Organization, functions, and authority delegations: Director, Great Lakes Pilotage; right to appeal Director's decisions to Commandant,

[Federal Register: June 13, 2001 (Volume 66, Number 114)]

[Rules and Regulations]

[Page 31842-31844]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr13jn01-8]

DEPARTMENT OF TRANSPORTATION

Coast Guard

46 CFR Part 1

[USCG 2001-8894]

RIN 2115-AG11

Right To Appeal; Director, Great Lakes Pilotage

AGENCY: Coast Guard, DOT.

ACTION: Direct final rule.

SUMMARY: The Coast Guard is amending its appellate procedures to provide explicit authority for appeal of decisions or actions taken by the Director, Great Lakes Pilotage. The Coast Guard has consistently applied those procedures whenever a decision or action taken by the Director has been appealed to higher

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authority within the Coast Guard. At this point, the Coast Guard is simply amending its rules to reflect its established policy and practice.

DATES: This rule is effective September 11, 2001, unless an adverse comment, or notice of intent to submit an adverse comment, reaches the Docket Management Facility on or before August 13, 2001. If an adverse comment, or notice of intent to submit an adverse comment, is received, we will withdraw this direct final rule and publish a timely notice of withdrawal in the Federal Register.

ADDRESSES: To make sure that your comments and related material do not enter the docket [USCG 2001-8894] more than once, please submit them by only one of the following means:

(1) By mail to the Docket Management Facility, 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 related 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 rule, call Mr. John Bennett, Coast Guard, telephone 202-267-2856. If you have questions on viewing or submitting material to the docket, call Ms. Dorothy Beard, Chief, Dockets, Department of Transportation, telephone 202-366-5149.

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- 8894], 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, delivery, fax, or electronic means to the Docket Management Facility at the address under ADDRESSES; but please submit them by only one means. If you submit them by mail or delivery, submit them in an unbound format, no larger than 8\1/2\ 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.

Regulatory Information

We are publishing a direct final rule under 33 CFR 1.05-55, because we do not expect an adverse comment. Unless we receive an adverse comment or notice of intent to submit one within the comment period specified under DATES, this rule will become effective as stated in DATES. In that case, about 30 days before the effective date, we will publish a document in the Federal Register stating that we received no adverse comment and confirming that this rule will become effective as scheduled. However, if we receive an adverse comment or notice of intent to submit one, we will publish a document in the Federal Register announcing the withdrawal of all or part of this rule. If an adverse comment applies only to part of this rule (e.g., to an amendment, a paragraph, or a section) and it is possible to remove that part without defeating the purpose of this rule, we may adopt, as final, those parts of this rule on which we received no adverse comment. We will withdraw any part of this rule that becomes the subject of an adverse comment. If we decide to proceed with a rulemaking following receipt of an adverse comment, we will publish a separate notice of proposed rulemaking (NPRM) and provide a new opportunity for comment.

A comment counts as ``adverse'' if it explains why this rule or a part of this rule would be inappropriate, including a challenge to its underlying premise or approach, or would be ineffective or unacceptable without a change.

Background and Purpose

A review of our rules indicates that our policy and practice of permitting a party to appeal any decision or action of the Director, Great Lakes Pilotage, in accordance with the procedures 46 CFR Part 1.03 is not one provided for, explicitly, by those rules. Yet it also indicates that the practice has met universal acceptance by persons affected. The purpose of this direct final rule is to codify our established policy and practice on appeals.

Discussion of Rule

To codify these entails (1) amending 46 CFR 1.03-15 to take account of 46 U.S.C. Chapter 93 and 46 CFR Chapter III and identify the particular Coast Guard office for appeals; and (2) adding a new 46 CFR 1.03-50 to describe the appellate process for decisions or actions of the Director, Great Lakes Pilotage.

Because of an oversight affecting 46 CFR Subpart 1.03--Rights of Appeal, the appellate procedures of the Coast Guard do not by their terms apply to decisions or actions taken by the Director, Great Lakes Pilotage, under 46 U.S.C. Chapter 93 or 46 CFR Chapter III. Nonetheless, the Coast Guard has consistently followed them whenever a decision or action taken by the Director has been appealed to higher authority within the Coast Guard, Commandant (G-MW). This practice has met universal acceptance by persons affected. At this point, the Coast Guard is simply codifying its procedures to reflect its own policy and practice and meet the public's expectation.

Regulatory Evaluation

This direct final 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. 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, 1979]. Because this rule is administrative in nature and simply codifies the policy and practice already in use since the beginning of Great Lakes Pilotage, 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.

Small Entities

Under the Regulatory Flexibility Act [5 U.S.C. 601-612], we considered whether this direct final rule will 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

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populations of less than 50,000. This rule does not affect any small entities.

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. We will evaluate, under the criteria in ``Regulatory Information'', any comments submitted in response to this finding.

Collection of Information

This direct final rule calls for no new collection of information under the Paperwork Reduction Act of 1995 [44 U.S.C. 3501-3520].

Federalism

We have analyzed this direct final rule under Executive Order 13132 and have determined that it does not have implications for federalism under that Order.

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 regulatory actions not specifically required by law. 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 direct final 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 direct final 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 direct final 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 direct final 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 risk to safety that may disproportionately affect children.

Indian Tribal Governments

This direct final 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.

Environment

The Coast Guard considered the environmental impact of this direct final rule and concluded that, under figure 2-1, paragraph (34)(a) of Commandant Instruction M16475.lC, this rule is categorically excluded from further environmental documentation. It is ``procedural'' within the meaning of that paragraph. A Determination of Categorical Exclusion is available in the docket where indicated under ADDRESSES.

List of Subjects in 46 CFR Part 1

Organization, General Course and Methods Governing Marine Safety Functions.

For the reasons discussed in the preamble, the Coast Guard amends 46 CFR part 1 as follows:

1. Revise the citation of authority for part 1 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; 49 CFR 1.45, 1.46; Sec. 1.01-35 also issued under the authority of 44 U.S.C. 3507.

2. Revise paragraph (a) of Sec. 1.03-15 and add paragraph (h)(5) to read as follows:

   Sec. 1.03-15 General.

   (a) Any person directly affected by a decision or action taken under this chapter or under chapter III of this title, by or on behalf of the Coast Guard, except for matters covered by subpart J of part 5 of this chapterdealing with suspension-and-revocation hearings, shall follow the procedures contained in this section when requesting that the decision or action be reviewed, set aside, or revised. * * * * *

   (h) * * *

   (5) Commandant (G-MW) for appeals involving decisions or actions of the Director, Great Lakes Pilotage. * * * * *

3. Add Sec. 1.03-50 to read as follows:

   Sec. 1.03-50 Appeals from decisions or actions of the Director, Great Lakes Pilotage.

   Any person directly affected by a decision or action of the Director, Great Lakes Pilotage, may make a formal appeal of that decision or action to Commandant (G-MW), in accordance with the procedures contained in Sec. 1.03-15 of this subpart.

   Dated: April 24, 2001. R.C. North, Rear Admiral, U.S. Coast Guard, Assistant Commandant for Marine, Safety and Environmental Protection.

   [FR Doc. 01-14817Filed6-12-01; 8:45 am]

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