[Federal Register Volume 60, Number 184 (Friday, September 22, 1995)]
[Rules and Regulations]
[Pages 49222-49225]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-23518]
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DEPARTMENT OF TRANSPORTATION
Coast Guard
33 CFR Part 1
[CGD 94-105]
RIN 2115-AE99
Coast Guard Rulemaking Procedures
AGENCY: Coast Guard, DOT.
ACTION: Final rule.
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SUMMARY: The Coast Guard revises the regulations describing its
rulemaking procedures to provide for a ``direct final rule'' process
for use with noncontroversial rules. Under the direct final rule
procedure, a rule will become effective 90 days after publication in
the Federal Register unless the Coast Guard receives written adverse
comment within sixty days. This new procedure should expedite the
promulgation of routine, noncontroversial rules by reducing the time
necessary to develop, review, clear, and publish separate proposed and
final rules.
EFFECTIVE DATE: October 23, 1995.
ADDRESSES: Unless otherwise indicated, documents referred to in this
preamble are available for inspection or 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 D.C.
20593-0001 between 8 a.m. and 3 p.m., Monday through Friday, except
Federal holidays. The telephone number is (202) 267-1477.
FOR FURTHER INFORMATION CONTACT: LT R. Goldberg, Staff Attorney,
Regulations and Administrative Law Division, Office of Chief Counsel,
U.S. Coast Guard Headquarters, (202) 267-6004.
SUPPLEMENTARY INFORMATION:
Regulatory History
On June 14, 1995, the Coast Guard published a notice of proposed
rulemaking entitled ``Coast Guard Rulemaking Procedures'' in the
Federal Register (60 FR 31267) with a thirty day comment period which
ended July 14. In response to a request for additional time, the Coast
Guard published a notice in the August 1, 1995 Federal Register (60 FR
39130) reopening the comment period on the proposal for an additional
thirty days, until August 31, 1995. Over both comment periods, the
Coast Guard received fourteen letters commenting on the proposal. No
public meeting was requested, and none was held.
Discussion of Comments and Changes
The Coast Guard received fourteen comments in response to its
proposal to implement a direct final rule procedure from a variety of
parties including an insurance broker, a shipping company, a commercial
fisherman, a corporation interested in offshore operations, maritime
consultants, industry associations and the Administrative Conference of
the United States. One comment, from a national manufacturers
association representing over 1,600 manufacturers association
representing over 1,600 manufacturers of recreational boats and
equipment, fully supported the proposal for an expedited rulemaking
process. The comment from the Administrative Conference of the United
States (Administrative Conference) expressed pleasure at the Coast
Guard's proposal to use direct final rulemaking and took the
opportunity to compare the Coast Guard's proposed procedure to the
Administrative Conference's recently adopted Recommendation 95-4,
``Procedures for Noncontroversial and Expedited Rulemaking.'' the other
comments were generally supportive of the idea of a streamlined
rulemaking process, but expressed concerns with the shortness of the
proposed comment period, the list of subjects suggested by the Coast
Guard for the direct final rule process, the possibility that there may
not be 30 days notice before the effective date of the rule as required
by the Administrative Procedure Act (APA) and with the lack of an
adequate definition of an ``adverse comment''. Additionally, one
comment contended that all rulemakings are ``controversial'' and
therefore the direct final rule process is not appropriate for any
rulemaking.
Eight comments directly objected to the proposed thirty day comment
period. The comment from the Administrative Conference supported this
provision as providing the required comment under the APA, but took no
specific position on the actual length of the period. The comments
which objected to the length of the comment period argued that it often
took much longer than thirty days for a proposal to be disseminated to,
and analyzed by, potentially interested parties. According to the
comments, this additional time is required because of a number of
factors. One factor cited by three comments was the fact that many
mariners who may be interested in a proposal are often out to sea for
periods of time greater than thirty days. Other comments also noted the
time delay caused by the postal system in receiving copies of the
Federal Register and the fact that many people learn of new proposed
rules through industry and trade publications which need time to
publish and mail the information. Additionally, one comment raised the
question of whether the short comment period satisfies Sec. 553(c) of
the APA which requires an agency to give interested parties an adequate
opportunity to participate in the rulemaking. The comments suggested
increased comment periods ranging from 60 to 160 days so that a rule
published as a direct final rule would become effective in the range of
90 to 180 days after publication.
The Coast Guard understands that it takes time for information
regarding proposed rules to reach interested parties. Public
participation in the rulemaking process is important to, and highly
encouraged by, the Coast Guard. The Coast Guard is planning to use the
direct final rule procedure only for rules it considers to be
noncontroversial and for which no adverse comment is anticipated.
