01-30480. Revised Options for Responding to Notices of Violations

AGENCY:

Coast Guard, DOT.

ACTION:

Notice of proposed rulemaking.

SUMMARY:

The Coast Guard proposes changing the procedure for Notices of Violation when the recipient fails to either accept or decline it within 45 days. Instead of automatically converting the Notice of Violation to a marine violation case with its lengthier processing and potentially higher penalties, we would treat the Notice of Violation as a default and proceed with the civil penalty. Our proposal would not change the party's existing option to choose marine violation processing at any time during the 45-day response period.

DATES:

Comments and related material must reach the Docket Management Facility on or before February 8, 2002.

ADDRESSES:

To make sure that your comments and related material are not entered more than once in the docket, please submit them by only one of the following means:

(1) By mail to the Docket Management Facility (USCG-2001-9175), U.S. Department of Transportation, room PL-401, 400 Seventh Street SW., Washington, DC 20590-0001.

(2) By delivery to room PL-401 on the Plaza level of the Nassif Building, 400 Seventh Street SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The telephone number is 202-366-9329.

(3) By fax to the Docket Management Facility at 202-493-2251.

(4) Electronically through the web site for the Docket Management System at http://dms.dot.gov.

The Docket Management Facility maintains the public docket for this rulemaking. Comments and material received from the public, as well as documents mentioned in this preamble as being available in the docket, will become part of this docket and will be available for inspection or copying at room PL-401 on the Plaza level of the Nassif Building, 400 Seventh Street SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. You may also find this docket on the Internet at http://dms.dot.gov.

FOR FURTHER INFORMATION CONTACT:

If you have questions on this proposed rule, call LCDR Scott Budka, Project Manager, Office of Investigations & Analysis (G-MOA), Coast Guard, telephone [phone]. If you have questions on viewing or submitting material to the docket, call Dorothy Beard, Chief, Dockets, Department of Transportation, telephone [phone].

SUPPLEMENTARY INFORMATION:

Request for Comments

We encourage you to participate in this rulemaking by submitting comments and related material. If you do so, please include your name and address, identify the docket number for this rulemaking (USCG-2001-9175), indicate the specific section of this document to which each comment applies, and give the reason for each comment. You may submit your comments and material by mail, hand delivery, fax, or electronic means to the Docket Management Facility at the address under ADDRESSES; but please submit your comments and material by only one means. If you submit them by mail or hand delivery, submit them in an unbound format, no larger than 81/2 by 11 inches, suitable for copying and electronic filing. If you submit them by mail and would like to know that they reached the Facility, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period. We may change this proposed rule in view of them.

Public Meeting

We do not plan to hold a public meeting. But you may submit a request for one to the Docket Management Facility at the address under ADDRESSES explaining why one would be beneficial. If we determine that a public meeting would aid this rulemaking, we will hold one at a time and place announced by a later notice in the Federal Register.

Background

Notices of Violation provide an optional simplified civil penalty process for first and second minor violations of a law, regulation, or order enforced by the Coast Guard. A Notice of Violation (NOV) is like a ticket issued for a minor motor vehicle offense.

Until we started issuing NOVs, the marine violation (MV) procedures of 33 CFR 1.07-10 applied to all Coast Guard civil penalty cases. The lengthy processing time for MV cases resulted in some parties being charged with second or third violations before their first violation had been fully processed. We established the NOV procedures in 33 CFR 1.07-11 in 1994 (59 FR 66477, December 27, 1994).

NOVs offer both the party and the Coast Guard the benefits of speedier processing and a scheduled penalty that is fixed lower than the maximum penalty amount for the offense. The NOV form (CG-5582) describes the processing options available to the party. NOV recipients choose between NOV and MV processing. They have 45 days in which to notify the Coast Guard of their choice.

At present, if you receive an NOV, you can accept it, decline it, or take no action on it. If you accept it, you pay the scheduled penalty set out on the NOV, which is between $50 and $3,000. In this case, Coast Guard records show your case as proved. Declining an NOV is like choosing to “go to court” over a traffic ticket. Your NOV is converted to a MV case and a Coast Guard hearing officer processes the case and sets any penalty—up to the maximum $27,500 per offense. If you take no action during the 45-day response period, the NOV is automatically converted to an MV case, just as if you had declined the NOV. Once you decline or fail to take action on an NOV and it is converted to an MV case, the scheduled penalty amount on the NOV is no longer the maximum penalty for your offense; it is the maximum for an MV case, as previously noted.

Recently, we completed a review of the NOV program. The Coast Guard issues about 2300 NOVs each year. About 95% of the parties accept, 4% decline, and 1% fail to respond to the NOV issuance within the 45-day response period. To improve the program's efficiency, we are proposing a change in processing NOVs for which we receive no response. By streamlining the process for each “fail to respond” NOV that we now automatically convert to an MV case, we would expect to save MV processing time. Further, the Coast Guard would be able to quickly dispense with these cases and alleviate the situation noted earlier, where the first case has not finished processing before a second or third NOV is issued to the same party.

