Title 33—Navigation and Navigable Waters--Volume 1
PART 1—GENERAL PROVISIONS
§ 1.01-1   District Commander.
Final authority for the performance within the confines of his district of the functions of the Coast Guard, which in general terms are maritime law enforcement, saving and protecting life and property, safeguarding navigation on the high seas and navigable waters of the United States, and readiness for military operations, is delegated to the District Commander by the Commandant. In turn delegations of final authority run from the District Commander to commanding officers of units under the District Commander for the performance of the functions of law enforcement, patrol of marine regattas and parades, and the saving of life and property which come within the scope of their activities.
§ 1.01-20   Officer in Charge, Marine Inspection.
(a) Officers in Charge, Marine Inspection (OCMI), have been designated and delegated to perform, within each OCMI's jurisdiction, the following functions: Inspection of vessels in order to determine that they comply with the applicable laws, rules, and regulations relating to safe construction, equipment, manning, and operation and that they are in a seaworthy condition for the services in which they are operated; shipyard and factory inspections; the investigation of marine casualties and accidents; the licensing, certificating, shipment and discharge of seamen; the investigating and initiating of action in cases of misconduct, negligence, or incompetence of merchant marine officers or seamen; and the enforcement of vessel inspection, navigation, and seamen's laws in general. Specific procedures for appealing the decisions of the Officer in Charge, Marine Inspection, or of his subordinates are set forth in 46 CFR parts 1 to 4.
(b) The Commanding Officer of the National Maritime Center has been designated and delegated the same authority as an OCMI for the purpose of carrying out the following marine safety functions pursuant to the provisions of 46 CFR Subchapter B:
(1) Licensing, credentialing, certificating, shipment and discharge of seamen;
(2) Referring to the processing Regional Examination Center (REC), the Suspension and Revocation National Center of Expertise, or cognizant OCMI potential violations of law, negligence, misconduct, unskillfulness, incompetence or misbehavior of persons holding merchant mariner's documents, licenses, certificates or credentials issued by the Coast Guard, and recommending suspension or revocation under 46 U.S.C. Chapter 77 when deemed appropriate; and
(3) Granting, withholding, suspending, or withdrawing course approvals.
§ 1.01-30   Captains of the Port.
Captains of the Port and their representatives enforce within their respective areas port safety and security and marine environmental protection regulations, including, without limitation, regulations for the protection and security of vessels, harbors, and waterfront facilities; anchorages; security zones; safety zones; regulated navigation areas; deepwater ports; water pollution; and ports and waterways safety.
§ 1.01-40   Delegation to the Vice Commandant.
The Commandant delegates to the Vice Commandant authority to take final agency action under 46 CFR part 5, Subparts I, J and K on each petition to reopen a hearing and on each appeal from a decision of an Administrative Law Judge, except on petition or appeal in a case in which an order of revocation has been issued. This delegation does not prevent the Vice Commandant from acting as Commandant, as prescribed in 14 U.S.C. 304, for all purposes of 46 CFR part 5.
§ 1.01-50   Delegation to District Commander, Seventeenth Coast Guard District.
The Commandant redelegates to the District Commander, Seventeenth Coast Guard District, the authority in 46 U.S.C. 3302(i)(1) to issue permits to certain vessels transporting cargo, including bulk fuel, from one place in Alaska to another place in Alaska.
§ 1.01-60   Delegations for issuance of bridge permits.
(a) The Commandant delegates to the Deputy Commandant for Operations (CG-DCO), the authority to issue the following permits for the construction, reconstruction, or alteration of bridges across navigable waters of the United States:
(1) Those that require an environmental assessment or environmental impact statement under the National Environmental Policy Act of 1969, as amended, (42 U.S.C. 4321 et seq. ) and all implementing regulations, orders, and instructions.
(2) Those that require a Presidential permit and approval under the International Bridge Act of 1972 (33 U.S.C. 535).
(3) Those that require the amendment of an existing permit issued by the U.S. Army Corps of Engineers.
(4) Those that raise substantial unresolved controversy involving the public, or are objected to by Federal, State, or local government agencies.
