination of the issues to permit a 
fully informed judgment on the dispute; and
    (iii) The resolution of the disputed factual issues would likely 
have a material effect on the costs and benefits of the proposed rule 
or on whether the proposed rule would achieve the statutory purpose.
    (3) Authority to deny hearing for economically significant rule. In 
the case of a proposed economically significant rule, the responsible 
OA or

[[Page 71725]]

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


Sec.  5.19  Public contacts in informal rulemaking.

    (a) Agency contacts with the public during informal rulemakings 
conducted in accordance with 5 U.S.C. 553. (1) DOT personnel may have 
meetings or other contacts with interested members of the public 
concerning an informal rulemaking under 5 U.S.C. 553 or similar 
procedures at any stage of the rulemaking process, provided the 
substance of material information submitted by the public that DOT 
relies on in proposing or finalizing the rule is adequately disclosed 
and described in the public rulemaking docket such that all interested 
parties have notice of the information and an opportunity to comment on 
its accuracy and relevance.
    (2) After the issuance of the NPRM and pending completion of the 
final rule, DOT personnel should avoid giving persons outside the 
Executive Branch information regarding the rulemaking that is not 
available generally to the public.

[[Page 71726]]

    (3) If DOT receives an unusually large number of requests for 
meetings with interested members of the public during the comment 
period for a proposed rule or after the close of the comment period, 
the issuing OA or component of OST should consider whether there is a 
need to extend or reopen the comment period, to allow for submission of 
a second round of ``reply comments,'' or to hold a public meeting on 
the proposed rule.
    (4) If the issuing OA or OST component meets with interested 
persons on the rulemaking after the close of the comment period, it 
should be open to giving other interested persons a similar opportunity 
to meet.
    (5) If DOT learns of significant new information, such as new 
studies or data, after the close of the comment period that the issuing 
OA or OST component wishes to rely upon in finalizing the rule, the OA 
or OST component should reopen the comment period to give the public an 
opportunity to comment on the new information. If the new information 
is likely to result in a change to the rule that is not within the 
scope of the NPRM, the OA or OST component should consider issuing a 
Supplemental NPRM to ensure that the final rule represents a logical 
outgrowth of DOT's proposal.
    (b) Contacts during OIRA review. (1) E.O. 12866 and E.O. 13563 lay 
out the procedures for review of significant regulations by OIRA, which 
include a process for members of the public to request meetings with 
OIRA regarding rules under OIRA review. Per E.O. 12866, OIRA invites 
the Department to attend these meetings. The Office of Regulation will 
forward these invitations to the appropriate regulatory contact in the 
OA or component of OST responsible for issuing the regulation.
    (2) If the issuing OA or OST component wishes to attend the OIRA-
sponsored meeting or if its participation is determined to be necessary 
by the Office of Regulation, the regulatory contact should identify to 
the Office of Regulation up to two individuals from the OA or OST 
component who will attend the meeting along with a representative from 
the Office of Regulation. Attendance at these meetings can be by phone 
or in person. These OIRA meetings are generally listening sessions for 
DOT.
    (3) The attending DOT personnel should refrain from debating 
particular points regarding the rulemaking and should avoid disclosing 
the contents of a document or proposed regulatory action that has not 
yet been disclosed to the public, but may answer questions of fact 
regarding a public document.
    (4) Following the OIRA meeting, the attendee(s) from the issuing OA 
or OST component will draft a summary report of the meeting and submit 
it to the Office of Regulation for review. After the report is reviewed 
and finalized in coordination with the Office of Regulation, the 
responsible OA or OST component will place the final report in the 
rulemaking docket.


Sec.  5.21  Policy updates and revisions.

    This subpart shall be reviewed from time to time to reflect 
improvements in the rulemaking process or changes in Administration 
policy.


Sec.  5.23  Disclaimer.

    This subpart is intended to improve the internal management of the 
Department. It is not intended to, and does not, create any right or 
benefit, substantive or procedural, enforceable at law or in equity by 
any party against the United States, its agencies or other entities, 
officers or employees, or any other person. In addition, this subpart 
shall not be construed to create any right to judicial review involving 
the compliance or noncompliance with this subpart by the Department, 
its OAs or OST components, its \8\ officers or employees, or any other 
person.
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    \8\
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Subpart C--Guidance Procedures


Sec.  5.25  General.

    (a) This subpart governs all DOT employees and contractors involved 
with all phases of issuing DOT guidance documents.
    (b) Subject to the qualifications and exemptions contained in this 
subpart and in appendix A to the Memorandum on the Review and Clearance 
of Guidance Documents (available online at the website of the Office of 
the General Counsel's Office of Regulation \1\), these procedures apply 
to all guidance documents issued by all components of the Department 
after December 20, 2018.
---------------------------------------------------------------------------

    \1\ See Appendix A to ``Memorandum on the Review and Clearance 
of Guidance Documents,'' available at https://www.transportation.gov/sites/dot.gov/files/docs/regulations/328566/gen-counsel-mem-guidance-documents-signed-122018.pdf.
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    (c) For purposes of this subpart, the term guidance document 
includes any statement of agency policy or interpretation concerning a 
statute, regulation, or technical matter within the jurisdiction of the 
agency that is intended to have general applicability and future 
effect, but which is not intended to have the force or effect of law in 
its own right and is not otherwise required by statute to satisfy the 
rulemaking procedures specified in 5 U.S.C. 553 or 5 U.S.C. 556. The 
term is not confined to formal written documents; guidance may come in 
a variety of forms, including (but not limited to) letters, memoranda, 
circulars, bulletins, advisories, and may include video, audio, and 
Web-based formats. See OMB Bulletin 07-02, ``Agency Good Guidance 
Practices,'' (January 25, 2007) (``OMB Good Guidance Bulletin'').
    (d) This subpart does not apply to:
    (1) Rules exempt from rulemaking requirements under 5 U.S.C. 
553(a);
    (2) Rules of agency organization, procedure, or practice;
    (3) Decisions of agency adjudications under 5 U.S.C. 554 or similar 
statutory provisions;
    (4) Internal executive branch legal advice or legal advisory 
opinions addressed to executive branch officials;
    (5) Agency statements of specific applicability, including advisory 
or legal opinions directed to particular parties about circumstance-
specific questions (e.g., case or investigatory letters responding to 
complaints, warning letters), notices regarding particular locations or 
facilities (e.g., guidance pertaining to the use, operation, or control 
of a government facility or property), and correspondence with 
individual persons or entities (e.g., congressional correspondence), 
except documents ostensibly directed to a particular party but designed 
to guide the conduct of the broader regulated public;
    (6) Legal briefs, other court filings, or positions taken in 
litigation or enforcement actions;
    (7) Agency statements that do not set forth a policy on a 
statutory, regulatory, or technical issue or an interpretation of a 
statute or regulation, including speeches and individual presentations, 
editorials, media interviews, press materials, or congressional 
testimony that do not set forth for the first time a new regulatory 
policy;
    (8) Guidance pertaining to military or foreign affairs functions;
    (9) Grant solicitations and awards;
    (10) Contract solicitations and awards; or
    (11) Purely internal agency policies or guidance directed solely to 
DOT employees or contractors or to other Federal agencies that are not 
intended to have substantial future effect on the behavior of regulated 
parties.


