Rule2026-08144
Administrative Rulemaking, Guidance, and Enforcement Procedures
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
April 27, 2026
Effective
May 27, 2026
Issuing agencies
Transportation DepartmentTransportation DepartmentPipeline and Hazardous Materials Safety AdministrationFederal Motor Carrier Safety AdministrationNational Highway Traffic Safety AdministrationFederal Transit Administration
Abstract
This final rule reinstates and expounds upon procedural reforms for the Department's rulemakings, guidance documents, and enforcement actions rescinded by a final rule published by the Department on April 2, 2021, "Administrative Rulemaking, Guidance, and Enforcement Procedures." Accordingly, this final rule revises and updates the Department's internal policies and procedures relating to the issuance of rulemaking documents. In addition, this final rule updates the Department's 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.
Full Text
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<title>Federal Register, Volume 91 Issue 80 (Monday, April 27, 2026)</title>
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[Federal Register Volume 91, Number 80 (Monday, April 27, 2026)]
[Rules and Regulations]
[Pages 22431-22454]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-08144]
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Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
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Federal Register / Vol. 91, No. 80 / Monday, April 27, 2026 / Rules
and Regulations
[[Page 22431]]
DEPARTMENT OF TRANSPORTATION
Office of the Secretary of Transportation
14 CFR Parts 300, 302, and 399
49 CFR Parts 1, 5, and 7
Pipeline and Hazardous Materials Safety Administration
49 CFR Part 106
Federal Motor Carrier Safety Administration
49 CFR Part 389
National Highway Traffic Safety Administration
49 CFR Part 553
Federal Transit Administration
49 CFR Parts 601 and 605
[Docket No. DOT-OST-2025-0007]
RIN 2105-AF32
Administrative Rulemaking, Guidance, and Enforcement Procedures
AGENCY: Office of the Secretary of Transportation (OST), Pipeline and
Hazardous Materials Safety Administration (PHMSA), Federal Motor
Carrier Safety Administration (FMCSA), National Highway Traffic Safety
Administration (NHTSA), Federal Transit Administration (FTA); U.S.
Department of Transportation (Department or DOT).
ACTION: Final rule.
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SUMMARY: This final rule reinstates and expounds upon procedural
reforms for the Department's rulemakings, guidance documents, and
enforcement actions rescinded by a final rule published by the
Department on April 2, 2021, ``Administrative Rulemaking, Guidance, and
Enforcement Procedures.'' Accordingly, this final rule revises and
updates the Department's internal policies and procedures relating to
the issuance of rulemaking documents. In addition, this final rule
updates the Department's 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: This final rule is effective on May 27, 2026.
FOR FURTHER INFORMATION CONTACT: Jill Laptosky, Office of Regulation
and Legislation, Office of the General Counsel, <a href="/cdn-cgi/l/email-protection#12587b7e7e3c5e7362667d61796b52767d663c757d64"><span class="__cf_email__" data-cfemail="7a3013161654361b0a0e150911033a1e150e541d150c">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: The Department reinstates procedural reforms
to its policies and procedures governing the issuance of rulemakings
and guidance documents, and the initiation and conduct of enforcement
actions repealed by a final rule published by the Department on April
2, 2021, ``Administrative Rulemaking, Guidance, and Enforcement
Procedures'' (86 FR 17292), which the Department issued in response to
two Executive Orders that were revoked by the President in Executive
Order 14148, ``Initial Rescissions of Harmful Executive Orders and
Actions'' (January 20, 2025).\1\ The reforms set forth (1) 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) enhanced procedures for
the review and clearance of guidance documents; and (3) improved
procedural requirements governing the Department's administrative
enforcement actions and judicial enforcement actions brought in Federal
court, including express rights of regulated parties to enforce the
protections of this rule through administrative proceedings.
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\1\ Executive Order 14148, ``Initial Rescissions of Harmful
Executive Orders and Actions,'' 90 FR 8237 (January 28, 2025).
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The Department proposed codification of these procedures in a
notice of proposed rulemaking (NPRM) published on May 16, 2025.\2\ The
comment period closed on June 16, 2025. The Department received 18
comments during the public comment period. Most of the comments
supported the rulemaking. Though, for the reasons discussed below, the
rulemaking is finalized as proposed, the Department has made several
changes to the proposed measures in response to the comments. In
addition, the Department is implementing a handful of additional
procedural enhancements at the request of commenters.
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\2\ See U.S. Department of Transportation, Notice of Proposed
Rulemaking, ``Administrative Rulemaking, Guidance, and Enforcement
Procedures,'' 90 FR 20956 (May 16, 2025).
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In rescinding these procedures in 2021, the Department argued that
many of the provisions that would be reinstated through this action
were already contained in existing internal procedures, could be
accomplished by internal directives as necessary and appropriate, and
could slow important regulatory efforts. The Department has
reconsidered these justifications for the 2021 rulemaking and, after
reviewing comments received in response to the NPRM, reiterates its
support of the recodification of the procedures. Though many of the
procedures contained in this final rule are found in internal
procedures, they are not located in one comprehensive and consolidated
source. Codifying the Department's procedures concerning enforcement
and the development and issuance of rulemaking and guidance documents
into the Code of Federal Regulations leaves no doubt to departmental
staff and regulated entities on the expectations regarding the
procedural safeguards and expectations governing the Department's
administrative actions. In addition, the Department finds that any
administrative delay associated with these procedures would not only be
minimal, based on past practice with these procedures, but also would
be outweighed by the Department's production of higher quality
rulemaking, guidance documents, and enforcement actions. The Department
produces its best work when it is informed by robust public input, the
best available data, and sound law and economics, and these procedures
increase opportunities to receive those essential building blocks for
good governance that would strengthen the overall quality and fairness
of the Department's administrative actions. In addition, the Department
revises the
[[Page 22432]]
existing policies and procedures because they are inconsistent with
current departmental and Administration policy, and do not consider the
costs and implications of government regulation and intervention
adequately. Many of the comments received in response to the NPRM
supported these principles and agreed with the Department's
determination that these procedural reforms serve the best interests of
the American public.
Rulemaking Procedures
Most commenters supported the Department's proposed rulemaking
provisions, commitment to economics and sound data, and vision for
public engagement to understand holistically the impacts of its
rulemaking actions. Some commenters, however, expressed concern that
the procedures would delay rulemakings essential to advancing the
Department's safety mission. The Department assures these commenters
that safety is always our number one priority, and these procedures
will not compromise the Department's safety mission.
