[Federal Register Volume 69, Number 162 (Monday, August 23, 2004)]
[Rules and Regulations]
[Pages 51769-51774]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-18861]


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DEPARTMENT OF TRANSPORTATION

Maritime Administration

46 CFR Part 388

[Docket No. MARAD-2003-15030]
RIN 2133-AB49


Administrative Waivers of the Coastwise Trade Laws for Eligible 
Vessels

AGENCY: Maritime Administration, DOT.

ACTION: Final rule.

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SUMMARY: The Maritime Administration (MARAD, or we, our or us) is 
publishing this final rule to implement the changes of the Maritime 
Transportation Security Act of 2002. This final rule implements 
regulations to waive the U.S.-build requirements of the Passenger 
Vessel Services Act and section 27 of the Merchant Marine Act, 1920, 
for eligible vessels to be documented with appropriate endorsement for 
employment in the coastwise trade as small passenger vessels or 
uninspected passenger vessels authorized to carry no more than 12 
passengers for hire. This final rule also brings the application 
procedure into compliance with the Government Paperwork Elimination 
Act, which requires that by October 21, 2003, the government must 
provide ``the option of electronic maintenance, submission, or 
disclosure of information when practicable as a substitute for paper.''

DATES: The effective date of this final rule is September 22, 2004.

FOR FURTHER INFORMATION CONTACT: Michael Hokana, Office of Ports and 
Domestic Shipping, Maritime Administration, MAR-830, Room 7201, 400 
Seventh St., SW., Washington, DC 20590; telephone: (202) 366-0760.

SUPPLEMENTARY INFORMATION: Public Law 105-383, which authorized the 
Secretary of Transportation to grant waivers of certain requirements 
for the smallest of passenger vessels (those carrying 12 or fewer 
passengers) to operate in the coastwise trade, contained a sunset 
provision effective September 30, 2002. The Maritime Transportation 
Security Act of 2002, section 207(c), Public Law 107-295 (the Act), 
removed the sunset provision and added anti-fraud revocation authority.
    Between January 2000 and September 2002, MARAD utilized regulations 
published at 46 CFR part 388 to accept applications from the public and 
to provide public notice of the intent to issue waivers to foreign 
built vessels for use in the coastwise passenger trade (See Federal 
Register notice at 65 FR 6905) (February 11, 2000). However, the 
regulation also contained the sunset included in the enabling 
legislation. The application process required a $300 non-refundable 
fee, an ``adverse affect'' assessment on the U.S.-flag shipping and 
vessel building community, and a requirement that the vessel meet U.S. 
Coast Guard documentation standards. Waivers approved by MARAD, which 
set limits on vessel's geographic use and required that all significant 
changes be conducted with MARAD's prior approval, became a permanent 
part of the vessel's coastwise endorsement. As required by the original 
enabling legislation and the implementing regulations, MARAD granted no 
waivers after September 30, 2002.
    The Act signed by President Bush on November 25, 2002, repealed the 
September 30, 2002, sunset provision contained in section 505 of the 
Coast Guard Authorization Act of 1998 (Pub. L. 105-383). The Act also 
substitutes a new section 503, which requires the Secretary to revoke 
``a certificate or an endorsement issued under section 502, after 
notice and opportunity for a hearing, if the Secretary determines that 
the certificate or endorsement was obtained by fraud.'' This section 
changes and supersedes the circumstances under which a waiver can be 
revoked. This final rule implements these two legislative changes.
    This final rule also makes several administrative changes designed 
to simplify the application process. Under the simplified process, 
applicants are encouraged to apply online. The application is available 
on the MARAD Web site at http://www.marad.dot.gov

[[Page 51770]]

