[Federal Register Volume 84, Number 248 (Friday, December 27, 2019)]
[Rules and Regulations]
[Pages 71714-71734]
[FR Doc No: 2019-26672]

Vol. 84

Friday,

No. 248

December 27, 2019

Part VI

Department of Transportation

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 Office of the Secretary

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14 CFR Parts 11, 300, and 302

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

Administrative Rulemaking, Guidance, and Enforcement Procedures; Final
Rule

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

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DEPARTMENT OF TRANSPORTATION

Office of the Secretary

14 CFR Parts 11, 300, and 302

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

RIN 2105-AE84

Administrative Rulemaking, Guidance, and Enforcement Procedures

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

ACTION: Final rule.

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

DATES: Effective on January 27, 2020.

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

Rulemaking Procedures

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

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

Guidance Document Procedures

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

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

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

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

Rulemaking Analyses and Notices

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

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

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

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

C. Regulatory Flexibility Act

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

D. Executive Order 13132 (Federalism)

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

E. Executive Order 13175

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

F. Paperwork Reduction Act

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

G. National Environmental Policy Act

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

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

Regulation Identifier Number

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

List of Subjects

14 CFR Part 11

    Administrative practice and procedure, Reporting and recordkeeping
requirements.

14 CFR Part 300

    Administrative practice and procedure, Conflicts of interests.

14 CFR Part 302

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

49 CFR Part 1

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

49 CFR Part 5

    Administrative practice and procedure.

49 CFR Part 106

    Administrative practice and procedure, Hazardous materials
transportation.

49 CFR Part 211

    Administrative practice and procedure, Railroad safety.

49 CFR Part 389

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

49 CFR Part 553

    Administrative practice and procedure, Motor vehicle safety.

49 CFR Part 601

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

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

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

Title 14--Aeronautics and Space

PART 11--GENERAL RULEMAKING PROCEDURES

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

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

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

Sec.  11.13  What is a direct final rule?

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

Sec.  11.31  [Amended]

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

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

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

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

Appendix 1 to Part 11 [Removed]

0
5. Remove appendix 1 to part 11.

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

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

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

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

Sec.  300.2  Prohibited Communications.

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

PART 302--RULES OF PRACTICE IN PROCEEDINGS

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

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

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

Sec.  302.16  Petitions for rulemaking.

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

Title 49--Transportation

PART 1--ORGANIZATION AND DELEGATION OF POWERS AND DUTIES

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

    Authority: 49 U.S.C. 322.

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

Sec.  1.27  Delegations to the General Counsel.

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

0
12. Revise part 5 to read as follows:

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

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

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

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

Subpart A--General

Sec.  5.1  Applicability.

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

Subpart B--Rulemaking Procedures

Sec.  5.3  General.

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

Sec.  5.5  Regulatory policies.

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

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

Sec.  5.7  Responsibilities.

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

Sec.  5.9  Regulatory Reform Task Force.

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

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

Sec.  5.11  Initiating a rulemaking.

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

Sec.  5.13  General rulemaking procedures.

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

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

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

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

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

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

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

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

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

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

Sec.  5.19  Public contacts in informal rulemaking.

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

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

Sec.  5.21  Policy updates and revisions.

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

Sec.  5.23  Disclaimer.

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

Sec.  5.25  General.