Consequently, the Coast Guard believes that the direct final rulemaking
procedure provides the public an adequate opportunity to comment on a
rule subject to this procedure before the rule becomes effective. If an
adverse comment or a notice of intent to submit an adverse comment is
received within the comment period, the direct final rule will be
withdrawn without ever having taken effect. If the Coast Guard later
decides to proceed with the rulemaking, a new notice of proposed
rulemaking will be published. This process will give the pubic an
adequate opportunity to participate in the rulemaking procedure before
a rule goes into effect. The Coast Guard believes that a lengthy
comment period would defeat the purpose of having an expedited
rulemaking process. Nevertheless, to ensure that the
[[Page 49223]]
public has a meaningful opportunity to participate, the Coast Guard is
increasing the minimum comment period stated in Sec. 1.05-55(c) under
the direct final rule process from 30 to 60 days, and preserving an
option for any particular rulemaking to have a longer comment period.
Three of the comments, including one from a national trade
association representing 23 U.S.-flag carriers and one from a shipping
company which operates for U.S.-flag ships, expressed concern over the
list of subjects suggested as appropriate for the direct final rule
process by the Coast Guard. Two of the comments expressed the opinion
that the proposed procedure would be appropriate for some of the types
of rulemakings suggested but not for all. In particular, both of these
comments objected to the use of the direct final rule process for the
waiver of navigation and vessel inspection laws and regulations, the
regulation or description of anchorage areas, the regulation or
description of shipping safety fairways and the regulation or
description of offshore traffic separation schemes. The trade
association also objected to the use of the proposed procedure to adopt
technical standards set by outside organizations and to regulate the
compatibility of cargoes. The shipping company comment also objected to
using the procedure to establish safety and security zones.
A comment from a national association of maritime educators
commented that in the past, the association has offered comments on
many subjects of the type included on the list of possible subjects and
therefore viewed none of the proposed subjects as ``noncontroversial''
and objected to the entire list of subjects. That comment also stated
that there is no such thing as a ``noncontroversial'' rule and stated
that the decision whether a rule is deemed ``noncontroversial'' or not
is a subjective rather than objective standard.
The Coast Guard realizes that the direct final rule process is not
the proper procedure for use with all rulemakings. On the other hand,
there are numerous rulemakings which the Coast Guard does believe to be
``noncontroversial'' in nature and for which the Coast Guard does not
anticipate adverse comments. The suggested list of subjects stated in
the NPRM was not meant to be a comprehensive or ironclad list of
subjects for use with the direct final rule process. Every rulemaking
will be evaluated independently to determine: (1) Whether it is likely
to be noncontroversial in nature; and (2) whether the direct final rule
process is appropriate. If during the comment period any adverse
comment or notice of intent to submit an adverse comment is received,
the rule will be withdrawn. If a rule is withdrawn and the Coast Guard
decides to proceed with the rulemaking, a separate notice of proposed
rulemaking will be published unless an exception to the APA requirement
for notice and comment applies. The Coast Guard believes that this
procedure will guarantee the public an adequate opportunity to
participate in the rulemaking procedure and inform the Coast Guard of
opposition to a rulemaking which the Coast Guard viewed as
noncontroversial. Both by requiring that a rulemaking be deemed to be
noncontroversial before being published as a direct final rule and by
requiring that if an adverse comment is received a rulemaking published
under this process be withdrawn and a separate NPRM published to
proceed, the Coast Guard believes that sufficient safeguards exist to
ensure no rule is implemented without adequate opportunity for public
participation.
The comment from the Administrative Conference in addition to two
other comments, expressed concern that the procedure proposed may not
always satisfy Sec. 553(d) of the APA which requires thirty days notice
prior to the effective date of a rule. The specific concern stated by
the Administrative Conference is that the notice stating that the Coast
Guard has received no adverse comment and therefore, the rule will go
into effect as originally scheduled, may not be published thirty days
before the effective date of the rule. The conference recommended
either making the rule effective thirty days after the date of the
described notice or specifying a date after the close of the comment
period by which the Coast Guard will notify the public whether the
direct final rule will become effective, with the rule's effective date
at least 30 days after such specified date. The Coast Guard has decided
to go forward with the second alternative and therefore will publish a
specific date in the direct final rule by which the public will be
notified of whether the rule will go into effect.
One comment from a maritime safety specialist objected to the lack
of adequate guidelines concerning what the Coast Guard would consider
to be an ``adverse comment.'' In addition, the Administrative
Conference in Recommendation 95-4, ``Procedures for Noncontroversial
and Expedited Rulemaking'' (Recommendation) proposed a definition of
adverse comment that differed from that proposed by the Coast Guard.
The Administrative Conference acknowledged the difference between its
own definition and the Coast Guard's, but viewed the Coast Guard's
proposed definition as reasonable.
