Loading (50 kb)...'

National
United States Regulations
33 CFR PART 1—GENERAL PROVISIONS

Title 33: Navigation and Navigable Waters





PART 1—GENERAL PROVISIONS



--------------------------------------------------------------------------------

Subpart 1.01—Delegation of Authority
top
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; 49 CFR 1.45(b), 1.46; 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.

§ 1.01-1 District Commander.
top
Final authority for the performance within the confines of his district of the functions of the Coast Guard, which in general terms are maritime law enforcement, saving and protecting life and property, safeguarding navigation on the high seas and navigable waters of the United States, and readiness for military operations, is delegated to the District Commander by the Commandant. In turn delegations of final authority run from the District Commander to commanding officers of units under the District Commander for the performance of the functions of law enforcement, patrol of marine regattas and parades, and the saving of life and property which come within the scope of their activities.

[CGFR 48–72, 13 FR 9330, Dec. 31, 1948]

§ 1.01-20 Officer in Charge, Marine Inspection.
top
Final authority is vested in the Officer in Charge, Marine Inspection, for the performance, within the area of his jurisdiction, of the following functions: Inspection of vessels in order to determine that they comply with the applicable laws, rules, and regulations relating to safe construction, equipment, manning, and operation and that they are in a seaworthy condition for the services in which they are operated; shipyard and factory inspections; the investigation of marine casualties and accidents; the licensing, certificating, shipment and discharge of seamen; the investigating and initiating of action in cases of misconduct, negligence, or incompetence of merchant marine officers or seamen; and the enforcement of vessel inspection, navigation, and seamen's laws in general. Specific procedures for appealing the decisions of the Officer in Charge, Marine Inspection, or of his subordinates are set forth in 46 CFR parts 1 to 4.

[CGFR 48–72, 13 FR 9330, Dec. 31, 1948; as amended by USCG–1998–3799, 63 FR 35525, June 30, 1998]

§ 1.01-30 Captains of the Port.
top
Captains of the Port and their representatives enforce within their respective areas port safety and security and marine environmental protection regulations, including, without limitation, regulations for the protection and security of vessels, harbors, and waterfront facilities; anchorages; security zones; safety zones; regulated navigation areas; deepwater ports; water pollution; and ports and waterways safety.

[CGD–225, 59 FR 66484, Dec. 27, 1994]

§ 1.01-40 Delegation to the Vice Commandant.
top
The Commandant delegates to the Vice Commandant authority to take final agency action under 46 CFR part 5, Subparts I, J and K on each petition to reopen a hearing and on each appeal from a decision of an Administrative Law Judge, except on petition or appeal in a case in which an order of revocation has been issued. This delegation does not prevent the Vice Commandant from acting as Commandant, as prescribed in 14 U.S.C. 47(a), for all purposes of 46 CFR part 5.

[CGD 85–071, 51 FR 22805, June 23, 1986, as amended by CGD 97–023, 62 FR 33361, June 19, 1997]

§ 1.01-50 Delegation to District Commander, Seventeenth Coast Guard District.
top
The Commandant redelegates to the District Commander, Seventeenth Coast Guard District, the authority in 46 U.S.C. 3302(i)(1) to issue permits to certain vessels transporting cargo, including bulk fuel, from one place in Alaska to another place in Alaska.

[USCG–1998–3799, 63 FR 35525, June 30, 1998]

§ 1.01-60 Delegations for issuance of bridge permits.
top
(a) The Commandant delegates to the Assistant Commandant for Operations, the authority to issue the following permits for the construction, reconstruction, or alteration of bridges across navigable waters of the United States:

(1) Those that require:

(i) An environmental assessment or environmental impact statement under the National Environmental Policy Act of 1969, as amended, (42 U.S.C. 4321 et seq.) and all implementing regulations, orders, and instructions.

(ii) A determination under section 4(f) of the Department of Transportation Act of 1966 (49 U.S.C. 1653).

(iii) Concurrence of the Department of Transportation under DOT Order 5610.1C (Procedures for Considering Environmental Impacts).

(2) Those that require a Presidential permit and approval under the International Bridge Act of 1972 (33 U.S.C. 535).

(3) Those that require the amendment of an existing permit issued by the U.S. Army Corps of Engineers.

(4) Those that raise substantial unresolved controversy involving the public, or are objected to by Federal, State, or local government agencies.

(5) Those authorized by the Commandant upon the appeal of a district commander's decision denying a permit.

(b) The Commandant delegates to each Coast Guard District Commander, with the reservation that this authority shall not be further redelegated, the authority to issue all permits for the construction, reconstruction, or alteration of bridges across navigable waters of the United States other than those specified in paragraph (a) of this section.

[CGD 80–099, 46 FR 38353, July 27, 1981; 46 FR 42268, Aug. 20, 1981, as amended by CGD 88–052, 53 FR 25119, July 1, 1988; CGD 96–026, 61 FR 33662, June 28, 1996; CGD 97–023, 62 FR 33361, June 19, 1997]

§ 1.01-70 CERCLA delegations.
top
(a) For the purpose of this section, the definitions in section 101 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (Pub. L. 96–510), as amended by the Superfund Amendments and Reauthorization Act of 1986 (Pub. L. 99–499), apply. The Act, as amended, is referred to in this section as CERCLA.