(5) Those authorized by the Commandant upon the appeal of a district commander's decision denying a permit.
(b) The Commandant delegates to each Coast Guard District Commander, with the reservation that this authority shall not be further redelegated, the authority to issue all permits for the construction, reconstruction, or alteration of bridges across navigable waters of the United States other than those specified in paragraph (a) of this section.
§ 1.01-70   CERCLA delegations.
(a) For the purpose of this section, the definitions in section 101 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (Pub. L. 96-510), as amended by the Superfund Amendments and Reauthorization Act of 1986 (Pub. L. 99-499), apply. The Act, as amended, is referred to in this section as CERCLA.
(b) The Assistant Commandant for Marine Safety, Security and Environmental Protection (CG-5) is delegated authority to take remedial action involving vessels under section 104 of CERCLA.
(c) Each Maintenance and Logistics Commander is delegated contract authority, consistent with each memorandum of understanding between the Coast Guard and the Environmental Protection Agency regarding CERCLA funding mechanisms, for the purpose of carrying out response actions pursuant to CERCLA sections 104(a), 104(b), 104(f), 104(g), 105(f), and 122.
(d) Each district commander is delegated authority as follows:
(1) Authority, pursuant to CERCLA section 106(a), to determine an imminent and substantial endangerment to the public health or welfare or the environment because of an actual or threatened release of a hazardous substance from a facility, and to secure such relief as may be necessary to abate such danger or threat through the United States attorney of the district in which the threat occurs.
(2) Authority, pursuant to section 109 of CERCLA, to assess penalties relating to violations of sections 103 (a) and (b) pertaining to notification requirements, section 108 pertaining to financial responsibility for release of hazardous substances from vessels, and section 122 pertaining to administrative orders and consent decrees.
(3) Authority, pursuant to section 108 of CERCLA, to deny entry to any port or place in the United States or to the navigable waters of the United States and detain at any port or place in the United States any vessel subject to section 108(a) of CERCLA that, upon request, does not provide evidence of financial responsibility.
(e) Subject to the provisions of Executive Order 12580, and paragraph (g) of this section, each Coast Guard official, predesignated as an On-Scene Coordinator, is delegated authority as follows:
(1) Authority, pursuant to CERCLA sections 104(a), 104(b), 104(c) and consistent with the National Contingency Plan, to remove or arrange for the removal of releases and threatened releases of hazardous substances, and of pollutants or contaminants which may present an imminent and substantial danger to the public health or welfare.
(2) Authority, pursuant to CERCLA section 104(i)(11), to take such steps as may be necessary to reduce exposure that presents a significant risk to human health, and to eliminate or substantially mitigate that significant risk to human health.
(3) Authority, pursuant to CERCLA section 106(a), to issue orders to protect the public health and welfare and the environment whenever that official determines that a release or threatened release of a hazardous substance from a facility may present an imminent and substantial endangerment to the public health or welfare or the environment.
(4) Authority, pursuant to CERCLA section 104(e), except section 104(e)(7)(C), to enter establishments or other places where hazardous substances are or have been generated, stored, treated, disposed of, or transported from to inspect and obtain records, reports, samples and information in support of the response functions delegated in paragraphs (d), (e)(1), (e)(2), and (e)(3) of this section.
(5) Authority, pursuant to CERCLA section 122, to enter into an agreement with any person (including the owner or operator of the vessel or facility from which a release or substantial threat of release emanates, or any other potential responsible person), to perform any response action, provided that such action will be done properly by such person.
(f) Except for the authority granted in paragraphs (d)(1) and (e)(1) of this section, each Coast Guard official to whom authority is granted in this section may redelegate and authorize successive redelegations of that authority. The authority granted in paragraph (e)(3) of this section may only be redelegated to commissioned officers.
(g) The response authority described in paragraph (e)(1) of this section does not include authority to—
(1) Summarily remove or destroy a vessel; or
(2) Take any other action that constitutes intervention under CERCLA, the Intervention on the High Seas Act (33 U.S.C. 1471 et. seq. ), or other applicable laws. “Intervention” means any detrimental action taken against the interest of a vessel or its cargo without the consent of the vessel's owner or operator.
