Coast Guard Rulemaking Procedures

DEPARTMENT OF TRANSPORTATION

Coast Guard

33 CFR Part 1

[CGD 94-105]

RIN 2115-AE99

Coast Guard Rulemaking Procedures

AGENCY: Coast Guard, DOT.

ACTION: Final rule.

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SUMMARY: The Coast Guard revises the regulations describing its

rulemaking procedures to provide for a ``direct final rule'' process

for use with noncontroversial rules. Under the direct final rule

procedure, a rule will become effective 90 days after publication in

the Federal Register unless the Coast Guard receives written adverse

comment within sixty days. This new procedure should expedite the

promulgation of routine, noncontroversial rules by reducing the time

necessary to develop, review, clear, and publish separate proposed and

final rules.

EFFECTIVE DATE: October 23, 1995.

ADDRESSES: Unless otherwise indicated, documents referred to in this

preamble are available for inspection or copying at the office of the

Executive Secretary, Marine Safety Council (G-LRA/3406), U.S. Coast

Guard Headquarters, 2100 Second Street SW., room 3406, Washington D.C.

20593-0001 between 8 a.m. and 3 p.m., Monday through Friday, except

Federal holidays. The telephone number is (202) 267-1477.

FOR FURTHER INFORMATION CONTACT: LT R. Goldberg, Staff Attorney,

Regulations and Administrative Law Division, Office of Chief Counsel,

U.S. Coast Guard Headquarters, (202) 267-6004.

SUPPLEMENTARY INFORMATION:

Regulatory History

On June 14, 1995, the Coast Guard published a notice of proposed

rulemaking entitled ``Coast Guard Rulemaking Procedures'' in the

Federal Register (60 FR 31267) with a thirty day comment period which

ended July 14. In response to a request for additional time, the Coast

Guard published a notice in the August 1, 1995 Federal Register (60 FR

39130) reopening the comment period on the proposal for an additional

thirty days, until August 31, 1995. Over both comment periods, the

Coast Guard received fourteen letters commenting on the proposal. No

public meeting was requested, and none was held.

Discussion of Comments and Changes

The Coast Guard received fourteen comments in response to its

proposal to implement a direct final rule procedure from a variety of

parties including an insurance broker, a shipping company, a commercial

fisherman, a corporation interested in offshore operations, maritime

consultants, industry associations and the Administrative Conference of

the United States. One comment, from a national manufacturers

association representing over 1,600 manufacturers association

representing over 1,600 manufacturers of recreational boats and

equipment, fully supported the proposal for an expedited rulemaking

process. The comment from the Administrative Conference of the United

States (Administrative Conference) expressed pleasure at the Coast

Guard's proposal to use direct final rulemaking and took the

opportunity to compare the Coast Guard's proposed procedure to the

Administrative Conference's recently adopted Recommendation 95-4,

``Procedures for Noncontroversial and Expedited Rulemaking.'' the other

comments were generally supportive of the idea of a streamlined

rulemaking process, but expressed concerns with the shortness of the

proposed comment period, the list of subjects suggested by the Coast

Guard for the direct final rule process, the possibility that there may

not be 30 days notice before the effective date of the rule as required

by the Administrative Procedure Act (APA) and with the lack of an

adequate definition of an ``adverse comment''. Additionally, one

comment contended that all rulemakings are ``controversial'' and

therefore the direct final rule process is not appropriate for any

rulemaking.

Eight comments directly objected to the proposed thirty day comment

period. The comment from the Administrative Conference supported this

provision as providing the required comment under the APA, but took no

specific position on the actual length of the period. The comments

which objected to the length of the comment period argued that it often

took much longer than thirty days for a proposal to be disseminated to,

and analyzed by, potentially interested parties. According to the

comments, this additional time is required because of a number of

factors. One factor cited by three comments was the fact that many

mariners who may be interested in a proposal are often out to sea for

periods of time greater than thirty days. Other comments also noted the

time delay caused by the postal system in receiving copies of the

Federal Register and the fact that many people learn of new proposed

rules through industry and trade publications which need time to

publish and mail the information. Additionally, one comment raised the

question of whether the short comment period satisfies Sec. 553(c) of

the APA which requires an agency to give interested parties an adequate

opportunity to participate in the rulemaking. The comments suggested

increased comment periods ranging from 60 to 160 days so that a rule

published as a direct final rule would become effective in the range of

90 to 180 days after publication.