(b) The Assistant Commandant for Marine Safety, Security and Environmental Protection (G-M) is delegated authority to take remedial action involving vessels under section 104 of CERCLA.

(c) Each Maintenance and Logistics Commander is delegated contract authority, consistent with each memorandum of understanding between the Coast Guard and the Environmental Protection Agency regarding CERCLA funding mechanisms, for the purpose of carrying out response actions pursuant to CERCLA sections 104(a), 104(b), 104(f), 104(g), 105(f), and 122.

(d) Each district commander is delegated authority as follows:

(1) Authority, pursuant to CERCLA section 106(a), to determine an imminent and substantial endangerment to the public health or welfare or the environment because of an actual or threatened release of a hazardous substance from a facility, and to secure such relief as may be necessary to abate such danger or threat through the United States attorney of the district in which the threat occurs.

(2) Authority, pursuant to section 109 of CERCLA, to assess penalties relating to violations of sections 103 (a) and (b) pertaining to notification requirements, section 108 pertaining to financial responsibility for release of hazardous substances from vessels, and section 122 pertaining to administrative orders and consent decrees.

(3) Authority, pursuant to section 108 of CERCLA, to deny entry to any port or place in the United States or to the navigable waters of the United States and detain at any port or place in the United States any vessel subject to section 108(a) of CERCLA that, upon request, does not provide evidence of financial responsibility.

(e) Subject to the provisions of Executive Order 12580, and paragraph (g) of this section, each Coast Guard official, predesignated as an On-Scene Coordinator, is delegated authority as follows:

(1) Authority, pursuant to CERCLA sections 104(a), 104(b), 104(c) and consistent with the National Contingency Plan, to remove or arrange for the removal of releases and threatened releases of hazardous substances, and of pollutants or contaminants which may present an imminent and substantial danger to the public health or welfare.

(2) Authority, pursuant to CERCLA section 104(i)(11), to take such steps as may be necessary to reduce exposure that presents a significant risk to human health, and to eliminate or substantially mitigate that significant risk to human health.

(3) Authority, pursuant to CERCLA section 106(a), to issue orders to protect the public health and welfare and the environment whenever that official determines that a release or threatened release of a hazardous substance from a facility may present an imminent and substantial endangerment to the public health or welfare or the environment.

(4) Authority, pursuant to CERCLA section 104(e), except section 104(e)(7)(C), to enter establishments or other places where hazardous substances are or have been generated, stored, treated, disposed of, or transported from to inspect and obtain records, reports, samples and information in support of the response functions delegated in paragraphs (d), (e)(1), (e)(2), and (e)(3) of this section.

(5) Authority, pursuant to CERCLA section 122, to enter into an agreement with any person (including the owner or operator of the vessel or facility from which a release or substantial threat of release emanates, or any other potential responsible person), to perform any response action, provided that such action will be done properly by such person.

(f) Except for the authority granted in paragraphs (d)(1) and (e)(1) of this section, each Coast Guard official to whom authority is granted in this section may redelegate and authorize successive redelegations of that authority. The authority granted in paragraph (e)(3) of this section may only be redelegated to commissioned officers.

(g) The response authority described in paragraph (e)(1) of this section does not include authority to—

(1) Summarily remove or destroy a vessel; or

(2) Take any other action that constitutes intervention under CERCLA, the Intervention on the High Seas Act (33 U.S.C. 1471 et. seq.), or other applicable laws. “Intervention” means any detrimental action taken against the interest of a vessel or its cargo without the consent of the vessel's owner or operator.

[CGD 88–051, 53 FR 30259, Aug. 11, 1988, as amended by CGD 91–225, 59 FR 66484, Dec. 27, 1994; CGD 96–026, 61 FR 33662, June 28, 1996; CGD 97–023, 62 FR 33361, June 19, 1997; USCG–2002–12471, 67 FR 41331, June 18, 2002; USCG–2003–14505, 68 FR 9534, Feb. 28, 2003]

§ 1.01-80 FWPCA and OPA 90 delegations.
top
(a) This section delegates authority to implement provisions of section 311 of the Federal Water Pollution Control Act (FWPCA), as amended [33 U.S.C. 1321] and provisions of the Oil Pollution Act of 1990 (OPA 90). The definitions in subsection (a) of section 311 of the FWPCA and section 1001 of OPA 90 [33 U.S.C. 2701] apply.

(b) The Assistant Commandant for Marine Safety, Security and Environmental Protection, is delegated authority to require the owner or operator of a facility to establish and maintain such records, make such reports, install, use, and maintain such monitoring equipment and methods, and provide such other information as may be required to carry out the objectives of section 311 of the FWPCA [33 U.S.C. 1321].