Section 1.05-55(c) of the NPRM stated that an adverse comment would
be any comment received by the Coast Guard which objects to a proposed
rule as written. The preamble of the NPRM further explained that
neither a comment submitted in support of a rule nor one suggesting
that the policy or requirements of a rule should or should not be
extended to a Coast Guard program outside the scope of the rule will be
considered as adverse. On the other hand, the Administrative Conference
in its Recommendation suggested that the definition of significant
adverse comment be ``one where the commenter explains why the rule
would be inappropriate, including challenges to the rule's underlying
premise or approach, or would be ineffective or unacceptable without a
change.'' The Administrative Conference went on to state in its
Recommendation that agencies ``should consider whether the comment
raises an issue serious enough to warrant a substantive response in a
notice-and-comment process.'' Because the Coast Guard believes that the
Administrative Conference's recommended definition of adverse comment
provides better guidance and a clearer definition of what types of
comments will be considered adverse, the Coast Guard has decided to
adopt the Administrative Conference's recommended definition of adverse
comment. An adverse comment is now defined in Sec. 1.05-55(f).
The Administrative Conference comment also suggested that in
addition to publishing the initial notice in the final rule section of
the Federal Register, that a cross reference be inserted in the
proposed rule section. The Coast Guard agrees with this idea and will
do so.
In addition to the changes discussed above, a few minor editorial
changes were made to the language of the rule to promote the public's
understanding of the direct final rule process.
Explanation of Procedure
The Coast Guard is establishing a new direct final rulemaking
procedure for noncontroversial rules. This process is consistent with
the goals of the National Performance Review, a recent Presidential
initiative to reorganize and streamline the Federal government. The
process is also consistent with recommendations of the Administrative
Conference of the United States and
[[Page 49224]]
meets the requirements for providing an opportunity for public notice
and comment under the Administrative Procedure Act (APA) (5 U.S.C.
553).
Under this procedure, the Coast Guard will publish direct final
rules in the final rule and proposed rule sections of the Federal
Register. The preamble to a direct final rule will indicate that no
adverse comment is anticipated and that the rule will become effective
not less than 90 days after publication unless written adverse comment
or written intent to submit adverse comment is received within a
specified time, usually not less than 60 days. The direct final rule
will also state a date by which the Coast Guard will provide notice of
whether the rule will be effective. This procedure will ensure that, as
required by the APA, the public will be given notice of Coast Guard
rulemaking actions and will have an opportunity to participate in the
rulemaking by submitting comments.
If no written adverse comment or written notice of intent to submit
an adverse comment is received in response to the publication of a
direct final rule, the Coast Guard will then publish a notice in the
Federal Register, stating that no adverse comment was received and
confirming that the rule will become effective as scheduled. However,
if the Coast Guard receives any written adverse comment or any written
notice of intent to submit an adverse comment, then the Coast Guard
will publish a notice in the final rule and proposed rule sections of
the Federal Register to announce withdrawal of the direct final rule.
If adverse comments clearly apply to only part of a rule, and that part
is severable from the remaining portions, such as a rule that deletes
several unrelated regulations, the Coast Guard may adopt as final those
parts of the rule on which no adverse comments were received. The part
of the rule that was the subject of adverse comment will be withdrawn.
If the Coast Guard decides to proceed with a rulemaking following
receipt of adverse comments, a separate Notice of Proposed Rulemaking
(NPRM) will be published, unless an exception to the APA requirement
for notice and comment applies.
Regulatory Evaluation
This rule is not a significant regulatory action under section 3(f)
of the Executive Order 12866 and does not require an assessment of
potential costs and benefits under section 6(a)(3) of that order. It
has not been reviewed by the Office of Management and Budget 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). The Coast Guard expects 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.
The change in procedure will not impose any costs on the public. In
cases where the rule would result in cost savings, the cost savings
would occur sooner with the use of direct final rule procedure.
Small Entities
Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), the
Coast Guard must consider whether this rule will have a significant
economic impact on a substantial number of small entities. ``Small
entities'' may include (1) small businesses and not-for-profit
organizations that are independently owned and operated and are not
dominant in their fields and (2) governmental jurisdictions with
populations of less than 50,000. The Coast Guard has evaluated this
rule under the Regulatory Flexibility Act. This rule will not have
substantive impact on the public. 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.
Collection of Information
This rule 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 rule
and concluded that, under paragraph 2.B.2 of Commandant Instruction
M16475.1B (as revised by 59 FR 38654, July 29, 1994), this rule is
categorically excluded from further environmental documentation as a
regulation of a procedural nature. 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 procedures, Authority delegations
(Government agencies), Coast Guard, Freedom of information, Penalties.
For the reasons set out in the preamble, the Coast Guard is
amending Subpart 1.05 of Part 1 of Title 33, Code of Federal
Regulations as follows:
PART 1--GENERAL PROVISIONS
Subpart 1.05--[Amended]
1. The authority citation for Subpart 1.05 continues to read as
follows:
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; 49 CFR 1.4(b), 1.45(b),
and 1.46.
2. Section 1.05-55 is added to read as follows:
Sec. 1.05-55 Direct final rule.
(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
[[Page 49225]]
ineffective or unacceptable without a change.
Dated: September 15, 1995.
J.E. Shkor,
U.S. Coast Guard Chief Counsel.
FR Doc. 95-23518 Filed 9-21-95; 8:45 am]
BILLING CODE 4910-14-M