The Coast Guard understands that it takes time for information

regarding proposed rules to reach interested parties. Public

participation in the rulemaking process is important to, and highly

encouraged by, the Coast Guard. The Coast Guard is planning to use the

direct final rule procedure only for rules it considers to be

noncontroversial and for which no adverse comment is anticipated.

Consequently, the Coast Guard believes that the direct final rulemaking

procedure provides the public an adequate opportunity to comment on a

rule subject to this procedure before the rule becomes effective. If an

adverse comment or a notice of intent to submit an adverse comment is

received within the comment period, the direct final rule will be

withdrawn without ever having taken effect. If the Coast Guard later

decides to proceed with the rulemaking, a new notice of proposed

rulemaking will be published. This process will give the pubic an

adequate opportunity to participate in the rulemaking procedure before

a rule goes into effect. The Coast Guard believes that a lengthy

comment period would defeat the purpose of having an expedited

rulemaking process. Nevertheless, to ensure that the

[[Page 49223]]

public has a meaningful opportunity to participate, the Coast Guard is

increasing the minimum comment period stated in Sec. 1.05-55(c) under

the direct final rule process from 30 to 60 days, and preserving an

option for any particular rulemaking to have a longer comment period.

Three of the comments, including one from a national trade

association representing 23 U.S.-flag carriers and one from a shipping

company which operates for U.S.-flag ships, expressed concern over the

list of subjects suggested as appropriate for the direct final rule

process by the Coast Guard. Two of the comments expressed the opinion

that the proposed procedure would be appropriate for some of the types

of rulemakings suggested but not for all. In particular, both of these

comments objected to the use of the direct final rule process for the

waiver of navigation and vessel inspection laws and regulations, the

regulation or description of anchorage areas, the regulation or

description of shipping safety fairways and the regulation or

description of offshore traffic separation schemes. The trade

association also objected to the use of the proposed procedure to adopt

technical standards set by outside organizations and to regulate the

compatibility of cargoes. The shipping company comment also objected to

using the procedure to establish safety and security zones.

A comment from a national association of maritime educators

commented that in the past, the association has offered comments on

many subjects of the type included on the list of possible subjects and

therefore viewed none of the proposed subjects as ``noncontroversial''

and objected to the entire list of subjects. That comment also stated

that there is no such thing as a ``noncontroversial'' rule and stated

that the decision whether a rule is deemed ``noncontroversial'' or not

is a subjective rather than objective standard.

The Coast Guard realizes that the direct final rule process is not

the proper procedure for use with all rulemakings. On the other hand,

there are numerous rulemakings which the Coast Guard does believe to be

``noncontroversial'' in nature and for which the Coast Guard does not

anticipate adverse comments. The suggested list of subjects stated in

the NPRM was not meant to be a comprehensive or ironclad list of

subjects for use with the direct final rule process. Every rulemaking

will be evaluated independently to determine: (1) Whether it is likely

to be noncontroversial in nature; and (2) whether the direct final rule

process is appropriate. If during the comment period any adverse

comment or notice of intent to submit an adverse comment is received,

the rule will be withdrawn. If a rule is withdrawn and the Coast Guard

decides to proceed with the rulemaking, a separate notice of proposed

rulemaking will be published unless an exception to the APA requirement

for notice and comment applies. The Coast Guard believes that this

procedure will guarantee the public an adequate opportunity to

participate in the rulemaking procedure and inform the Coast Guard of

opposition to a rulemaking which the Coast Guard viewed as

noncontroversial. Both by requiring that a rulemaking be deemed to be

noncontroversial before being published as a direct final rule and by

requiring that if an adverse comment is received a rulemaking published

under this process be withdrawn and a separate NPRM published to

proceed, the Coast Guard believes that sufficient safeguards exist to

ensure no rule is implemented without adequate opportunity for public

participation.

The comment from the Administrative Conference in addition to two

other comments, expressed concern that the procedure proposed may not

always satisfy Sec. 553(d) of the APA which requires thirty days notice

prior to the effective date of a rule. The specific concern stated by

the Administrative Conference is that the notice stating that the Coast

Guard has received no adverse comment and therefore, the rule will go

into effect as originally scheduled, may not be published thirty days

before the effective date of the rule. The conference recommended

either making the rule effective thirty days after the date of the

described notice or specifying a date after the close of the comment

period by which the Coast Guard will notify the public whether the

direct final rule will become effective, with the rule's effective date

at least 30 days after such specified date. The Coast Guard has decided

to go forward with the second alternative and therefore will publish a

specific date in the direct final rule by which the public will be

notified of whether the rule will go into effect.

