NEIL EISNER ASSISTANT GENERAL COUNSEL FOR REGULATION AND ENFORCEMENT U.S. DEPARTMENT OF TRANSPORTATION MCSAC AUGUST 28, 2012 Retrospective Reviews of Rules 1

Administrative Procedure Act (APA) 2 The APA defines rulemaking as the “agency process for formulating, amending, or repealing a rule” It recognizes that rules may need to be revised or revoked The APA also requires agencies to give interested persons “the right to petition for the issuance, amendment, or repeal of a rule”

Requirements for Reviews The Regulatory Flexibility Act requires plan for review of rules with significant economic impact on a substantial number of small entities every 10 years to determine whether impact can be minimized (“§ 610 reviews”) Executive Orders and require program for the periodic review of existing significant rules DOT Regulatory Policies and Procedures require the periodic review of existing rules Specific statutes or rules may require via sunset dates or their equivalent 3

Executive Order Requires plan to periodically review existing significant rules to make them “more effective or less burdensome” Presidential and OIRA memoranda emphasize:  Paperwork burden reduction initiatives, with particular focus on relief for small businesses  Consideration of cumulative burdens  Immediate, special review of all rules 4

DOT Implementation 10-year Review Plan started in 1998; renewed every 10 years Special reviews E.O Review and Plan 5

10-year Review Plan Regular reviews prior to 1998 but not as organized Plan covers all DOT rules (minor FAA exceptions) Published in Appendix D to DOT’s semi-annual Regulatory Agenda and posted at regs.dot.gov Provides year review will be conducted Public comment invited on all aspects Provides brief summaries of decision at end of year Plan can be amended Resulting rulemakings have “RRR” in title 6

Special Reviews Ad hoc reviews (e.g., in response to an accident) Planned (e.g., in response to trends noted in reported data or Presidential initiatives) Responses to public petitions Some, such as Motor Coach Safety Action Plan, may result from more than one of these 7

E.O Review and Plan Invited public participation through written comments and public meeting (using tools such as web streaming and IdeaScale) Posted draft Plan for comment Final report included a series of initiatives to improve existing plan (e.g., expanded senior official oversight and involvement of advisory committees Included large number of actions resulting from public or DOT agency suggestions Merging changes and additions into 10-year plan 8

Factors Considered During Review Nature/extent of complaints /suggestions Need to simplify/clarify Need to eliminate overlapping/duplicative rules Need to eliminate conflicts/inconsistencies with other rules Length of time since last review Importance/relevance of problem originally addressed Costs or benefits greater or less than estimated Changes in technology, the economy, or similar factors Number of requests for exemption and number granted 9

Decisions May be very simple (e.g., a § 610 review may show no small entities covered or no costs imposed) It may require some detailed analysis (e.g., a § 610 review may show small entities have entered market they were absent from when rule issued) May be complex (e.g., initial review may show significant differences from estimated benefits, enforcement difficulties, and complaints about much higher cost than expected) 10

Simple Example 11 PHMSA “Miscellaneous Amendments” Minor issues collected every couple years Current NPRM resulted from review of variety of sources; e.g.:  Requests for clarification  Incident reports showing need for adjustments  Special permits with safety record justifying adding to rule

Small Entity Review Example DOT reviewed DBE rule to see if it could reduce time and cost burdens Existing rule: DBE certification required an application in each state DOT decided DBE certified in State A can be certified in State B, based on application materials provided to State A, if State B does not object to something specific within 60 days If State objects, firm can respond on specific point 12

Complex Example 1970’s: despite NHTSA manual seatbelt rule, large number of frontal-impact fatalities and injuries in automobile crashes NHTSA statutory responsibility: improve safety Risk assessments/cost-benefit analysis found numerous, potential alternatives from educational campaigns to state mandatory seat belt usage laws to air bags and automatic belts Issues ranged from need for demonstration programs to environmental concerns over inflators for air bags to whether owners would cut automatic belts Eventual rule rescinded by new Administration; rescission overturned by Supreme Court; new rulemaking resulted in similar rule 13

Time and Resources Time, including any resulting rulemaking, dependent on budgetary/expert resources, complexity of issues, and research and analyses needed NHTSA found major statistical evaluation can take 1, ,000 hours, 1-2 years to complete, and result in page reports In 1970’s, FAA reviewed aircraft certification rules (11 of FAA’s 73 parts in the CFR)  Multiple opportunities for public participation  Then 8 NPRMs about 200 pages each  9 final rules about 200 pages each  Approximately 500 changes, but it took 8 years 14

Conclusion Organized review plans not easy to implement New legislation or court decisions – especially with deadlines – may pull staff off reviews Administrations and priorities change Staff does not always think an activity is a review DOT knows importance of effective reviews We think we have a very good process But we know we can make it better and are working at doing that 15