    (a) This subpart governs all DOT employees and contractors involved
with all phases of issuing DOT guidance documents.
    (b) Subject to the qualifications and exemptions contained in this
subpart and in appendix A to the Memorandum on the Review and Clearance
of Guidance Documents (available online at the website of the Office of
the General Counsel's Office of Regulation \1\), these procedures apply
to all guidance documents issued by all components of the Department
after December 20, 2018.
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    \1\ See Appendix A to ``Memorandum on the Review and Clearance
of Guidance Documents,'' available at https://www.transportation.gov/sites/dot.gov/files/docs/regulations/328566/gen-counsel-mem-guidance-documents-signed-122018.pdf.
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    (c) For purposes of this subpart, the term guidance document
includes any statement of agency policy or interpretation concerning a
statute, regulation, or technical matter within the jurisdiction of the
agency that is intended to have general applicability and future
effect, but which is not intended to have the force or effect of law in
its own right and is not otherwise required by statute to satisfy the
rulemaking procedures specified in 5 U.S.C. 553 or 5 U.S.C. 556. The
term is not confined to formal written documents; guidance may come in
a variety of forms, including (but not limited to) letters, memoranda,
circulars, bulletins, advisories, and may include video, audio, and
Web-based formats. See OMB Bulletin 07-02, ``Agency Good Guidance
Practices,'' (January 25, 2007) (``OMB Good Guidance Bulletin'').
    (d) This subpart does not apply to:
    (1) Rules exempt from rulemaking requirements under 5 U.S.C.
553(a);
    (2) Rules of agency organization, procedure, or practice;
    (3) Decisions of agency adjudications under 5 U.S.C. 554 or similar
statutory provisions;
    (4) Internal executive branch legal advice or legal advisory
opinions addressed to executive branch officials;
    (5) Agency statements of specific applicability, including advisory
or legal opinions directed to particular parties about circumstance-
specific questions (e.g., case or investigatory letters responding to
complaints, warning letters), notices regarding particular locations or
facilities (e.g., guidance pertaining to the use, operation, or control
of a government facility or property), and correspondence with
individual persons or entities (e.g., congressional correspondence),
except documents ostensibly directed to a particular party but designed
to guide the conduct of the broader regulated public;
    (6) Legal briefs, other court filings, or positions taken in
litigation or enforcement actions;
    (7) Agency statements that do not set forth a policy on a
statutory, regulatory, or technical issue or an interpretation of a
statute or regulation, including speeches and individual presentations,
editorials, media interviews, press materials, or congressional
testimony that do not set forth for the first time a new regulatory
policy;
    (8) Guidance pertaining to military or foreign affairs functions;
    (9) Grant solicitations and awards;
    (10) Contract solicitations and awards; or
    (11) Purely internal agency policies or guidance directed solely to
DOT employees or contractors or to other Federal agencies that are not
intended to have substantial future effect on the behavior of regulated
parties.

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

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

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

Sec.  5.29  Requirements for clearance.

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

Sec.  5.31  Public access to effective guidance documents.

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

Sec.  5.33  Good faith cost estimates.

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

    (a) For guidance proposed to be issued by an OA, if there is a
reasonable possibility the guidance may be considered ``significant''
or ``otherwise of importance to the Department's interests'' within the
meaning of Sec.  5.37 or if the OA is uncertain whether the guidance
may qualify as such, the OA should email a copy of the proposed
guidance document (or a summary of it) to the Office of Regulation for
review and further direction before issuance. Unless exempt under
appendix A to the Memorandum on the Review and Clearance of Guidance
Documents,\3\ each proposed DOT guidance document determined to be
significant or otherwise of importance to the Department's interests
must be approved by the Secretary before issuance. In such instances,
the Office of Regulation will request that the proposing OA or
component of OST obtain a Z-RIN for departmental review and clearance
through the Regulatory Management System (RMS), or a successor data
management system, and OGC will coordinate submission of the proposed
guidance document to the Secretary for approval.
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    \3\ See Appendix A to ``Memorandum on the Review and Clearance
of Guidance Documents,'' available at https://www.transportation.gov/sites/dot.gov/files/docs/regulations/328566/gen-counsel-mem-guidance-documents-signed-122018.pdf.
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    (b) As with significant regulations, OGC will submit significant
DOT guidance documents to OMB for coordinated review. In addition, OGC
may determine that it is appropriate to coordinate with OMB in the
review of guidance documents that are otherwise of importance to the
Department's interests.
    (c) If the guidance document is determined not to be either
significant or otherwise of importance to the Department's interests
within the meaning of Sec.  5.37, the Office of Regulation will advise
the proposing OA or component of OST to proceed with issuance of the
guidance either through the Office of the Executive Secretariat (for
Federal Register notices) or through its standard clearance process.
For each guidance document coordinated through the Office of the
Executive Secretariat, the issuing OA or component of OST should
include a

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

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

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

Sec.  5.39  Designation procedures.

