[Federal Register Volume 60, Number 126 (Friday, June 30, 1995)]
[Rules and Regulations]
[Pages 34147-34151]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-16146]
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DEPARTMENT OF TRANSPORTATION
Coast Guard
33 CFR Parts 1, 23, and 177
[CGD 95-057]
RIN 2115-AF20
Clarification of Coast Guard Rulemaking Procedures
AGENCY: Coast Guard, DOT.
ACTION: Final rule.
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SUMMARY: The Coast Guard is revising the regulations describing its
rulemaking procedures to accurately reflect the rulemaking procedures
currently in use. This revision clarifies delegations of authority and
removes references to hearing officers, which the Coast Guard no longer
uses in its regulatory process. It also clarifies who is designated to
receive service of process and requests to testify on behalf of members
and employees of the Coast Guard.
DATES: This rule is effective on June 30, 1995.
ADDRESSES: Unless otherwise indicated, documents referred to in this
preamble are available for inspection or copying at the office of the
Executive Secretary, Marine Safety Council (G-LRA/3406), U.S. Coast
Guard Headquarters, 2100 Second Street SW., room 3406, Washington D.C.
20593-0001 between 8 a.m. and 3 p.m., Monday through Friday, except
Federal holidays. The telephone number is (202) 267-1477.
FOR FURTHER INFORMATION CONTACT:
LT R. Goldberg, Staff Attorney, Regulations and Administrative Law
Division, Office of Chief Counsel, U.S. Coast Guard Headquarters, (202)
267-6004.
SUPPLEMENTARY INFORMATION:
Drafting Information
The principal persons involved in drafting this document are LT R.
Goldberg, Project Manager, Office of Chief Counsel, and CDR T. Cahill,
Project Counsel, Office of Chief Counsel.
Background and Purpose
The Coast Guard recently completed an extensive review of its
regulatory process. That review, which included a public meeting on
September 20, 1993, resulted in a number of changes. Among these
changes is greater Coast Guard emphasis on providing increased
opportunities for public involvement in rulemaking and a greater
emphasis on internal Coast Guard accountability. These changes are
reflected in a new Coast Guard Headquarters Instruction which was
recently signed by the Chief Counsel.
The provisions of 33 CFR subpart 1.05, describing the Coast Guard's
rulemaking procedures, have not been revised since 1976 and do not
reflect current Coast Guard rulemaking practices and procedures. For
example, the current Sec. 1.05-15 provides that public hearings are
conducted by a ``hearing officer or panel of officers''. This procedure
is no longer used. This type of outmoded provision in Subpart 1.05 may
mislead the public.
The subpart is reorganized and revised to provide guidance to the
public regarding a variety of Coast Guard procedures including
delegations of rulemaking authority by office, submissions of petitions
for rulemaking, and internal rulemaking procedures. Additionally, as
part of the revision and reorganization, provisions that are currently
in subpart 1.05 but properly belong in other areas, are moved.
Subpart 1.05 is being revised to more accurately reflect and
provide better guidance to the public on current Coast Guard rulemaking
procedures. As part of this revision, all references to hearing
officers are deleted as the Coast Guard no longer follows this
procedure for rulemaking. Section 1.05-1 is amended to clarify
rulemaking delegations to Coast Guard District Commanders, office
chiefs at Coast Guard Headquarters, and Captains of the Port. The
changes also clarify that, in addition to the authorities previously
listed in Sec. 1.05-1, both the Chief, Office of Navigation Safety and
Waterway Services, and the Chief, Office of Marine Safety, Security,
and Environmental Protection may make certifications under section
605(b) of the Regulatory Flexibility Act (5 U.S.C. 605) for the rules
that they issue. References to the delegations of authority given to
office chiefs, Coast Guard Headquarters, the delegation to District
Commanders to establish special local regulations, and the delegation
to District Commanders and Captains of the Port to establish safety and
security zones, have been added.
