[Federal Register Volume 59, Number 67 (Thursday, April 7, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-8370]
[[Page Unknown]]
[Federal Register: April 7, 1994]
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DEPARTMENT OF TRANSPORTATION
Coast Guard
33 CFR Part 1
[CGD 93-079]
RIN 2115-AE68
Simplified Alternative Procedure for Resolving Civil Penalty
Cases
AGENCY: Coast Guard, DOT.
ACTION: Interim final rule.
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SUMMARY: The Coast Guard is issuing an Interim Final Rule (IFR) to
allow for greater delegation by the District Commander, and to allow
for a simplified alternative procedure for resolving civil penalty
cases to be tested in three pilot ports for a period of six months.
This procedure should streamline the civil penalty process for certain
oil discharge and pollution prevention civil penalty cases by allowing
a Coast Guard official to present a Notice of Violation and proposed
penalty to a party in the field. Results of the pilot program will be
used in determining whether the program should be implemented
nationally and amending the final rule, if appropriate.
DATES: This rule is effective on April 7, 1994.
Comments must be received by October 7, 1994.
ADDRESSES: Comments may be mailed to the Executive Secretary, Marine
Safety Council (G-LRA/3406) (CGD 93-079), U.S. Coast Guard
Headquarters, 2100 Second Street, SW., Washington, DC 20593-0001, or
may be delivered to room 3406 at the same address between 8 a.m. and 3
p.m., Monday through Friday, except Federal holidays. The telephone
number is (202) 267-1477. The Executive Secretary maintains the public
docket for this rulemaking. Comments will become part of this docket
and will be available for inspection or copying at room 3406, U.S.
Coast Guard Headquarters, Unless otherwise indicated, documents
referenced in this preamble are available for inspection and 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, DC 20593-0001 between 8 a.m. and 3 p.m., Monday
though Friday, except Federal holidays. The telephone number is (202)
267-6234.
FOR FURTHER INFORMATION CONTACT:
Lieutenant Commander Richard Gaudiosi, Project Manager, Marine
Environmental Protection Division (G-MEP), (202) 267-6714.
SUPPLEMENTARY INFORMATION:
Request for Comments
The Coast Guard is encouraging comments on this interim rule in
order to consider as many perspectives as possible on the impacts of
employing this process and to evaluate its use as an enforcement tool
prior to national implementation. Interested persons should submit
written data, views, or arguments. Persons submitting comments should
include their names and addresses, identify this rulemaking (CGD 93-
079) and the specific section of this interim rule to which each
comment applies, and give the reason for each comment. The Coast Guard
requests that all comments and attachments be submitted in an unbound
format suitable for copying and electronic filing. If not practical, a
second copy of any bound materials is requested. Persons wanting
acknowledgment of receipt of comments should enclose a stamped, self-
addressed postcard or envelope.
The Coast Guard will consider all comments received during the
comment period. This interim final rule may be changed in view of the
comments.
The Coast Guard plans no public hearing. Persons may request a
public hearing by writing to the Marine Safety Council at the address
under ``ADDRESSES.'' The request should include reasons why a hearing
would be beneficial. If it determines that the opportunity for oral
presentations will aid this rulemaking, the Coast Guard will hold a
public hearing in a time and place announced by a later notice in the
Federal Register.
Drafting Information
The principal persons involved in drafting this document are
Lieutenant Commander Richard Gaudiosi, Project Manager, Marine
Environmental Protection Division, and C.G. Green, Project Counsel,
Office of the Chief Counsel.
Background and Purpose
The current procedures for assessing civil penalties by the Coast
Guard are contained in 33 CFR 1.07. Generally this process begins when
an alleged violation is detected by or reported to a Coast Guard
official. The alleged violation is investigated, and if it appears that
the elements for a violation case exist, civil enforcement action is
initiated by preparing a case report with a recommended penalty and
forwarding it with the case file to the appropriate Coast Guard
District office for review. The District office reviews the report to
determine whether there is in fact evidence of a prima facie case and
whether the assessment of the recommended penalty by a Hearing Officer
is appropriate. It then transmits the case file with a recommended
action to the Hearing Officer. Based on this case file, the Hearing
Officer makes an independent determination as to whether a violation
appears to have been committed. If so, the Hearing Officer sends a
Letter of Notification to the alleged violator that specifies, among
other matters, the alleged violation(s) and a penalty amount that
appears to be appropriate.
A party may pay the penalty amount specified as being appropriate
by the Hearing Officer, request an in-person hearing, or provide
written evidence or arguments in lieu of a hearing. If the party pays
the penalty, the case is closed and no further action is required. If
the party chooses either of the latter two options, the Hearing Officer
either conducts an in-person hearing or reviews the written evidence
and arguments, and then issues a written decision assessing a penalty
or dismissing the case. The Hearing Officer's decision may be
administratively appealed to the Commandant of the Coast Guard.