The rulemaking procedures set forth in this final rule are
finalized as proposed. The procedures apply to all phases of the
Department's rulemaking process, from advance notices of proposed
rulemakings (ANPRM) 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 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. The Department's regulatory
policies also include a provision that for each new significant
regulation issued, at least 10 existing regulatory burdens must be
identified for revocation. Some commenters did not support this
provision and asked for guidance on how it would be implemented by the
Department. The Department notes that the requirement for agencies to
eliminate 10 regulations for each new significant regulation issued is
a requirement of Executive Order 14192, ``Unleashing Prosperity Through
Deregulation,'' and refers interested commenters to a memorandum issued
by the Office of Management and Budget (OMB), ``Guidance Implementing
Section 3 of Executive Order 14192, Titled `Unleashing Prosperity
Through Deregulation,''' to understand how agencies like the Department
will implement that order.\3\
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\3\ See Clark, Jeffrey B., Acting Administrator, Office of
Information and Regulatory Affairs, Memorandum M-25-20 for
Regulatory Policy Officers at Executive Departments and Agencies and
Management and Executive Directors of Certain Agencies and
Commissions, ``Guidance Implementing Section 3 of Executive Order
14192, Titled `Unleashing Prosperity Through Deregulation,' ''
available at <a href="https://www.whitehouse.gov/wp-content/uploads/2025/02/M-25-20-Guidance-Implementing-Section-3-of-Executive-Order-14192-Titled-Unleashing-Prosperity-Through-Deregulation.pdf">https://www.whitehouse.gov/wp-content/uploads/2025/02/M-25-20-Guidance-Implementing-Section-3-of-Executive-Order-14192-Titled-Unleashing-Prosperity-Through-Deregulation.pdf</a> (March 26,
2025).
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This final rule reflects the reestablishment of the Department's
Regulatory Reform Task Force and assigns it an important role in the
development of the Department's regulatory portfolio and ongoing review
of regulations. The Regulatory Reform Task Force is chaired by the
Regulatory Reform Officer and 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. The final rule outlines
the structure, membership, and responsibilities of the Regulatory
Reform Task Force at proposed 49 CFR 5.9. One commenter asked how
external stakeholders may submit input to the Regulatory Reform Task
Force and how frequently it will conduct its reviews. The Task Force's
reviews are ongoing, and external stakeholders may submit input to the
Task Force through the Department's Office of Regulation and
Legislation at <a href="/cdn-cgi/l/email-protection#1e4a6c7f706d6e716c6a7f6a777170304c7b796b727f6a716c67577078715e7a716a30797168"><span class="__cf_email__" data-cfemail="2f7b5d4e415c5f405d5b4e5b464041017d4a485a434e5b405d56664149406f4b405b01484059">[email protected]</span></a>. The Department
also encourages stakeholders to submit comments on any aspect of its
regulatory agenda, including ideas for regulatory reform and
deregulation, through the semiannual Unified Agenda of Regulatory and
Deregulatory Actions.\4\ Along the same lines, one commenter suggested
that the Department review all waivers or regulatory exemptions that
have been in effect with satisfactory results for over 5 years for
incorporation into regulation. The Department finds value in this
suggestion and intends to refer it to the Task Force for review.
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\4\ The Unified Agenda of Regulatory and Deregulatory Actions,
published in the fall and spring at <a href="http://RegInfo.gov">RegInfo.gov</a>, provides uniform
reporting of data on regulatory and deregulatory activities under
development through the Federal Government, including approximately
60 departments, agencies, and commissions. The Department hosts a
docket (DOT-OST-1999-5129) for public comments on any aspects of the
Department's regulatory agenda.
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This final rule also sets procedures the Department follows 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
updates the Department's policies regarding contacts with outside
parties during the rulemaking process as well as the ongoing review of
existing regulations. Commenters generally supported these provisions,
particularly the Department's commitment to ensuring the public has an
opportunity to provide feedback on the Department's various
rulemakings.
Commenters provided helpful feedback on our proposed rulemaking
procedures, and we are making changes in the final rule in response to
comments. First, one commenter suggested that the Department publish
all complaints, subject to appropriate redactions, that are used to
support its rulemakings and cease reliance on complaints to support
rulemakings when the Department's investigation of such complaints is
ongoing. The Department supports the publication of material
information on which the Department relies in considering its
rulemakings and has added language to Sec. 5.13(h)(3)(i) to effectuate
this requirement, which the Department may fulfill by publishing the
complaints themselves or, if publishing all complaints would be
impracticable based on their volume, a summary of the complaints. This
addition is consistent with the Department's polices in Sec. 5.19 to
ensure the substance of material information submitted by the public on
which the Department relies in proposing or finalizing a rule is
adequately disclosed such that all interested parties have notice of
the information and an opportunity to comment on its accuracy and
relevance. The Department declines to adopt the suggestion that we
cease reliance on complaints under investigation. With the addition of
the provision requiring the disclosure of complaints on which the
Department relies, the suggestion to cease reliance on open complaints
is not necessary because the veracity of the disclosed complaints may
be raised during the public comment period.
Second, at least one commenter requested that the Department add
language to the final rule encouraging the Department to notify the
public as soon as possible on the disposition of a petition to extend a
comment period. The Department agrees that such a notification to the
public would be helpful and is adding language to Sec. 5.13(i)(4)
encouraging the Department, as appropriate, to notify the public
[[Page 22433]]
whether a petition to extend a comment period has been granted or
denied. This notification will be published in the Federal Register and
included in the rulemaking docket. The Department may also inform the
public by posting on the agency's website or by other appropriate
means. One commenter supported the Department's implementation of
longer comment periods, but no changes are made in the final rule
because the Department's procedures provide a minimum comment period
length, and the Department often offers longer comment periods.
Third, some commenters suggested that the Department should not be
allowed to meet a benefit-cost analysis requirement simply by stating
that data does not exist to determine the benefits or costs of a
regulation. The commenters suggested that the Department should be
required to commission a study if data does not exist to support a
rulemaking. The Department agrees that it is not wise or sound
regulatory policy to regulate in the absence of data, economic support,
or studies. At the same time, the Department recognizes that urgent and
compelling safety needs may require the Department to act immediately,
thus precluding the Department from commissioning data or studies.
Likewise, the Department often needs to fulfill statutory mandates for
rulemakings, which Congress has determined are necessary to address a
problem that Congress has identified. To balance these competing
interests, Sec. 5.13(e)(2) will encourage the Department to quantify
benefits and costs for discretionary regulatory rulemakings (i.e.,
discretionary rulemakings that are subject to regulatory offsetting
requirements found in Executive Order 14192).