(c) Each District and Area Commander is delegated authority within the Commander's assigned district or area to—

(1) Deny entry to any place in the United States or to the navigable waters of the United States, and to detain at any place in the United States, any vessel subject to section 1016 of OPA 90 [33 U.S.C. 2716] that, upon request, does not provide evidence of financial responsibility;

(2) Seize and, through the Chief Counsel, seek forfeiture to the United States of any vessel subject to the requirements of section 1016 of OPA 90 [33 U.S.C. 2716] that is found in the navigable waters of the United States without the necessary evidence of financial responsibility;

(3) Assess any class I civil penalty under subsection (b) of section 311 of the FWPCA [33 U.S.C. 1321], in accordance with the procedures in subpart 1.07 of this chapter;

(4) Assess any civil penalty under section 4303 of OPA 90 [33 U.S.C. 2716a] in accordance with the procedures in subpart 1.07 of this chapter;

(5) Board and inspect any vessel upon the navigable waters of the United States or the waters of the contiguous zone, except for public vessels; with or without warrant, arrest any person who, in the Commander's presence or view, violates a provision of section 311 of the FWPCA [33 U.S.C. 1321] or any regulation issued thereunder; and execute any warrant or other process issued by an officer or court of competent jurisdiction, as prescribed in section 311(m)(1) of the FWPCA [33 U.S.C. 1321(m)(1)];

(6) Enter and inspect any facility in the coastal zone at reasonable times; have access to and copy any records; take samples; inspect monitoring equipment required by section 311(m)(2)(A) of the FWPCA [33 U.S.C. 1321(m)(2)(A)]; with or without warrant, arrest any person who, in the Commander's presence or view, violates a provision of section 311 of the FWPCA [33 U.S.C. 1321] or any regulation issued thereunder; and execute any warrant or other process issued by an officer or court of competent jurisdiction, as prescribed in section 311(m)(2) of the FWPCA [33 U.S.C. 1321(m)(2)(A)]; and

(7) Determine for purposes of section 311(b)(12) of the FWPCA [33 U.S.C. 1321(b)(12)]—

(i) Whether reasonable cause exists to believe that an owner, operator, or person in charge may be subject to a civil penalty under section 311(b) of the FWPCA [33 U.S.C. 1321(b)]; and

(ii) Whether a filed bond or other surety is satisfactory.

(d) Each Coast Guard official predesignated as the On-Scene Coordinator by the applicable Regional Contingency Plan is delegated authority pursuant to section 311(c) of the FWPCA [33 U.S.C. 1321(c)], subject to paragraph (e) of this section, in accordance with the National Contingency Plan and any appropriate Area Contingency Plan, to ensure the effective and immediate removal of a discharge and mitigation or prevention of a substantial threat of a discharge of oil or a hazardous substance by—

(1) Removing or arranging for the removal of a discharge and mitigating or preventing an imminent and substantial threat of a discharge at any time;

(2) Directing or monitoring all Federal, State, and private actions to remove a discharge, including issuance of orders;

(3) Determining, pursuant to section 311(c) of the FWPCA [33 U.S.C. 1321(c)], whether a discharge or a substantial threat of a discharge of oil or a hazardous substance from a vessel, offshore facility, or onshore facility is of such a size or character as to be a substantial threat to the public health or welfare of the United States (including, but not limited to fish, shellfish, wildlife, other natural resources, and the public and private beaches and shorelines of the United States); and, if it is, directing all Federal, State, and private actions to remove the discharge or to mitigate or prevent the threatened discharge;

(4) Determining, pursuant to section 311(e) of the FWPCA [33 U.S.C. 1321(e)], that there may be an imminent and substantial threat to the public health and welfare of the United States, and, if there is, may—

(i) Determine an imminent and substantial threat as a basis for recommending referral for judicial relief; or

(ii) Act pursuant to section 311(e)(1)(B) of the FWPCA [33 U.S.C. 1321(e)(1)(B)], including the issuance of orders; and

(5) Acting to mitigate the damage to the public health or welfare caused by a discharge of oil or a hazardous substance.

(e) The authority described in paragraph (d) of this section does not include the authority to—

(1) Remove or destroy a vessel; or

(2) Take any other action that constitutes intervention under the Intervention on the High Seas Act [33 U.S.C. 1471, et seq.] or other applicable laws. For purposes of this section, “intervention” means any detrimental action taken against the interest of a vessel or its cargo without the consent of the vessel's owner or operator.

[CGD 91–225, 59 FR 66484, Dec. 27, 1994, as amended by CGD 96–026, 61 FR 33662, June 28, 1996; CGD 97–023, 62 FR 33361, June 19, 1997; USCG–2002–12471, 67 FR 41331, June 18, 2002]

§ 1.01-85 Redelegation.
top
Except as provided in §1.01–80(e)(1) and (2), each Coast Guard officer to whom authority is granted in §1.01–80 may redelegate and authorize successive redelegations of that authority within the command under the officer's jurisdiction, or to members of the officer's staff.

[CGD 91–225, 59 FR 66485, Dec. 27, 1994]

§ 1.01-90 Commissioned, warrant, and petty officers.
top
Any commissioned, warrant, or petty officer of the United States Coast Guard may be authorized to carry out the functions delegated to superior officials under §§1.01–1, 1.01–20, 1.01–30, 1.01–70, and 1.07–80, or redelegated under §1.01–85, within the jurisdiction of the cognizant official. They will do so under the supervision and general direction of that official.