§ 1.01-80   FWPCA and OPA 90 delegations.
(a) This section delegates authority to implement provisions of section 311 of the Federal Water Pollution Control Act (FWPCA), as amended [33 U.S.C. 1321] and provisions of the Oil Pollution Act of 1990 (OPA 90). The definitions in subsection (a) of section 311 of the FWPCA and section 1001 of OPA 90 [33 U.S.C. 2701] apply.
(b) The Assistant Commandant for Marine Safety, Security and Environmental Protection, is delegated authority to require the owner or operator of a facility to establish and maintain such records, make such reports, install, use, and maintain such monitoring equipment and methods, and provide such other information as may be required to carry out the objectives of section 311 of the FWPCA [33 U.S.C. 1321].
(c) Each District and Area Commander is delegated authority within the Commander's assigned district or area to—
(1) Deny entry to any place in the United States or to the navigable waters of the United States, and to detain at any place in the United States, any vessel subject to section 1016 of OPA 90 [33 U.S.C. 2716] that, upon request, does not provide evidence of financial responsibility;
(2) Seize and, through the Chief Counsel, seek forfeiture to the United States of any vessel subject to the requirements of section 1016 of OPA 90 [33 U.S.C. 2716] that is found in the navigable waters of the United States without the necessary evidence of financial responsibility;
(3) Assess any class I civil penalty under subsection (b) of section 311 of the FWPCA [33 U.S.C. 1321], in accordance with the procedures in subpart 1.07 of this chapter;
(4) Assess any civil penalty under section 4303 of OPA 90 [33 U.S.C. 2716a] in accordance with the procedures in subpart 1.07 of this chapter;
(5) Board and inspect any vessel upon the navigable waters of the United States or the waters of the contiguous zone, except for public vessels; with or without warrant, arrest any person who, in the Commander's presence or view, violates a provision of section 311 of the FWPCA [33 U.S.C. 1321] or any regulation issued thereunder; and execute any warrant or other process issued by an officer or court of competent jurisdiction, as prescribed in section 311(m)(1) of the FWPCA [33 U.S.C. 1321(m)(1)];
(6) Enter and inspect any facility in the coastal zone at reasonable times; have access to and copy any records; take samples; inspect monitoring equipment required by section 311(m)(2)(A) of the FWPCA [33 U.S.C. 1321(m)(2)(A)]; with or without warrant, arrest any person who, in the Commander's presence or view, violates a provision of section 311 of the FWPCA [33 U.S.C. 1321] or any regulation issued thereunder; and execute any warrant or other process issued by an officer or court of competent jurisdiction, as prescribed in section 311(m)(2) of the FWPCA [33 U.S.C. 1321(m)(2)(A)]; and
(7) Determine for purposes of section 311(b)(12) of the FWPCA [33 U.S.C. 1321(b)(12)]—
(i) Whether reasonable cause exists to believe that an owner, operator, or person in charge may be subject to a civil penalty under section 311(b) of the FWPCA [33 U.S.C. 1321(b)]; and
(ii) Whether a filed bond or other surety is satisfactory.
(d) Each Coast Guard official predesignated as the On-Scene Coordinator by the applicable Regional Contingency Plan is delegated authority pursuant to section 311(c) of the FWPCA [33 U.S.C. 1321(c)], subject to paragraph (e) of this section, in accordance with the National Contingency Plan and any appropriate Area Contingency Plan, to ensure the effective and immediate removal of a discharge and mitigation or prevention of a substantial threat of a discharge of oil or a hazardous substance by—
(1) Removing or arranging for the removal of a discharge and mitigating or preventing an imminent and substantial threat of a discharge at any time;
(2) Directing or monitoring all Federal, State, and private actions to remove a discharge, including issuance of orders;
(3) Determining, pursuant to section 311(c) of the FWPCA [33 U.S.C. 1321(c)], whether a discharge or a substantial threat of a discharge of oil or a hazardous substance from a vessel, offshore facility, or onshore facility is of such a size or character as to be a substantial threat to the public health or welfare of the United States (including, but not limited to fish, shellfish, wildlife, other natural resources, and the public and private beaches and shorelines of the United States); and, if it is, directing all Federal, State, and private actions to remove the discharge or to mitigate or prevent the threatened discharge;
(4) Determining, pursuant to section 311(e) of the FWPCA [33 U.S.C. 1321(e)], that there may be an imminent and substantial threat to the public health and welfare of the United States, and, if there is, may—
(i) Determine an imminent and substantial threat as a basis for recommending referral for judicial relief; or
(ii) Act pursuant to section 311(e)(1)(B) of the FWPCA [33 U.S.C. 1321(e)(1)(B)], including the issuance of orders; and
(5) Acting to mitigate the damage to the public health or welfare caused by a discharge of oil or a hazardous substance.