Delegations that do not involve rulemaking authority are moved to
more appropriate parts of the Code of Federal Regulations. The
reference to the delegation of authority to the Chief, Office of
Navigation Safety and Waterway Services to grant exemptions from the
provisions of the Vessel Bridge-to-Bridge Radiotelephone Act,
previously in Sec. 1.05-1(c)(1), is moved to 33 CFR part 26, Vessel
Bridge-to-Bridge Radiotelephone Regulations. The reference to the
delegation of authority to each Coast Guard District
[[Page 34148]]
Commander to issue orders that a specific boat is unsafe for a specific
voyage and the provisions which must be contained within these orders
is moved from Sec. 1.05-1(d)-(f) to 33 CFR part 177, Correction of
Especially Hazardous Conditions. In both moves, no substantive changes
are made.
A number of new sections clarify the procedures for public
involvement in the Coast Guard's rulemaking procedures. Section 1.05-5
is added to clarify the role of the Coast Guard's Marine Safety Council
in the rulemaking process. A new Sec. 1.05-10 provides an overview of
the Coast Guard's regulatory process, and a new Sec. 1.05-15 outlines
the Coast Guard's policy on public participation in the rulemaking
process. A new section, Sec. 1.05-20, is added to outline the
procedures for the public to petition the Coast Guard to initiate a
rulemaking. New sections also clarify the Coast Guard's policies on the
maintenance of a public docket (Sec. 1.05-25), the publication of
supplemental notices of proposed rulemaking (Sec. 1.05-40), the
publication of interim rules (Sec. 1.05-45), and the option to
formulate rules through the use of negotiated rulemaking (Sec. 1.05-
60).
In addition, the Coast Guard is clarifying 33 CFR subpart 1.20,
``Testimony by Coast Guard Personnel and Production of Records in Legal
Proceedings,'' to identify who is designated by the Chief Counsel of
the Coast Guard to receive service of process and requests to testify
on behalf of members and employees of the Coast Guard. The changes in
designated officials are necessary to provide a clear definition of who
is deemed ``agency counsel'' under the Department of Transportation's
recently amended rules found at 49 CFR part 9, ``Testimony of Employees
of the Department and Production of Records in Legal Proceedings''. The
Coast Guard is issuing these amendments due to recent changes in Coast
Guard organization and recent modifications to the procedures for the
testimony of employees of the Department of Transportation and
production of records in legal proceedings.
Regulatory Information
This rule is being published as a final rule without a prior notice
of proposed rulemaking. This rulemaking merely clarifies and updates
the Coast Guard's internal rulemaking procedures and delegations of
authority and will not impose any substantive requirements on the
public. Therefore, the Coast Guard, for good cause finds, under 5
U.S.C. 553 (b) and (d), that notice and public procedure on the notice
are unnecessary, and that the rule may be made effective upon
publication.
Regulatory Evaluation
This rule is not a significant regulatory action under section 3(f)
of Executive Order 12866 and does not require an assessment of
potential costs and benefits under section 6(a)(3) of that order. It
has not been reviewed by the Office of Management and Budget under that
order. It is not significant under the regulatory policies and
procedures of the Department of Transportation (DOT) (44 FR 11040;
February 26, 1979). The Coast Guard expects the economic impact of this
rule to be so minimal that a full Regulatory Evaluation under paragraph
10e of the regulatory policies and procedures of DOT is unnecessary. As
this rule involves internal agency practices and procedures, it will
not impose any costs on the public.
Small Entities
Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), the
Coast Guard must consider whether this rule will have a significant
economic impact on a substantial number of small entities. ``Small
entities'' may include (1) small businesses and not-for-profit
organizations that are independently owned and operated and are not
dominant in their fields and (2) governmental jurisdictions with
populations of less than 50,000. The Coast Guard has evaluated this
rule under the Regulatory Flexibility Act. This rule involves internal
Coast Guard rulemaking procedures and will not have substantive impact
on the public. Therefore, the Coast Guard certifies under 5 U.S.C.
605(b) that this rule will not have a significant economic impact on a
substantial number of small entities.
Collection of Information
This rule contains no collection-of-information requirements under
the Paperwork Reduction Act (44 U.S.C. 3501 et seq.).
Federalism
The Coast Guard has analyzed this rule under the principles and
criteria contained in Executive Order 12612 and has determined that
this rule does not have sufficient federalism implications to warrant
the preparation of a Federalism Assessment.