Sec.  5.27  Review and clearance by Chief Counsels and the Office of 
the General Counsel.

    All DOT guidance documents, as defined in Sec.  5.25(c), require 
review and

[[Page 71727]]

clearance in accordance with this subpart.
    (a) Guidance proposed to be issued by an OA of the Department must 
be reviewed and cleared by the OA's Office of Chief Counsel. In 
addition, as provided elsewhere in this subpart, some OA guidance 
documents will require review and clearance by OGC.
    (b) Guidance proposed to be issued by a component of OST must be 
reviewed and cleared by OGC.


Sec.  5.29  Requirements for clearance.

    DOT's review and clearance of guidance shall ensure that each 
guidance document proposed to be issued by an OA or component of OST 
satisfies the following requirements:
    (a) The guidance document complies with all relevant statutes and 
regulation (including any statutory deadlines for agency action);
    (b) The guidance document identifies or includes:
    (1) The term ``guidance'' or its functional equivalent;
    (2) The issuing OA or component of OST;
    (3) A unique identifier, including, at a minimum, the date of 
issuance and title of the document and its Z-RIN, if applicable;
    (4) The activity or entities to which the guidance applies;
    (5) Citations to applicable statutes and regulations;
    (6) A statement noting whether the guidance is intended to revise 
or replace any previously issued guidance and, if so, sufficient 
information to identify the previously issued guidance; and
    (7) A short summary of the subject matter covered in the guidance 
document at the top of the document.
    (c) The guidance document avoids using mandatory language, such as 
``shall,'' ``must,'' ``required,'' or ``requirement,'' unless the 
language is describing an established statutory or regulatory 
requirement or is addressed to DOT staff and will not foreclose the 
Department's consideration of positions advanced by affected private 
parties;
    (d) The guidance document is written in plain and understandable 
English;
    (e) All guidance documents include a clear and prominent statement 
declaring that the contents of the document do not have the force and 
effect of law and are not meant to bind the public in any way, and the 
document is intended only to provide clarity to the public regarding 
existing requirements under the law or agency policies.


Sec.  5.31  Public access to effective guidance documents.

    Each OA and component of OST responsible for issuing guidance 
documents shall:
    (a) Ensure all effective guidance documents, identified by a unique 
identifier which includes, at a minimum, the document's title and date 
of issuance or revision and its Z-RIN, if applicable, are on its 
website in a single, searchable, indexed database, and available to the 
public in accordance with 49 CFR 7.12(a)(2);
    (b) Note on its website that guidance documents lack the force and 
effect of law, except as authorized by law or as incorporated into a 
contract;
    (c) Maintain and advertise on its website a means for the public to 
comment electronically on any guidance documents that are subject to 
the notice-and-comment procedures described in Sec.  5.39 and to submit 
requests electronically for issuance, reconsideration, modification, or 
rescission of guidance documents in accordance with Sec.  5.41; and
    (d) Designate an office to receive and address complaints from the 
public that the OA or OST component is not following the requirements 
of OMB's Good Guidance Bulletin or is improperly treating a guidance 
document as a binding requirement.


Sec.  5.33  Good faith cost estimates.

    Even though not legally binding, some agency guidance may result in 
a substantial economic impact. For example, the issuance of agency 
guidance may induce private parties to alter their conduct to conform 
to recommended standards or practices, thereby incurring costs beyond 
the costs of complying with existing statutes and regulations. While it 
may be difficult to predict with precision the economic impact of 
voluntary guidance, the proposing OA or component of OST shall, to the 
extent practicable, make a good faith effort to estimate the likely 
economic cost impact of the guidance document to determine whether the 
document might be significant. When an OA or OST component is assessing 
or explaining whether it believes a guidance document is significant, 
it should, at a minimum, provide the same level of analysis that would 
be required for a major determination under the Congressional Review 
Act.\2\ When an agency determines that a guidance document will be 
economically significant, the OA or OST component should conduct and 
publish a Regulatory Impact Analysis of the sort that would accompany 
an economically significant rulemaking, to the extent reasonably 
possible.
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    \2\ See OMB Memorandum M-19-14, Guidance on Compliance with the 
Congressional Review Act (April 11, 2019).
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Sec.  5.35  Approved procedures for guidance documents identified as 
``significant'' or ``otherwise of importance to the Department's 
interests.''

    (a) For guidance proposed to be issued by an OA, if there is a 
reasonable possibility the guidance may be considered ``significant'' 
or ``otherwise of importance to the Department's interests'' within the 
meaning of Sec.  5.37 or if the OA is uncertain whether the guidance 
may qualify as such, the OA should email a copy of the proposed 
guidance document (or a summary of it) to the Office of Regulation for 
review and further direction before issuance. Unless exempt under 
appendix A to the Memorandum on the Review and Clearance of Guidance 
Documents,\3\ each proposed DOT guidance document determined to be 
significant or otherwise of importance to the Department's interests 
must be approved by the Secretary before issuance. In such instances, 
the Office of Regulation will request that the proposing OA or 
component of OST obtain a Z-RIN for departmental review and clearance 
through the Regulatory Management System (RMS), or a successor data 
management system, and OGC will coordinate submission of the proposed 
guidance document to the Secretary for approval.
---------------------------------------------------------------------------

    \3\ See Appendix A to ``Memorandum on the Review and Clearance 
of Guidance Documents,'' available at https://www.transportation.gov/sites/dot.gov/files/docs/regulations/328566/gen-counsel-mem-guidance-documents-signed-122018.pdf.
---------------------------------------------------------------------------

    (b) As with significant regulations, OGC will submit significant 
DOT guidance documents to OMB for coordinated review. In addition, OGC 
may determine that it is appropriate to coordinate with OMB in the 
review of guidance documents that are otherwise of importance to the 
Department's interests.
    (c) If the guidance document is determined not to be either 
significant or otherwise of importance to the Department's interests 
within the meaning of Sec.  5.37, the Office of Regulation will advise 
the proposing OA or component of OST to proceed with issuance of the 
guidance either through the Office of the Executive Secretariat (for 
Federal Register notices) or through its standard clearance process. 
For each guidance document coordinated through the Office of the 
Executive Secretariat, the issuing OA or component of OST should 
include a

[[Page 71728]]

statement in the action memorandum indicating that the guidance 
document has been reviewed and cleared in accordance with this process.


