[Federal Register Volume 65, Number 69 (Monday, April 10, 2000)]
[Proposed Rules]
[Pages 18957-18960]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-8614]


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DEPARTMENT OF TRANSPORTATION

Maritime Administration

46 CFR Part 310

[Docket No. MARAD-2000-7147]
RIN 2133-AB41


Appeal Procedures for Determinations Concerning Compliance With 
Service Obligations, Deferments, and Waivers

AGENCY: Maritime Administration, Transportation.

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: The Maritime Administration (MARAD) is soliciting public 
comment on proposed revisions to the procedures for reviewing: 
Determinations that a student or graduate of the U. S. Merchant Marine 
Academy (USMMA) or a State maritime academy that receives student 
incentive payments has breached the service obligation; denials of 
requests for deferment of the service obligation; and denials of 
requests for waivers of the service obligation contract. Currently, the 
regulations call for review by a panel composed of a representative of 
MARAD and representatives from the Department of the Navy, the National 
Oceanographic and Atmospheric Administration (NOAA), and the United 
States Coast Guard. The proposed revisions provide for an appeal to the 
Maritime Administrator, the head of the agency, rather than review by 
the panel. The intended effect of this regulation is to streamline the 
process of reaching a final agency decision and allow for timely action 
on requests for review.

Dates: You should submit your comments early enough to ensure that 
Docket Management receives them not later than May 10, 2000. Comments 
filed late will be considered to the extent practicable.

ADDRESSES: Comments should refer to docket number MARAD-2000-7147. 
Written comments may be submitted by hand or mail to the Docket 
Management Facility, U.S. DOT Dockets, Room PL-401, Department of 
Transportation, 400 7th St., SW., Washington, DC 20590-0001. You may 
also send comments electronically via the Internet at http://dmses.dot.gov/submit. All comments will become part of this docket and 
will be available for inspection and copying at the above address 
between 10 a.m. and 5 p.m., E.T., Monday through Friday, except federal 
holidays. An electronic version of this document and all documents 
entered into this docket is available on the World Wide Web at http://dms.dot.gov.

FOR FURTHER INFORMATION CONTACT: Jay Gordon of the Office of Chief 
Counsel at (202) 366-5191. You may send mail to Jay Gordon, Maritime 
Administration, Office of Chief Counsel, Room 7228, MAR-226, 400 7th 
St., SW, Washington, DC, 20590-0001, or you may send e-mail to 
[email protected].

SUPPLEMENTARY INFORMATION:

Who May File Comments?

    Anyone may file written comments about proposals made in any 
rulemaking document that requests public comments, including, but not 
limited to, any state government agency, any political subdivision of a 
State, or any person.

How Do I Prepare and Submit Comments?

    To ensure that your comments are correctly filed in the Docket, 
please include the docket number of this NPRM in your comments. In 
addition, your comments must be written in English.
    We encourage you to write your primary comments in a concise 
fashion. You may, however, attach necessary additional documents to 
your comments. There is no limit on the length of the attachments. 
Please submit two copies of your comments, including the attachments, 
to the Docket Management Facility at the address given above under 
ADDRESSES. If possible, one copy should be in an unbound format to 
facilitate copying and electronic filing.

How Can I Be Sure That My Comments Were Received?

    If you want Docket Management to notify you upon its receipt of 
your comments, enclose a self-addressed, stamped postcard in the 
envelope containing your comments. Upon receiving your comments, Docket 
Management will return the postcard by mail. If you send comments by e-
mail, you will receive a message by e-mail confirming receipt of your 
comments. Your e-mail address should be noted with your comments.

Is Information That I Submit to MARAD Made Available to the Public?

    When you submit information to us as part of this NPRM, during any 
rulemaking proceeding, or for any other reason, we may make that 
information publicly available unless you ask that we keep the 
information confidential. If you wish to submit any information under a 
claim of confidentiality, you should submit three copies of your 
complete submission, including the information you claim to be 
confidential business information, to the Chief Counsel, Maritime 
Administration, at the address given above under FOR FURTHER 
INFORMATION CONTACT You should mark ``CONFIDENTIAL'' on each page of 
the original document that you would like to keep confidential.
    In addition, you should submit two copies, from which you have 
deleted the claimed confidential business information, to the Docket 
Management Facility at the address given above under ADDRESSES. When 
you send comments containing information claimed to be confidential 
business information, you should also include a cover letter setting 
forth with specificity the basis for any such claim (for example, it is 
exempt from mandatory public disclosure under the Freedom of 
Information Act, 5 U.S.C. 552).
    We will decide whether or not to treat your information as 
confidential. You will be notified in writing of our decision to grant 
or deny confidentiality before the information is publicly disclosed 
and you will be given an opportunity to respond.

How Can I Read the Comments Submitted by Other People?