and includes the ability to charge the application fee to a major 
credit card.
    MARAD initially published this rule in the Federal Register on 
April 30, 2003, as an interim final rule with request for comments. 
Comments on the interim final rule were due by May 30, 2003, and one 
set of comments was timely filed.
    Program Description: Two agencies have responsibilities related to 
the coastwise trade laws: the Coast Guard, which issues the vessel 
documents and endorsements that authorize vessels to engage in the 
coastwise trade; and the Maritime Administration, by delegation from 
the Secretary of Transportation, which has the authority to process 
applications for waivers of the coastwise laws and to grant such 
waivers if they do not adversely affect United States vessel builders 
or United States-built vessel coastwise trade businesses. In this 
rulemaking, MARAD is providing the procedures to be followed in 
processing applications for waivers, or revoking waivers previously 
granted. Upon grant of a waiver, MARAD will notify the applicant and 
the Coast Guard. Thereafter, you may register the vessel so waived with 
the Coast Guard under the Coast Guard's normal procedures, provided the 
vessel is otherwise eligible.
    Vessels eligible for a waiver of the coastwise trade laws will be 
limited to foreign-built or foreign rebuilt small passenger vessels and 
uninspected passenger vessels as defined by section 2101 of title 46, 
United States Code. Vessels of unknown origin are considered to be 
foreign built. Additionally, vessels requested for consideration must 
be at least three (3) years old. MARAD will not grant waivers in 
instances where such waiver activity will have an unduly harmful impact 
on U.S. shipyards or U.S.-flag ship operators. In order to meet the 
public comment provisions of title V of Public Law 105-383, MARAD will 
give notice of applications in the Federal Register and will provide 
the appropriate references to the DOT Dockets where applications are 
filed for public reference and where comments may be submitted. After a 
period of time to analyze comments and to assess the impact that a 
proposed waiver will have on the U.S.-flag shipping and shipbuilding 
industries, MARAD will issue a determination.
    MARAD does not have the authority to waive citizenship requirements 
for vessel ownership and documentation. The Coast Guard will ascertain 
whether the shipowner is qualified as a citizen to register a vessel. 
In addition, the Coast Guard, not MARAD, will determine whether a 
particular vessel will be considered a small passenger vessel or an 
uninspected passenger vessel. However, we may refuse to process an 
application if the vessel is not the type eligible for a waiver. 
Prospective applicants for a coastwise trade law waiver may wish to 
consult with the Coast Guard in order to make a determination regarding 
the vessel's status prior to initiating the waiver application process 
with MARAD.
    Under title V, section 503 previously contained authority to revoke 
coastwise endorsements under the limited circumstances where a foreign-
built or foreign-rebuilt passenger vessel, that had been allowed into 
service, substantially changed that service. The Act amended section 
503 to provide fraud in the application process as the basis to revoke 
an endorsement. MARAD's procedure for revocation of a waiver will not 
change significantly. Procedures will still include the publication of 
a notice in the Federal Register seeking public comments on the 
proposed revocation. A hearing will be provided, on MARAD's motion or 
at the applicant's request, prior to making a determination. If MARAD 
determines that the endorsement was obtained by fraud, MARAD will issue 
a formal letter of waiver revocation with an appropriate grace period. 
This determination will be sent to the Coast Guard for revocation of 
the vessel's coastwise endorsement.
    MARAD's decisions to grant or deny a waiver and to revoke or not 
revoke a waiver are appealable to the Maritime Administrator and are 
final only on expiration of the time period for these petitions, or, 
where the Administrator grants review, upon the Administrator's final 
decision.

Comments on the Interim Final Rule

    One letter commenting on the interim final rule was received. The 
comments were submitted by counsel for The Boat Company, an owner of 
U.S.-built vessels and a Southeastern Alaskan charter operator. Review 
and consideration of the opinions and recommended changes set forth in 
the comments follows.
    The first comment criticizes MARAD's application of sections 
388.4(b) and (c) of title 46, Code of Federal Regulations, in prior 
waiver application determinations. The Boat Company argues that MARAD 
should not grant applications in cases where applicants describe their 
intended area of operation too broadly (e.g., where waiver is sought 
for ``all navigable waterways of'' or ``all coastal waters of the 
United States''). The Boat Company believes that applicants cannot 
attest that grant of a requested waiver will not adversely affect U.S.-
hull vessel owners or boat builders if the area described in the waiver 
is too broad. Further, The Boat Company argues, abstractly, that broad 
waivers defeat the intent of the Act and reasonable public notice 
requirements.
    Despite The Boat Company's criticism as to how MARAD applies 
sections 388.4(b) and (c), it did not provide, suggest, or request that 
any changes be made to either section. Since MARAD believes that 
sections 388.4(b) and (c) provide sufficiently clear standards 
regarding geographic regions (i.e., ``the same geographic region'' in 
388.4(b); ``the same geographic area'' in 388.4(c)(1); and ``the same 
market'' in 388.4(c)(2)), MARAD declines to change these sections on 
its own motion. As changes to MARAD's rules were neither proposed nor 
requested, no further action on the part of MARAD is required with 
regard to this input in the context of this rulemaking.
    MARAD notes that criticisms such as those above underscore the 
reason why MARAD publishes all waiver applications in the Federal 
Register and solicits public comment thereon. This notice and comment 
mechanism provides an avenue whereby concerned parties may raise 
objections to applications, including such things as the breadth of 
waivers and other fact-specific issues. MARAD encourages parties with 
concerns regarding specific applications to file comments so that MARAD 
may address such issues on a case by case basis.
    Finally, MARAD fails to see how a broad waiver application negates 
or diminishes the adequacy of public notice provided in the Federal 
Register. Simply stated, companies that are concerned that a specific 
waiver application may have an undue adverse effect on them are 
encouraged to file comments on the waiver request. If such companies 
are uncertain as to whether or not a specific waiver application 
encompasses regions in which they conduct business, MARAD encourages 
them to file comments so that MARAD may consider and address, where 
appropriate, any ambiguities or uncertainties.
    The second comment by The Boat Company concerns the word ``unduly'' 
in section 388.4(a). Counsel for The Boat Company suggests that MARAD's 
inclusion of the word ``unduly'' in our regulations was ``tantamount to 
an agency rewriting legislation.'' The Boat Company argues that there 
is no evidence of congressional intent or authority to include such 
language, and that it creates a standard not called for