Sec.  5.37  Definitions of ``significant guidance document'' and 
guidance documents that are ``otherwise of importance to the 
Department's interests.''

    (a) The term ``significant guidance document'' means a guidance 
document that will be disseminated to regulated entities or the general 
public and that may reasonably be anticipated:
    (1) To lead to an annual effect on the economy of $100 million or 
more or adversely affect in a material way the U.S. economy, a sector 
of the U.S. economy, productivity, competition, jobs, the environment, 
public health or safety, or State, local, or tribal governments or 
communities;
    (2) To create serious inconsistency or otherwise interfere with an 
action taken or planned by another Federal agency;
    (3) To alter materially the budgetary impact of entitlements, 
grants, user fees, or loan programs or the rights and obligations of 
recipients thereof; or
    (4) To raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
E.O. 12866, as further amended.
    (b) The term ``significant guidance document'' does not include the 
categories of documents excluded by Sec.  5.25(b) or any other category 
of guidance documents exempted in writing by OGC in consultation with 
OMB's Office of Information and Regulatory Affairs (OIRA).
    (c) Significant and economically significant guidance documents 
must be reviewed by OIRA under E.O. 12866 before issuance; and and must 
demonstrate compliance with the applicable requirements for regulations 
or rules, including significant regulatory actions, set forth in E.O. 
12866, E.O. 13563, E.O. 13609, E.O. 13771, and E.O. 13777.
    (d) Even if not ``significant,'' a guidance document will be 
considered ``otherwise of importance to the Department's interests'' 
within the meaning of this paragraph if it may reasonably be 
anticipated:
    (1) To relate to a major program, policy, or activity of the 
Department or a high-profile issue pending for decision before the 
Department;
    (2) To involve one of the Secretary's top policy priorities;
    (3) To garner significant press or congressional attention; or
    (4) To raise significant questions or concerns from constituencies 
of importance to the Department, such as Committees of Congress, States 
or Indian tribes, the White House or other departments of the Executive 
Branch, courts, consumer or public interest groups, or leading 
representatives of industry.


Sec.  5.39  Designation procedures.

    (a) The Office of Regulation may request an OA or OST component to 
prepare a designation request for certain guidance documents. 
Designation requests must include the following information:
    (1) A summary of the guidance document; and
    (2) The OA or OST component's recommended designation of ``not 
significant,'' ``significant,'' or ``economically significant,'' as 
well as a justification for that designation.
    (b) Except as otherwise provided in paragraph (c) of this section, 
the Office of Regulation will seek significance determinations from 
OIRA for certain guidance documents, as appropriate, in the same manner 
as for rulemakings. Prior to publishing these guidance documents, and 
with sufficient time to allow OIRA to review the document in the event 
that a significance determination is made, the Office of Regulation 
should provide OIRA with an opportunity to review the designation 
request or the guidance document, if requested, to determine if it 
meets the definition of ``significant'' or ``economically significant'' 
under Executive Order 13891.
    (c) Unless they present novel issues, significant risks, 
interagency considerations, unusual circumstances, or other unique 
issues, the categories of guidance documents found in appendix A \4\ do 
not require designation by OIRA.
---------------------------------------------------------------------------

    \4\ See Appendix A to ``Memorandum on the Review and Clearance 
of Guidance Documents,'' available at https://www.transportation.gov/sites/dot.gov/files/docs/regulations/328566/gen-counsel-mem-guidance-documents-signed-122018.pdf.
---------------------------------------------------------------------------


Sec.  5.41  Notice-and-comment procedures.

    (a) Except as provided in paragraph (b) of this section, all 
proposed DOT guidance documents determined to be a ``significant 
guidance document'' within the meaning of Sec.  5.37 shall be subject 
to the following informal notice-and-comment procedures. The issuing OA 
or component of OST shall publish a notice in the Federal Register 
announcing that a draft of the proposed guidance document is publicly 
available, shall post the draft guidance document on its website, shall 
invite public comment on the draft document for a minimum of 30 days, 
and shall prepare and post a public response to major concerns raised 
in the comments, as appropriate, on its website, either before or when 
the guidance document is finalized and issued.
    (b) The requirements of paragraph (a) of this section will not 
apply to any significant guidance document or categories of significant 
guidance documents for which OGC finds, in consultation with OIRA, the 
proposing OA or component of OST, and the Secretary, good cause that 
notice and public procedure thereon are impracticable, unnecessary, or 
contrary to the public interest (and incorporates the finding of good 
cause and a brief statement of reasons therefor in the guidance 
issued). Unless OGC advises otherwise in writing, the categories of 
guidance documents listed in appendix A \5\ will be exempt from the 
requirements of paragraph (a) of this section.
---------------------------------------------------------------------------

    \5\ See Appendix A to ``Memorandum on the Review and Clearance 
of Guidance Documents,'' available at https://www.transportation.gov/sites/dot.gov/files/docs/regulations/328566/gen-counsel-mem-guidance-documents-signed-122018.pdf.
---------------------------------------------------------------------------

    (c) Where appropriate, OGC or the proposing OA or component of OST 
may recommend to the Secretary that a particular guidance document that 
is otherwise of importance to the Department's interests shall also be 
subject to the informal notice-and-comment procedures described in 
paragraph (a) of this section.


Sec.  5.43  Petitions for guidance.

    Any person may petition an OA or OST component to withdraw or 
modify a particular guidance document by using the procedures found in 
Sec.  5.13(c). The OA or OST component should respond to all requests 
in a timely manner, but no later than 90 days after receipt of the 
request.


Sec.  5.45  Rescinded guidance.

    No OA or component of OST may cite, use, or rely on guidance 
documents that are rescinded, except to establish historical facts.


Sec.  5.47  Exigent circumstances.