One commenter did not support the Department's use of benefit-cost
analysis to justify rulemakings, arguing that they are not appropriate
for safety rulemakings. The commenter recommended considering the
trajectory of technology costs over time into the Department's
analyses. In benefit-cost analysis, a key principle is that technology
costs generally decrease over time, driven by factors like innovation,
increased efficiency, and economies of scale. The commenter also argued
that benefit-cost analysis should not be the sole determining factor
for making safety-sensitive decisions, and the Department could not
agree more. Benefit-cost analysis is just one of many factors that the
Department considers when issuing regulations. The commenter asked the
Department to consider ``intangible benefits like lives saved.'' The
Department is pleased to inform this commenter that the Department's
benefit-cost analyses often do consider nonquantifiable and intangible
benefits, including scenarios that are infrequent or rare. For the
Department, however, ``lives saved'' is not simply an ``intangible''
factor but one that we have quantified by developing a methodology for
calculating the value of a statistical life and applying it in analyses
that assess the economic benefits for preventing fatalities.\5\
Departmental guidance on the topic also established policies for
assigning comparable values to the prevention of injuries. These
methodologies ensure consistency across the Department, sound
consideration of safety benefits, and analytical efficiency.
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\5\ See U.S. Department of Transportation, ``Departmental
Guidance on Valuation of a Statistical Life in Economic Analysis,''
available at <a href="https://www.transportation.gov/office-policy/transportation-policy/revised-departmental-guidance-on-valuation-of-a-statistical-life-in-economic-analysis">https://www.transportation.gov/office-policy/transportation-policy/revised-departmental-guidance-on-valuation-of-a-statistical-life-in-economic-analysis</a> (April 28, 2025).
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Consistent with the current Administration and Department
regulatory philosophy that rules imposing the greatest costs on the
public should be subject to heightened procedural requirements, the
final rule reinstates enhanced procedures for economically significant
and high-impact rulemakings that were rescinded by the 2021 amendments.
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. These changes can be found at 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 as
set forth in proposed 49 CFR 5.17(a)(2). These costly rulemakings are
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
proposed 49 CFR 5.17. In the NPRM, DOT invited public comment on
whether the thresholds chosen for net job losses at the economically
significant and high-impact levels are the most appropriate, whether
DOT should consider different thresholds, and any data or studies that
show net job loss estimates in connection with past DOT rulemakings.
Though no data or studies were offered, some commenters weighed in on
the proposal more generally. Many commenters supported the Department's
decision to subject its costliest rulemakings to higher standards, with
one commenter arguing that more rules should be subject those
procedures. Another commenter challenged the Department's use of ANPRMs
in this context, arguing that they offer little utility and may delay
important regulatory work. In response, the Department will require
either an ANPRM or a supplemental notice of proposed rulemaking (SNPRM)
for its economically significant and high-impact rulemakings. This
revision is intended to generate more utility by ensuring that the
public has an opportunity to provide additional comment when it would
be valuable during the appropriate stage of the rulemaking process.
This revised requirement is reflected in Sec. 5.17(b).
Other procedures, such as the filing of rulemaking petitions and
direct final rules,\6\ are finalized as proposed. One commenter
supported the Department's judicious use of direct final rules. Other
comments that focused on modal or OA-specific issues, were outside the
scope of this rulemaking.
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\6\ This aspect of the rule amends the direct final rule
procedures for the following operating administrations: Pipeline and
Hazardous Materials Safety Administration, Federal Railroad
Administration, Federal Motor Carrier Safety Administration, and
National Highway Traffic Safety Administration.
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This rulemaking updates references throughout DOT regulations as
needed to account for updated internal procedures (e.g., 49 CFR part
605). This final rule also revises the regulations at 14 CFR 300.2 to
delete a reference to rescinded DOT Order 2100.6 and 2100.6A, and
replace it with DOT Order 2100.6B, and update the procedures for
petitions for rulemakings found in 14 CFR 302.16 to provide explicitly
that interested parties may file petitions for the Department to
perform retrospective reviews as noted above. Other minor conforming
amendments are finalized at 49 CFR parts 1 and 7. In addition, this
final rule reinstates prior DOT policy regarding contacts with outside
parties during the rulemaking process, which can be found at 5 CFR
5.19. Finally, the Department removes references to the monthly
significant rulemaking report, which is duplicative of the semiannual
Unified Agenda of Regulatory and Deregulatory Actions and will no
longer be maintained.
Guidance Document Procedures
This final rule reinstates into the Code of Federal Regulations at
49 CFR part 5,
[[Page 22434]]
subpart C, policies and procedures that apply to all guidance
documents, which the Department defines as an agency statement of
general applicability, intended to have future effect on the behavior
of regulated parties, that sets forth a policy on a statutory,
regulatory, or technical issue, or an interpretation of a statute or
regulation, 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.
One commenter requested that the final rule clarify that an operating
administration's reinterpretation of Federal grant obligations falls
within the scope of the definition of a ``guidance document.'' The
Department declines to change the definition of a ``guidance document''
in this final rule but notes that if such a reinterpretation otherwise
satisfies the definition, then it would be a guidance document.
This final rule reinstates procedures regarding the review and
clearance of guidance documents rescinded by the 2021 amendments. The
procedures ensure that all guidance documents receive legal review and,
when appropriate, Office of the Secretary review. One commenter
suggested that all guidance documents (not just certain ones meeting
the threshold of significant or ``otherwise of importance to the
Department's interests'') be reviewed by the Secretary's office, but
the Department declines to adopt this suggestion to ensure efficient
management of agency resources. The final rule also requires that,
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. In addition,
if a guidance document purports to describe, approve, or recommend
specific conduct that stretches beyond what is required by existing
law, the final rule requires that it 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. One commenter thought that the voluntary
nature of guidance documents might be emphasized better if guidance
documents described several ways that the public can comply with the
underlying regulations, rather than specifying one means of compliance.
The Department agrees to adopt a modified version of this commenter's
suggestion, which is reflected in Sec. 5.29(e) and (f). The procedures
for the review and clearance of guidance documents can be found at 49
CFR 5.27, 5.29, and 5.35. These procedures were largely supported by
commenters, many of whom commended the Department for its transparency
and commitment to good governance.
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. Several commenters appreciated the
Department's grounded understanding that guidance documents can have
real cost impacts for regulated entities. One commenter thought that
the final rule should go further by requiring all guidance documents to
receive formal economic analysis and only be issued if the benefits of
the guidance document exceed its costs absent a compelling safety need.