[[Page 51771]]

in the legislation. MARAD disagrees for several reasons.
    Public Law 105-383, title V, sections 501 and 502 specifically 
delegated authority to the Secretary of Transportation to review and 
approve waiver applications, (which was in turn delegated to MARAD). 
Sections 501 and 502 provide that MARAD, in its discretion, may approve 
waiver applications if it ``determine(s) that the employment of the 
vessel in the coastwise trade will not adversely affect'' United States 
vessel builders or United States-built vessel coastwise trade 
businesses. The statute did not provide any specific standards MARAD 
should apply in making such determinations, nor did it define ``adverse 
affect.'' Instead, Congress deferred to MARAD's ``appropriate 
expertise'' and discretion in exercising its delegated authority to 
review and approve waiver applications.
    To carry out its delegated duties, MARAD drafted implementing 
regulations to provide standards used to evaluate waiver applications. 
As part of its evaluation standards, MARAD included ``unduly'' in its 
regulations in response to section 501(3) of Public Law 105-383. In 
section 501(3), Congress made its intent clear that most waiver 
applications should be granted, by providing ``each Congress routinely 
approves numerous such requests for waiver and rarely rejects any such 
request'' (emphasis added). To advance this congressional intent, and 
thereby insure that applications are infrequently denied, MARAD 
included the word ``unduly'' in section 388.4 to prevent meritless 
challenges to applications based on frivolous, trivial, or 
insubstantial showings of ``adverse affect.''
    MARAD believes that its interpretation of ``adverse affect,'' read 
in light of the statute as a whole, is a reasonable and permissible 
interpretation under Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837, 
842 (1984) (``Chevron''). Applying Chevron, agencies are confronted 
with two questions regarding their interpretation of congressional 
language. The first question is ``whether Congress has directly spoken 
to the precise question at issue (Id. at 842) (``Chevron step one''). 
To find no ambiguity, Congress must have clearly manifested its 
intention with respect to a particular issue (See Young v. Community 
Nutrition Institute, 476 U.S. 974, 980 (1986)). If Congress has spoken 
directly and plainly, the agency must implement Congress' unambiguously 
expressed intent (Chevron, 467 U.S. at 842-843). If, however, 
legislation is silent or ambiguous as to the meaning of a term, an 
agency may elucidate the term in a reasonable fashion (``Chevron step 
two''); (Chevron, 467 U.S. at 842-843; FDA v. Brown & Williamson 
Tobacco Corp., 529 U.S. 120, 132 (2000)). Since the term ``adverse 
affect'' was not defined by Congress, and is ambiguous as to what kind 
(e.g., tangible or intangible, monetary or non-monetary) or what degree 
of ``adverse affect'' would warrant denial of a wavier application, 
MARAD may elucidate the term, under Chevron, in a reasonable and 
permissible fashion. It did so by adding ``unduly'' to modify ``adverse 
affect.''
    Without the addition of ``unduly,'' ``adverse affect,'' if strictly 
interpreted, could produce absurd results. For instance, MARAD could 
not grant a waiver application if granting it would reduce a competing 
company's revenue by one dollar per year. Such a strict reading of 
``adverse affect'' would clearly frustrate Congress' intent, as it 
could potentially lead to the denial of most or all waiver applications 
by a showing of minimal adversity, or, in our example, the loss of one 
dollar per annum. Thus, MARAD, in its discretion, adopted a reasonable 
standard in interpreting ``adverse affect'' in order to carry out its 
delegated duties and to effectuate the intent of Congress. MARAD's now 
extensive experience with the implementation of the Small Vessel Waiver 
Program has found this standard to be both reasonable and practicable. 
Accordingly, MARAD declines to delete the term ``unduly'' from this 
final rule.
    The third and final comment asks MARAD to summarily eliminate the 
Southeast Alaska region as an area eligible for waivers. The Boat 
Company argues that since we have denied waivers in this region in the 
past, as we did in the Caledonia decision, (Docket No. MARAD 2001-8932-
16) we should codify this result and deny even the possibility of 
future waivers to applicants in this region. MARAD declines to 
implement this suggestion, finding instead that a case basis approach 
is required, should regional market conditions or other variables 
change in the future that may warrant a reassessment of the Southeast 
Alaska region as an area eligible for waivers.

