[Federal Register Volume 65, Number 124 (Tuesday, June 27, 2000)]
[Rules and Regulations]
[Pages 39556-39559]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-15852]


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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: Final rule.

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SUMMARY: The Maritime Administration (MARAD) is publishing this final 
rule regarding 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. The previous 
regulations called for review by a panel composed of a representative 
of MARAD and representatives from the Department of the Navy, the 
National Oceanic and Atmospheric Administration (NOAA), and the United 
States Coast Guard. These 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:  The effective date of this final rule is July 27, 2000.

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:

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

[[Page 39557]]

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).
    Previously, review of said determination(s) was to be made by a 
panel composed of a representative of MARAD and representatives from 
the Department of the Navy, the National Oceanic and Atmospheric 
Administration, and the United States Coast Guard. There was no 
standing panel and, when requested in writing by the individual, the 
panel was to 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.

Notice of Proposed Rulemaking (NPRM)

    We published an NPRM on April 10, 2000 (65 FR 18957) providing the 
public with notice and an opportunity to comment on the proposed 
changes to the review and appeals process. We received no comments and 
are promulgating these final rules as proposed.

Rulemaking Analyses and Notices

Executive Order 12866 and DOT Regulatory Policies and Procedures

    This final rule has been reviewed under Executive Order 12866, and 
it has been determined that this is not a significant regulatory 
action. This final rule is not likely to result in an annual effect on 
the economy of $100 million or more.
    This final rule is also not significant under the Regulatory 
Policies and Procedures of the Department of Transportation (44 FR 
11034; February 26, 1979). The costs and benefits associated with this 
rulemaking are considered to be so minimal that no further analysis is 
necessary. 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 final rule 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. These 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 this final rule 
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. No comments were 
received from affected persons, including Indian tribal governments, as 
to its potential impact.

Regulatory Flexibility Act

    The Maritime Administration certifies that this final rule will not 
have a significant economic impact on a substantial number of small 
entities. This final rule only sets forth 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 final rule 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 final rule is not required. This final rule involves 
administrative and procedural regulations that have no environmental 
impact.

Unfunded Mandates Reform Act of 1995

    This final rule does not impose an unfunded mandate under the 
Unfunded Mandates Reform Act of 1995. It does 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 final rule is the least burdensome alternative that achieves the 
objective of the rule.

Paperwork Reduction Act

    This final rule contains information collection requirements 
covered by OMB approval number 2133-0150, under 5 CFR part 1320, 
pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et 
seq.).

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. The RIN 
number is contained in the heading of this document to cross-reference 
this action with the Unified Agenda.

List of Subjects in 46 CFR Part 310

    Grant programs--education, Reporting and recordkeeping 
requirements, Schools, Seamen.

    Accordingly, MARAD hereby amends 46 CFR part 310 as follows:

[[Page 39558]]

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 must 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 ensure 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 will 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 will 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 will 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 ensure 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 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.


[[Page 39559]]


    (3) The Maritime Administrator will 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 will be final and constitute final agency action.

    Dated: June 19, 2000.

    By Order of the Maritime Administrator.
Joel C. Richard,
Secretary, Maritime Administration.
[FR Doc. 00-15852 Filed 6-26-00; 8:45 am]
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