(e) The authority described in paragraph (d) of this section does not include the authority to—
(1) Remove or destroy a vessel; or
(2) Take any other action that constitutes intervention under the Intervention on the High Seas Act [33 U.S.C. 1471, et seq. ] or other applicable laws. For purposes of this section, “intervention” means any detrimental action taken against the interest of a vessel or its cargo without the consent of the vessel's owner or operator.
§ 1.01-85   Redelegation.
Except as provided in § 1.01-80(e)(1) and (2), each Coast Guard officer to whom authority is granted in § 1.01-80 may redelegate and authorize successive redelegations of that authority within the command under the officer's jurisdiction, or to members of the officer's staff.
§ 1.01-90   Commissioned, warrant, and petty officers.
Any commissioned, warrant, or petty officer of the United States Coast Guard may be authorized to carry out the functions delegated to superior officials under §§ 1.01-1, 1.01-20, 1.01-30, 1.01-70, and 1.07-80, or redelegated under § 1.01-85, within the jurisdiction of the cognizant official. They will do so under the supervision and general direction of that official.
§ 1.05-1   Delegation of rulemaking authority.
(a) The Secretary of Homeland Security is empowered by various statutes to issue regulations regarding the functions, powers and duties of the Coast Guard.
(b) The Secretary of Homeland Security has delegated much of this authority to the Commandant, U.S. Coast Guard, including authority to issue regulations regarding the functions of the Coast Guard and the authority to redelegate and authorize successive redelegations of that authority within the Coast Guard.
(c) The Commandant has reserved the authority to issue any rules and regulations determined to be significant under Executive Order 12866, Regulatory Planning and Review.
(d) The Commandant has redelegated the authority to develop and issue those regulations necessary to implement laws, treaties, and Executive orders to the Assistant Commandant for Prevention Policy, the Assistant Commandant for Response Policy, the Assistant Commandant for Resources, and the Judge Advocate General. The authority redelegated in this paragraph is limited to those regulations determined to be nonsignificant within the meaning of Executive Order 12866.
(e)(1) The Commandant has redelegated to the Coast Guard District Commanders, with the reservation that this authority must not be further redelegated except as specified in paragraph (i) below, the authority to issue regulations pertaining to the following:
(i) Anchorage grounds and special anchorage areas.
(ii) The designation of lightering zones.
(iii) The operation of drawbridges.
(iv) The establishment of Regulated Navigation Areas.
(v) The establishment of safety and security zones.
(vi) The establishment of special local regulations.
(vii) The establishment of inland waterways navigation regulations.
(viii) The establishment of safety zones around OCS facilities being constructed, maintained, or operated on the Outer Continental Shelf.
(2) This delegation does not extend to those matters specified in paragraph (c) of this section or rules and regulations which have been shown to raise substantial issues or to generate controversy.
(f) Except for those matters specified in paragraph (c) of this section, the Commandant has redelegated to Coast Guard Captains of the Port, with the reservation that this authority must not be further redelegated, the authority to establish safety and security zones.
(g) The Commandant has redelegated to Coast Guard District Commanders, Captains of the Port, the Deputy Commandant for Operations (CG-DCO), and the Assistant Commandant for Response Policy, the authority to make the certification required by section 605(b) of the Regulatory Flexibility Act (Sec. 605(b), Pub. L. 96-354, 94 Stat. 1168 (5 U.S.C. 605)) for rules that they issue.