    You may read the comments received by the Docket Management 
Facility at the address and during the hours provided above under 
ADDRESSES.
    Comments may also be viewed on the Internet. To read the comments 
on the Internet, take the following steps: Go to the Docket Management 
System (``DMS'') Web page of the Department of Transportation (http://dms.dot.gov). On that page, click on ``search.'' On the next page 
(http://dms.dot.gov/search), type in the four-digit docket number shown 
on the first page of this document. The docket number for this NPRM is 
7147. After typing the docket number, click on ``search.'' On the next 
page, which contains docket summary information for the docket you 
selected, click on the desired comments. You may download the comments.

[[Page 18958]]

    Please note that even after the comment closing date, we will 
continue to file relevant information in the Docket as it becomes 
available. Accordingly, we recommend that you periodically check the 
Docket for new material.

Background

    Since 1980, each individual U.S. citizen who enters the USMMA and 
each student at a State maritime academy who receives Federal student 
incentive payments is required pursuant to statute (46 U.S.C. App. 
1295b(e) and 1295c(g)) to sign an agreement committing: (A) To complete 
the course of instruction at the relevant academy, unless the 
individual is separated by such institution; (B) to fulfill the 
requirements for a license as an officer in the merchant marine of the 
United States on or before the date of graduation from the USMMA or, if 
a student incentive payment recipient, to take the examination for a 
license as an officer in the merchant marine of the United States on or 
before the date of graduation and to fulfill the requirements for such 
a license not later than 3 months after the date of graduation from a 
State maritime academy; (C) to maintain a license as an officer in the 
merchant marine of the United States for at least 6 years following the 
date of graduation from the relevant academy; (D) to apply for an 
appointment as, to accept if tendered an appointment as, and to serve 
as a commissioned officer in the United States Naval Reserve (including 
the Merchant Marine Reserve, United States Naval Reserve), the United 
States Coast Guard Reserve, or any other Reserve unit of an armed force 
of the United States, for at least 6 years following the date of 
graduation from the relevant academy; (E) to serve the foreign and 
domestic commerce and the national defense of the United States for at 
least 5 years following the date of graduation from the USMMA or for at 
least 3 years following the date of graduation from a State maritime 
academy; and (F) to report to the Maritime Administrator on the 
compliance by the individual. If the official designated by the 
Maritime Administrator determines that the individual has breached the 
service obligation contract, denies a request for a deferment of the 
service obligation, or denies a request for a waiver of the service 
obligation contract, the individual may seek review of that 
determination(s).
    Currently, review of said determination(s) is by a panel composed 
of a representative of MARAD and representatives from the Department of 
the Navy, the National Oceanographic and Atmospheric Administration, 
and the United States Coast Guard. There is no standing panel and, when 
requested in writing by the individual, the panel must be convened on 
an ad hoc basis. These revisions would remove the panel as the 
reviewing authority and provide for direct appeal to the Maritime 
Administrator, the head of MARAD. These revisions are designed to 
streamline the process of reaching a final agency decision and allow 
for timely review of the decisions of the designated official. It also 
recognizes that the fundamental concerns involved in breach 
determinations and waiver and deferment decisions are central to the 
statutory purposes of the authority and responsibility of MARAD to 
operate the USMMA and administer the program for incentive payments to 
students at State maritime academies. These programmatic concerns do 
not necessarily involve areas of concern to organizations, such as NOAA 
and the United States Coast Guard, currently designated to sit on the 
panel.
    This NPRM is being published with an abbreviated comment period of 
30 days because the proposed amendments are limited to procedural 
changes, affect a relatively small segment of the public, and are not 
technical or complex.

Rulemaking Analyses and Notices

Executive Order 12866 (Regulatory Planning and Review) and DOT 
Regulatory Policies and Procedures

    This rulemaking has been reviewed under Executive Order 12866, and 
it has been determined that this is not a significant regulatory 
action. The rule is not likely to result in an annual effect on the 
economy of $100 million or more. Also, it has been determined to be a 
nonsignificant rule under the Department's Regulatory Policies and 
Procedures (44 FR 11034; February 26, 1979). Because the economic 
impact, if any, should be minimal, further regulatory evaluation is not 
necessary. These amendments are intended only to simplify and clarify 
the procedural requirements for appeals of determinations concerning 
breaches of service obligations, deferments, and waivers.

Federalism

    We analyzed this rulemaking in accordance with the principles and 
criteria contained in E.O. 13132 (``Federalism'') and have determined 
that it does not have sufficient federalism implications to warrant the 
preparation of a federalism summary impact statement. The regulations 
have no substantial effects on the States, or on the current Federal-
State relationship, or on the current distribution of power and 
responsibilities among the various local officials. Therefore, 
consultation with State and local officials was not necessary.

