[Federal Register Volume 66, Number 237 (Monday, December 10, 2001)]
[Proposed Rules]
[Pages 63640-63642]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-30480]


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DEPARTMENT OF TRANSPORTATION

Coast Guard

33 CFR Part 1

[USCG-2001-9175]
RIN 2115-AG15


Revised Options for Responding to Notices of Violations

AGENCY: Coast Guard, DOT.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard proposes changing the procedure for Notices of 
Violation when the recipient fails to either accept or decline it 
within 45 days. Instead of automatically converting the Notice of 
Violation to a marine violation case with its lengthier processing and 
potentially higher penalties, we would treat the Notice of Violation as 
a default and proceed with the civil penalty. Our proposal would not 
change the party's existing option to choose marine violation 
processing at any time during the 45-day response period.

DATES: Comments and related material must reach the Docket Management 
Facility on or before February 8, 2002.

ADDRESSES: To make sure that your comments and related material are not 
entered more than once in the docket, please submit them by only one of 
the following means:
    (1) By mail to the Docket Management Facility (USCG-2001-9175), 
U.S. Department of Transportation, room PL-401, 400 Seventh Street SW., 
Washington, DC 20590-0001.
    (2) By delivery to room PL-401 on the Plaza level of the Nassif 
Building, 400 Seventh Street SW., Washington, DC, between 9 a.m. and 5 
p.m., Monday through Friday, except Federal holidays. The telephone 
number is 202-366-9329.
    (3) By fax to the Docket Management Facility at 202-493-2251.
    (4) Electronically through the web site for the Docket Management 
System at http://dms.dot.gov.
    The Docket Management Facility maintains the public docket for this 
rulemaking. Comments and material received from the public, as well as 
documents mentioned in this preamble as being available in the docket, 
will become part of this docket and will be available for inspection or 
copying at room PL-401 on the Plaza level of the Nassif Building, 400 
Seventh Street SW., Washington, DC, between 9 a.m. and 5 p.m., Monday 
through Friday, except Federal holidays. You may also find this docket 
on the Internet at http://dms.dot.gov.

FOR FURTHER INFORMATION CONTACT: If you have questions on this proposed 
rule, call LCDR Scott Budka, Project Manager, Office of Investigations 
& Analysis (G-MOA), Coast Guard, telephone 202-267-2026. If you have 
questions on viewing or submitting material to the docket, call Dorothy 
Beard, Chief, Dockets, Department of Transportation, telephone 202-366-
5149.

SUPPLEMENTARY INFORMATION:

Request for Comments

    We encourage you to participate in this rulemaking by submitting 
comments and related material. If you do so, please include your name 
and address, identify the docket number for this rulemaking (USCG-2001-
9175), indicate the specific section of this document to which each 
comment applies, and give the reason for each comment. You may submit 
your comments and material by mail, hand delivery, fax, or electronic 
means to the Docket Management Facility at the address under ADDRESSES; 
but please submit your comments and material by only one means. If you 
submit them by mail or hand delivery, submit them in an unbound format, 
no larger than 8\1/2\ by 11 inches, suitable for copying and electronic 
filing. If you submit them by mail and would like to know that they 
reached the Facility, please enclose a stamped, self-addressed postcard 
or envelope. We will consider all comments and material received during 
the comment period. We may change this proposed rule in view of them.

[[Page 63641]]

Public Meeting

    We do not plan to hold a public meeting. But you may submit a 
request for one to the Docket Management Facility at the address under 
ADDRESSES explaining why one would be beneficial. If we determine that 
a public meeting would aid this rulemaking, we will hold one at a time 
and place announced by a later notice in the Federal Register.