(h) The Chief, Office of Regulations and Administrative Law (CG-LRA), has authority to develop and issue those regulations necessary to implement all technical, organizational, and conforming amendments and corrections to rules, regulations, and notices.
(i) The Commandant has redelegated to the Coast Guard District Commanders the authority to redelegate in writing to the Captains of the Port (COTP), with the reservation that this authority must not be further redelegated, the authority to issue such special local regulations as the COTP deems necessary to ensure safety of life on the navigable waters immediately prior to, during, and immediately after regattas and marine parades.
(j) The Commandant has redelegated to Coast Guard District Commanders the authority to redelegate in writing to the Coast Guard District Bridge Manager, with the reservation that this authority must not be further redelegated, the authority to issue temporary deviations from drawbridge operating regulations as the District Bridge Manager deems necessary.
§ 1.05-5   Marine Safety and Security Council.
The Marine Safety and Security Council, composed of senior Coast Guard officials, acts as policy advisor to the Commandant and is the focal point of the Coast Guard regulatory system. The Marine Safety and Security Council provides oversight, review, and guidance for all Coast Guard regulatory activity.
§ 1.05-10   Regulatory process overview.
(a) Most rules of local applicability are issued by District Commanders, Captains of the Port, and District Bridge Managers while rules of wider applicability are issued by senior Coast Guard officials at Coast Guard Headquarters. For both significant rulemaking (defined by Executive Order 12866, Regulatory Planning and Review) and non-significant rulemaking, other than those areas delegated to District Commanders, Captains of the Port, and District Bridge Managers the regulatory process begins when an office chief with program responsibilities identifies a possible need for a new regulation or for changes to an existing regulation. The need may arise due to statutory changes, or be based on internal review or public input. Early public involvement is strongly encouraged.
(b) After a tentative significant regulatory approach is developed, a significant regulatory project proposal is submitted to the Marine Safety and Security Council for approval. The proposal describes the scope of the proposed regulation, alternatives considered, and potential cost and benefits, including possible environmental impacts. All significant regulatory projects require Marine Safety and Security Council approval.
(c) Significant rulemaking documents must also be approved by the Commandant of the Coast Guard.
(d) If the project is approved, the necessary documents are drafted, including documents to be published in the Federal Register. These may include regulatory evaluations, environmental analyses, requests for comments, announcements of public meetings, notices of proposed rulemakings, and final rules.
§ 1.05-15   Public participation.
The Coast Guard considers public participation essential to effective rulemaking, and encourages the public to participate in its rulemaking process. Coast Guard policy is to provide opportunities for public participation early in potential rulemaking projects. Generally, the Coast Guard will solicit public input by publishing a notice of public meeting or request for comments in the Federal Register. Advance Notices of Proposed Rulemaking, Notices of Proposed Rulemaking, Supplemental Notices of Proposed Rulemaking, and Interim Rules will usually provide 90 days, or more if possible, after publication for submission of comments. This time period is intended to allow interested persons the opportunity to participate in the rulemaking process through the submission of written data and views. However, certain cases and circumstances may make it necessary to provide a shorter comment period. Public meetings may also be held to provide an opportunity for oral presentations. The Coast Guard will consider the comments received and, in subsequent rulemaking documents, will incorporate a concise general statement of the comments received and identify changes from a proposed rule based on the comments.
§ 1.05-20   Petitions for rulemaking.
(a) Any member of the public may petition the Coast Guard to undertake a rulemaking action. There is no prescribed form for a petition for rulemaking, but the document should provide some supporting information as to why the petitioner believes the proposed rulemaking is necessary and the document should clearly indicate that it is a petition for rulemaking. Petitions should be addressed to the Office of Regulations and Administrative Law (CG-LRA), U.S. Coast Guard Stop 7213, 2703 Martin Luther King Jr. Avenue SE., Washington, DC 20593-7213.
