[Federal Register: June 29, 2009 (Volume 74, Number 123)]
[Rules and Regulations]
[Page 30935-30938]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr29jn09-8]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 1
46 CFR Part 1
[USCG-2009-0314]
RIN 1625-ZA22
Establishment of Suspension and Revocation National Center of
Expertise
AGENCY: Coast Guard, DHS.
ACTION: Final rule.
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SUMMARY: This rule makes non-substantive, technical changes to Titles
33 and 46 of the CFR to reflect the authorization and establishment of
the Coast Guard Suspension and Revocation National Center of Expertise
(S&R NCOE). The S&R NCOE is responsible for performing suspension and
revocation functions regarding Merchant Mariner Credentials.
Investigating Officers (IOs), both military and civilian employees, are
assigned to the S&R NCOE for this purpose. These changes affect
internal Coast Guard organization and functioning only and will have no
substantive effect on mariners or other members of the public.
DATES: Effective on June 29, 2009.
ADDRESSES: Documents mentioned in this preamble as being available in
the docket, are part of USCG-2009-0314 and are available online by
going to http://www.regulations.gov, selecting the Advanced Docket
Search option on the right side of the screen, inserting USCG-2009-0314
in the Docket ID box, pressing Enter, and then clicking on the item in
the Docket ID column. They are also available for inspection or copying
at two locations: The Docket Management Facility (M-30), U.S.
Department of Transportation, West Building Ground Floor, Room W12-140,
1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5
p.m., Monday through Friday, except Federal Holidays, and at S&R COE
co-located with the National Maritime Center, 100 Forbes Drive,
Martinsburg, WV between 9 a.m. and 5 p.m., Monday through Friday,
except Federal holidays.
FOR FURTHER INFORMATION CONTACT: If you have questions on this rule,
call Commander Scott Budka, Supervisor, S&R NCOE, U.S. Coast Guard,
telephone 304-433-3744. If you have questions on viewing the docket,
call Ms. Renee V. Wright, Program Manager, Docket Operations, telephone
or 202-366-9826.
SUPPLEMENTARY INFORMATION:
Regulatory Information
The Coast Guard is issuing this final rule without prior notice and
opportunity to comment pursuant to authority under section 4(a) of the
Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision
authorizes an agency to issue a rule, without prior notice and
opportunity to comment, when the agency for good cause finds that those
procedures are ``impracticable, unnecessary, or contrary to the public
interest.'' Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good
cause exists for not publishing a notice of proposed rulemaking (NPRM)
with respect to this rule because is unnecessary. This rulemaking makes
amendments to rules regarding agency organization and functioning. As
such, comments are unnecessary because they would not change the Coast
Guard's internal delegation of authority and duty regarding the
Suspension and Revocation process or provide additional expertise
regarding Coast Guard functioning.
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause
exists for making this rule effective less than 30 days after
publication in the Federal Register because these changes affect
internal Coast Guard organization and functioning only and will have no
substantive effect on the public.
[[Page 30936]]
Background and Purpose
The Coast Guard published the Marine Safety Performance Plan for
Fiscal Years 2009-2014 in November 2008. The plan is available at:
http://www.uscg.mil/hq/cg5/cg54/mspp.asp. The plan announced the Coast
Guard's intention to establish National Centers of Expertise to provide
venues for professional development of Coast Guard personnel. One such
National Center of Expertise is the Suspension and Revocation National
Center of Expertise (S&R NCOE). The Coast Guard is charged by law to
ensure that over 200,000 credentialed merchant mariners are competent
and their conduct promotes marine safety, security and protection of
the marine environment. See generally, 46 U.S.C. Part E. One of the
mechanisms the Coast Guard utilizes to ensure the safe operation of the
Maritime Transportation System (MTS) and protect the lives and safety
of those at sea is our suspension and revocation (S&R) process
regarding Merchant Mariner's Credentials (MMCs). See 46 U.S.C. Chapter
77. The Coast Guard recognizes that mariners spend a great deal of time
and effort to receive and to maintain their MMCs, which provides them a
livelihood. The significant implications that result from the
suspension or revocation of an MMC demand that Coast Guard
investigating officers (IOs) be properly trained and proficient in the
S&R process and administrative hearing procedures. The creation of an
S&R NCOE will help to improve the professionalism and proficiency of
IOs involved in the S&R process and administrative hearing procedures,
but will not change the S&R process or procedures. The S&R NCOE will
initially operate as a detached duty office of the Coast Guard's Office
of Quality Assurance and Traveling Inspections (CG-546), with future
plans to operate under the Commander, Coast Guard Force Readiness
Command (FORCECOM).