Rulemaking Analyses and Notices

Executive Order 12866 and DOT Regulatory Policies and Procedures

    This final rule is not significant under section 3(f) of Executive 
Order 12866, and as a consequence, OMB did not review the rule. This 
final rule is also not significant under the Regulatory Policies and 
Procedures of the Department of Transportation (44 FR 11034; February 
26, 1979). It is also not considered a major rule for purposes of 
congressional review under Public Law 104-121. The costs and overall 
economic impact of this rulemaking are so minimal that no further 
analysis is necessary. Vessels eligible for a waiver of the coastwise 
trade laws will be limited to foreign built or foreign re-built small 
passenger vessels and uninspected passenger vessels as defined by 
section 2101 of title 46, United States Code. Additionally, vessels 
requested for consideration must be greater than three years old. We 
will not grant waivers in instances where such waiver activity will 
have an unduly adverse effect on U.S. vessel builders or U.S. 
businesses that use U.S. flag vessels. Under title V, MARAD also has 
the authority to revoke coastwise endorsements under the limited 
circumstances where a foreign-built or foreign-rebuilt passenger 
vessel, previously allowed into service, is deemed to have obtained 
such endorsement through fraud.

Executive Order 13132

    We analyzed this rulemaking in accordance with the principles and 
criteria contained in Executive Order 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 herein have no substantial effects on the States, the 
current Federal-State relationship, or the current distribution of 
power and responsibilities among local officials. Therefore, MARAD did 
not consult with State and local officials because it was not 
necessary.

Regulatory Flexibility Act

    The Regulatory Flexibility Act requires MARAD to assess the impact 
that regulations will have on small entities. After analysis of this 
final rule, MARAD certifies that this final rule will not have a 
significant economic impact on a substantial number of small 
businesses. Although we expect many applicants for vessel waivers to be 
small businesses, we do not believe that the economic impact will be 
significant. This regulation allows MARAD to waive the U.S.-build and 
other requirements for eligible vessels and adds a small economic 
benefit to applicants. This regulation will only allow vessels to carry 
the statutory maximum of 12 passengers. As a consequence, MARAD 
estimates that a vessel owner who

[[Page 51772]]

receives a waiver may earn a few hundred dollars per year for localized 
operations (geographic restrictions apply) such as whale watching and 
personalized fishing expeditions. Also, the economic impact of this 
rule is limited because it precludes vessel owners from participating 
in other economic activities such as carrying cargo and commercial 
fishing.

Environmental Assessment

    This rule would not significantly affect the environment because 
the small number and small size of vessels admitted to U.S. registry 
under this waiver program will have little or no effect on the 
environment. Accordingly, an Environmental Impact Statement is not 
required under the National Environmental Policy Act of 1969.

Paperwork Reduction Act

    This final rule reactivates a requirement for the collection of 
information that was used before the sunset provision contained in the 
Coast Guard Authorization Act of 1998 ended the authority to grant 
waivers. The Office of Management and Budget (OMB) has reviewed and 
approved the information collection requirements under the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501, et seq.). The OMB approval 
number is 2133-0529.