    In emergency situations or when the issuing OA or component of OST 
is required by statutory deadline or court order to act more quickly 
than normal review procedures allow, the issuing OA or component of OST 
shall coordinate with OGC to notify OIRA as soon as possible and, to 
the extent practicable, shall comply with the requirements of this 
subpart at the earliest opportunity. Wherever practicable, the issuing 
OA or component of OST should schedule its proceedings to permit 
sufficient time to

[[Page 71729]]

comply with the procedures set forth in this subpart.


Sec.  5.49  Reports to Congress and GAO.

    Unless otherwise determined in writing by OGC, it is the policy of 
the Department that upon issuing a guidance document determined to be 
``significant'' within the meaning of Sec.  5.37, the issuing OA or 
component of OST will submit a report to Congress and GAO in accordance 
with the procedures described in 5 U.S.C. 801 (the ``Congressional 
Review Act'').


Sec.  5.51  No judicial review or enforceable rights.

    This subpart is intended to improve the internal management of the 
Department of Transportation. As such, it is for the use of DOT 
personnel only and is not intended to, and does not, create any right 
or benefit, substantive or procedural, enforceable at law or in equity 
by any party against the United States, its agencies or other entities, 
its officers or employees, or any other person.

Subpart D--Enforcement Procedures


Sec.  5.53  General.

    The requirements set forth in this subpart apply to all enforcement 
actions taken by each DOT operating administration (OA) and each 
component of the Office of the Secretary of Transportation (OST) with 
enforcement authority.


Sec.  5.55  Enforcement attorney responsibilities.

    All attorneys of OST and the OAs involved in enforcement activities 
are responsible for carrying out and adhering to the policies set forth 
in this subpart. All supervising attorneys with responsibility over 
enforcement adjudications, administrative enforcement proceedings, and 
other enforcement actions are accountable for the successful 
implementation of these policies and for reviewing and monitoring 
compliance with this subpart by the employees under their supervision. 
These responsibilities include taking all steps necessary to ensure 
that the Department provides a fair and impartial process at each stage 
of enforcement actions. The Office of Litigation and Enforcement within 
the Office of the General Counsel (OGC) is delegated authority to 
interpret this subpart and provide guidance on compliance with the 
policies contained herein. The Office of Litigation and Enforcement 
shall exercise this authority in coordination with the Chief Counsels 
of the OAs and subject to the direction and supervision of the General 
Counsel.


Sec.  5.57  Definitions.

    Administrative enforcement proceeding is to be interpreted broadly, 
consistent with applicable law and regulations, and includes, but is 
not limited to, administrative civil penalty proceedings; proceedings 
involving potential cease-and-desist or corrective action orders; 
preemption proceedings; safety rating appeals; pilot and mechanic 
revocation proceedings; grant suspensions, terminations, or other 
actions to remedy violations of grant conditions; and similar 
enforcement-related proceedings.
    Administrative law judges (ALJs) are adjudicatory hearing officers 
appointed by a department head to serve as triers of fact in formal and 
informal administrative proceedings and to issue recommended decisions 
in adjudications. At DOT, ALJs are to be appointed by the Secretary of 
Transportation and assigned to the Office of Hearings.
    Adversarial personnel are those persons who represent a party 
(including the agency) or a position or interest at issue in an 
enforcement action taken or proposed to be taken by or for an agency. 
They include the agency's employees who investigate, prosecute, or 
advocate on behalf of the agency in connection with the enforcement 
action.
    Decisional personnel are employees of the agency responsible for 
issuing decisions arising out of the agency's enforcement actions, 
which include formal or informal enforcement adjudications. These 
employees include ALJs, hearing officers, Administrative Judges (AJs), 
and agency employees who advise and assist such decision makers.
    Due process means procedural rights and protections afforded by the 
Government to affected parties to provide for a fair process in the 
enforcement of legal obligations, including in connection with agency 
actions determining a violation of law, assessing a civil penalty, 
requiring a party to take corrective action or to cease and desist from 
conduct, or otherwise depriving a party of a property or liberty 
interest. Due process always includes two essential elements for a 
party subject to an agency enforcement action: adequate notice of the 
proposed agency enforcement action and a meaningful opportunity to be 
heard by the agency decision maker.
    Enabling act means the Federal statute that defines the scope of an 
agency's authority and authorizes it to undertake an enforcement 
action.
    Enforcement action means an action taken by the Department upon its 
own initiative or at the request of an affected party in furtherance of 
its statutory authority and responsibility to execute and ensure 
compliance with applicable laws. Such actions include administrative 
enforcement proceedings, enforcement adjudications, and judicial 
enforcement proceedings.
    Enforcement adjudication is the administrative process undertaken 
by the agency to resolve the legal rights and obligations of specific 
parties with regard to a particular enforcement issue pending before an 
agency. The outcome of an enforcement adjudication is a formal or 
informal decision issued by an appropriate decision maker. Enforcement 
adjudications require the opportunity for participation by directly 
affected parties and the right to present a response to a decision 
maker, including relevant evidence and reasoned arguments.
    Formal enforcement adjudication means an adjudication required by 
statute to be conducted ``on the record.'' The words ``on the record'' 
generally refer to a decision issued by an agency after a proceeding 
conducted before an ALJ (or the agency head sitting as judge or other 
presiding employee who is not an ALJ) using trial-type procedures. It 
is usually the agency's enabling act, not the APA, that determines 
whether a formal hearing is required.
    Informal enforcement adjudication means an adjudication that is not 
required to be conducted ``on the record'' with trial-like procedures. 
The APA provides agencies with a substantial degree of flexibility in 
establishing practices and procedures for the conduct of informal 
adjudications.
    Investigators, inspectors, and special agents refer to those agency 
employees or agents responsible for the investigation and review of an 
affected party's compliance with the regulations and other legal 
requirements administered by the agency.
    Judicial enforcement proceeding means a proceeding conducted in an 
Article III court, in which the Department is seeking to enforce an 
applicable statute, regulation, or order.
    Procedural regulations are agency regulations setting forth the 
procedures to be followed during adjudications consistent with the 
agency's enabling act, the APA, and other applicable laws.


Sec.  5.59  Enforcement policy generally.