As applied to small (under 100 gallons) oil discharges and
pollution prevention violations, the current civil penalty assessment
process is not administratively efficient for many uncontested cases.
Further, the time required to process these violations minimizes the
deterrent effect of the sanction. It is not uncommon for a party to
have additional violations before being notified of the initiation of
action for the first violation.
There is a need for a process where notice of violation can be
given in the field to allow for early resolution of apparent small oil
spill and pollution prevention violations. Such a process would save
the time and cost of unnecessary internal review, improve deterrence,
and enable corrective action by providing a party with earlier notice
of violations. Each party would have the option of paying a proposed
penalty or pursuing their right to a hearing.
Notice of Violation
This rule amends 33 CFR 1.07 to provide a simplified procedure to
expedite processing of certain civil penalty violation cases. An
interim final rule is being published to test the simplified procedure.
A pilot program will be conducted in three ports, prior to a final rule
which would be implemented nationwide. The pilot program will be
conducted for six months in the ports of Charleston, SC, Galveston, TX,
and Los Angeles, CA.
The procedures will allow settlement of cases following the
issuance by a Coast Guard issuing officer of a Notice of Violation
containing a proposed penalty. A Coast Guard issuing officer will be a
commissioned, warrant, or petty officer, with specific training and
authority to issue a Notice of Violation.
A party will have the option of either paying the proposed penalty,
requesting determination by a Hearing Officer, or taking no action on
the Notice of Violation. Where a party decides to pay the proposed
penalty indicated on a Notice of Violation, there will be no District
Program Manager or Hearing Officer involved and the case will be
closed. Where a party requests a determination by a Hearing Officer or
takes no action, a full case file will be sent to the District
Commander, in accordance with present procedure, for review prior to
forwarding to the Hearing Officer. Upon receipt by the Hearing Officer,
the case will be processed under the current procedures. Any adverse
action by the Hearing Officer will be subject to administrative appeal
under the current procedures. A party who takes no action on a Notice
of Violation or who requests determination by a Hearing Officer may
find the preliminary assessment issued by the Hearing Officer to be
equal to or greater than that specified on the Notice of Violation.
Use of the simplified procedure will initially be limited, by
internal guidance, to certain requirements and prohibitions subject to
Class I Administrative Civil Penalties under the Federal Water
Pollution Control Act (FWPCA) as amended. A Notice of Violation can be
issued for two types of violations: (1) Oil discharges in violation of
the FWPCA, if they are 100 gallons or less, and (2) pollution
prevention violations (33 CFR parts 154, 155, 156).
Coast Guard issuing officers will issue a Notice of Violation with
a proposed penalty only in clear-cut cases as determined by applying
specific written guidance. Proposed penalty amounts would be taken from
a penalty schedule based on objective criteria. Any case in which
aggravating or extenuating circumstances are evidenced, or which
concern violations not included in specific guidance documents, may be
referred to the Hearing Officer for processing under current
procedures.
Delegation by the District Commander
This rule will also allow more flexibility on the part of the
District Commander to delegate authority for review of alleged
violations to any person under the District Commander's command. For
example, the District Commander could delegate review authority to the
Captain of the Port for certain pollution prevention violations, thus
eliminating the need for review by the District Commander's staff,
prior to the case being forwarded to a Hearing Officer. Such a
delegation would streamline the processing of a violation case and
would be in the best interest of the public and the party involved.
Regulatory Implementation
Based on the results of the pilot test and internal and external
comments received on the IFR, the Coast Guard will determine whether
the procedure should be implemented nationally and will make revisions
to the final rule and internal guidance, if appropriate. This approach
will facilitate implementation without disrupting the existing civil
penalty process for cases involving violations other than oil discharge
or pollution prevention violations. However, the rule is designed to
allow extension of the simplified process to other Coast Guard programs
without additional amendments to 33 CFR 1.07.
Under the Administrative Procedure Act (APA), procedural rules are
exempt from the notice and comment procedures and, under 5 U.S.C.
553(b)(3)(B), the promulgating agency may omit notice and comment.
Further, under the alternative simplified procedure established by this
IFR, a party will continue to have the option of requesting a hearing,
as under current regulations. Therefore, the Coast Guard has determined
that these regulations may be promulgated without prior notice and
opportunity for comment.
Since the public interest would not be served by delaying the date
of the interim rule, and a party will continue to have the option of
requesting a hearing, as under current regulations, the Coast Guard has
also determined that under 5 U.S.C. 533(d), these rules may be made
effective upon publication.
Nonetheless, as previously discussed in this preamble, the Coast
Guard is requesting comment on this interim rule and its pilot
implementation program.