Unfunded Mandates Reform Act

    This final rule does not impose unfunded mandates under the 
Unfunded Mandates Reform Act of 1995. It does not result in costs of 
$100 million or more to either State, local, or tribal governments, in 
the aggregate, or to the private sector, and is the least burdensome 
alternative that achieves this objective of U.S. policy.

Executive Order 13175

    MARAD believes that regulations evolving from this final rule will 
have no significant or unique effect on the communities of Indian 
tribal governments when analyzed under the principles and criteria 
contained in Executive Order 13175 (Consultation and Coordination with 
Indian Tribal Governments). Therefore, the funding and consultation 
requirements of this Executive Order do not apply.

Regulation Identifier Number (RIN)

    A regulation identifier number (RIN) is assigned 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 contained in the heading of 
this document can be used to cross-reference this action with the 
Unified Agenda.

List of Subjects in 46 CFR Part 388

    Administrative practice and procedure, Maritime carriers, Passenger 
vessels, Reporting and recordkeeping requirements.


0
Accordingly, the Maritime Administration amends 46 CFR chapter II, 
subchapter J, by revising part 388 to read as follows:

PART 388--ADMINISTRATIVE WAIVERS OF THE COASTWISE TRADE LAWS

Sec.
388.1 Purpose.
388.2 Definitions.
388.3 Application and fee.
388.4 Criteria for grant of a waiver.
388.5 Criteria for revocation of a waiver.
388.6 Process.

    Authority: 46 App. U.S.C. 1114(b); Pub. L. 105-383, 112 Stat. 
3445 (46 U.S.C. 12106 note): 49 CFR 1.66.


Sec.  388.1  Purpose.

    This part prescribes regulations implementing the provisions of 
Title V of Public Law 105-383 (112 Stat. 3445), which grants the 
Secretary authority to review and approve applications for waiver of 
the coastwise trade laws to allow the carriage of no more than twelve 
passengers for hire on vessels, which are three years old or more, 
built or rebuilt outside the United States, and grants authority for 
revocation of those waivers.


Sec.  388.2  Definitions.

    For the purposes of this part:
    (a) Administrator means the Maritime Administrator.
    (b) Coastwise Trade Laws include:
    (1) The Coastwise Endorsement Provision of the Vessel Documentation 
Laws, (46 U.S.C. 12106);
    (2) The Passenger Services Act, section 8 of the Act of June 19, 
1886 (46 App. U.S.C. 289); and
    (3) The Jones Act, section 27 of the Merchant Marine Act, 1920 (46 
App. U.S.C. 883).
    (c) Eligible Vessel means a vessel of five or more tons that is 
either a small passenger vessel or an uninspected passenger vessel 
that--
    (1) Was not built in the United States and is at least 3 years of 
age; or
    (2) If rebuilt, was rebuilt outside the United States at least 3 
years before the certificate of documentation with appropriate 
endorsement if granted, would become effective.
    (d) MARAD means the Maritime Administration, U.S. Department of 
Transportation.
    (e) Secretary means the Secretary of Transportation.
    (f) The terms small passenger vessel, uninspected passenger vessel 
and passenger for hire have the meaning given such terms by 46 U.S.C. 
2101.
    (g) Fraud means the intentional misrepresentation of a material 
fact or facts.


Sec.  388.3  Application and fee.

    (a) An owner of a vessel may choose either of two methods to apply 
for an administrative waiver of the coastwise trade laws of the United 
States for an eligible vessel to carry no more than twelve passengers 
for hire.
    (1) The application form contained on MARAD's Web site at http://www.marad.dot.gov may be submitted electronically with credit card or 
Automated Clearinghouse (ACH) payment of the $300 application fee.
    (2) Alternatively, applicants may send written applications to 
Small Vessel Waiver Applications, Office of Ports and Domestic 
Shipping, MAR-830, Room 7201, 400 7th St., SW., Washington, DC 20590. 
Written applications need not be in any particular format, but must be 
signed, be accompanied by a check for $300 made out to the order of 
``Maritime Administration'', and contain the following information:
    (i) Name of vessel and owner for which waiver is requested and the 
vessel's official number.
    (ii) Size, capacity and tonnage of vessel (state whether tonnage is 
measured pursuant to 46 U.S.C. 14502, or otherwise, and if otherwise, 
how measured).
    (iii) Intended use for vessel, including geographic region of 
intended operation and trade.
    (iv) Date and place of construction and (if applicable) rebuilding. 
(If applicant is unable to document the origin of the vessel, foreign 
construction will be assumed).
    (v) Name, address, and telephone number of the vessel owner.
    (vi) A statement on the impact this waiver will have on other 
commercial passenger vessel operators, including a statement describing 
the operations of existing operators.
    (vii) A statement on the impact this waiver will have on U.S. 
shipyards.
    (viii) A statement that the applicant represents that the foregoing 
information is true to the best of the applicant's knowledge.
    (b) MARAD may ask additional questions of the applicant as part of 
the application review.