Discussion of Proposal

We propose changing the procedure that results when an NOV recipient fails to either accept or decline it within 45 days. Conversion of an NOV to an MV case costs the Coast Guard about 8 additional hours of personnel time in processing and reviewing the case and also subjects the party to a lengthier adjudication time and potentially higher penalty assessments. Instead of automatically converting the NOV to an MV case with its lengthier processing and potentially higher penalties, we would treat the NOV as a default and proceed with the civil penalty on the NOV. Our proposal would not change the party's existing option to choose marine violation processing at any time during the 45-day response period. However, the party would have to specifically request MV processing by marking the NOV as declined and returning it to the Coast Guard.

Regulatory Evaluation

This proposed rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040, February 26, l979).

We expect the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation under paragraph 10e of the regulatory policies and procedures of DOT is unnecessary.

This proposed rule would change the Notice of Violation (NOV) regulations in 33 CFR 1.07-11. Today, if you fail to respond to your NOV by accepting or declining it within 45 days, we convert the NOV to a marine violation (MV) case, as if you declined it. MV cases provide fuller processing and a higher potential penalty than NOVs ($27,500 maximum MV penalty per charge while scheduled NOV penalties of $50 to $3000 per charge are fixed by COMDTINST M5582). We propose changing the procedure that results when you fail to respond. After 45 days we would treat the NOV as a default and assess the scheduled penalty.

The proposed change would affect only those parties who receive an NOV and fail to respond to it within the allotted 45 days, about 1% of issued NOVs. Currently, of about 2300 NOVs issued each year, approximately 95% of the recipients accept, 4% decline, and 1% fail to respond. We spend an average of 8 hours per MV case. For each “fail to respond” NOV we now automatically convert to an MV case, we would save some MV processing time by showing the NOV charge as proved. If, however, all of these parties declined their NOVs, the Coast Guard expenditure of resources would remain the same. The parties who decline the NOV would shorten their MV processing time by up to 45 days, depending on how quickly they respond to the NOV.

Small Entities

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this proposed rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

The proposed rule would not change the choice (accept or decline the NOV option) currently required by 33 CFR section 1.07-11. The only change proposed is in the handling we provide, by default, to those parties who fail to make their choice within the 45 days allotted. Therefore, the Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities. If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment to the Docket Management Facility at the address under ADDRESSES. In your comment, explain why you think it qualifies and how and to what degree this rule would economically affect it.

Collection of Information

This proposed rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

Federalism

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this proposed rule under that Order and have determined that it does not have implications for federalism.

Unfunded Mandates Reform Act

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

Taking of Private Property

This proposed rule would not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

Civil Justice Reform

This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

Protection of Children

We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.

Indian Tribal Governments

This proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

Energy Effects

We have analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. It has not been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

Environment

We have considered the environmental impact of this proposed rule and concluded that, under figure 2-1, paragraph (34)(a) of Commandant Instruction M16475.lD, this rule is categorically excluded from further environmental documentation. The changes proposed here are procedural and serve to update and streamline the Coast Guard's processing of NOVs. A “Categorical Exclusion Determination” is available in the docket where indicated under ADDRESSES.

List of Subjects in 33 CFR Part 1

• Administrative practice and procedure
• Authority delegations (Government agencies)
• Freedom of information
• Penalties

For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 1 as follows:

PART 1—GENERAL PROVISIONS

Subpart 1.07—Enforcement; Civil and Criminal Penalty Proceedings

1. The authority citation for subpart 1.07 continues to read as follows:

Authority: 14 U.S.C. 633; Sec. 6079(d), Pub. L. 100-690, 102 Stat. 4181; 49 CFR 1.46.

2. In § 1.07-11, a new paragraph (b)(7) is added, paragraph (d) is revised, and paragraphs (e) and (f) are added, as follows:

§ 1.07-11

Notice of Violation.

* * * * *

(b) * * *

(7) A statement that failure to either pay the proposed penalty on the Notice of Violation or decline the Notice of Violation and request a hearing within 45 days will result in a finding of default and the Coast Guard will proceed with the civil penalty in the amount recommended on the Notice of Violation without processing the violation under the procedures described in 33 CFR 1.07-10(b).

* * * * *

(d) If a party declines a Notice of Violation within 45 days, the case file will be sent to the District Commander for processing under the procedures described in 33 CFR 1.07-10(b).

(e) If a party pays the proposed penalty on the Notice of Violation within 45 days, a finding of proved will be entered into the case file.

(f) If a party fails within 45 days to either pay the proposed penalty on the Notice of Violation or decline the Notice of Violation, the Coast Guard will enter a finding of default in the case file and proceed with the civil penalty in the amount recommended on the Notice of Violation without processing the violation under the procedures described in 33 CFR 1.07-10(b).

Dated: November 5, 2001.

Paul J. Pluta,

Rear Admiral, U.S. Coast Guard, Assistant Commandant for Marine Safety and Environmental Protection.