    It is the policy of the Department to provide affected parties 
appropriate due process in all enforcement actions. In the course of 
such actions and

[[Page 71730]]

proceedings, the Department's conduct must be fair and free of bias and 
should conclude with a well-documented decision as to violations 
alleged and any violations found to have been committed, the penalties 
or corrective actions to be imposed for such violations, and the steps 
needed to ensure future compliance. It is in the public interest and 
fundamental to good government that the Department carry out its 
enforcement responsibilities in a fair and just manner. No person 
should be subject to an administrative enforcement action or 
adjudication absent prior public notice of both the enforcing agency's 
jurisdiction over particular conduct and the legal standards applicable 
to that conduct. The Department should, where feasible, foster greater 
private-sector cooperation in enforcement, promote information sharing 
with the private sector, and establish predictable outcomes for private 
conduct.


Sec.  5.61  Investigative functions.

    DOT's investigative powers must be used in a manner consistent with 
due process, basic fairness, and respect for individual liberty and 
private property. Congress has granted the Secretary (and by delegation 
from the Secretary to the OAs) and the FAA Administrator broad 
investigative powers, and it is an essential part of DOT's safety and 
consumer protection mission to investigate compliance with the statutes 
and regulations administered by the Department, including through 
periodic inspections. The OAs and components of OST with enforcement 
authority are appropriately given broad discretion in determining 
whether and how to conduct investigations, periodic inspections, and 
other compliance reviews, and these investigative functions are often 
performed by agency investigators or inspectors in the field. The 
employees and contractors of DOT responsible for inspections and other 
investigative functions must not use these authorities as a game of 
``gotcha'' with regulated entities and should follow existing statutes 
and regulations. Rather, to the maximum extent consistent with 
protecting the integrity of the investigation, the representatives of 
DOT should promptly disclose to the affected parties the reasons for 
the investigative review and any compliance issues identified or 
findings made in the course of the review. The responsible enforcement 
attorneys within the relevant OA or component of OST shall provide 
effective legal guidance to investigators and inspectors to ensure 
adherence to the policies and procedures set forth herein.


Sec.  5.63  Clear legal foundation.

    All DOT enforcement actions against affected parties seeking 
redress for asserted violations of a statute or regulation must be 
founded on a grant of statutory authority in the relevant enabling act. 
The authority to prosecute the asserted violation and the authority to 
impose monetary penalties, if sought, must be clear in the text of the 
statute. Unless the terms of the relevant statute or regulation with 
government-wide applicability, such as 2 CFR part 180, clearly and 
expressly authorize the OA or component of OST to enforce the relevant 
legal requirement directly through an administrative enforcement 
proceeding, the proper forum for the enforcement action is Federal 
court, and the enforcement action must be initiated in court by 
attorneys of the Department of Justice acting in coordination with DOT 
counsel.


Sec.  5.65  Proper exercise of prosecutorial and enforcement 
discretion.

    The Department's attorneys and policy makers have broad discretion 
in deciding whether to initiate an enforcement action. Nevertheless, in 
exercising discretion to initiate an enforcement action and in the 
pursuit of that action, agency counsel must not adopt or rely upon 
overly broad or unduly expansive interpretations of the governing 
statutes or regulations, and should ensure that the law is interpreted 
and applied according to its text. DOT will not rely on judge-made 
rules of judicial discretion, such as the Chevron doctrine, as a device 
or excuse for straining the limits of a statutory grant of enforcement 
authority. All decisions by DOT to prosecute or not to prosecute an 
enforcement action should be based upon a reasonable interpretation of 
the law about which the public has received fair notice and should be 
made with due regard for fairness, the facts and evidence adduced 
through an appropriate investigation or compliance review, the 
availability of scarce resources, the administrative needs of the 
responsible OA or OST component, Administration policy, and the 
importance of the issues involved to the fulfillment of the 
Department's statutory responsibilities.


Sec.  5.67  Duty to review for legal sufficiency.

    In accordance with established agency procedures, enforcement 
actions should be reviewed by the responsible agency component for 
legal sufficiency under applicable statutes and regulations, judicial 
decisions, and other appropriate authorities.\6\ If, in the opinion of 
the responsible agency component or its counsel, the evidence is 
sufficient to support the assertion of violation(s), then the agency 
may proceed with the enforcement action. If the evidence is not 
sufficient to support the proposed enforcement action, the agency may 
modify or amend the charges and bring an enforcement action in line 
with the evidence or return the case to the enforcement staff for 
additional investigation. The reviewing attorney or agency component 
may also recommend the closure of the case for lack of sufficient 
evidence.\7\ The Department will not initiate enforcement actions as a 
``fishing expedition'' to find potential violations of law in the 
absence of sufficient evidence in hand to support the assertion of a 
violation.
---------------------------------------------------------------------------

    \6\ Though it may not always be feasible or necessary for agency 
personnel to consult with counsel before initiating an enforcement 
action, particularly since the OAs utilize a variety of enforcement 
personnel to staff their enforcement programs, including personnel 
located in the fields, agency personnel should ensure that the basis 
for an enforcement action is legally sufficient before initiating 
it.
    \7\ Attorneys at many of the OAs issue Notices of Probable 
Violations, Notice of Claims, or Demand Letters to initiate 
enforcement proceedings. At other OAs, these documents are issued by 
non-attorney program officials. The duty to review applies equally 
to all agency attorneys whether deciding to issue a document to 
initiate enforcement proceedings or to continue to prosecute based 
upon a document previously issued by a non-attorney program 
official. In the latter situation, it is important that attorneys 
provide legal input, training, and review of the work product of the 
program office. At all times, DOT attorneys are encouraged to 
exercise their best professional judgment in deciding to initiate, 
continue, or recommend closing a case, consistent with applicable 
legal and ethical standards.
---------------------------------------------------------------------------


Sec.  5.69  Fair notice.

    Notice to the regulated party is a due process requirement. All 
documents initiating an enforcement action shall ensure notice 
reasonably calculated to inform the regulated party of the nature and 
basis for the action being taken to allow an opportunity to challenge 
the action and to avoid unfair surprise. The notice should include 
legal authorities, statutes or regulations allegedly violated, basic 
issues, key facts alleged, a clear statement of the grounds for the 
agency's action, and a reference to or recitation of the procedural 
rights available to the party to challenge the agency action, including 
appropriate procedure for seeking administrative and judicial review.


Sec.  5.71  Separation of functions.

    For those OAs or OST components whose regulations provide for a 
separation of decisional personnel from adversarial personnel in an

[[Page 71731]]

administrative enforcement proceeding, any agency personnel who have 
taken an active part in investigating, prosecuting, or advocating in 
the enforcement action should not serve as a decision maker and should 
not advise or assist the decision maker in that same or a related case. 
In such proceedings, the agency's adversarial personnel should not 
furnish ex parte advice or factual materials to decisional personnel. 
When and as necessary, agency employees involved in enforcement actions 
should consult legal counsel and applicable regulations and ethical 
standards for further guidance on these requirements.