Discussion of the Rule
This rule amends Coast Guard regulations to incorporate the S&R
NCOE into the S&R process. Specifically, changes to 33 CFR 1.01-20 and
46 CFR 1.01-15 update the authority of the Commanding Officer of the
National Maritime Center to refer issues regarding MMCs to the S&R
NCOE, in addition to the current process of referring such cases to the
processing Regional Examination Center or the cognizant Officer in
Charge, Marine Inspection (OCMI). This update broadens the team of
Coast Guard personnel who may handle a S&R case, but will not affect
the process or procedures for a mariner who is the subject of an S&R
case.
This rule also updates the S&R process to reflect that the IOs at
the S&R NCOE are authorized to initiate S&R proceedings by issuing
complaints directly to mariners and handle all other aspects of S&R
case processing. Current regulations authorize an OCMI, or an IO under
the supervision of an OCMI, to initiate an S&R action. Under 46 CFR
5.15, IOs are Coast Guard officials designated by either an OCMI, a
District Commander, or Commandant for the purpose of conducting
investigations of matters pertaining to the conduct or persons applying
for or holding MMCs, among other matters. In accordance with internal
delegation of authority and duty, IOs assigned to the S&R NCOE will be
designated as IOs by the Commandant, and as such will be authorized to
initiate S&R actions under existing authority in 46 CFR 5.15. To
reflect this, 46 CFR 1.01-25 is amended by replacing specific language
regarding the IOs with a cross-reference to the definition of IOs in 46
CFR 5.15. This update also broadens the team of Coast Guard personnel
who may handle a S&R case, but will not affect the process or
procedures for a mariner who is the subject of an S&R case.
Section 1.01-25 is also amended by updating specific terms used to
describe the S&R process, but these changes are nonsubstantive and
reflect only changes in current term usage. This amendment will make
the general flow of functions information found in Part 1 compatible
with the existing definition and authorities of an IO found in Part 5.
Additionally, 46 CFR 1.01-25(c)(1)(i) is updated to accurately reflect
that, under existing authority in 46 CFR part 5 and 33 CFR part 20,
either party (the Coast Guard or the respondent) may appeal an
Administrative Law Judge's decision. Currently, paragraph 1.01-
25(c)(1)(i) only addresses appeals filed by a respondent, and a new
cross-reference to 33 CFR 20.1001 points the reader to the existing
procedures for filing such an appeal.
Regulatory Analyses
We developed this rule after considering numerous statutes and
executive orders related to rulemaking. Below we summarize our analyses
based on 13 of these statutes or executive orders.
Regulatory Planning and Review
This 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. We expect the economic impact of this
rule to be so minimal that a full Regulatory analysis is not necessary.
As this rule involves only non-substantive changes involving internal
Coast Guard organization and functioning, it will not impose any costs
on the public.
Small Entities
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have
considered whether this 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. It
is not expected that this amendment will have a significant economic
impact on any small entities. Therefore, the Coast Guard certifies
under 5 U.S.C. 605(b) that this technical amendment will not have a
significant economic impact on a substantial number of small entities.
Collection of Information
This rule calls 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 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 rule will not result in such expenditure, we do
discuss the effects of this rule elsewhere in this preamble.
Taking of Private Property
This amendment will not effect a taking of private property or
otherwise have taking implications under
[[Page 30937]]
Executive Order 12630, Governmental Actions and Interference with
Constitutionally Protected Property Rights.
Civil Justice Reform
This 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 rule under Executive Order 13045, Protection
of Children from Environmental Health Risks and Safety Risks. This rule
is not an economically significant rule and does not concern an
environmental risk to health or safety that may disproportionately
affect children.
Indian Tribal Governments
This rule does not have tribal implications under Executive Order
13175, Consultation and Coordination with Indian Tribal Governments,
because it does 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 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. The Administrator of the Office of Information and
Regulatory Affairs has not designated it as a significant energy
action. Therefore, it does not require a Statement of Energy Effects
under Executive Order 13211.
Technical Standards
The National Technology Transfer and Advancement Act (NTTAA) (15
U.S.C. 272 note) directs agencies to use voluntary consensus standards
in their regulatory activities unless the agency provides Congress,
through the Office of Management and Budget, with an explanation of why
using these standards would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., specifications of materials, performance, design, or
operation; test methods; sampling procedures; and related management
systems practices) that are developed or adopted by voluntary consensus
standards bodies. This rule does not use technical standards.
Therefore, we did not consider the use of voluntary consensus
standards.