[CGD 91–225, 59 FR 66485, Dec. 27, 1994]

Subpart 1.05—Rulemaking
top
Authority: 5 U.S.C. 552, 553, App. 2; 14 U.S.C. 2, 631, 632, and 633; 33 U.S.C. 471, 499; 49 U.S.C. 101, 322; Department of Homeland Security Delegation No. 0170.

Source: CGD 95–057, 60 FR 34148, June 30, 1995, unless otherwise noted.

§ 1.05-1 Delegation of rulemaking authority.
top
(a) The Secretary of Homeland Security is empowered by various statutes to issue regulations regarding the functions, powers and duties of the Coast Guard.

(b) The Secretary of Homeland Security has delegated much of this authority to the Commandant, U.S. Coast Guard, including authority to issue regulations regarding the functions of the Coast Guard and the authority to redelegate and authorize successive redelegations of that authority within the Coast Guard.

(c) The Commandant has reserved the authority to issue any rules and regulations determined to be significant under Executive Order 12866, Regulatory Planning and Review.

(d) The Commandant has redelegated to the various office chiefs at U.S. Coast Guard Headquarters, with the reservation that this authority shall not be further redelegated, the authority to develop and issue regulations necessary to implement laws, treaties, or Executive Orders associated with their assigned programs; issue amendments to existing regulations as necessary; and submit regulatory proposals for Marine Safety and Security Council consideration.

(e)(1) The Commandant has redelegated to Coast Guard District Commanders, with the reservation that this authority shall not be further redelegated, the authority to issue regulations pertaining to the following:

(i) Anchorage grounds and special anchorage areas.

(ii) The designation of lightering zones.

(iii) The operation of drawbridges.

(iv) The establishment of Regulated Navigation Areas.

(v) The establishment of safety and security zones.

(vi) The establishment of special local regulations.

(2) This delegation does not extend to those matters specified in paragraph (c) of this section or rules and regulations which have been shown to raise substantial issues or to generate controversy.

(f) Except for those matters specified in paragraph (c) of this section, the Commandant has redelegated to Coast Guard Captains of the Port, with the reservation that this authority shall not be further redelegated, the authority to establish safety and security zones.

(g) The Commandant has redelegated to Coast Guard District Commanders, Captains of the Port, the Assistant Commandant for Operations, and the Assistant Commandant for Marine Safety, Security and Environmental Protection, the authority to make the certification required by section 605(b) of the Regulatory Flexibility Act (Sec. 605(b), Pub. L. 96–354, 94 Stat. 1168 (5 U.S.C. 605)) for rules that they issue.

[CGD 95–057, 60 FR 34148, June 30, 1995, as amended by CGD 96–026, 61 FR 33662, June 28, 1996; CGD 97–023, 62 FR 33361, June 19, 1997; USCG–2003–14505, 68 FR 9534, Feb. 28, 2003; USCG–2003–15404, 68 FR 37740, June 25, 2003]

§ 1.05-5 Marine Safety and Security Council.
top
The Marine Safety and Security Council, composed of senior Coast Guard officials, acts as policy advisor to the Commandant and is the focal point of the Coast Guard regulatory system. The Marine Safety and Security Council provides oversight, review, and guidance for all Coast Guard regulatory activity.

[CGD 95–057, 60 FR 34148, June 30, 1995, as amended by USCG–2003–15404, 68 FR 37740, June 25, 2003]

§ 1.05-10 Regulatory process overview.
top
(a) Most rules of local applicability are issued by District Commanders and Captains of the Port, while rules of wider applicability are issued by senior Coast Guard officials at Coast Guard Headquarters, For both significant rulemaking (defined by Executive Order 12866, Regulatory Planning and Review) and non-significant rulemaking, other than those areas delegated to District Commanders and Captains of the Port, the regulatory process begins when an office chief with program responsibilities identifies a possible need for a new regulation or for changes to an existing regulation. The need may arise due to statutory changes, or be based on internal review or public input. Early public involvement is strongly encouraged.

(b) After a tentative significant regulatory approach is developed, a significant regulatory project proposal is submitted to the Marine Safety and Security Council for approval. The proposal describes the scope of the proposed regulation, alternatives considered, and potential cost and benefits, including possible environmental impacts. All significant regulatory projects require Marine Safety and Security Council approval.

(c) Significant rulemaking projects must also be approved by the Commandant of the Coast Guard.

(d) If the project is approved, the necessary documents are drafted, including documents to be published in the Federal Register. These may include regulatory evaluations, environmental analyses, requests for comments, announcements of public meetings, notices of proposed rulemakings, and final rules.