Background

    Notices of Violation provide an optional simplified civil penalty 
process for first and second minor violations of a law, regulation, or 
order enforced by the Coast Guard. A Notice of Violation (NOV) is like 
a ticket issued for a minor motor vehicle offense.
    Until we started issuing NOVs, the marine violation (MV) procedures 
of 33 CFR 1.07-10 applied to all Coast Guard civil penalty cases. The 
lengthy processing time for MV cases resulted in some parties being 
charged with second or third violations before their first violation 
had been fully processed. We established the NOV procedures in 33 CFR 
1.07-11 in 1994 (59 FR 66477, December 27, 1994).
    NOVs offer both the party and the Coast Guard the benefits of 
speedier processing and a scheduled penalty that is fixed lower than 
the maximum penalty amount for the offense. The NOV form (CG-5582) 
describes the processing options available to the party. NOV recipients 
choose between NOV and MV processing. They have 45 days in which to 
notify the Coast Guard of their choice.
    At present, if you receive an NOV, you can accept it, decline it, 
or take no action on it. If you accept it, you pay the scheduled 
penalty set out on the NOV, which is between $50 and $3,000. In this 
case, Coast Guard records show your case as proved. Declining an NOV is 
like choosing to ``go to court'' over a traffic ticket. Your NOV is 
converted to a MV case and a Coast Guard hearing officer processes the 
case and sets any penalty--up to the maximum $27,500 per offense. If 
you take no action during the 45-day response period, the NOV is 
automatically converted to an MV case, just as if you had declined the 
NOV. Once you decline or fail to take action on an NOV and it is 
converted to an MV case, the scheduled penalty amount on the NOV is no 
longer the maximum penalty for your offense; it is the maximum for an 
MV case, as previously noted.
    Recently, we completed a review of the NOV program. The Coast Guard 
issues about 2300 NOVs each year. About 95% of the parties accept, 4% 
decline, and 1% fail to respond to the NOV issuance within the 45-day 
response period. To improve the program's efficiency, we are proposing 
a change in processing NOVs for which we receive no response. By 
streamlining the process for each ``fail to respond'' NOV that we now 
automatically convert to an MV case, we would expect to save MV 
processing time. Further, the Coast Guard would be able to quickly 
dispense with these cases and alleviate the situation noted earlier, 
where the first case has not finished processing before a second or 
third NOV is issued to the same party.

Discussion of Proposal

    We propose changing the procedure that results when an NOV 
recipient fails to either accept or decline it within 45 days. 
Conversion of an NOV to an MV case costs the Coast Guard about 8 
additional hours of personnel time in processing and reviewing the case 
and also subjects the party to a lengthier adjudication time and 
potentially higher penalty assessments. Instead of automatically 
converting the NOV to an MV case with its lengthier processing and 
potentially higher penalties, we would treat the NOV as a default and 
proceed with the civil penalty on the NOV. Our proposal would not 
change the party's existing option to choose marine violation 
processing at any time during the 45-day response period. However, the 
party would have to specifically request MV processing by marking the 
NOV as declined and returning it to the Coast Guard.

Regulatory Evaluation

    This proposed rule is not a ``significant regulatory action'' under 
section 3(f) of Executive Order 12866, Regulatory Planning and Review, 
and does not require an assessment of potential costs and benefits 
under section 6(a)(3) of that Order. The Office of Management and 
Budget has not reviewed it under that Order. It is not ``significant'' 
under the regulatory policies and procedures of the Department of 
Transportation (DOT) (44 FR 11040, February 26, l979).
    We expect the economic impact of this proposed rule to be so 
minimal that a full Regulatory Evaluation under paragraph 10e of the 
regulatory policies and procedures of DOT is unnecessary.
    This proposed rule would change the Notice of Violation (NOV) 
regulations in 33 CFR 1.07-11. Today, if you fail to respond to your 
NOV by accepting or declining it within 45 days, we convert the NOV to 
a marine violation (MV) case, as if you declined it. MV cases provide 
fuller processing and a higher potential penalty than NOVs ($27,500 
maximum MV penalty per charge while scheduled NOV penalties of $50 to 
$3000 per charge are fixed by COMDTINST M5582). We propose changing the 
procedure that results when you fail to respond. After 45 days we would 
treat the NOV as a default and assess the scheduled penalty.
    The proposed change would affect only those parties who receive an 
NOV and fail to respond to it within the allotted 45 days, about 1% of 
issued NOVs. Currently, of about 2300 NOVs issued each year, 
approximately 95% of the recipients accept, 4% decline, and 1% fail to 
respond. We spend an average of 8 hours per MV case. For each ``fail to 
respond'' NOV we now automatically convert to an MV case, we would save 
some MV processing time by showing the NOV charge as proved. If, 
however, all of these parties declined their NOVs, the Coast Guard 
expenditure of resources would remain the same. The parties who decline 
the NOV would shorten their MV processing time by up to 45 days, 
depending on how quickly they respond to the NOV.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have 
considered whether this proposed rule would have a significant economic 
impact on a substantial number of small entities. The term ``small 
entities'' comprises small businesses, not-for-profit organizations 
that are independently owned and operated and are not dominant in their 
fields, and governmental jurisdictions with populations of less than 
50,000.
    The proposed rule would not change the choice (accept or decline 
the NOV option) currently required by 33 CFR section 1.07-11. The only 
change proposed is in the handling we provide, by default, to those 
parties who fail to make their choice within the 45 days allotted. 
Therefore, the Coast Guard certifies under 5 U.S.C. 605(b) that this 
proposed rule would not have a significant economic impact on a 
substantial number of small entities. If you think that your business, 
organization, or governmental jurisdiction qualifies as a small entity 
and that this rule would have a significant economic impact on it, 
please submit a comment to the Docket Management Facility at the 
address under ADDRESSES. In your comment, explain why you think it 
qualifies and how and to what degree this rule would economically 
affect it.