Sec.  388.4  Criteria for grant of a waiver.

    (a) General Criteria. (1) A waiver of the foreign build and/or 
foreign rebuild prohibition in the coastwise trade laws

[[Page 51773]]

will be granted for an eligible vessel only if we determine that the 
employment of the vessel in the coastwise trade will not unduly 
adversely affect--
    (i) United States vessel builders; or
    (ii) The coastwise trade business of any person who employs vessels 
built in the United States in that business.
    (2) The determination of ``unduly adverse affect'' on a coastwise 
operator or a U.S. vessel builder may not be limited to operators or 
builders of vessels carrying 12 or fewer passengers.
    (3) We may evaluate the expected impact of the proposed waiver on 
the basis of the information received from all sources, including 
public comment, internal investigation and analysis, and any other 
sources of information deemed appropriate.
    (b) Impact on U.S. vessel builders. We may use the following 
criteria to determine the effect on U.S. vessel builders: Whether a 
potentially affected U.S. vessel builder has a history of construction 
of similar vessels, or can demonstrate the capability and capacity and 
the fact it has taken definite steps to offer to build a similar 
vessel, for use in the same geographic region of the United States, as 
the proposed vessel of the applicant.
    (c) Impact on coastwise trade business. We may use the following 
criteria to determine the effect on existing operators of U.S.-built 
vessels in coastwise trade:
    (1) Whether the proposed vessel of the applicant and a vessel of an 
existing operator (or the vessel of an operator that can demonstrate it 
has taken definite steps to begin operation) would provide similar 
commercial service and would operate in the same geographic area.
    (2) The number of similar vessels operating or proposed to operate 
in the same market with the same or similar itinerary, relative to the 
size of the market. For example, a single vessel may have a small 
impact on a large market.
    (d) Advance notice and approval needed for changes. When we approve 
a waiver application, we will notify the applicant that no substantial 
change in the employment of the vessel in the coastwise trade may be 
made without prior notice to MARAD. In general, a substantial change in 
operating area will require a new waiver application.


Sec.  388.5  Criteria for revocation of a waiver.

    We shall revoke a waiver previously granted under this part if we 
determine, after notice and opportunity for a hearing, that fraud was 
involved in any part of the waiver application.


Sec.  388.6  Process.