(b) The petitioner will be notified of the Coast Guard's decision whether to initiate a rulemaking or not. If the Coast Guard decides not to pursue a rulemaking, the petitioner will be notified of the reasons why. If the Coast Guard decides to initiate rulemaking, it will follow the procedure outlined in this subpart. The Coast Guard may publish a notice acknowledging receipt of a petition for rulemaking in the Federal Register.
(c) Any petition for rulemaking and any reply to the petition will be kept in a public docket open for inspection.
§ 1.05-25   Public docket.
(a) The Coast Guard maintains an electronic public docket for each petition for rulemaking and each Coast Guard rulemaking project and notice published in the Federal Register. Each rulemaking docket contains copies of every rulemaking document published for the project, public comments received, summaries of public meetings or hearings, regulatory assessments, and other publicly-available information. Members of the public may inspect the public docket and copy any documents in the docket. Public dockets for Coast Guard rulemakings are available electronically at https://www.regulations.gov. To access a rulemaking, enter the docket number associated with the rulemaking or notice in the “Search” box and click “Go >.”
(b) The public dockets for Coast Guard rulemaking activity initiated by Coast Guard District Commanders are available for public inspection at the appropriate Coast Guard District office or online at http://www.regulations.gov. Paragraph (a) of this section describes how to access and view these documents.
(c) The public dockets for Coast Guard rulemaking activity initiated by Captains of the Port are available for inspection at the appropriate Captains of the Port Office or online at http://www.regulations.gov. Paragraph (a) of this section describes how to access and view these documents.
§ 1.05-30   Advance notice of proposed rulemaking (ANPRM).
An advance notice of proposed rulemaking may be used to alert the affected public about a new regulatory project, or when the Coast Guard needs more information about what form proposed regulations should take, the actual need for a regulation, the cost of a proposal, or any other information. The ANPRM may solicit general information or ask the public to respond to specific questions.
§ 1.05-35   Notice of proposed rulemaking (NPRM).
Under the Administrative Procedure Act (APA), 5 U.S.C. 553, an NPRM is generally published in the Federal Register for Coast Guard rulemakings. The NPRM normally contains a preamble statement in sufficient detail to explain the proposal, its background, basis, and purpose, and the various issues involved. It also contains a discussion of any comments received in response to prior notices, a citation of legal authority for the rule, and the text of the proposed rule.
§ 1.05-40   Supplemental notice of proposed rulemaking (SNPRM).
An SNPRM may be issued if a proposed rule has been substantially changed from the original notice of proposed rulemaking. The supplemental notice advises the public of the revised proposal and provides an opportunity for additional comment. To give the public a reasonable opportunity to become reacquainted with a rulemaking, a supplemental notice may also be issued if considerable time has elapsed since publication of a notice of proposed rulemaking. An SNPRM contains the same type of information generally included in an NPRM.
§ 1.05-45   Interim rule.
(a) An interim rule may be issued when it is in the public interest to promulgate an effective rule while keeping the rulemaking open for further refinement. For example, an interim rule may be issued in instances when normal procedures for notice and comment prior to issuing an effective rule are not required, minor changes to the final rule may be necessary after the interim rule has been in place for some time, or the interim rule only implements portions of a proposed rule, while other portions of the proposed rule are still under development.
(b) An interim rule will be published in the Federal Register with an effective date that will generally be at least 30 days after the date of publication. After the effective date, an interim rule is enforceable and is codified in the next annual revision of the appropriate title of the Code of Federal Regulations.
§ 1.05-50   Final rule.
When notice and comment procedures have been used, and after all comments received have been considered, a final rule is issued. A final rule document contains a preamble that responds to significant comments received and includes a discussion of changes made from the proposed or interim rule, a citation of legal authority, and the text of the rule. In some instances, a final rule may be issued without prior notice and comment.
§ 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 ineffective or unacceptable without a change.
§ 1.05-60   Negotiated rulemaking.
(a) The Coast Guard may establish a negotiated rulemaking committee under the Negotiated Rulemaking Act of 1990 and the Federal Advisory Committee Act (FACA) (5 U.S.C. App. 2) when it is in the public interest.