The Department declines to adopt this suggestion because the final rule
already requires a ``good faith cost estimate'' for guidance documents,
which strikes a balance between two coexisting certainties--that
guidance documents are nonbinding and thus impose no direct costs but,
at the same time, regulated entities may nevertheless incur costs when
utilizing guidance documents.
This final rule also reinstates other policies and procedures
rescinded by the 2021 amendments, such as those 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 5.41. In this final rule, the Department
made some minor revisions to those notice-and-comment procedures to
specify that notice and comment may be offered through the Federal
Register or the agency's website (the NPRM only specified the agency's
website). Two commenters suggested that it would be helpful for the
Department to establish a website on which the public can view all
departmental guidance documents with open comment periods. Though the
Department encourages interested members of the public to check the
Federal Register for information regarding open comment periods, the
Department understands that it may be helpful to track open comment
periods on departmental guidance documents in one convenient web-based
location. As a result, the Department is exploring ways to provide the
public with a running list of open comment periods for the Department's
rulemakings and guidance documents.
These procedures will 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 at proposed 49 CFR 5.43. It also reinstates 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. See 49 CFR 5.41. One commenter suggested that
comment periods for departmental guidance documents should be longer.
The Department declines to adopt this suggestion because the final rule
provides that 30 days for significant guidance documents is only a
minimum comment period length, and comment periods may be longer as
appropriate.
Enforcement Procedures
In the NPRM, the Department proposed to reinstate into the Code of
Federal Regulations at 49 CFR part 5, subpart D, policies and
procedures rescinded by the 2021 amendments. This proposal was intended
to clarify the requirements governing enforcement actions initiated by
DOT, to establish standard operating procedures within the Department's
various enforcement programs so that DOT enforcement actions satisfy
principles of due process and remain lawful, reasonable, and consistent
with current Departmental and Administration policy, and to consolidate
the procedural requirements into one centralized location.
In addition, the NPRM also proposed to add certain new provisions,
including provisions conferring express rights on regulated parties to
enforce the protections of the rule through administrative proceedings.
As proposed, these proceedings included the opportunity for the subject
of a DOT enforcement action to petition the General Counsel for a
determination that responsible DOT personnel violated provisions of
this rule with respect to the enforcement action. The proposed remedies
for the violations included the removal of the enforcement team from
the particular matter and, where appropriate, a recommendation from the
[[Page 22435]]
General Counsel to the relevant agency decisionmaker for appropriate
administrative discipline of personnel found to have violated the rule;
the elimination of certain issues or the exclusion of certain evidence
or the directing of certain factual findings in the course of the
enforcement action; and a requirement to restart the enforcement action
again from the beginning or recommence the action from an earlier point
in the proceeding.
The Department received several comments in response to the
proposed enforcement rights provision, which would enable a regulated
entity to petition the DOT General Counsel for relief if it believes
that DOT enforcement personnel violated provisions of this rule. Some
commenters supported that proposal, though other commenters opposed it,
asserting that the provision would create a chilling effect on
enforcement actions and potentially result in deference to regulated
entities by inspectors and other enforcement personnel out of fear of
professional repercussions.
After considering all comments received on this proposal, DOT is
adopting the proposed enforcement rights provision with some
modifications. DOT believes that the provision will help ensure that
regulated entities can receive appropriate relief if they are not
treated fairly. DOT, however, is modifying the provision in several
ways.
First, the final rule does not provide for the General Counsel
recommending discipline against DOT employees. DOT has determined that
the complaint process should lead only to relief that will benefit the
complaining party, and that it would not be appropriate to allow
regulated entities to seek disciplinary action against DOT employees.
DOT also agrees with commenters that allowing regulated entities to
seek disciplinary action could deter DOT enforcement personnel from
fully and effectively carrying out their enforcement duties. DOT can
address any employee discipline matters internally, including any
matters related to violations of this rule.
Second, DOT is adding language to the enforcement rights section to
clarify that the DOT General Counsel retains discretion as to whether
to review any petitions filed by regulated entities, whether to issue
relief upon identifying a violation, and the scope of any relief.
Third, DOT is eliminating the sentence that would have allowed the
General Counsel's determinations to be appealed to the Secretary, as
the Department has determined that such appeals would create
unnecessary additional burdens for DOT and would provide little
meaningful benefit for regulated entities. Finally, DOT is also making
a minor wording change.
Most commenters supported reinstating the enforcement procedures
that were rescinded in 2021, and DOT has decided to retain those
procedures in full. Commenters also suggested that DOT consider adding
seven additional provisions in the final rule. As explained below, DOT
has determined not to add these provisions.
First, one airline industry commenter recommended that DOT
institute a two-year statute of limitations for DOT enforcement
actions. This issue is beyond the scope of this rulemaking, and it is
not clear that DOT has the authority to enact the proposal. Further,
this rule requires agency attorneys to initiate proceedings promptly to
prosecute matters referred to them, and it mandates that cases not be
allowed to linger unduly after the adjudicatory process has begun.
Second, the same commenter suggested that DOT adopt a policy that
prohibits DOT personnel from assuming an advocacy role, while
simultaneously holding a rulemaking, investigatory, or enforcement-
related role. In DOT's view, the commenter's characterization of the
existence of a conflict of interest between a government attorney
serving in an advocacy role, while simultaneously holding a rulemaking,
investigatory, or enforcement-related role, is an improper and
ambiguous way of conceiving the role of a government lawyer. DOT also
believes that any specific issues regarding particular roles are best
addressed separately, rather than through a broad rulemaking.
Third, the same commenter recommended that DOT require that all
enforcement actions have a clear factual foundation in addition to a
clear legal foundation. The commenter asserts that in the past DOT has
unfairly relied upon unvalidated public complaints as the basis for
enforcement and recommended that ``and factual'' be added to Sec. 5.63
so that section requires enforcement actions to have ``clear legal and
factual foundation.'' In DOT's view, this suggestion is misplaced, as
regulated entities have an opportunity to contest the factual bases for
any enforcement action during enforcement proceedings. DOT does not
believe that additional regulatory language is needed.
Fourth, another commenter suggested that the rule identify the
Federal courts as the proper forum for all DOT enforcement proceedings.
The commenter pointed to the U.S. Supreme Court's decision in SEC v.