[CGD 95–057, 60 FR 34148, June 30, 1995, as amended by USCG–2003–14505, 68 FR 9534, Feb. 28, 2003; USCG–2003–15404, 68 FR 37740, June 25, 2003]

§ 1.05-15 Public participation.
top
The Coast Guard considers public participation essential to effective rulemaking, and encourages the public to participate in its rulemaking process. Coast Guard policy is to provide opportunities for public participation early in potential rulemaking projects. Generally, the Coast Guard will solicit public input by publishing a notice of public meeting or request for comments in the Federal Register. Advance Notices of Proposed Rulemaking, Notices of Proposed Rulemaking, Supplemental Notices of Proposed Rulemaking, and Interim Rules will usually provide 90 days, or more if possible, after publication for submission of comments. This time period is intended to allow interested persons the opportunity to participate in the rulemaking process through the submission of written data and views. However, certain cases and circumstances may make it necessary to provide a shorter comment period. Public meetings may also be held to provide an opportunity for oral presentations. The Coast Guard will consider the comments received and, in subsequent rulemaking documents, will incorporate a concise general statement of the comments received and identify changes from a proposed rule based on the comments.

§ 1.05-20 Petitions for rulemaking.
top
(a) Any member of the public may petition the Coast Guard to undertake a rulemaking action. There is no prescribed form for a petition for rulemaking, but the document should provide some supporting information as to why the petitioner believes the proposed rulemaking is necessary and the document should clearly indicate that it is a petition for rulemaking. Petitions should be addressed to the Executive Secretary, Marine Safety and Security Council (G-LRA), United States Coast Guard Headquarters, 2100 Second Street SW., Washington, DC 20593–0001.

(b) The petitioner will be notified of the Coast Guard's decision whether to initiate a rulemaking or not. If the Coast Guard decides not to pursue a rulemaking, the petitioner will be notified of the reasons why. If the Coast Guard decides to initiate rulemaking, it will follow the procedure outlined in this subpart. The Coast Guard may publish a notice acknowledging receipt of a petition for rulemaking in the Federal Register.

(c) Any petition for rulemaking and any reply to the petition will be kept in a public file open for inspection.

[CGD 95–057, 60 FR 34148, June 30, 1995, as amended by USCG–2003–15404, 68 FR 37740, June 25, 2003]

§ 1.05-25 Public docket.
top
(a) A public file is maintained for each petition for rulemaking and each Coast Guard regulation and notice published in the Federal Register. Each file contains copies of every rulemaking document published for the project, public comments received, summaries of public meetings or hearings, regulatory assessments, and other publicly-available information. Members of the public may inspect the public docket and copy any documents in the file. Each rulemaking document will identify where the public file for that rulemaking is maintained. Public dockets for rulemakings originating at Coast Guard Headquarters are kept at a Docket Management Facility (DMS) maintained by the Department of Transportation, at the Nassif Building, room PL–401, 400 Seventh Street SW., Washington, DC 20590–0001. These dockets are available electronically through the DMS Web site at http://dms.dot.gov.

(b) The public dockets for Coast Guard rulemaking activity initiated by Coast Guard District Commanders are available for public inspection at the appropriate Coast Guard District office.

(c) The public dockets for Coast Guard rulemaking activity initiated by Captains of the Port are available for inspection at the appropriate Captain of the Port office.

[CGD 95–057, 60 FR 34148, June 30, 1995, as amended by USCG–2003–14505, 68 FR 9534, Feb. 28, 2003]

§ 1.05-30 Advance notice of proposed rulemaking (ANPRM).
top
An advance notice of proposed rulemaking may be used to alert the affected public about a new regulatory project, or when the Coast Guard needs more information about what form proposed regulations should take, the actual need for a regulation, the cost of a proposal, or any other information. The ANPRM may solicit general information or ask the public to respond to specific questions.

§ 1.05-35 Notice of proposed rulemaking (NPRM).
top
Under the Administrative Procedure Act (APA), 5 U.S.C. 553, an NPRM is generally published in the Federal Register for Coast Guard rulemakings. The NPRM normally contains a preamble statement in sufficient detail to explain the proposal, its background, basis, and purpose, and the various issues involved. It also contains a discussion of any comments received in response to prior notices, a citation of legal authority for the rule, and the text of the proposed rule.

§ 1.05-40 Supplemental notice of proposed rulemaking (SNPRM).
top
An SNPRM may be issued if a proposed rule has been substantially changed from the original notice of proposed rulemaking. The supplemental notice advises the public of the revised proposal and provides an opportunity for additional comment. To give the public a reasonable opportunity to become reacquainted with a rulemaking, a supplemental notice may also be issued if considerable time has elapsed since publication of a notice of proposed rulemaking. An SNPRM contains the same type of information generally included in an NPRM.

§ 1.05-45 Interim rule.
top
(a) An interim rule may be issued when it is in the public interest to promulgate an effective rule while keeping the rulemaking open for further refinement. For example, an interim rule may be issued in instances when normal procedures for notice and comment prior to issuing an effective rule are not required, minor changes to the final rule may be necessary after the interim rule has been in place for some time, or the interim rule only implements portions of a proposed rule, while other portions of the proposed rule are still under development.

(b) An interim rule will be published in the Federal Register with an effective date that will generally be at least 30 days after the date of publication. After the effective date, an interim rule is enforceable and is codified in the next annual revision of the appropriate title of the Code of Federal Regulations.