Sec.  5.73  Avoiding bias.

    Consistent with all applicable laws and ethical standards relating 
to recusals and disqualifications, no Federal employee or contractor 
may participate in a DOT enforcement action in any capacity, including 
as ALJ, adjudication counsel, adversarial personnel, or decisional 
personnel, if that person has:
    (a) A financial or other personal interest that would be affected 
by the outcome of the enforcement action;
    (b) Personal animus against a party to the action or against a 
group to which a party belongs;
    (c) Prejudgment of the adjudicative facts at issue in the 
proceeding; or
    (d) Any other prohibited conflict of interest.


Sec.  5.75  Formal enforcement adjudications.

    When a case is referred by the decision maker to the Office of 
Hearings or another designated hearing officer for formal adjudication 
(an ``on the record'' hearing), the assigned ALJ or hearing officer 
should use trial-type procedures consistent with applicable legal 
provisions. In formal adjudication, the APA requires findings and 
reasons on all material issues of fact, law, or discretion (policy). In 
all formal adjudications, the responsible OA or component of OST shall 
adhere faithfully and consistently to the procedures established in the 
relevant procedural regulations. Agency counsel engaged in formal 
adjudications on behalf of DOT are accountable for compliance with the 
requirements of this subpart.


Sec.  5.77  Informal enforcement adjudications.

    Even though informal adjudications do not require trial-type 
procedures, the responsible OA or component of OST should ordinarily 
afford the applicant or the regulated entity that is the subject of the 
adjudication (as the case may be), as well as other directly affected 
parties (if any), adequate notice and an opportunity to be heard on the 
matter under review, either through an oral presentation or through a 
written submission. Except in cases of a safety emergency or when the 
clear text of the relevant enabling act or government-wide regulation, 
such as 2 CFR part 180, expressly authorizes exigent enforcement action 
without a prior hearing, the responsible OA or component of OST shall 
give the regulated entity appropriate advance notice of the proposed 
enforcement action and shall advise the entity of the opportunity for 
an informal hearing in a manner and sufficiently in advance that the 
entity's representatives have a fair opportunity to prepare for and to 
participate in the hearing, whether in person or by writing. The notice 
should be in plain language and, when appropriate, contain basic 
information about the applicable adjudicatory process. In all informal 
adjudications, the responsible OA or component of OST shall adhere 
faithfully and consistently to the procedures established in any 
applicable procedural regulations.


Sec.  5.79  The hearing record.

    In formal hearings, the agency shall comply with the APA and shall 
include in the record of the hearing the testimony, exhibits, papers, 
and requests that are filed by parties to the hearing, in addition to 
the ALJ's or hearing officer's decision or the decision on appeal. For 
informal hearings, the record shall include the information that the 
agency considered ``at the time it reached the decision'' and its 
contemporaneous findings. The administrative record does not include 
privileged documents, such as attorney-client communications or 
deliberative or draft documents. Agencies are encouraged to make the 
record available to all interested parties to the fullest extent 
allowed by law, consistent with appropriate protections for the 
handling of confidential information.


Sec.  5.81  Contacts with the public.

    After the initiation of an enforcement proceeding, communications 
between persons outside the agency and agency decisional personnel 
should occur on the record. Consistent with applicable regulations and 
procedures, if oral, written, or electronic ex parte communications 
occur, they should be placed on the record as soon as practicable. 
Notice should be given to the parties that such communications are 
being placed into the record. When performing departmental functions, 
all DOT employees should properly identify themselves as employees of 
the Department, including the OA or component of OST in which they 
work; they should properly show official identification if the contact 
is made in person; and they should clearly state the nature of their 
business and the reasons for the contact. All contacts by DOT personnel 
with the public shall be professional, fair, honest, direct, and 
consistent with all applicable ethical standards.


Sec.  5.83  Duty to disclose exculpatory evidence.

    It is the Department's policy that each responsible OA or component 
of OST will voluntarily follow in its civil enforcement actions the 
principle articulated in Brady v. Maryland, \8\ in which the Supreme 
Court held that the Due Process Clause of the Fifth Amendment requires 
disclosure of exculpatory evidence ``material to guilt or punishment'' 
known to the government but unknown to the defendant in criminal cases. 
Adopting the ``Brady rule'' and making affirmative disclosures of 
exculpatory evidence in all enforcement actions will contribute to the 
Department's goal of open and fair investigations and administrative 
enforcement proceedings. This policy requires the agency's adversarial 
personnel to disclose materially exculpatory evidence in the agency's 
possession to the representatives of the regulated entity whose conduct 
is the subject of the enforcement action. These affirmative disclosures 
should include any material evidence known to the Department's 
adversarial personnel that may be favorable to the regulated entity in 
the enforcement action--including evidence that tends to negate or 
diminish the party's responsibility for a violation or that could be 
relied upon to reduce the potential fine or other penalties. The 
regulated entity need not request such favorable information; it should 
be disclosed as a matter of course. Agency counsel should recommend 
appropriate remedies to DOT decision makers where a Brady rule 
violation has occurred, using the factors identified by courts when 
applying the Brady rule in the criminal context.
---------------------------------------------------------------------------

    \8\ Brady v. Maryland, 373 U.S. 83 (1963).
---------------------------------------------------------------------------


Sec.  5.85  Use of guidance documents in administrative enforcement 
cases.

    Guidance documents cannot create binding requirements that do not 
already exist by statute or regulation. Accordingly, the Department may 
not use its enforcement authority to convert agency guidance documents 
into

[[Page 71732]]

binding rules. Likewise, enforcement attorneys may not use 
noncompliance with guidance documents as a basis for proving violations 
of applicable law. Guidance documents can do no more, with respect to 
prohibition of conduct, than articulate the agency or Department's 
understanding of how a statute or regulation applies to particular 
circumstances. The Department may cite a guidance document to convey 
this understanding in an administrative enforcement action or 
adjudication only if it has notified the public of such document in 
advance through publication in the Federal Register or on the 
Department's website. Additional procedures related to guidance 
documents are contained in part 5, subpart C, of this chapter.


Sec.  5.87  Alternative Dispute Resolution (ADR).

    The OAs and the components of OST with enforcement authority are 
encouraged to use ADR to resolve enforcement cases where appropriate. 
The Department's ADR policy describes a variety of problem-solving 
processes that can be used in lieu of litigation or other adversarial 
proceedings to resolve disputes over compliance.