Environment
The Coast Guard considered the environmental impact of this rule
and concluded that, under paragraph 2.B.2 of Commandant Instruction
M16475.1B (as revised by 59 FR 38654, July 29, 1994), this rule is
categorically excluded from further environmental documentation as a
regulation of a procedural nature. A ``Categorical Exclusion
Determination'' is available in the docket for inspection or copying
where indicated under ADDRESSES.
List of Subjects
33 CFR Part 1
Administrative practice and procedures, Authority delegations
(Government agencies), Coast Guard, Freedom of information, Penalties.
33 CFR Part 26
Coast Guard, Communications equipment, Vessels.
33 CFR Part 177
Coast Guard, Marine safety.
For the reasons set out in the preamble, the Coast Guard amends
subparts 1.05 and 1.20 of part 1, part 26 and part 177 of title 33,
Code of Federal Regulations as follows:
PART 1--GENERAL PROVISIONS
1. Subpart 1.05 is revised to read as follows:
Subpart 1.05--Rulemaking
Sec.
1.05-1 Delegation of rulemaking authority.
1.05-5 Marine Safety Council.
1.05-10 Regulatory process overview.
1.05-15 Public participation.
1.05-20 Petitions for rulemaking.
1.05-25 Public docket.
1.05-30 Advance notice of proposed rulemaking (ANPRM).
1.05-35 Notice of proposed rulemaking (NPRM).
1.05-40 Supplemental notice of proposed rulemaking (SNPRM).
1.05-45 Interim rule.
1.05-50 Final rule.
1.05-60 Negotiated rulemaking.
Authority: 5 U.S.C. 552, 553, App. 2; 14 U.S.C. 2, 631, 632, and
633; 33 U.S.C. 471, 499; 49 U.S.C. 101, 322; 49 CFR 1.4(b), 1.45(b),
and 1.46.
Subpart 1.05--Rulemaking
Sec. 1.05-1 Delegation of rulemaking authority.
(a) The Secretary of Transportation is empowered by various
statutes to issue regulations regarding the functions, powers and
duties of the Coast Guard.
(b) The Secretary of Transportation has delegated much of this
authority to the Commandant, U.S. Coast Guard, including authority to
issue regulations regarding the functions of the Coast Guard and the
authority to redelegate and authorize successive redelegations of that
authority within the Coast Guard.
[[Page 34149]]
These delegations are reflected in 49 CFR 1.45 and 1.46.
(c) The Commandant has reserved the authority to issue any rules
and regulations determined to be significant under Executive Order
12866, Regulatory Planning and Review.
(d) The Commandant has redelegated to the various office chiefs at
U.S. Coast Guard Headquarters, with the reservation that this authority
shall not be further redelegated, the authority to develop and issue
regulations necessary to implement laws, treaties, or Executive Orders
associated with their assigned programs; issue amendments to existing
regulations as necessary; and submit regulatory proposals for Marine
Safety Council consideration.
(e)(1) The Commandant has redelegated to Coast Guard District
Commanders, with the reservation that this authority shall not be
further redelegated, the authority to issue regulations pertaining to
the following:
(i) Anchorage grounds and special anchorage areas.
(ii) The designation of lightering zones.
(iii) The operation of drawbridges.
(iv) The establishment of Regulated Navigation Areas.
(v) The establishment of safety and security zones.
(vi) The establishment of special local regulations.
(2) This delegation does not extend to those matters specified in
paragraph (c) of this section or rules and regulations which have been
shown to raise substantial issues or to generate controversy.
(f) Except for those matters specified in paragraph (c) of this
section, the Commandant has redelegated to Coast Guard Captains of the
Port, with the reservation that this authority shall not be further
redelegated, the authority to establish safety and security zones.
(g) The Commandant has redelegated to Coast Guard District
Commanders, Captains of the Port, the Chief, Office of Navigation
Safety and Waterway services, and the Chief, Office of Marine Safety,
Security, and Environmental Protection the authority to make the
certification required by section 605(b) of the Regulatory Flexibility
Act (Sec. 605(b), Pub. L. 96-354, 94 Stat. 1168 (5 U.S.C. 605)) for
rules that they issue.