Jarkesy,\7\ which held that the Seventh Amendment barred the Securities
and Exchange Commission from pursuing certain enforcement matters
administratively rather than judicially. It is DOT's view that many or
all statutes authorizing DOT to take administrative enforcement actions
are distinguishable from those at issue in Jarkesy and do not violate
the Seventh Amendment, and DOT has successfully maintained that view in
legal proceedings challenging DOT's administrative actions based on
such authorities.\8\ DOT therefore declines to adopt the commenter's
recommendation in this final rule. DOT notes, however, that this rule
provides that the proper forum for any enforcement action is Federal
court unless the terms of a relevant statute, or of a regulation with
government-wide applicability, clearly and expressly authorize an
administrative enforcement proceeding.
---------------------------------------------------------------------------
\7\ 603 U.S. 109 (2024).
\8\ See Axalta Coating Systems v. FAA, 144 F.4th 167 (3d Cir.
2025).
---------------------------------------------------------------------------
Fifth, a commenter recommended that DOT adopt a civil equivalent of
the ``rule of lenity,'' a doctrine providing that ambiguous statutes
are interpreted in favor of a criminal defendant. The commenter
suggests that DOT apply any unclear or ambiguous statute or regulation
in the way that it is most favorable to the subject of the enforcement
action and least favorable to the government. DOT does not believe that
such a provision is necessary, given that this rule provides that the
agency 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 according to its text.
Sixth, a commenter proposed that the rule's separation of functions
provisions, contained in Sec. 5.71, should apply beyond those DOT
Operating Administrations or components of the Office of the Secretary
of Transportation (OST) whose regulations provide for a separation of
decisional personnel from adversarial personnel in an administrative
proceeding. DOT agrees that the separation of functions can play an
important role in ensuring due process. DOT, however, does not believe
that it would be appropriate to use this rule to restructure DOT
enforcement programs. To the extent that issues arise with respect to
programs not covered by this provision of the rule, DOT will consider
those issues separately.
Finally, a commenter indicated support for the proposal that
settlement
[[Page 22436]]
agreements be public documents but suggested that the rule provide
confidentiality protections for redline drafts of consent agreements
developed and shared during negotiations. DOT declines to adopt this
recommendation. DOT will make recommendations on whether to release
documents on a case-by-case basis, consistent with the Freedom of
Information Act and other applicable law, regulation, and policy.
Rulemaking Analyses and Notices
A. Executive Order 12866 and DOT Regulatory Policies and Procedures
This final rule is a significant regulatory action under Executive
Order 12866. However, the Department does not anticipate that this
rulemaking will have a direct economic impact on regulated entities.
This is a rule of agency procedure and practice. The final rule
describes the updates and amendments to the Department's internal
procedures for the promulgation and processing of rulemaking and
guidance documents, and for initiating and conducting enforcement
proceedings. The Department has already adopted most of 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 and transparency in delivery
of government services.
This final rule establishes 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.
Though it is anticipated that the direct impact of this rule will be
experienced internally to the Department in the form of streamlined and
clarified regulatory processes, additional secondary and positive
impacts due to improved decision making are expected.
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 14192 (Unleashing Prosperity Through Deregulation)
This final rule is not an Executive Order 14192 (90 FR 9065,
January 31, 2025) regulatory action because this rulemaking is related
to agency organization, management, or personnel.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (Pub. L. 96-354, 5 U.S.C. 601-612)
(RFA) imposes certain requirements with respect to Federal rules that
are subject to the notice-and-comment requirements of section 553(b) of
the Administrative Procedure Act (5 U.S.C. 551 et seq.) and that are
likely to have a significant economic impact on a substantial number of
small entities. Unless an agency determines that a proposal will not
have a significant economic impact on a substantial number of small
entities, section 603 of the RFA requires the agency to present an
initial regulatory flexibility analysis (IRFA) of the proposed rule. An
IRFA is not required if the agency head certifies that a rule will not
have a significant economic impact on a substantial number of small
entities (5 U.S.C. 605).
Though most of this final rule's provisions concern internal
management of the Department, one provision of it would confer express
rights on regulated parties, some of whom are small entities, to
enforce the protections of the rule through administrative proceedings.
The Department expects the impact of that provision would be entirely
beneficial to small entities. Accordingly, I hereby certify that this
rulemaking would not have a significant economic impact on a
substantial number of small entities.
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 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 Department 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 5610.1D, ``Procedures for Considering
Environmental Impacts'' (July 1, 2025). Categorical exclusions (CEs)
are categories of actions that the agency has determined normally do
not significantly affect the quality of the human environment and
therefore do not require either an environmental assessment (EA) or
environmental impact statement (EIS). See DOT Order 5610.1D, section 9.
In analyzing the applicability of a categorical exclusion, the agency
must also consider whether extraordinary circumstances are present that
would warrant the preparation of an EA or EIS. Id. section 9(b). The
Department's Operating Administrations (OAs) may apply CEs established
in another OA's procedures. Id. section 9(f). To do so, the Operating
Administration ``must evaluate the action for extraordinary
circumstances identified in the OA procedures in
[[Page 22437]]
which the CE is established to determine if a normally excluded action
may have a significant impact and coordinate with the originating OA to
ensure that the CE is being applied correctly.'' Id. This rulemaking,
which sets procedures for rulemaking, guidance documents, and
enforcement actions, is categorically excluded pursuant to 23 CFR
771.117(c)(20), ``Promulgation of rules, regulations, and directives.''
The Department 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 300
Administrative practice and procedure, Conflicts of interests.
14 CFR Part 302
Administrative practice and procedure, Air carriers, Airports,
Postal Service.
14 CFR Part 399
Consumer protection, Enforcement, Policies, Rulemaking proceedings,
Unfair or deceptive practices.
49 CFR Part 1
Authority delegations (Government agencies), Organization and
functions (Government agencies).
49 CFR Part 5
Administrative practice and procedure.
49 CFR Part 7
Freedom of information, Reporting and recordkeeping requirements.
49 CFR Part 106
Administrative practice and procedure, Hazardous materials
transportation.
49 CFR Part 389
Administrative practice and procedure, Highway safety, Motor
carriers, Motor vehicle safety.
49 CFR Part 553
Administrative practice and procedure, Motor vehicle safety.
49 CFR Part 601
Authority delegations (Government agencies), Freedom of
information, Organization and functions (Government agencies).
49 CFR Part 605
Administrative practice and procedure, Buses, Mass transportation.
Issued in Washington, DC.
Sean P. Duffy,
Secretary.
In consideration of the foregoing, the Office of the Secretary of
Transportation amends 14 CFR parts 11, 300, 302, and 399, and 49 CFR
parts 5, 106, 389, 553, 601, and 605 as follows:
Title 14--Aeronautics and Space
PART 300--RULES OF CONDUCT IN DOT PROCEEDINGS UNDER THIS CHAPTER
0
1. 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
2. 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 2100.6B and 49 CFR 5.19).
