[Federal Register: June 4, 2002 (Volume 67, Number 107)]
[Rules and Regulations]               
[Page 38386-38388]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr04jn02-8]                         

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DEPARTMENT OF TRANSPORTATION

Coast Guard

33 CFR Part 1

[USCG-2001-9175]
RIN 2115-AG15

 
Revised Options for Responding to Notices of Violations

AGENCY: Coast Guard, DOT.

ACTION: Final rule.

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SUMMARY: The Coast Guard amends the procedure for a Notice of Violation 
when the recipient fails to either accept or decline it within 45 days. 
Instead of automatically converting the ``fail to respond'' Notice of 
Violation to a marine violation case with its lengthier processing and 
potentially higher penalties, it is treated as a default and we proceed 
with the civil penalty. The party retains its option to choose marine 
violation processing at any time during the 45-day response period.

DATES: This final rule is effective July 5, 2002.

ADDRESSES: Comments and material received from the public, as well as 
documents mentioned in this preamble as being available in the docket, 
are part of docket USCG-2001-9175 and are available for inspection or 
copying at the Docket Management Facility, U.S. Department of 
Transportation, room PL-401, 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 rule, 
call LCDR Scott Budka, Project Manager, Office of Investigations & 
Analysis (G-MOA), Coast Guard, telephone 202-267-2026. If you have 
questions on viewing the docket, call Dorothy Beard, Chief, Dockets, 
Department of Transportation, telephone 202-366-5149.

SUPPLEMENTARY INFORMATION:

Regulatory History

    On December 10, 2001, we published a notice of proposed rulemaking 
(NPRM) entitled ``Revised Options for Responding to Notices of 
Violations'' in the Federal Register (66 FR 63640). We received 4 
letters commenting on the proposed rule. No public hearing was 
requested and none was held.

Background

    We explained the background of Notices of Violations (NOVs) and our

[[Page 38387]]

recent review of their use in the NPRM. Today, we use NOVs only in 
small oil discharge (under 100 gallons) and minor violations of our 
pollution prevention regulations; we have not expanded their use since 
their introduction in 1994. The changes this rule makes to the NOV 
process allow it to be more easily administered through our Marine 
Information for Safety and Law Enforcement system, which came on line 
in late 2001, and will support expanding the use of NOVs to other 
programs.

Discussion of Comments and Changes

    A total of 4 letters were sent to the docket, with one being a 
clarification of an earlier letter. One commenter stated a party's 
failure to respond to an NOV within 45 days of its issuance might 
result from misdelivery of the NOV. If a party claims it failed to 
receive the original NOV, the Coast Guard's procedures allow us to 
review the case.
    Another commenter suggested changes that are beyond the scope of 
this rulemaking. Since the changes suggested concern internal Coast 
Guard processes, we have delivered them to the appropriate offices to 
review and consider them.
    The third commenter expressed support for this rulemaking.

Regulatory Evaluation

    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 (OMB) 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, 1979). We expect 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 we discussed in the NPRM, this rule only changes the default 
when a party fails to respond to an NOV within 45 days; currently, only 
about 1% of all NOV recipients. These parties can avoid the impact of 
this rule entirely, by making the required NOV response within 45 days.

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.
    As previously noted, this rule only changes the default when a 
party fails to respond to an NOV within 45 days. These parties can 
avoid any impact of this rule, simply by making the required NOV 
response (to accept or decline the NOV) within 45 days. 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.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Public Law 104-121), we offered to assist small 
entities in understanding the rule so that they could better evaluate 
its effects on them and participate in the rulemaking. Small entities 
may call the Project Manager listed under FOR FURTHER INFORMATION 
CONTACT.
    Small businesses may send comments on the actions of Federal 
employees who enforce, or otherwise determine compliance with, Federal 
regulations to the Small Business and Agriculture Regulatory 
Enforcement Ombudsman and the Regional Small Business Regulatory 
Fairness Boards. The Ombudsman evaluates these actions annually and 
rates each agency's responsiveness to small business. If you wish to 
comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR 
(1-888-734-3247).

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 an expenditure, we 
do discuss the effects of this rule elsewhere in this preamble.

Taking of Private Property

    This rule will 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 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 create an 
environmental risk to health or risk to 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. 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 rule and 
concluded that under figure 2-1,

[[Page 38388]]

paragraph (34)(a), of Commandant Instruction M16475.lD, this rule is 
categorically excluded from further environmental documentation. The 
changes here are procedural and affect only the default treatment of 
``fail to respond'' 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 amends 
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 Sec. 1.07-11, a new paragraph (b)(7) is added, paragraph (d) 
is revised, and paragraphs (e) and (f) are added, as follows:


Sec. 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 the 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 within 45 days of receipt a party--
    (1) Fails to pay the proposed penalty on the Notice of Violation; 
and
    (2) Fails to 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: May 23, 2002.
Jeffrey P. High,
Acting Assistant Commandant for Marine Safety, Security and 
Environmental Protection.
[FR Doc. 02-13963 Filed 6-3-02; 8:45 am]
BILLING CODE 4910-15-P