§ 1.05-50 Final rule.
top
In some instances, a final rule may be issued without prior notice and comment. When notice and comment procedures have been used, and after all comments received have been considered, a final rule is issued. A final rule document contains a preamble that discusses comments received, responses to comments and changes made from the proposed or interim rule, a citation of legal authority, and the text of the rule.

§ 1.05-55 Direct final rule.
top
(a) A direct final rule may be issued to allow noncontroversial rules that are unlikely to result in adverse public comment to become effective more quickly.

(b) A direct final rule will be published in the Federal Register with an effective date that is generally at least 90 days after the date of publication.

(c) The public will usually be given at least 60 days from the date of publication in which to submit comments or notice of intent to submit comments.

(d) If no adverse comment or notice of intent to submit an adverse comment is received within the specified period, the Coast Guard will publish a notice in the Federal Register to confirm that the rule will go into effect as scheduled.

(e) If the Coast Guard receives a written adverse comment or a written notice of intent to submit an adverse comment, the Coast Guard will publish a notice in the final rule section of the Federal Register to announce withdrawal of the direct final rule. If an adverse comment clearly applies to only part of a rule, and it is possible to remove that part without affecting the remaining portions, the Coast Guard may adopt as final those parts of the rule on which no adverse comment was received. Any part of a rule that is the subject of an adverse comment will be withdrawn. If the Coast Guard decides to proceed with a rulemaking following receipt of an adverse comment, a separate Notice of Proposed Rulemaking (NPRM) will be published unless an exception to the Administrative Procedure Act requirements for notice and comment applies.

(f) A comment is considered adverse if the comment explains why the rule would be inappropriate, including a challenge to the rule's underlying premise or approach, or would be ineffective or unacceptable without a change.

[CGD 94–105, 60 FR 49224, Sept. 22, 1995]

§ 1.05-60 Negotiated rulemaking.
top
(a) The Coast Guard may establish a negotiated rulemaking committee under the Negotiated Rulemaking Act of 1990 and the Federal Advisory Committee Act (FACA) (5 U.S.C. App. 2) when it is in the public interest.

(b) Generally, the Coast Guard will consider negotiated rulemaking when:

(1) There is a need for a rule;

(2) There are a limited number of representatives for identifiable parties affected by the rule;

(3) There is a reasonable chance that balanced representation can be reached in the negotiated rulemaking committee and that the committee members will negotiate in good faith;

(4) There is a likelihood of a committee consensus in a fixed time period;

(5) The negotiated rulemaking process will not unreasonably delay the rule;

(6) The Coast Guard has resources to do negotiated rulemaking; and

(7) The Coast Guard can use the consensus of the committee in formulating the NPRM and final rule.

Subpart 1.07—Enforcement; Civil and Criminal Penalty Proceedings
top
Authority: 14 U.S.C. 633; Sec. 6079(d), Pub. L. 100–690, 102 Stat. 4181; 49 CFR 1.46.

Source: CGD 78–82, 43 FR 54186, Nov. 20, 1978, unless otherwise noted.

§ 1.07-1 Purpose.
top
This part describes procedures for enforcement and administration of all statutory penalty provisions that the Coast Guard is authorized to enforce.

§ 1.07-5 Definitions.
top
(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 §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 §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.

[CGD 93–079, 59 FR 16560, Apr. 7, 1994]

§ 1.07-10 Reporting and investigation.
top
(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 or other designated official in accordance with paragraph (b) of this section or a Notice of Violation under §1.07–11 may be given to the party by an issuing officer.

(b) Reports of any investigation conducted by the Coast Guard or received from any other agency which indicate that a violation may have occurred may be forwarded to a District Commander or other designated official for further action. This is normally the District Commander of the District in which the violation is believed to have occurred, or the District in which the reporting unit or agency is found. The report is reviewed to determine if there is sufficient evidence to establish a prima facie case. If there is insufficient evidence, the case is either returned for further investigation or closed if further action is unwarranted. The case is closed in situations in which the investigation has established that a violation did not occur, the violator is unknown, or there is little likelihood of discovering additional relevant facts. If it is determined that a prima facie case does exist, a case file is prepared and forwarded to the Hearing Officer, with a recommended action. A record of any prior violations by the same person or entity, is forwarded with the case file.

[CGD 78–82, 43 FR 54186, Nov. 20, 1978, as amended by CGD 87–008a, 52 FR 17554, May 11, 1987; CGD 93–079, 59 FR 16560, Apr. 7, 1994; USCG–2000–7223, 65 FR 40054, June 29, 2000]

§ 1.07-11 Notice of violation.
top
(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 the following information:

(1) The alleged violation and the applicable law or regulations violated;

(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) A statement that payment of the proposed penalty within 45 days will settle the case;

(5) The place to which, and the manner in which, payment is to be made;

(6) A statement that the party may decline the Notice of Violation and that if the Notice of Violation is declined, the party has the right to a hearing prior to a final assessment of a penalty by a Hearing Officer.