Sec.  5.89  Duty to adjudicate proceedings promptly.

    Agency attorneys should promptly initiate proceedings or prosecute 
matters referred to them. In addition, cases should not be allowed to 
linger unduly after the adjudicatory process has begun. Attorneys 
should seek to settle matters where possible or refer the case to a 
decision maker for proper disposition when settlement negotiations have 
reached an impasse.


Sec.  5.91  Agency decisions.

    Agency counsel may be used in the conduct of informal hearings and 
to prepare initial recommended decisions for the agency decision maker. 
The agency must notify the directly affected parties of its decision, 
and the decision must reasonably inform the parties in a timely manner 
of the additional procedural rights available to them.


Sec.  5.93  Settlements.

    Settlement conferences may be handled by appropriate agency counsel 
without the involvement of the agency's decision maker. Once a matter 
is settled by compromise, that agreement should be reviewed and 
accepted by an appropriate supervisor. The responsible OA or component 
of OST should issue an order adopting the terms of the settlement 
agreement as the final agency decision, where and as authorized by 
statute or regulation. No DOT settlement agreement, consent order, or 
consent decree should be used to adopt or impose new regulatory 
obligations for entities that are not parties to the settlement. Unless 
required by law, settlement agreements are not confidential and are 
subject to public disclosure.


Sec.  5.95  OGC approval required for certain settlement terms.

    Whenever a proposed settlement agreement, consent order, or consent 
decree would impose behavioral commitments or obligations on a 
regulated entity that go beyond the requirements of relevant statutes 
and regulations, including the appointment of an independent monitor or 
the imposition of novel, unprecedented, or extraordinary obligations, 
the responsible OA or OST component should obtain the approval of OGC 
before finalizing the settlement agreement, consent order, or consent 
decree.


Sec.  5.97  Basis for civil penalties and disclosures thereof.

    No civil penalties will be sought in any DOT enforcement action 
except when and as supported by clear statutory authority and 
sufficient findings of fact. Where applicable statutes vest the agency 
with discretion with regard to the amount or type of penalty sought or 
imposed, the penalty should reflect due regard for fairness, the scale 
of the violation, the violator's knowledge and intent, and any 
mitigating factors (such as whether the violator is a small business). 
The assessment of proposed or final penalties in a DOT enforcement 
action shall be communicated in writing to the subject of the action, 
along with a full explanation of the basis for the calculation of 
asserted penalties. In addition, the agency shall voluntarily share 
penalty calculation worksheets, manuals, charts, or other appropriate 
materials that shed light on the way penalties are calculated to ensure 
fairness in the process and to encourage a negotiated resolution where 
possible.


Sec.  5.99  Publication of decisions.

    The agency's decisions in informal adjudications are not required 
to be published under the APA. However, where the agency intends to 
rely on its opinions in future cases, those opinions must generally be 
made available on agency websites or in agency reading rooms (and 
publication on Westlaw, Lexis, or similar legal services is also highly 
recommended). The APA has been read to require that opinions in formal 
adjudications must be made ``available for public inspection and 
copying.'' Agencies are strongly encouraged to publish all formal 
decisions on Westlaw, Lexis, or similar legal services.


Sec.  5.101  Coordination with the Office of Inspector General on 
criminal matters.

    All Department employees must comply with the operative DOT 
Order(s) addressing referrals of potential criminal matters to the 
Office of Inspector General (OIG), consistent with the respective roles 
of the OIG and DOT OAs and components of OST in criminal investigations 
and the OIG's investigative procedures under the Inspector General Act 
of 1978, as amended.


Sec.  5.103  Standard operating procedures.

    All legal offices that participate in or render advice in 
connection with enforcement actions should, to the extent practicable, 
operate under standard operating procedures. Such offices include, but 
are not limited to, those that oversee investigatory matters and serve 
as adversarial personnel in the agency's enforcement matters. These 
standard operating procedures, which can be contained in manuals, can 
be used to outline step-by-step requirements for attorney actions in 
the investigative stage and the prosecution stage; the role of an 
attorney as counselor, adjudicator, or litigator; the rulemaking 
process; and the process for issuance of guidance documents, letters of 
interpretation, preemption decisions, legislative guidance, contract 
administration, and a variety of other legal functions performed in the 
legal office. Each DOT OA and each OST component that conducts 
administrative inspections shall operate under those procedures 
governing such inspections and shall adopt such administrative 
inspection procedures if they do not exist. Those procedures shall be 
updated in a timely manner as needed.


Sec.  5.105  Cooperative Information Sharing.

    The Department, as appropriate and to the extent practicable and 
permitted by law, shall:
    (a) Encourage voluntary self-reporting of regulatory violations by 
regulated parties in exchange for reduction or waivers of civil 
penalties;
    (b) Encourage voluntary information sharing by regulated parties; 
and
    (c) Provide pre-enforcement rulings to regulated parties (formal 
and informal interpretations).

[[Page 71733]]

Sec.  5.107  Small Business Regulatory Enforcement Fairness Act 
Compliance (SBREFA).

    The Department shall comply with the terms of SBREFA when 
conducting administrative inspections and adjudications, including 
section 223 of SBREFA (reduction or waivers of civil penalties, where 
appropriate). The Department will also cooperate with the Small 
Business Administration (SBA) when a small business files a comment or 
complaint related to DOT's inspection authority and when requested to 
answer SBREFA compliance requests.


Sec.  5.109  Referral of matters for judicial enforcement.

    In considering whether to refer a matter for judicial enforcement 
by the Department of Justice, DOT attorneys should consult the 
applicable procedures set forth by the General Counsel, including in 
the document entitled ``Partnering for Excellence: Coordination of 
Legal Work Within the U.S. Department of Transportation,'' and any 
update or supplement to such document issued hereafter by the General 
Counsel. The specific procedures for initiating an affirmative 
litigation request are currently found in the coordination document at 
Section 11.B.l., ``Affirmative Litigation Requests to the Department of 
Justice.'' In most instances, requests to commence affirmative 
litigation must be reviewed by OGC, with such reviews coordinated 
through the Office of Litigation and Enforcement.


Sec.  5.111  No third-party rights or benefits.

    This subpart is intended to improve the internal management of the 
Department. As such, it is for the use of DOT personnel only and is not 
intended to, and does not, create any right or benefit, substantive or 
procedural, enforceable at law or in equity by any party against the 
United States, its agencies, officers, or any person.