[[Page 63642]]

Collection of Information

    This proposed rule would call for no new collection of information 
under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

Federalism

    A rule has implications for federalism under Executive Order 13132, 
Federalism, if it has a substantial direct effect on State or local 
governments and would either preempt State law or impose a substantial 
direct cost of compliance on them. We have analyzed this proposed rule 
under that Order and have determined that it does not have implications 
for federalism.

Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) 
requires Federal agencies to assess the effects of their discretionary 
regulatory actions. In particular, the Act addresses actions that may 
result in the expenditure by a State, local, or tribal government, in 
the aggregate, or by the private sector of $100,000,000 or more in any 
one year. Though this proposed rule would not result in such an 
expenditure, we do discuss the effects of this rule elsewhere in this 
preamble.

Taking of Private Property

    This proposed rule would not effect a taking of private property or 
otherwise have taking implications under Executive Order 12630, 
Governmental Actions and Interference with Constitutionally Protected 
Property Rights.

Civil Justice Reform

    This proposed rule meets applicable standards in sections 3(a) and 
3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize 
litigation, eliminate ambiguity, and reduce burden.

Protection of Children

    We have analyzed this proposed rule under Executive Order 13045, 
Protection of Children from Environmental Health Risks and Safety 
Risks. This rule is not an economically significant rule and would not 
create an environmental risk to health or risk to safety that might 
disproportionately affect children.

Indian Tribal Governments

    This proposed rule does not have tribal implications under 
Executive Order 13175, Consultation and Coordination with Indian Tribal 
Governments, because it would not have a substantial direct effect on 
one or more Indian tribes, on the relationship between the Federal 
Government and Indian tribes, or on the distribution of power and 
responsibilities between the Federal Government and Indian tribes.

Energy Effects

    We have analyzed this proposed rule under Executive Order 13211, 
Actions Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. We have determined that it is not a ``significant 
energy action'' under that order because it is not a ``significant 
regulatory action'' under Executive Order 12866 and is not likely to 
have a significant adverse effect on the supply, distribution, or use 
of energy. It has not been designated by the Administrator of the 
Office of Information and Regulatory Affairs as a significant energy 
action. Therefore, it does not require a Statement of Energy Effects 
under Executive Order 13211.

Environment

    We have considered the environmental impact of this proposed rule 
and concluded that, under figure 2-1, paragraph (34)(a) of Commandant 
Instruction M16475.lD, this rule is categorically excluded from further 
environmental documentation. The changes proposed here are procedural 
and serve to update and streamline the Coast Guard's processing of 
NOVs. A ``Categorical Exclusion Determination'' is available in the 
docket where indicated under ADDRESSES.

List of Subjects in 33 CFR Part 1

    Administrative practice and procedure, Authority delegations 
(Government agencies), Freedom of information, Penalties.

    For the reasons discussed in the preamble, the Coast Guard proposes 
to amend 33 CFR part 1 as follows:

PART 1--GENERAL PROVISIONS

Subpart 1.07--Enforcement; Civil and Criminal Penalty Proceedings

    1. The authority citation for subpart 1.07 continues to read as 
follows:

    Authority: 14 U.S.C. 633; Sec. 6079(d), Pub. L. 100-690, 102 
Stat. 4181; 49 CFR 1.46.

    2. In Sec. 1.07-11, a new paragraph (b)(7) is added, paragraph (d) 
is revised, and paragraphs (e) and (f) are added, as follows:


Sec. 1.07-11  Notice of Violation.

* * * * *
    (b) * * *
    (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).
* * * * *
    (d) If a party declines a 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 a party fails within 45 days to either pay the proposed 
penalty on the Notice of Violation or 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).

    Dated: November 5, 2001.
Paul J. Pluta,
Rear Admiral, U.S. Coast Guard, Assistant Commandant for Marine Safety 
and Environmental Protection.
[FR Doc. 01-30480 Filed 12-7-01; 8:45 am]
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