Executive Order 13084

    The Maritime Administration does not believe that the revised 
regulations evolving from this NPRM will significantly or uniquely 
affect the communities of Indian tribal governments when analyzed under 
the principles and criteria contained in Executive Order 13084 
(``Consultation and Coordination with Indian Tribal Governments''). 
Therefore, the funding and consultation requirements of this Executive 
Order would not apply. Nevertheless, this NPRM specifically requests 
comments from affected persons, including Indian tribal governments, as 
to its potential impact.

Regulatory Flexibility Act

    The Maritime Administration certifies that this rulemaking will not 
have a significant economic impact on a substantial number of small 
entities. This NPRM only proposes new procedural rules for students and 
graduates of the USMMA or State maritime academies to appeal 
determinations regarding breaches of service obligations, deferments, 
and waivers.

Environmental Impact Statement

    We have analyzed this NPRM for purposes of compliance with the 
National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and 
have concluded that under the categorical exclusions provision in 
section 4.05 of Maritime Administrative Order (``MAO'') 600-1, 
``Procedures for Considering Environmental Impacts,'' 50 FR 11606 
(March 22, 1985), the preparation of an Environmental Assessment, and 
an Environmental Impact Statement, or a Finding of No Significant 
Impact for this rulemaking is not required. This rulemaking involves 
administrative and procedural regulations that have no environmental 
impact.

Paperwork Reduction Act

    This rulemaking contains no reporting requirement that is subject 
to OMB approval under 5 CFR part 1320, pursuant to the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

[[Page 18959]]

Regulation Identifier Number (RIN)

    The Department of Transportation assigns a regulation identifier 
number (RIN) to each regulatory action listed in the Unified Agenda of 
Federal Regulations. The Regulatory Information Service Center 
publishes the Unified Agenda in April and October of each year. You may 
use the RIN contained in the heading of this document to cross-
reference this action with the Unified Agenda.

Unfunded Mandates Reform Act of 1995

    This proposed rule would not impose an unfunded mandate under the 
Unfunded Mandates Reform Act of 1995. It would not result in costs of 
$100 million or more, in the aggregate, to any of the following: State, 
local, or Native American tribal governments, or the private sector. 
This proposed rule is the least burdensome alternative that achieves 
the objective of the rule.

List of Subjects 46 CFR Part 310

    Grant programs--education, Reporting and recordkeeping 
requirements, Schools, Seamen.
    Accordingly, MARAD proposes to amend 46 CFR Part 310 as follows:

PART 310--MERCHANT MARINE TRAINING

    1. The authority citation for Part 310 continues to read as 
follows:

    Authority: 46 App. U.S.C. 1295; 49 CFR 1.66.

    2. Section 310.7 is amended by revising paragraph (b)(10) heading 
paragraph (b)(10)(ii), paragraph (b)(10)(iii) and adding a new 
paragraph (b)(10)(iv) to read as follows:


Sec. 310.7  Federal student subsistence allowances and student 
incentive payments.

* * * * *
    (b) * * *
    (10) Determination of compliance with service obligation contract; 
deferment; waiver; and appeal procedures.
* * * * *
    (ii)(A) If a student or graduate disagrees with the decision of the 
designated official, the student or graduate may appeal that decision 
to the Maritime Administrator. The appeal shall set forth all the legal 
and factual grounds on which the student or graduate bases the appeal. 
Any grounds not set forth in the appeal are waived.
    (B) Appeals must be filed with the Maritime Administrator within 30 
calendar days of the date of receipt by such student or graduate of the 
written decision of the designated official. Appeals must be filed at 
the Office of the Secretary, Maritime Administration, Room 7210, 400 
7th St., SW., Washington, DC 20590. Each decision will include a notice 
of appeal rights.
    (C) A decision is deemed to be received by a student or graduate 
five (5) working days after the date it is mailed by first class mail, 
postage prepaid, to the address for such student or graduate listed 
with the Office of Maritime Labor, Training, and Safety. It is the 
responsibility of such student or graduate to insure that their current 
mailing address is on file with the Office of Maritime Labor, Training, 
and Safety, Room 7302, 400 7th St., SW., Washington, DC 20590.
    (D) If the appeal is sent by conventional mail (through the United 
States Postal Service), the date of filing is determined by the 
postmark date. If no legible postmark date appears on the mailing, the 
appeal is deemed to be filed five (5) working days before the date of 
its receipt in the Office of the Secretary. If delivered by other than 
the United States Postal Service, an appeal is filed with the Maritime 
Administrator on the date it is physically delivered to the Office of 
the Secretary at the address referenced in paragraph (b)(10)(ii)(B) of 
this section. The date of filing by commercial delivery (not United 
States Postal Service) is the date it is received at the address for 
the Office of the Secretary set forth in paragraph (b)(10)(ii)(B) of 
this section. Appeals may not be submitted by facsimile or by 
electronic mail. Requests for extension of the time to file an appeal 
may be submitted by facsimile or electronic mail to the Office of the 
Secretary. Requests for extension of time do not stop or toll the 
running of the time for filing an appeal. Appeals may only be filed 
after the deadline if the Maritime Administrator or his designee, in 
their sole discretion, grants an extension.
    (E) In computing the number of days, the first day counted is the 
day after the event from which the time period begins to run. If the 
date that ordinarily would be the last day for filing falls on a 
Saturday, Sunday, or Federal holiday, the filing period will include 
the first workday after that date.
    Example to paragraph (b) (10) (ii)(E): If a graduate receives a 
decision on July 1, the 30-day period for filing an appeal starts to 
run on July 2. The appeal would ordinarily be timely only if postmarked 
on or physically delivered by July 31. If July 31 is a Saturday, 
however, the last day for obtaining a postmark by mailing or physical 
delivery would be Monday, August 2.
    (iii) The Maritime Administrator shall issue a written decision for 
each timely appeal. This decision constitutes final agency action.
    (iv) If a student or graduate fails to appeal within the time set 
forth in paragraph (b)(10)(ii) of this section, the decision of the 
designated official shall be final and constitute final agency action.
    3. Section 310.58 is amended by revising paragraph (h) heading, 
paragraphs (h)(2), (h)(3), and (h)(4) to read as follows:


Sec. 310.58  Service obligation for students enrolled after April 1, 
1982.

* * * * *
    (h) Determination of compliance with service obligation contract; 
deferment; waiver; and appeal procedures.
* * * * *
    (2)(i) If a student or graduate disagrees with the decision of the 
designated official, the student or graduate may appeal that decision 
to the Maritime Administrator. The appeal shall set forth all the legal 
and factual grounds on which the student or graduate bases the appeal. 
Any grounds not set forth in the appeal are waived.
    (ii) Appeals must be filed with the Maritime Administrator within 
30 calendar days of the date of receipt by such student or graduate of 
the written decision of the designated official. Appeals must be filed 
at the Office of the Secretary, Maritime Administration, Room 7210, 400 
7th St. SW., Washington, DC 20590. Each decision will include a notice 
of appeal rights.
    (iii) A decision is deemed to be received by a student or graduate 
five (5) working days after the date it is mailed by first class mail, 
postage prepaid, to the address for such student or graduate listed 
with the Office of Maritime Labor, Training, and Safety. It is the 
responsibility of such student or graduate to insure that their current 
mailing address is on file with the Office of Maritime Labor, Training, 
and Safety, Room 7302, 400 7th St., SW., Washington, DC 20590.
    (iv) If the appeal is sent by conventional mail (through the United 
States Postal Service), the date of filing is determined by the 
postmark date. If no legible postmark date appears on the mailing, the 
appeal is deemed to be filed five (5) working days before the date of 
its receipt in the Office of the Secretary. If delivered by other than 
the United States Postal Service, an appeal is filed with the Maritime 
Administrator on the date it is physically delivered to the Office of 
the Secretary at the address referenced in paragraph (h)(2)(ii) of this 
section. The date of filing by commercial delivery (not United States 
Postal Service) is the date it is received

[[Page 18960]]

at the address for the Office of the Secretary set forth in paragraph 
(h)(2)(ii) of this section. Appeals may not be submitted by facsimile 
or by electronic mail. Requests for extension of the time to file an 
appeal may be submitted by facsimile or electronic mail to the Office 
of the Secretary. Requests for extension of time do not stop or toll 
the running of the time for filing an appeal. Appeals may only be filed 
after the deadline if the Maritime Administrator or his designee, in 
their sole discretion, grants an extension.
    (v) In computing the number of days, the first day counted is the 
day after the event from which the time period begins to run. If the 
date that ordinarily would be the last day for filing falls on a 
Saturday, Sunday, or Federal holiday, the filing period will include 
the first workday after that date.
    Example to paragraph (b)(10)(v): If a graduate receives a decision 
on July 1, the 30-day period for filing an appeal starts to run on July 
2. The appeal would ordinarily be timely only if postmarked on or 
physically delivered by July 31. If July 31 is a Saturday, however, the 
last day for obtaining a postmark by mailing or physical delivery would 
be Monday, August 2.
    (3) The Maritime Administrator shall issue a written decision for 
each timely appeal. This decision constitutes final agency action.
    (4) If a student or graduate fails to appeal within the time set 
forth in paragraph (h)(2) of this section, the decision of the 
designated official shall be final and constitute final agency action.

    Dated: April 3, 2000.

    By Order of the Maritime Administrator.
Joel C. Richard,
Secretary, Maritime Administration.
[FR Doc. 00-8614 Filed 4-7-00; 8:45 am]
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