Title 49--Transportation

PART 7--PUBLIC AVAILABILITY OF INFORMATION

0
11. The authority citation for part 7 continues to read as follows:

    Authority: 5 U.S.C. 552; 31 U.S.C. 9701; 49 U.S.C. 322; E.O. 
12600; E.O. 13392.


0
12. Amend Sec.  7.12 by revising paragraph (a)(2) to read as follows:


Sec.  7.12  What records are available in reading rooms, and how are 
they accessed?

    (a) * * *
    (2) Statements of policy and interpretations, including guidance 
documents as defined in 49 CFR 5.25(c), that have been adopted by DOT;
* * * * *

PART 106--RULEMAKING PROCEDURES

0
13. The authority citation for part 106 continues to read as follows:

    Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.


0
14. Amend Sec.  106.40 by revising the introductory text, the first 
sentence of paragraph (c), and paragraph (d)(1) to read as follows:


Sec.  106.40  Direct final rule.

    A direct final rule makes regulatory changes and states that the 
regulatory changes will take effect on a specified date unless PHMSA 
receives an adverse comment within the comment period--generally 60 
days after the direct final rule is published in the Federal Register.
* * * * *
    (c) Confirmation of effective date. We will publish a confirmation 
document in the Federal Register, generally within 15 days after the 
comment period closes, if we have not received an adverse comment. * * 
*
    (d) * * *
    (1) If we receive an adverse comment, we will either publish a 
document withdrawing the direct final rule before it becomes effective 
and may issue an NPRM, or proceed by any other means permitted under 
the Administrative Procedure Act, consistent with procedures at 49 CFR 
5.13(l).
* * * * *

PART 211--RULES OF PRACTICE

0
15. The authority citation for part 211 is revised to read as follows:

    Authority: 49 U.S.C. 20103, 20107, 20114, 20306, 20502-20504, 
and 49 CFR 1.89.


0
16. Amend Sec.  211.33 by revising paragraph (b) to read as follows:


Sec.  211.33  Direct final rulemaking procedures.

* * * * *
    (b) The Federal Register document will state that any adverse 
comment must be received in writing by the Federal Railroad 
Administration within the specified time after the date of publication 
and that, if no written adverse comment or request for oral hearing (if 
such opportunity is required by statute) is received, the rule will 
become effective a specified number of days after the date of 
publication.
* * * * *

PART 389--RULEMAKING PROCEDURES--FEDERAL MOTOR CARRIER SAFETY 
REGULATIONS

0
17. The authority citation for part 389 continues to read as follows:

    Authority: 49 U.S.C. 113, 501 et seq., subchapters I and III of 
chapter 311, chapter 313, and 31502; 42 U.S.C. 4917; and 49 CFR 
1.87.


0
18. Amend Sec.  389.39 by revising the introductory text and paragraphs 
(c) and (d)(1) to read as follows:


Sec.  389.39  Direct final rulemaking procedures.

    A direct final rule makes regulatory changes and states that those 
changes will take effect on a specified date unless FMCSA receives an 
adverse comment by the date specified in the direct final rule 
published in the Federal Register.
* * * * *
    (c) Confirmation of effective date. FMCSA will publish a 
confirmation rule document in the Federal Register, if it has not 
received an adverse comment by the date specified in the direct final 
rule. The confirmation rule document tells the public the effective 
date of the rule.
    (d) * * *
    (1) If FMCSA receives an adverse comment within the comment period, 
it will either publish a document withdrawing the direct final rule 
before it becomes effective and may issue an NPRM, or proceed by any 
other means permitted under the Administrative Procedure Act, 
consistent with procedures at 49 CFR 5.13(l).
* * * * *

PART 553--RULEMAKING PROCEDURES

0
19. The authority citation for part 553 is revised to read as follows:

    Authority: 49 U.S.C. 322, 30103, 30122, 30124, 30125, 30127, 
30146, 30162, 32303, 32502, 32504, 32505, 32705, 32901, 32902, 
33102, 33103, and 33107; delegation of authority at 49 CFR 1.95.


0
20. Amend Sec.  553.14 by revising paragraphs (b), (c), and (d) to read 
as follows:


Sec.  553.14  Direct final rulemaking.

* * * * *
    (b) The Federal Register document will state that any adverse 
comment must be received in writing by NHTSA within the specified time 
after the date of publication of the direct final rule

[[Page 71734]]

and that, if no written adverse comment is received in that period, the 
rule will become effective a specified number of days (no less than 45) 
after the date of publication of the direct final rule. NHTSA will 
provide a minimum comment period of 30 days.
    (c) If no written adverse comment is received by NHTSA within the 
specified time after the date of publication in the Federal Register, 
NHTSA will publish a document in the Federal Register indicating that 
no adverse comment was received and confirming that the rule will 
become effective on the date that was indicated in the direct final 
rule.
    (d) If NHTSA receives any written adverse comment within the 
specified time after publication of the direct final rule in the 
Federal Register, the agency will either publish a document withdrawing 
the direct final rule before it becomes effective and may issue an 
NPRM, or proceed by any other means permitted under the Administrative 
Procedure Act, consistent with procedures at 49 CFR 5.13(l).
* * * * *

PART 601--ORGANIZATION, FUNCTIONS, AND PROCEDURES

0
21. The authority citation for part 601 is revised to read as follows:

    Authority: 5 U.S.C. 552; 49 U.S.C. 5334; 49 CFR 1.91.


0
22. Amend Sec.  601.36 by revising paragraphs (b), (c), and (d) to read 
as follows:


Sec.  601.36  Procedures for direct final rulemaking.

* * * * *
    (b) The Federal Register document will state that any adverse 
comment must be received in writing by FTA within the specified time 
after the date of publication and that, if no written adverse comment 
is received, the rule will become effective a specified number of days 
after the date of publication.
    (c) If no written adverse comment is received by FTA within the 
specified time of publication in the Federal Register, FTA will publish 
a notice in the Federal Register indicating that no adverse comment was 
received and confirming that the rule will become effective on the date 
that was indicated in the direct final rule.
    (d) If FTA receives any written adverse comment within the 
specified time of publication in the Federal Register, FTA will either 
publish a document withdrawing the direct final rule before it becomes 
effective and may issue an NPRM, or proceed by any other means 
permitted under the Administrative Procedure Act, consistent with 
procedures at 49 CFR 5.13(l).
* * * * *
[FR Doc. 2019-26672 Filed 12-26-19; 8:45 am]
 BILLING CODE 4910-9X-P