* * * * *
PART 302--RULES OF PRACTICE IN PROCEEDINGS
0
3. 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
4. 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 49 CFR 5.13(c) and 5.43.
PART 399--STATEMENTS OF GENERAL POLICY
0
5. The authority citation for part 399 continues to read as follows:
Authority: 49 U.S.C. 40113(a), 41712, 46106, 46107, and 42305.
0
6. Amend Sec. 399.75 by revising paragraph (b) introductory text to
read as follows:
Sec. 399.75 Rulemakings relating to unfair and deceptive practices.
* * * * *
(b) Procedural requirements. When issuing a proposed regulation
under paragraph (a) of this section that is defined as high impact or
economically significant within the meaning of 49 CFR 5.17(a), the
Department shall follow the procedural requirements set forth in 49 CFR
5.17. When issuing a proposed regulation under paragraph (a) of this
section that is not defined as high impact or economically significant
within the meaning of 49 CFR 5.17(a), unless the regulation is
specifically required by statute, the Department shall adhere to the
following procedural requirements:
* * * * *
Title 49--Transportation
PART 1--ORGANIZATION AND DELEGATION OF POWERS AND DUTIES
0
7. The authority citation for part 1 continues to read as follows:
Authority: 49 U.S.C. 322.
0
8. 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), and notify petitioners of
decisions in accordance with 49 CFR 5.13(c)(4)(v).
* * * * *
0
9. 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.
5.11 Initiating a rulemaking.
5.13 General rulemaking procedures.
[[Page 22438]]
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.
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.
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 Representation of regulated parties.
5.77 Formal enforcement adjudications.
5.79 Informal enforcement adjudications.
5.81 The hearing record.
5.83 Contacts with the public.
5.85 Duty to disclose exculpatory evidence.
5.87 Use of guidance documents in administrative enforcement cases.
5.89 Alternative Dispute Resolution (ADR).
5.91 Duty to adjudicate proceedings promptly.
5.93 Termination of investigation.
5.95 Initiation of additional investigations.
5.97 Agency decisions.
5.99 Settlements.
5.101 OGC approval required for certain settlement terms.
5.103 Basis for civil penalties and disclosures thereof.
5.105 Publication of decisions.
5.107 Coordination with the Office of Inspector General on criminal
matters.
5.109 Standard operating procedures.
5.111 Cooperative information sharing.
5.113 Small Business Regulatory Enforcement Fairness Act (SBREFA).
5.115 Referral of matters for judicial enforcement.
5.117 Publicly available decisional quality and efficiency metrics.
5.119 Enforcement rights.
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, contractors, and others
subject to supervision and control by DOT officials 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) Regulations issued with respect to a military or foreign
affairs function of the United States;
(2) Rules addressed solely to internal agency management or
personnel matters;
(3) Regulations related to Federal Government procurement; or
(4) 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 subpart C of this part.
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 ten 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 substantive information relied upon in the
rulemaking process.
(j) The process for issuing a rule should be sensitive to the
economic
[[Page 22439]]
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.
14192, ``Unleashing Prosperity Through Deregulation'' (Jan. 31, 2025);
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 Principal 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 and Legislation
supervises the Office of Regulation and Legislation 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; and serves
as a member of the RRTF Working Group.
(g) Pursuant to delegations from the Secretary under 49 CFR part 1,
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
New Environment for Information and Leadership on Rules (NEIL Rules),
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. 14192, E.O. 13777,
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; and
(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 and Legislation, 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;
and
(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 and Legislation 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 and Legislation 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
will be invited to attend to respond to questions.
(h) Minutes. The Office of Regulation and Legislation prepares
summary
[[Page 22440]]
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. 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 rulemaking in question is expected to be an
economically significant rule or high-impact rule, as defined in Sec.
5.17(a);
(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 and Legislation, together with any
other documents that may assist in the RRTF's consideration of the
request.
(d) The Office of Regulation and Legislation 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 in this
section 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)(4)(B(iii) and 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 and Legislation 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) Except as provided in this
part or as otherwise provided in writing by OGC, or otherwise
prescribed by law, all departmental rulemakings are to be reviewed and
cleared by the Office of the Secretary.
(i) [Reserved]
(ii) The FAA Administrator may promulgate emergency rules pursuant
to 49 U.S.C. 106(f)(4)(B)(iii) 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 upon promulgation, at
the latest.
(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 and Legislation through the New Environment for
Information and Leadership on Rules (NEIL Rules), 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 and Legislation 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 and Legislation 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 and Legislation by the OA or OST component within 14
calendar days.
(6) The Office of Regulation and Legislation prepares a rulemaking
package for the General Counsel to request the Secretary's approval for
the rulemaking to be submitted to OMB for review and for its subsequent
issuance (for significant rulemakings) or to the
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Federal Register for publication (for nonsignificant rulemakings).
These rulemaking packages are submitted through the General Counsel to
the Office of the Executive Secretariat.
(7) The Office of Regulation and Legislation notifies the proposing
OA or OST component when the Secretary approves or disapproves the
submission of the rulemaking to OMB or its issuance and submission to
the Federal Register.
(8) The Office of Regulation and Legislation 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 and Legislation
involvement. Each OA or OST component should coordinate with the Office
of Regulation and Legislation 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 Legislation, 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 and Legislation.
(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 and Legislation 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) Except as otherwise
required by law, 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).
(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. 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
[[Page 22442]]
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 and Legislation. If the proposing OA or OST component
does not have studies or data to support quantification of economic
impacts, then it should commission them for discretionary regulatory
rulemakings (as defined in E.O. 14192) unless an urgent and compelling
safety need requires immediate action. If the proposing OA or OST
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 and Legislation. 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);
(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
(including public complaints) 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,
economic, or other specialized factual information, the proposing OA or
OST component shall base the proposal on the best and most relevant
scientific, technical, economic, and other specialized factual
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
[[Page 22443]]
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 to be described in the
NPRM, the comment period for nonsignificant DOT rules should be at
least 30 days, and typically the comment period for significant DOT
rules should be 60 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 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. The
OA or OST component should notify the public, as early as practicable
by publication in the Federal Register and inclusion in the docket,
whether the extension has been granted or denied. The OA or OST
component may notify the public of the disposition of a petition
through other appropriate means, including posting on its website.