Regulatory Evaluation
This rule is not a significant regulatory action under section 3(f)
of Executive Order 12866, does not require an assessment of potential
costs and benefits under section 6(a)(3) of that order, and has not
been reviewed under that order. It is not significant under the
``Department of Transportation Regulatory Policies and Procedures'' (44
FR 11040; February 26, 1979). The Coast Guard expects the economic
impact of this procedural rule to be so minimal that a full Regulatory
Evaluation is unnecessary. The total annual cost to the public from
civil penalties should not be changed by this proposal. Savings to the
government will be realized from the reduction in administrative costs
to enforce civil penalties by eliminating the need for review by the
District Commander or action by the Hearing Officer in cases where the
penalty specified in a Notice of Violation is paid by the party within
the allowed time.
Small Entities
Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), the
Coast Guard must consider whether this rulemaking will have a
significant economic impact on a substantial number of small entities.
``Small entities'' include independently owned and operated small
businesses that are not dominant in their field and that otherwise
qualify as ``small business concerns'' under section 3 of the Small
Business Act (15 U.S.C. 632). Because it expects the impact of this
proposal to be minimal, the Coast Guard certifies under 5 U.S.C. 605(b)
that this rulemaking will not have a significant economic impact on a
substantial number of small entities. If, however, you think that your
business qualifies as a small entity and that this rulemaking will have
significant economic impact on your business, please submit a comment
(see ADDRESSES) explaining why you think your business qualifies and in
what way and to what degree this rulemaking will economically affect
your business.
Collection of Information
This rulemaking 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
rulemaking and concluded that, under section 2.B.2 of Commandant
Instruction M1645.1B, this rule is categorically excluded from further
environmental documentation. Procedural rules do not require
environmental impact studies. A Categorical Exclusion Determination is
available in the docket for inspection or copying 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 set out in the preamble, the Coast Guard amends 33
CFR part 1 as follows:
Subpart 1.07--Enforcement; Civil and Criminal Penalty Proceedings
1. The authority citation of subpart 1.07 continues to read as
follows:
Authority: 14 U.S.C. 633; 49 CFR 1.46.
2. Section 1.07-5 is revised to read as follows:
Sec. 1.07-5 Definitions.
(a) The term District Commander, when used in this subpart, means
the District Commander, or any person under the District Commander's
command, delegated to carry out the provisions of Sec. 1.07-10(b).
(b) The term Hearing Officer means a Coast Guard officer or
employee who has been delegated the authority to assess civil
penalties.
(c) The term issuing officer means any qualified Coast Guard
commissioned, warrant, or petty officer.
(d) The term Notice of Violation means a notification of violation
and preliminary assessment of penalty, given to a party, in accordance
with Sec. 1.07-11.
(e) The term party means the person alleged to have violated a
statute or regulation to which a civil penalty applies and includes an
individual or public or private corporation, partnership or other
association, or a governmental entity.
3. Section 1.07-10 is amended by revising paragraph (a) to read as
follows:
Sec. 1.07-10 Reporting and investigation.
(a) Any person may report an apparent violation of any law,
regulation, or order that is enforced by the Coast Guard to any Coast
Guard facility. When a report of an apparent violation has been
received, or when an apparent violation has been detected by any Coast
Guard personnel, the matter is investigated or evaluated by Coast Guard
personnel. Once an apparent violation has been investigated or
evaluated, a report of the investigation may be sent to the District
Commander in accordance with paragraph (b) of this section or a Notice
of Violation under Sec. 1.07-11 may be given to the party by an issuing
officer.
* * * * *
4. A new Sec. 1.07-11 is added to read as follows:
Sec. 1.07-11 Notice of Violation.
(a) After investigation and evaluation of an alleged violation has
been completed, an issuing officer may issue a Notice of Violation to
the party.
(b) The Notice of Violation will contain:
(1) The alleged violation and the applicable law or regulations;
(2) The amount of the maximum penalty that may be assessed for each
violation;
(3) The amount of proposed penalty that appears to be appropriate;
(4) The statement that payment of the proposed penalty within 30
days will settle the case;
(5) The place and manner to which payment is to be made;
(6) The statement that the party may request a hearing prior to any
final assessment of a penalty and the address where to request such a
hearing.
(c) The Notice of Violation may be hand delivered to the party or
an employee of the party, or may be mailed to the business address of
the party.
(d) If a party requests a hearing, or takes no action on the Notice
of Violation within 30 days, a copy of the Notice of Violation, along
with the case file, will be sent to the District Commander for
processing under the procedures described in Sec. 1.07-10(b).
Dated: March 9, 1994.
A.E. Henn,
Rear Admiral, U.S. Coast Guard, Chief, Office of Marine Safety,
Security and Environmental Protection.
[FR Doc. 94-8370 Filed 4-6-94; 8:45 am]
BILLING CODE 4910-14-M