One comment from a maritime safety specialist objected to the lack

of adequate guidelines concerning what the Coast Guard would consider

to be an ``adverse comment.'' In addition, the Administrative

Conference in Recommendation 95-4, ``Procedures for Noncontroversial

and Expedited Rulemaking'' (Recommendation) proposed a definition of

adverse comment that differed from that proposed by the Coast Guard.

The Administrative Conference acknowledged the difference between its

own definition and the Coast Guard's, but viewed the Coast Guard's

proposed definition as reasonable.

Section 1.05-55(c) of the NPRM stated that an adverse comment would

be any comment received by the Coast Guard which objects to a proposed

rule as written. The preamble of the NPRM further explained that

neither a comment submitted in support of a rule nor one suggesting

that the policy or requirements of a rule should or should not be

extended to a Coast Guard program outside the scope of the rule will be

considered as adverse. On the other hand, the Administrative Conference

in its Recommendation suggested that the definition of significant

adverse comment be ``one where the commenter explains why the rule

would be inappropriate, including challenges to the rule's underlying

premise or approach, or would be ineffective or unacceptable without a

change.'' The Administrative Conference went on to state in its

Recommendation that agencies ``should consider whether the comment

raises an issue serious enough to warrant a substantive response in a

notice-and-comment process.'' Because the Coast Guard believes that the

Administrative Conference's recommended definition of adverse comment

provides better guidance and a clearer definition of what types of

comments will be considered adverse, the Coast Guard has decided to

adopt the Administrative Conference's recommended definition of adverse

comment. An adverse comment is now defined in Sec. 1.05-55(f).

The Administrative Conference comment also suggested that in

addition to publishing the initial notice in the final rule section of

the Federal Register, that a cross reference be inserted in the

proposed rule section. The Coast Guard agrees with this idea and will

do so.

In addition to the changes discussed above, a few minor editorial

changes were made to the language of the rule to promote the public's

understanding of the direct final rule process.

Explanation of Procedure

The Coast Guard is establishing a new direct final rulemaking

procedure for noncontroversial rules. This process is consistent with

the goals of the National Performance Review, a recent Presidential

initiative to reorganize and streamline the Federal government. The

process is also consistent with recommendations of the Administrative

Conference of the United States and

[[Page 49224]]

meets the requirements for providing an opportunity for public notice

and comment under the Administrative Procedure Act (APA) (5 U.S.C.

553).

Under this procedure, the Coast Guard will publish direct final

rules in the final rule and proposed rule sections of the Federal

Register. The preamble to a direct final rule will indicate that no

adverse comment is anticipated and that the rule will become effective

not less than 90 days after publication unless written adverse comment

or written intent to submit adverse comment is received within a

specified time, usually not less than 60 days. The direct final rule

will also state a date by which the Coast Guard will provide notice of

whether the rule will be effective. This procedure will ensure that, as

required by the APA, the public will be given notice of Coast Guard

rulemaking actions and will have an opportunity to participate in the

rulemaking by submitting comments.

If no written adverse comment or written notice of intent to submit

an adverse comment is received in response to the publication of a

direct final rule, the Coast Guard will then publish a notice in the

Federal Register, stating that no adverse comment was received and

confirming that the rule will become effective as scheduled. However,

if the Coast Guard receives any written adverse comment or any written

notice of intent to submit an adverse comment, then the Coast Guard

will publish a notice in the final rule and proposed rule sections of

the Federal Register to announce withdrawal of the direct final rule.

If adverse comments clearly apply to only part of a rule, and that part

is severable from the remaining portions, such as a rule that deletes

several unrelated regulations, the Coast Guard may adopt as final those

parts of the rule on which no adverse comments were received. The part

of the rule that was the subject of adverse comment will be withdrawn.

If the Coast Guard decides to proceed with a rulemaking following

receipt of adverse comments, a separate Notice of Proposed Rulemaking

(NPRM) will be published, unless an exception to the APA requirement

for notice and comment applies.