(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), 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 the Unified Agenda 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
[[Page 22444]]
(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
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 the U.S. Government Accountability
Office (GAO). For each final rule adopted by DOT, the responsible OA or
OST component shall submit the reports to Congress and GAO 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. ch. 10, 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 and Legislation 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. 14192, 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 and
Legislation 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 or SNPRM 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 or SNPRM 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 to assess the rule's effectiveness under paragraph (f)(3) of
this section.
(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 under Sec. 5.17(c)(1), 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
[[Page 22445]]
hearing on the proposed rule in accordance with this section.
(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 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 section 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 section 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
[[Page 22446]]
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.
(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 a memorandum 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. The responsible
OA or OST component may either prepare the memorandum or ask the party
requesting the meeting or initiating the contact to submit the
memorandum memorializing the communication.
(2) DOT personnel should avoid giving persons outside the executive
branch information regarding the rulemaking that is not available
generally to the public.
(3) If DOT receives an unusually large number of requests for
meetings with interested members of the public during the comment
period for a proposed rule or after the close of the comment period,
the issuing OA or component of OST should consider whether there is a
need to extend or reopen the comment period, to allow for submission of
a second round of ``reply comments,'' or to hold a public meeting on
the proposed rule.
(4) If the issuing OA or OST component meets with interested
persons on the rulemaking after the close of the comment period, it
should be open to giving other interested persons a similar opportunity
to meet.
(5) If DOT learns of significant new information, such as new
studies or data, after the close of the comment period that the issuing
OA or OST component wishes to rely upon in finalizing the rule, the OA
or OST component should reopen the comment period to give the public an
opportunity to comment on the new information. If the new information
is likely to result in a change to the rule that is not within the
scope of the 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 and
Legislation 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 and Legislation, the regulatory contact
should identify to the Office of Regulation and Legislation up to two
individuals from the OA or OST component who will attend the meeting
along with a representative from the Office of Regulation and
Legislation. 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 and Legislation for review. After the
report is reviewed and finalized in coordination with the Office of
Regulation and Legislation, 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.
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, these procedures apply to all guidance documents issued by all
components of the Department after the effective date of this subpart.
(c) For purposes of this subpart, the term guidance document
includes an agency statement of general applicability, intended to have
future effect on the behavior of regulated parties, that sets forth a
policy on a statutory, regulatory, or technical issue, or an
interpretation of a statute or regulation, 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
[[Page 22447]]
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 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, and compliance
may be achieved in more than one way; and
(f) The guidance document describes several performance-based ways
the public can comply with the underlying legal requirement, whenever
appropriate, rather than specifying only one means of compliance.
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 how the public may
comment electronically on any guidance documents that are subject to
the notice-and-comment procedures described in Sec. 5.41 and to submit
requests electronically for issuance, reconsideration, modification, or
rescission of guidance documents in accordance with Sec. 5.43; 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. Though
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. See OMB Memorandum M-19-14, Guidance on Compliance with the
Congressional Review Act (April 11, 2019). 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.
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 and
Legislation for review and further direction before issuance. 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 and Legislation will request that the proposing OA or
component of OST obtain a Z-RIN for departmental review and clearance
through the New Environment for Information and Leadership on Rules
(NEIL Rules), or a successor data management system, and OGC will
coordinate submission of the proposed guidance document to the
Secretary for approval.
(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 and
Legislation 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
[[Page 22448]]
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
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 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. 13777, and E.O. 14192.
(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 (d) 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 and Legislation 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 and Legislation 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 and Legislation 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 \1\ do
not require designation by OIRA.
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\1\ See Appendix A to ``Memorandum on the Review and Clearance
of Guidance Documents,'' available at <a href="https://www.transportation.gov/sites/dot.gov/files/2025-03/Review%20and%20Clearance%20of%20Guidance%20Documents.Cote%20Memo.Signed.03-11-2025.pdf">https://www.transportation.gov/sites/dot.gov/files/2025-03/Review%20and%20Clearance%20of%20Guidance%20Documents.Cote%20Memo.Signed.03-11-2025.pdf</a>.
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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 either in the Federal
Register or 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,
either in the Federal Register or 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 \1\ will be exempt from the
requirements of paragraph (a) of this section.
---------------------------------------------------------------------------
\1\ See Appendix A to ``Memorandum on the Review and Clearance
of Guidance Documents,'' available at <a href="https://www.transportation.gov/sites/dot.gov/files/2025-03/Review%20and%20Clearance%20of%20Guidance%20Documents.Cote%20Memo.Signed.03-11-2025.pdf">https://www.transportation.gov/sites/dot.gov/files/2025-03/Review%20and%20Clearance%20of%20Guidance%20Documents.Cote%20Memo.Signed.03-11-2025.pdf</a>.
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(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
[[Page 22449]]
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 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 section 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'').
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 its
policies. 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 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
[[Page 22450]]
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 in this part.
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 a relevant statute, or of a 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. 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. 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 field, agency personnel
should ensure that the basis for an enforcement action is legally
sufficient before initiating it. 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. 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. 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.
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
administrative enforcement proceeding, any agency personnel who have
taken an active part in investigating, prosecuting, or advocating in
the
[[Page 22451]]
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 Representation of regulated parties.
Subject to ethical standards governing post-Federal employment and
applicable State bar requirements, regulated entities are free to
choose their representatives--attorney or non-attorney--who will
represent them before an OST component or OA. Each OST component or OA
should assist pro se litigants and those who are unfamiliar with our
procedures to the extent practical and allowable under ethical and
State bar requirements.
Sec. 5.77 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. 5.79 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. 5.81 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. 5.83 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. 5.85 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 (373 U.S. 83 (1963)) 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
[[Page 22452]]
applying the Brady rule in the criminal context.
Sec. 5.87 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 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 subpart C of this part.
Sec. 5.89 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. 5.91 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. Absent the showing of unusual or extenuating
circumstances, or if necessitated for good cause, each OST component or
OA with enforcement authority shall apply limiting principles to the
duration of investigations. On-site investigations should generally be
limited to 10 business days or less and enforcement staff shall make a
decision on pursuing an administrative action within 30 days of the
completion of the inspection or investigation and commence an
enforcement action as soon as possible thereafter--unless otherwise
required by statute.
Sec. 5.93 Termination of investigation.
When the facts disclosed by an investigation indicate that further
action is not warranted, the OST component or OA with enforcement
authority will close the investigation without prejudice to further
investigation and will notify the person being investigated of the
decision. This notification requirement should only be applied where a
subject of an investigation has previously been made aware of the
investigation, or other pre-enforcement activity. Nothing in this
section precludes civil enforcement action at a later time related to
the findings of the investigation.