    (a) The Office of Regulation may request an OA or OST component to
prepare a designation request for certain guidance documents.
Designation requests must include the following information:
    (1) A summary of the guidance document; and
    (2) The OA or OST component's recommended designation of ``not
significant,'' ``significant,'' or ``economically significant,'' as
well as a justification for that designation.
    (b) Except as otherwise provided in paragraph (c) of this section,
the Office of Regulation will seek significance determinations from
OIRA for certain guidance documents, as appropriate, in the same manner
as for rulemakings. Prior to publishing these guidance documents, and
with sufficient time to allow OIRA to review the document in the event
that a significance determination is made, the Office of Regulation
should provide OIRA with an opportunity to review the designation
request or the guidance document, if requested, to determine if it
meets the definition of ``significant'' or ``economically significant''
under Executive Order 13891.
    (c) Unless they present novel issues, significant risks,
interagency considerations, unusual circumstances, or other unique
issues, the categories of guidance documents found in appendix A \4\ do
not require designation by OIRA.
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    \4\ See Appendix A to ``Memorandum on the Review and Clearance
of Guidance Documents,'' available at https://www.transportation.gov/sites/dot.gov/files/docs/regulations/328566/gen-counsel-mem-guidance-documents-signed-122018.pdf.
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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 on its website, shall
invite public comment on the draft document for a minimum of 30 days,
and shall prepare and post a public response to major concerns raised
in the comments, as appropriate, on its website, either before or when
the guidance document is finalized and issued.
    (b) The requirements of paragraph (a) of this section will not
apply to any significant guidance document or categories of significant
guidance documents for which OGC finds, in consultation with OIRA, the
proposing OA or component of OST, and the Secretary, good cause that
notice and public procedure thereon are impracticable, unnecessary, or
contrary to the public interest (and incorporates the finding of good
cause and a brief statement of reasons therefor in the guidance
issued). Unless OGC advises otherwise in writing, the categories of
guidance documents listed in appendix A \5\ will be exempt from the
requirements of paragraph (a) of this section.
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    \5\ See Appendix A to ``Memorandum on the Review and Clearance
of Guidance Documents,'' available at https://www.transportation.gov/sites/dot.gov/files/docs/regulations/328566/gen-counsel-mem-guidance-documents-signed-122018.pdf.
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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 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 Sec.  5.37, the issuing OA or
component of OST will submit a report to Congress and GAO in accordance
with the procedures described in 5 U.S.C. 801 (the ``Congressional
Review Act'').

Sec.  5.51  No judicial review or enforceable rights.

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

Subpart D--Enforcement Procedures

Sec.  5.53  General.

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

Sec.  5.55  Enforcement attorney responsibilities.

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

Sec.  5.57  Definitions.

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

Sec.  5.59  Enforcement policy generally.

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

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

Sec.  5.61  Investigative functions.

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

Sec.  5.63  Clear legal foundation.

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

Sec.  5.65  Proper exercise of prosecutorial and enforcement
discretion.

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

Sec.  5.67  Duty to review for legal sufficiency.

    In accordance with established agency procedures, enforcement
actions should be reviewed by the responsible agency component for
legal sufficiency under applicable statutes and regulations, judicial
decisions, and other appropriate authorities.\6\ If, in the opinion of
the responsible agency component or its counsel, the evidence is
sufficient to support the assertion of violation(s), then the agency
may proceed with the enforcement action. If the evidence is not
sufficient to support the proposed enforcement action, the agency may
modify or amend the charges and bring an enforcement action in line
with the evidence or return the case to the enforcement staff for
additional investigation. The reviewing attorney or agency component
may also recommend the closure of the case for lack of sufficient
evidence.\7\ The Department will not initiate enforcement actions as a
``fishing expedition'' to find potential violations of law in the
absence of sufficient evidence in hand to support the assertion of a
violation.
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    \6\ Though it may not always be feasible or necessary for agency
personnel to consult with counsel before initiating an enforcement
action, particularly since the OAs utilize a variety of enforcement
personnel to staff their enforcement programs, including personnel
located in the fields, agency personnel should ensure that the basis
for an enforcement action is legally sufficient before initiating
it.
    \7\ Attorneys at many of the OAs issue Notices of Probable
Violations, Notice of Claims, or Demand Letters to initiate
enforcement proceedings. At other OAs, these documents are issued by
non-attorney program officials. The duty to review applies equally
to all agency attorneys whether deciding to issue a document to
initiate enforcement proceedings or to continue to prosecute based
upon a document previously issued by a non-attorney program
official. In the latter situation, it is important that attorneys
provide legal input, training, and review of the work product of the
program office. At all times, DOT attorneys are encouraged to
exercise their best professional judgment in deciding to initiate,
continue, or recommend closing a case, consistent with applicable
legal and ethical standards.
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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 enforcement action should not serve as a decision maker and should
not advise or assist the decision maker in that same or a related case.
In such proceedings, the agency's adversarial personnel should not
furnish ex parte advice or factual materials to decisional personnel.
When and as necessary, agency employees involved in enforcement actions
should consult legal counsel and applicable regulations and ethical
standards for further guidance on these requirements.

Sec.  5.73  Avoiding bias.

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

Sec.  5.75  Formal enforcement adjudications.

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

Sec.  5.77  Informal enforcement adjudications.

    Even though informal adjudications do not require trial-type
procedures, the responsible OA or component of OST should ordinarily
afford the applicant or the regulated entity that is the subject of the
adjudication (as the case may be), as well as other directly affected
parties (if any), adequate notice and an opportunity to be heard on the
matter under review, either through an oral presentation or through a
written submission. Except in cases of a safety emergency or when the
clear text of the relevant enabling act or government-wide regulation,
such as 2 CFR part 180, expressly authorizes exigent enforcement action