Regulatory Evaluation

This rule is not a significant regulatory action under section 3(f)

of the Executive Order 12866 and does not require an assessment of

potential costs and benefits under section 6(a)(3) of that order. It

has not been reviewed by the Office of Management and Budget under that

order. It is not significant under the regulatory policies and

procedures of the Department of Transportation (DOT) (44 FR 11040;

February 26, 1979). The Coast Guard expects the economic impact of this

rule to be so minimal that a full Regulatory Evaluation under paragraph

10e of the regulatory policies and procedures of DOT is unnecessary.

The change in procedure will not impose any costs on the public. In

cases where the rule would result in cost savings, the cost savings

would occur sooner with the use of direct final rule procedure.

Small Entities

Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), the

Coast Guard must consider whether this rule will have a significant

economic impact on a substantial number of small entities. ``Small

entities'' may include (1) small businesses and not-for-profit

organizations that are independently owned and operated and are not

dominant in their fields and (2) governmental jurisdictions with

populations of less than 50,000. The Coast Guard has evaluated this

rule under the Regulatory Flexibility Act. This rule will not have

substantive impact on the public. Therefore, the Coast Guard certifies

under 5 U.S.C. 605(b) that this rule will not have a significant

economic impact on a substantial number of small entities.

Collection of Information

This rule contains no collection-of-information requirements under

the Paperwork Reduction Act (44 U.S.C. 3501 et seq.).

Federalism

The Coast Guard has analyzed this rule under the principles and

criteria contained in Executive Order 12612 and has determined that

this rule does not have sufficient federalism implications to warrant

the preparation of a Federalism Assessment.

Environment

The Coast Guard considered the environmental impact of this rule

and concluded that, under paragraph 2.B.2 of Commandant Instruction

M16475.1B (as revised by 59 FR 38654, July 29, 1994), this rule is

categorically excluded from further environmental documentation as a

regulation of a procedural nature. A ``Categorical Exclusion

Determination'' is available in the docket for inspection or copying

where indicated under ADDRESSES.

List of Subjects in 33 CFR Part 1

Administrative practice and procedures, Authority delegations

(Government agencies), Coast Guard, Freedom of information, Penalties.

For the reasons set out in the preamble, the Coast Guard is

amending Subpart 1.05 of Part 1 of Title 33, Code of Federal

Regulations as follows:

PART 1--GENERAL PROVISIONS

Subpart 1.05--[Amended]

1. The authority citation for Subpart 1.05 continues to read as

follows:

Authority: 5 U.S.C. 552, 553, App. 2; 14 U.S.C. 2, 631, 632, and

633; 33 U.S.C. 471, 499; 49 U.S.C. 101, 322; 49 CFR 1.4(b), 1.45(b),

and 1.46.

2. Section 1.05-55 is added to read as follows:

Sec. 1.05-55 Direct final rule.

(a) A direct final rule may be issued to allow noncontroversial

rules that are unlikely to result in adverse public comment to become

effective more quickly.

(b) A direct final rule will be published in the Federal Register

with an effective date that is generally at least 90 days after the

date of publication.

(c) The public will usually be given at least 60 days from the date

of publication in which to submit comments or notice of intent to

submit comments.

(d) If no adverse comment or notice of intent to submit an adverse

comment is received within the specified period, the Coast Guard will

publish a notice in the Federal Register to confirm that the rule will

go into effect as scheduled.

(e) If the Coast Guard receives a written adverse comment or a

written notice of intent to submit an adverse comment, the Coast Guard

will publish a notice in the final rule section of the Federal Register

to announce withdrawal of the direct final rule. If an adverse comment

clearly applies to only part of a rule, and it is possible to remove

that part without affecting the remaining portions, the Coast Guard may

adopt as final those parts of the rule on which no adverse comment was

received. Any part of a rule that is the subject of an adverse comment

will be withdrawn. If the Coast Guard decides to proceed with a

rulemaking following receipt of an adverse comment, a separate Notice

of Proposed Rulemaking (NPRM) will be published unless an exception to

the Administrative Procedure Act requirements for notice and comment

applies.

(f) A comment is considered adverse if the comment explains why the

rule would be inappropriate, including a challenge to the rule's

underlying premise or approach, or would be

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ineffective or unacceptable without a change.

Dated: September 15, 1995.

J.E. Shkor,

U.S. Coast Guard Chief Counsel.

FR Doc. 95-23518 Filed 9-21-95; 8:45 am]

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