Sec. 1.05-5 Marine Safety Council.
The Marine Safety Council, composed of senior Coast Guard
officials, acts as policy advisor to the Commandant and is the focal
point of the Coast Guard regulatory system. The Marine Safety Council
provides oversight, review, and guidance for all Coast Guard regulatory
activity.
Sec. 1.05-10 Regulatory process overview.
(a) Most rules of local applicability are issued by District
Commanders and Captains of the Port, while rules of wider applicability
are issued by senior Coast Guard officials at Coast Guard Headquarters,
For both significant rulemaking (defined by Executive Order 12866,
Regulatory Planning and Review and Department of Transportation Order
2100.5, Policies and Procedures for Simplification, Analysis, and
Review of Regulations) and non-significant rulemaking, other than those
areas delegated to District Commanders and Captains of the Port, the
regulatory process begins when an office chief with program
responsibilities identifies a possible need for a new regulation or for
changes to an existing regulation. The need may arise due to statutory
changes, or be based on internal review or public input. Early public
involvement is strongly encouraged.
(b) After a tentative regulatory approach is developed, a
regulatory project proposal is submitted to the Marine Safety Council
for approval. The proposal describes the scope of the proposed
regulation, alternatives considered, and potential cost and benefits,
including possible environmental impacts. All regulatory projects
require Marine Safety Council approval.
(c) Significant rulemaking projects must also be approved by the
Commandant of the Coast Guard.
(d) If the project is approved, the necessary documents are
drafted, including documents to be published in the Federal Register.
These may include regulatory evaluations, environmental analyses,
requests for comments, announcements of public meetings, notices of
proposed rulemakings, and final rules.
Sec. 1.05-15 Public participation.
The Coast Guard considers public participation essential to
effective rulemaking, and encourages the public to participate in its
rulemaking process. Coast Guard policy is to provide opportunities for
public participation early in potential rulemaking projects. Generally,
the Coast Guard will solicit public input by publishing a notice of
public meeting or request for comments in the Federal Register. Advance
Notices of Proposed Rulemaking, Notices of Proposed Rulemaking,
Supplemental Notices of Proposed Rulemaking, and Interim Rules will
usually provide 90 days, or more if possible, after publication for
submission of comments. This time period is intended to allow
interested persons the opportunity to participate in the rulemaking
process through the submission of written data and views. However,
certain cases and circumstances may make it necessary to provide a
shorter comment period. Public meetings may also be held to provide an
opportunity for oral presentations. The Coast Guard will consider the
comments received and, in subsequent rulemaking documents, will
incorporate a concise general statement of the comments received and
identify changes from a proposed rule based on the comments.
Sec. 1.05-20 Petitions for rulemaking.
(a) Any member of the public may petition the Coast Guard to
undertake a rulemaking action. There is no prescribed form for a
petition for rulemaking, but the document should provide some
supporting information as to why the petitioner believes the proposed
rulemaking is necessary and the document should clearly indicate that
it is a petition for rulemaking. Petitions should be addressed to the
Executive Secretary, Marine Safety Council (G-LRA/3406), United States
Coast Guard Headquarters, 2100 Second Street SW., Washington, DC 20593-
0001.
(b) The petitioner will be notified of the Coast Guard's decision
whether to initiate a rulemaking or not. If the Coast Guard decides not
to pursue a rulemaking, the petitioner will be notified of the reasons
why. If the Coast Guard decides to initiate rulemaking, it will follow
the procedure outlined in this subpart. The Coast Guard may publish a
notice acknowledging receipt of a petition for rulemaking in the
Federal Register.
(c) Any petition for rulemaking and any reply to the petition will
be kept in a public file open for inspection.
Sec. 1.05-25 Public docket.
(a) A public file is maintained for each petition for rulemaking
and each Coast Guard regulation and notice published in the Federal
Register. Each file contains copies of every rulemaking document
published for the project, public comments received, summaries of
public meetings or hearings, regulatory assessments, and other
publicly-available information. Members of the public may inspect the
public docket and copy any documents in the file. Each rulemaking
document will identify where the public file for that rulemaking is
maintained.