Environment
We have analyzed this rule under Department of Homeland Security
Management Directive 023-01 and Commandant Instruction M16475.lD, which
guide the Coast Guard in complying with the National Environmental
Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded
that this action is one of a category of actions which do not
individually or cumulatively have a significant effect on the human
environment. Therefore, this rule is categorically excluded, under
figure 2-1, paragraph (34)(b), of the Instruction, which excludes
regulatory actions concerning internal agency functions or
organization, such as delegation of authority. This rule concerns Coast
Guard internal functioning and organization. An environmental analysis
checklist and a categorical exclusion determination are available in
the docket where indicated under ADDRESSES.
List of Subjects
33 CFR Part 1
Administrative practice and procedure, Organization and functions,
Delegation of authority.
46 CFR Part 1
Administrative practice and procedure, Organization and functions,
General flow of functions.
0
For the reasons set forth in the preamble, the Coast Guard amends 33
CFR part 1 and 46 CFR part 1 as follows:
Title 33
PART 1--GENERAL PROVISIONS
0
1. The authority citation for 33 CFR part 1 continues to read as
follows:
Authority: 14 U.S.C. 633; 33 U.S.C. 401, 491, 525, 1321, 2716,
and 2716a; 42 U.S.C. 9615; 49 U.S.C. 322; Department of Homeland
Security Delegation No. 0170.1; section 1.01-70 also issued under
the authority of E.O. 12580, 3 CFR, 1987 Comp., p. 193; and sections
1.01-80 and 1.01-85 also issued under the authority of E.O. 12777, 3
CFR, 1991 Comp., p. 351.
0
2. Revise Sec. 1.01-20(b)(2) to read as follows:
Sec. 1.01-20 Officer in Charge, Marine Inspection.
* * * * *
(b) * * *
(2) Referring to the processing Regional Examination Center (REC),
the Suspension and Revocation National Center of Expertise, or
cognizant OCMI potential violations of law, negligence, misconduct,
unskillfulness, incompetence or misbehavior of persons holding merchant
mariner's documents, licenses, certificates or credentials issued by
the Coast Guard, and recommending suspension or revocation under 46
U.S.C. Chapter 77 when deemed appropriate; and
* * * * *
Title 46
PART 1--ORGANIZATION, GENERAL COURSE AND METHODS GOVERNING MARINE
SAFETY FUNCTIONS
0
3. The authority citation for 46 CFR part 1 continues to read as
follows:
Authority: 5 U.S.C. 552; 14 U.S.C. 633; 46 U.S.C. 7701; 46
U.S.C. Chapter 93; Pub. L. 107-296, 116 Stat. 2135; Department of
Homeland Security Delegation No. 0170.1; Sec. 1.01-35 also issued
under the authority of 44 U.S.C. 3507.
0
4. Revise Sec. 1.01-15(c)(2) to read as follows:
Sec. 1.01-15 Organization; Districts; National Maritime Center.
* * * * *
(c) * * *
(2) Refer to the processing Regional Examination Center (REC), the
Suspension and Revocation National Center of Expertise, or cognizant
OCMI potential violations of law, negligence, misconduct,
unskillfulness, incompetence or misbehavior of persons holding merchant
mariner's documents, licenses, certificates or credentials issued by
the Coast Guard, and recommend suspension or revocation under 46 U.S.C.
Chapter 77 when deemed appropriate; and
* * * * *
0
5. Revise Sec. 1.01-25(c)(1) and (c)(1)(i) to read as follows:
Sec. 1.01-25 General flow of functions.
* * * * *
(c) * * *
(1) In the United States, the Commonwealth of Puerto Rico,
Territory of Guam, the Virgin Islands, and other possessions, the
proceedings are initiated by the issuance of a complaint against the
holder of the Coast Guard credential. A Coast Guard Investigating
Officer, as defined in 46 CFR 5.15, causes the complaint to be served
on the person described therein (respondent) who is a holder of a Coast
Guard credential. At a hearing the Coast
[[Page 30938]]
Guard submits evidence to support the allegations of the complaint,
while the respondent may submit evidence in rebuttal or mitigation. The
Administrative Law Judge renders a decision on the basis of the
evidence adduced at the hearing and the law. The Administrative Law
Judge's decision is given to the respondent.
(i) In a case where an appeal is made by either party (Coast Guard
or respondent), the notice of appeal is filed in accordance with the
procedures of 33 CFR 20.1001(a).
* * * * *
Dated: June 22, 2009.
Stefan G. Venckus,
Chief, Office of Regulations and Administrative Law, United States
Coast Guard.
[FR Doc. E9-15195 Filed 6-26-09; 8:45 am]
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