Sec. 5.95 Initiation of additional investigations.
OST components and OAs should not initiate additional
investigations of a party after commencing an enforcement action absent
a showing of good cause (e.g., new complaints, accidents, or
incidents), except when the additional investigation is prompted by
facts uncovered in the initial investigation.
Sec. 5.97 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. 5.99 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. 5.101 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. 5.103 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. 5.105 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. 5.107 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
[[Page 22453]]
OAs and components of OST in criminal investigations and the OIG's
investigative procedures under the Inspector General Act of 1978, as
amended.
Sec. 5.109 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. 5.111 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).
Sec. 5.113 Small Business Regulatory Enforcement Fairness Act
(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. 5.115 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. 5.117 Publicly available decisional quality and efficiency
metrics.
Each OST component or OA should annually identify, collect, and
make publicly available decisional quality and efficiency metrics
regarding adjudication under administrative, judicial, and split
enforcement models (of adjudication), to include, e.g., the number of
matters that have been pending with the agency over relevant time
periods, the number of matters disposed by the agency annually, and
data on the types of matters before and disposed of by the agency. This
data shall be made available and prominently published on the OST
component or OA's website within 180 days of the close of the fiscal
year.
Sec. 5.119 Enforcement rights.
Regulated parties that are the subject of a DOT enforcement action
may, during the course of the enforcement action, petition the DOT
General Counsel for a determination that responsible DOT personnel
violated one or more provisions of this subpart with respect to the
enforcement action. If the General Counsel chooses to review the
petition and determines that DOT personnel did not follow the
provisions of this subpart, the General Counsel may elect to direct the
relevant agency decisionmaker to award the following type of relief, as
warranted by the circumstances and consistent with law:
(a) Removal of the enforcement team from the particular matter;
(b) Elimination of certain issues or the exclusion of certain
evidence or the directing of certain factual findings in the course of
the enforcement action; and
(c) Restarting the enforcement action again from the beginning or
recommencing the action from an earlier point in the proceeding.
PART 7--PUBLIC AVAILABILITY OF INFORMATION
0
10. 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
11. 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
12. The authority citation for part 106 continues to read as follows:
Authority: 49 U.S.C. 5101-5128; 49 CFR 1.81 and 1.97.
0
13. 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) * * * 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).
* * * * *
[[Page 22454]]
PART 389--RULEMAKING PROCEDURES--FEDERAL MOTOR CARRIER SAFETY
REGULATIONS
0
14. The authority citation for part 389 continues to read as follows:
Authority: 49 U.S.C. 113, 501 et seq., subchapters I and III of
chapter 311, chapter 313, and 31502; sec. 5204 of Pub. L. 114-94,
129 Stat. 1312, 1536; 42 U.S.C. 4917; and 49 CFR 1.87.
0
15. Amend Sec. 389.39 by revising paragraph (d)(1) to read as follows:
Sec. 389.39 Direct final rulemaking procedures.
* * * * *
(d) * * *
(1) If FMCSA receives an adverse comment within the comment period,
it will either publish a document withdrawing the direct final rule
before it becomes effective and may issue an NPRM or proceed by any
other means permitted under the Administrative Procedure Act,
consistent with procedures at 49 CFR 5.13(l).
* * * * *
PART 553--RULEMAKING PROCEDURES
0
16. The authority citation for part 553 continues to read as follows:
Authority: 49 U.S.C. 322, 30103, 30122, 30124, 30125, 30127,
30146, 30162, 32303, 32502, 32504, 32505, 32705, 32901, 32902,
33102, 33103, and 33107; delegation of authority at 49 CFR 1.95.
0
17. Amend Sec. 553.14 by revising paragraph (d) to read as follows:
Sec. 553.14 Direct final rulemaking.
* * * * *
(d) If NHTSA receives any written adverse comment within the
specified time after publication of the direct final rule in the
Federal Register, the agency will either publish a document withdrawing
the direct final rule before it becomes effective and may issue an NPRM
or proceed by any other means permitted under the Administrative
Procedure Act, consistent with procedures at 49 CFR 5.13(l).
* * * * *
PART 601--ORGANIZATION, FUNCTIONS, AND PROCEDURES
0
18. 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.
Sec. Sec. 601.28 and 601.31 [Removed and Reserved]
0
19. Remove and reserve Sec. Sec. 601.28 and 601.31.
0
20. Amend Sec. 601.32 by revising paragraph (b)(6) to read as follows:
Sec. 601.32 Petitions for rulemaking or exemptions.
* * * * *
(b) * * *
(6) In the case of a petition for exemption, except in cases in
which good cause is shown, the petition must be submitted at least 60
days before the requested effective date of the exemption.
0
21. Amend Sec. 601.33 by revising paragraph (d) to read as follows:
Sec. 601.33 Processing of petitions.
* * * * *
(d) Notification. Whenever the Administrator determines that a
petition should be granted or denied, and after consultation with the
Office of Regulation and Legislation in the case of denial, the office
concerned and the Office of Chief Counsel prepare a notice of that
grant or denial for issuance to the petitioner, and the Administrator
issues it to the petitioner.
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).
* * * * *
PART 605--SCHOOL BUS OPERATIONS
0
23. The authority citation for part 605 continues to read as follows:
Authority: 49 U.S.C. 5323(f); 49 U.S.C. 5334; and 49 CFR 1.91.
0
24. Revise Sec. 605.31 to read as follows:
Sec. 605.31 Notification to the respondent.
On receipt of any complaint under Sec. 605.30, or on the
Administrator's own motion if at any time he or she shall have reason
to believe that a violation may have occurred, the Administrator will
provide written notification to the recipient (``Respondent'') that a
violation has probably occurred. The Administrator will inform the
respondent of the conduct which constitutes a probable violation of the
agreement in a manner consistent with the fair notice requirements of
49 CFR 5.69.
0
25. Revise Sec. 605.32 to read as follows:
Sec. 605.32 Accumulation of evidentiary material.
The Administrator will allow the respondent not more than 30 days
to show cause, by submission of evidence, why no violation occurred. A
like period shall be allowed to the complainant, if any, during which
the complainant may submit evidence to rebut the evidence offered by
the respondent. The Administrator may undertake such further
investigation, as deemed necessary, including the holding of an
evidentiary hearing or hearings in a manner consistent with the record
requirements of 49 CFR 5.81.
[FR Doc. 2026-08144 Filed 4-24-26; 8:45 am]
BILLING CODE 4910-9X-P
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</html>Indexed from Federal Register on April 27, 2026.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.