(b) The public dockets for Coast Guard rulemaking activity
initiated by
[[Page 34150]]
Coast Guard District Commanders are available for public inspection at
the appropriate Coast Guard District office.
(c) The public dockets for Coast Guard rulemaking activity
initiated by Captains of the Port are available for inspection at the
appropriate Captain of the Port office.
Sec. 1.05-30 Advance notice of proposed rulemaking (ANPRM).
An advance notice of proposed rulemaking may be used to alert the
affected public about a new regulatory project, or when the Coast Guard
needs more information about what form proposed regulations should
take, the actual need for a regulation, the cost of a proposal, or any
other information. The ANPRM may solicit general information or ask the
public to respond to specific questions.
Sec. 1.05-35 Notice of proposed rulemaking (NPRM).
Under the Administrative Procedure Act (APA), 5 U.S.C. 553, an NPRM
is generally published in the Federal Register for Coast Guard
rulemakings. The NPRM normally contains a preamble statement in
sufficient detail to explain the proposal, its background, basis, and
purpose, and the various issues involved. It also contains a discussion
of any comments received in response to prior notices, a citation of
legal authority for the rule, and the text of the proposed rule.
Sec. 1.05-40 Supplemental notice of proposed rulemaking (SNPRM).
An SNPRM may be issued if a proposed rule has been substantially
changed from the original notice of proposed rulemaking. The
supplemental notice advises the public of the revised proposal and
provides an opportunity for additional comment. To give the public a
reasonable opportunity to become reacquainted with a rulemaking, a
supplemental notice may also be issued if considerable time has elapsed
since publication of a notice of proposed rulemaking. An SNPRM contains
the same type of information generally included in an NPRM.
Sec. 1.05-45 Interim rule.
(a) An interim rule may be issued when it is in the public interest
to promulgate an effective rule while keeping the rulemaking open for
further refinement. For example, an interim rule may be issued in
instances when normal procedures for notice and comment prior to
issuing an effective rule are not required, minor changes to the final
rule may be necessary after the interim rule has been in place for some
time, or the interim rule only implements portions of a proposed rule,
while other portions of the proposed rule are still under development.
(b) An interim rule will be published in the Federal Register with
an effective date that will generally be at least 30 days after the
date of publication. After the effective date, an interim rule is
enforceable and is codified in the next annual revision of the
appropriate title of the Code of Federal Regulations.
Sec. 1.05-50 Final rule.
In some instances, a final rule may be issued without prior notice
and comment. When notice and comment procedures have been used, and
after all comments received have been considered, a final rule is
issued. A final rule document contains a preamble that discusses
comments received, responses to comments and changes made from the
proposed or interim rule, a citation of legal authority, and the text
of the rule.
Sec. 1.05-60 Negotiated rulemaking.
(a) The Coast Guard may establish a negotiated rulemaking committee
under the Negotiated Rulemaking Act of 1990 and the Federal Advisory
Committee Act (FACA) (5 U.S.C. App. 2) when it is in the public
interest.
(b) Generally, the Coast Guard will consider negotiated rulemaking
when:
(1) There is a need for a rule;
(2) There are a limited number of representatives for identifiable
parties affected by the rule;
(3) There is a reasonable chance that balanced representation can
be reached in the negotiated rulemaking committee and that the
committee members will negotiate in good faith;
(4) There is a likelihood of a committee consensus in a fixed time
period;
(5) The negotiated rulemaking process will not unreasonably delay
the rule;
(6) The Coast Guard has resources to do negotiated rulemaking; and
(7) The Coast Guard can use the consensus of the committee in
formulating the NPRM and final rule.
Subpart 1.20--[Amended]
2. The authority citation for subpart 1.20 is revised to read as
follows:
Authority: 5 U.S.C. 301; 14 U.S.C. 632, 633, 49 U.S.C. 322; 49
CFR 1.46 and part 9.
3. In Sec. 1.20-1, paragraphs (b) and (c) are revised to read as
follows:
Sec. 1.20-1 Testimony by Coast Guard personnel and production of
records in legal proceedings.