(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).

(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 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).

[CGD 93–079, 59 FR 66482, Dec. 27, 1994, as amended by USCG–2001–9175, 67 FR 38388, June 4, 2002]

§ 1.07-15 Hearing Officer.
top
(a) The Hearing Officer has no other responsibility, direct or supervisory, for the investigation of cases referred for the assessment of civil penalties. The hearing officer may take action on a case referred by any District Commander.

(b) The Hearing Officer decides each case on the basis of the evidence before him, and must have no prior connection with the case. The Hearing Officer is solely responsible for the decision in each case referred to him.

(c) The Hearing Officer is authorized to administer oaths and issue subpoenas necessary to the conduct of a hearing, to the extent provided by law.

[CGD 78–82, 43 FR 54186, Nov. 20, 1978, as amended by CGD 87–008a, 52 FR 17554, May 11, 1987; USCG–2002–12471, 67 FR 41331, June 18, 2002]

§ 1.07-20 Initiation of action.
top
(a) When a case is received for action, the Hearing Officer makes a preliminary examination of the material submitted. If, on the basis of the preliminary examination, the Hearing Officer determines that there is insufficient evidence to proceed, or that there is any other reason which would make penalty action inappropriate, the Hearing Officer returns the case to the District Commander with a written statement of the reason. The District Commander may close the case or cause a further investigation of the alleged violation to be made with a view toward resubmittal of the case to the Hearing Officer.

(b) If on the basis of the preliminary examination of the case file, the Hearing Officer determines that a violation appears to have been committed, the Hearing Officer notifies the party in writing of:

(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 general nature of the procedure for assessing and collecting the penalty;

(4) The amount of penalty that appears to be appropriate, based on the material then available to the Hearing Officer;

(5) The right to examine all materials in the case file and have a copy of all written documents provided upon request; and,

(6) The fact that the party may demand a hearing prior to any actual assessment of a penalty.

(c) If at any time it appears that the addition of another party to the proceedings is necessary or desirable, the Hearing Officer provides the additional party with notice as described above.

§ 1.07-25 Preliminary matters.
top
(a) Within 30 days after receipt of notice of the initiation of the action, as described above, the party, or counsel for the party, may request a hearing, provide any written evidence and arguments in lieu of a hearing, or pay the amount specified in the notice as being appropriate. A hearing must be requested in writing; the request must specify the issues which are in dispute. Failure to specify a nonjurisdictional issue will preclude its consideration.

(b) The right to a hearing is waived if the party does not submit the request to the Hearing Officer within 30 days after receiving notice of the alleged violation. At the discretion of the Hearing Officer, a hearing may be granted if the party submits a late request.

(c) The Hearing Officer must promptly schedule all hearings which are requested. The Hearing Officer shall grant any delays or continuances which may be necessary or desirable in the interest of fairly resolving the case.

(d) A party who has requested a hearing may amend the specification of the issues in dispute at any time up to 10 days before the scheduled date of the hearing. Issues raised later than 10 days before the scheduled hearing may be presented only at the discretion of the Hearing Officer.

[CGD 78–82, 43 FR 54186, Nov. 20, 1978, as amended by CGD 85–001A, 51 FR 19329, May 29, 1986]

§ 1.07-30 Disclosure of evidence.
top
The alleged violator may, upon request, receive a free copy of all the written evidence in the case file, except material that would disclose or lead to the disclosure of the identity of a confidential informant. Other evidence or material, such as blueprints, sound or video tapes, oil samples, and photographs may be examined in the Hearing Officer's offices. The Hearing Officer may provide for examination or testing of evidence at other locations if there are adequate safeguards to prevent loss or tampering.

§ 1.07-35 Request for confidential treatment.
top
(a) In addition to information treated as confidential under §1.07–30, a request for confidential treatment of a document or portion thereof may be made by the person supplying the information on the basis that the information is:

(1) Confidential financial information, trade secrets, or other material exempt from disclosure by the Freedom of Information Act (5 U.S.C. 552);

(2) Required to be held in confidence by 18 U.S.C. 1905; or

(3) Otherwise exempt by law from disclosure.

(b) The person desiring confidential treatment must submit the request to the Hearing Officer in writing and state the reasons justifying nondisclosure. Failure to make a timely request may result in a document being considered as nonconfidential and subject to release.

(c) Confidential material is not considered by the Hearing Officer in reaching a decision unless:

(1) It has been furnished by a party, or

(2) It has been furnished pursuant to a subpoena.

[CGD 78–82, 43 FR 54186, Nov. 20, 1978, as amended by USCG–2002–12471, 67 FR 41331, June 18, 2002]

§ 1.07-40 Counsel.
top
A party has the right to be represented at all stages of the proceeding by counsel. After receiving notification that a party is represented by counsel, the Hearing Officer directs all further communications to that counsel.

§ 1.07-45 Location of hearings and change of venue.
top
(a) The hearing is normally held at the office of the Hearing Officer.

(b) The Hearing Officer may transfer a case to another Hearing Officer on request or on the Hearing Officer's own motion.