    (a) Initial process. (1) We will review each application for 
completeness as received. We will notify the applicant if additional 
information is necessary or if the application does not meet the 
initial eligibility requirements for waiver. All applications will be 
available for public inspection electronically in the Department of 
Transportation Docket at http://dot.dms.gov.
    (2) Applications being processed on the merits will be noticed in 
the Federal Register. Interested parties will be given an opportunity 
to comment on whether introduction of any proposed vessel would 
adversely affect them. In the absence of duly filed objections to an 
application, and in the absence of unduly adverse impact on vessel 
builders or businesses employing U.S.-built vessels otherwise 
discovered by us, we will conclude that there will be no adverse 
effect. If an objection to an application is received, additional 
information may be sought from the objector. The applicant will be 
given a sufficient amount of time to respond. The Director, Office of 
Ports and Domestic Shipping, will then either make a decision based on 
the written submissions and all available information or, on MARAD's 
motion or at the applicant's request, hold a hearing on the application 
and make a decision based on the hearing record. The decision will be 
communicated to the applicant, commenters and the United States Coast 
Guard in writing and placed in the docket. If MARAD grants a waiver, 
the applicant must thereafter contact the Coast Guard to obtain the 
necessary documentation for domestic operation. MARAD's waiver does not 
satisfy other requirements of the Coast Guard for documentation. The 
waiver, if approved, will be assigned to the vessel.
    (b) Revocation. We may, upon the request of a U.S. builder or a 
coastwise trade business of a person who employs U.S.-built vessels or 
upon our own initiative propose to revoke a waiver granted under this 
part, on the basis that the waiver was obtained through fraud. The 
grantee of the waiver in question will be notified directly by mail, 
and a notice will be published in the Federal Register. The original 
docket of the application will be reopened. We may request additional 
information from the applicant granted the waiver or from any 
respondent to the notice. The Director, Office of Ports and Domestic 
Shipping, will then either make a decision based on the written 
submissions and all available information or, on MARAD's motion or at 
the applicant's request, hold a hearing on the proposed revocation and 
make a decision based on the hearing record. The decision will be 
communicated in writing to: the applicant granted the waiver, the 
requestor (if any), each respondent to the proposed revocation notice, 
the Coast Guard; and placed in the docket. If MARAD revokes a waiver, 
the Coast Guard, automatically and without further proceedings, shall 
revoke the vessel's coastwise endorsement.
    (c) Review of determinations. (1) The decisions by the Director, 
Office of Ports and Domestic Shipping, to grant a waiver, deny a 
waiver, or revoke a waiver will not be final until time for 
discretionary review by the Administrator has expired. Each decision to 
grant, deny, or revoke a waiver will be made in writing and a copy of 
the written decision will be provided to each applicant and other 
parties to the decision. Applicants, persons who requested revocation 
of a waiver, and persons who submitted comments in response to a 
Federal Register notice may petition the Administrator to review a 
decision by the Director, Office of Ports and Domestic Shipping, to 
grant a waiver, deny a waiver, or revoke a waiver within five (5) 
business days after such decision is filed in the docket. Each petition 
for review should state the petitioner's standing and the reasons 
review is being sought, clearly pointing out alleged errors of fact or 
misapplied points of law. Within five (5) business days of submission 
of a petition for review, the applicant, and other persons with 
standing, may request that the Administrator not review a decision by 
the Director, Office of Ports and Domestic Shipping, to grant, deny, or 
revoke a waiver. Such petitions and responses must either be sent by 
facsimile to the Secretary, Maritime Administration, at (202) 366-9206 
or filed electronically in the appropriate DOT docket at http://dms.dot.gov. The Administrator will decide whether to review within 
five (5) business days following the last day for submission of a 
request that the Administrator not take review. If the Administrator 
undertakes review, the decision by the Director, Office of Ports and 
Domestic Shipping, is stayed until final disposition. In the event the 
Administrator decides to undertake review, a decision will be made 
based on the written submissions and all available information. As a 
matter of discretion, the Administrator or designated representative 
may hold a hearing on the proposed action and make a decision based on 
the hearing record. The decision will be

[[Page 51774]]

communicated in writing to the interested parties and the Coast Guard. 
In the review process, the decision of the Maritime Administrator is 
the final disposition. In the absence of any petition for review, the 
determination by the Director, Office of Ports and Domestic Shipping, 
becomes final on the sixth business day after the decision. The 
Secretary, MARAD, may extend any of the time limits, but only for good 
cause shown.
    (2) Such petitions and responses must either be sent by facsimile 
to the Secretary, Maritime Administration, at (202) 366-9206 or filed 
electronically in the appropriate DOT docket at http://dms.dot.gov. The 
Administrator will decide whether to review within five (5) business 
days following the last day for submission of a request that the 
Administrator not take review. If the Administrator takes review, the 
decision by the Director, Office of Ports and Domestic Shipping, is 
stayed until final disposition. In the event the Administrator decides 
to take review, a decision will be made based on the written 
submissions and all available information. As a matter of discretion, 
the Administrator or designated representative may hold a hearing on 
the proposed action and make a decision based on the hearing record. 
The decision will be communicated in writing to the interested parties 
and the Coast Guard. In the review process, the decision of the 
Maritime Administrator is the final disposition. In the absence of any 
petition for review, the determination by the Director, Office of Ports 
and Domestic Shipping, becomes final on the sixth business day after 
the decision. The Secretary, MARAD, may extend any of the time limits, 
but only for good cause shown.

    By Order of the Maritime Administrator.

    Dated: August 11, 2004.
Joel C. Richard,
Secretary, Maritime Administration.
[FR Doc. 04-18861 Filed 8-20-04; 8:45 am]
BILLING CODE 4910-81-P