* * * * *
(b) Except for the acceptance of service of process or pleadings
under paragraph (d) of this section and 49 CFR 9.19, the Legal Officer
of each Maintenance and Logistics Command, each District Legal Officer,
and the Legal Officer assigned to any other Coast Guard unit or
command, for matters involving personnel assigned to their command, are
delegated the functions of ``agency counsel'' described in 49 CFR part
9.
(c) A request for a member or employee of the Coast Guard to
testify, or for permission to interview such a member or employee,
should be made to the Legal officer serving the command to which that
member or employee is assigned, or, if the member or employee is
serving at Coast Guard Headquarters, or with a command receiving legal
services from the Chief counsel, U.S. Coast Guard, to the Chief, Claims
and Litigation Division. Should the member or employee no longer be
employed by the Coast Guard, and the testimony or information sought
falls within the provisions of 49 CFR part 9, the request should be
made to the District Legal Officer serving the geographic area where
the former member or employee resides or, if no District Legal Officer
has geographic responsibility, to the Chief, Claims and Litigation
Division.
* * * * *
PART 26--[AMENDED]
4. The authority citation for part 26 is revised to read as
follows:
Authority: 14 U.S.C. 2; 33 U.S.C. 1201-1208; 49 CFR 1.45(b),
1.46; Rule 1, International Regulations for the Prevention of
Collisions at Sea.
5. In Sec. 26.08, paragraphs (a) and (b) are redesignated as
paragraphs (b) and (c) and a new paragraph (a) is added to read as
follows:
Sec. 26.08 Exemption procedures.
(a) The Commandant has redelegated to the Chief, Office of
Navigation Safety and Waterway Services, U.S. Coast Guard Headquarters,
with the reservation that this authority shall not be further
redelegated, the authority to grant exemptions from provisions of the
Vessel Bridge-to-Bridge Radiotelephone Act and this part.
* * * * *
PART 177--[AMENDED]
6. The authority citation for part 177 is revised to read as
follows:
Authority: 46 U.S.C. 4302; 49 CFR 1.45(b), 1.46.
7. Section 177.04 is added to read as follows:
[[Page 34151]]
Sec. 177.04 Order of unsafe condition.
(a) The Commandant has redelegated to Coast Guard District
Commanders, with the reservation that this authority shall not be
further redelegated, the authority, under 46 U.S.C. 4308, to issue
orders applicable to a specific boat within the District Commander's
jurisdiction designating that boat unsafe for a specific voyage on a
specific body of water when it is determined, under the provisions of
Sec. 177.07(g), that an unsafe condition exists.
(b) Each order issued by a Coast Guard District Commander under the
provisions of paragraph (a) of this section will contain:
(1) Notice that the person upon whom the order is served has the
right under the Administrative Procedure Act (5 U.S.C. 553(e)), to
petition for reconsideration and repeal of the order;
(2) Full title and address of the Coast Guard District Commander to
whom the petition is to be submitted; and
(3) Notice that the petition should contain:
(i) The text or substance of the order which the petitioner seeks
to have reconsidered and repealed;
(ii) A statement of the action sought by the petitioner;
(iii) Whatever arguments or data that are available to the
petitioner to support the action sought; and
(iv) An advisement that if the petitioner desires reconsideration
and repeal of the rule before a specific date, the petition should so
state and give reasons why action by that date is necessary.
(c) If a Coast Guard District Commander determines that a petition
submitted under the provisions of paragraph (b) of this section
contains adequate justification, the District Commander will initiate
prompt action to repeal the order. If the District Commander determines
that repeal of the order is not justified, the District Commander will
issue prompt written notice of denial to the petitioner.
8. In Sec. 177.07, paragraph (g)(3) is revised to read as follows:
Sec. 177.07 Other unsafe conditions.
* * * * *
(g) * * *
(3) Improper or inadequate operational or safety equipment, and set
forth in an order issued by a District Commander according to the
provisions of Sec. 177.04.
Dated: June 27, 1995.
R. B. Helsel,
Acting Chief Counsel.
[FR Doc. 95-16146 Filed 6-29-95; 8:45 am]
BILLING CODE 4910-14-M