(c) A request for change of location of a hearing or transfer to another Hearing Officer must be in writing and state the reasons why the requested action is necessary or desirable. Action on the request is at the discretion of the Hearing Officer.

[CGD 87–008a, 52 FR 17554, May 11, 1987]

§ 1.07-50 Witnesses.
top
A party may present the testimony of any witness either through a personal appearance or through a written statement. The party may request the assistance of the Hearing Officer in obtaining the personal appearance of a witness. The request must be in writing and state the reasons why a written statement would be inadequate, the issue or issues to which the testimony would be relevant, and the substance of the expected testimony. If the Hearing Officer determines that the personal appearance of the witness may materially aid in the decision on the case, the Hearing Officer seeks to obtain the witness' appearance. Because many statutes prescribing civil penalties do not provide subpoena power, there may be cases where a witness cannot be required to attend. In such a case, the Hearing Officer may move the hearing to the witness' location, accept a written statement, or accept a stipulation in lieu of testimony. If none of these procedures is practical, the Hearing Officer shall proceed on the basis of the evidence before him.

[CGD 78–82, 43 FR 54186, Nov. 20, 1978, as amended by USCG–2002–12471, 67 FR 41331, June 18, 2002]

§ 1.07-55 Hearing procedures.
top
(a) The Hearing Officer must conduct a fair and impartial proceeding in which the party is given a full opportunity to be heard. At the outset of the hearing, the Hearing Officer insures that the party is aware of the nature of the proceeding and of the alleged violation, and of the provisions of the law or regulation allegedly violated.

(b) The material in the case file pertinent to the issues to be determined by the Hearing Officer is presented. The party has the right to examine, and to respond to or rebut, this material. The party may offer any facts, statements, explanations, documents, sworn or unsworn testimony, or other exculpatory items which bear on appropriate issues, or which may be relevant to the size of an appropriate penalty. The Hearing Officer may require the authentication of any written exhibit or statement.

(c) At the close of the party's presentation of evidence, the Hearing Officer may allow the introduction of rebuttal evidence. The Hearing Officer may allow the party to respond to any such evidence submitted.

(d) In receiving evidence, the Hearing Officer is not bound by strict rules of evidence. In evaluating the evidence presented, the Hearing Officer must give due consideration to the reliability and relevance of each item of evidence.

(e) The Hearing Officer may take notice of matters which are subject to a high degree of indisputability and are commonly known in the community or are ascertainable from readily available sources of known accuracy. Prior to taking notice of a matter, the Hearing Officer gives the party an opportunity to show why notice should not be taken. In any case in which notice is taken, the Hearing Officer places a written statement of the matters as to which notice was taken in the record, with the basis for such notice, including a statement that the party consented to notice being taken or a summary of the party's objections.

(f) After the evidence in the case has been presented, the party may present argument on the issues in the case. The party may also request an opportunity to submit a written statement for consideration by the Hearing Officer and for further review. The Hearing Officer shall allow a reasonable time for submission of the statement and shall specify the date by which it must be received. If the statement is not received within the time prescribed, or within the limits of any extension of time granted by the Hearing Officer, the Hearing Officer renders his decision in the case.

§ 1.07-60 Records.
top
(a) A verbatim transcript will not normally be prepared. The Hearing Officer prepares notes on the material and points raised by the party, in sufficient detail to permit a full and fair review and resolution of the case, should it be appealed.

(b) A party may, at its own expense, cause a verbatim transcript to be made. If a verbatim transcript is made, the party shall submit two copies to the Hearing Officer not later than the time of filing an administrative appeal. The Hearing Officer includes them in the record.

[CGD 78–82, 43 FR 54186, Nov. 20, 1978, as amended by USCG–2002–12471, 67 FR 41331, June 18, 2002]

§ 1.07-65 Hearing Officer's decisions.
top
(a) The Hearing Officer issues a written decision. Any decision to assess a penalty is based upon substantial evidence in the record. If the Hearing Officer finds that there is not substantial evidence in the record establishing the alleged violation or some other violation of which the party had full and fair notice, the Hearing Officer shall dismiss the case and remand it to the District Commander. A dismissal is without prejudice to the District Commander's right to refile the case and have it reheard if additional evidence is obtained. A dismissal following a rehearing is final and with prejudice.

(b) If the Hearing Officer assesses a penalty, the Hearing Officer's decision contains a statement advising the party of the right to an administrative appeal. The party is advised that failure to submit an appeal within the prescribed time will bar its consideration and that failure to appeal on the basis of a particular issue will constitute a waiver of that issue in any subsequent proceeding.

[CGD 78–82, 43 FR 54186, Nov. 20, 1978, as amended by CGD 85–001A, 51 FR 19329, May 29, 1986]

§ 1.07-70 Right to appeal.
top
(a) Any appeal from the decision of the Hearing Officer must be submitted by a party within 30 days from the date of receipt of the decision. The appeal and any supporting brief must be submitted to the Hearing Officer. The only issues which will be considered on appeal are those issues specified in the appeal which were properlyraised before the Hearing Officer and jurisdictional questions. (continued)