(b) Generally, the Coast Guard will consider negotiated rulemaking when:
(1) There is a need for a rule;
(2) There are a limited number of representatives for identifiable parties affected by the rule;
(3) There is a reasonable chance that balanced representation can be reached in the negotiated rulemaking committee and that the committee members will negotiate in good faith;
(4) There is a likelihood of a committee consensus in a fixed time period;
(5) The negotiated rulemaking process will not unreasonably delay the rule;
(6) The Coast Guard has resources to do negotiated rulemaking; and
(7) The Coast Guard can use the consensus of the committee in formulating the NPRM and final rule.
§ 1.07-1   Purpose.
This part describes procedures for enforcement and administration of all statutory penalty provisions that the Coast Guard is authorized to enforce.
§ 1.07-5   Definitions.
(a) The term District Commander, when used in this subpart, means the District Commander, or any person under the District Commander's command, delegated to carry out the provisions of § 1.07-10(b).
(b) The term Hearing Officer means a Coast Guard officer or employee who has been delegated the authority to assess civil penalties.
(c) The term issuing officer means any qualified Coast Guard commissioned, warrant, or petty officer, or qualified civilian.
(d) The term Notice of Violation means a notification of violation and preliminary assessment of penalty, given to a party, in accordance with § 1.07-11.
(e) The term party means the person alleged to have violated a statute or regulation to which a civil penalty applies and includes an individual or public or private corporation, partnership or other association, or a governmental entity.
§ 1.07-10   Reporting and investigation.
(a) Any person may report an apparent violation of any law, regulation, or order that is enforced by the Coast Guard to any Coast Guard facility. When a report of an apparent violation has been received, or when an apparent violation has been detected by any Coast Guard personnel, the matter is investigated or evaluated by Coast Guard personnel. Once an apparent violation has been investigated or evaluated, a report of the investigation may be sent to the District Commander or other designated official in accordance with paragraph (b) of this section or a Notice of Violation under § 1.07-11 may be given to the party by an issuing officer.
(b) Reports of any investigation conducted by the Coast Guard or received from any other agency which indicate that a violation may have occurred may be forwarded to a District Commander or other designated official for further action. This is normally the District Commander of the District in which the violation is believed to have occurred, or the District in which the reporting unit or agency is found. The report is reviewed to determine if there is sufficient evidence to establish a prima facie case. If there is insufficient evidence, the case is either returned for further investigation or closed if further action is unwarranted. The case is closed in situations in which the investigation has established that a violation did not occur, the violator is unknown, or there is little likelihood of discovering additional relevant facts. If it is determined that a prima facie case does exist, a case file is prepared and forwarded to the Hearing Officer, with a recommended action. A record of any prior violations by the same person or entity, is forwarded with the case file.
§ 1.07-11   Notice of violation.
(a) After investigation and evaluation of an alleged violation has been completed, an issuing officer may issue a Notice of Violation to the party.
(b) The Notice of Violation will contain the following information:
(1) The alleged violation and the applicable law or regulations violated;
(2) The amount of the maximum penalty that may be assessed for each violation;
(3) The amount of proposed penalty that appears to be appropriate;
(4) A statement that payment of the proposed penalty within 45 days will settle the case;
(5) The place to which, and the manner in which, payment is to be made;
(6) A statement that the party may decline the Notice of Violation and that if the Notice of Violation is declined, the party has the right to a hearing prior to a final assessment of a penalty by a Hearing Officer.
(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).
(c) The Notice of Violation may be hand delivered to the party or an employee of the party, or may be mailed to the business address of the party.
(d) If a party declines the 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 within 45 days of receipt a party—
(1) Fails to pay the proposed penalty on the Notice of Violation; and
(2) Fails to 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).
§ 1.07-15   Hearing Officer.
(a) The Hearing Officer has no other responsibility, direct or supervisory, for the investigation of cases referred for the assessment of civil penalties. The hearing officer may take action on a case referred by any District Commander.
(b) The Hearing Officer decides each case on the basis of the evidence before him, and must have no prior connection with the case. The Hearing Officer is solely responsible for the decision in each case referred to him.
(c) The Hearing Officer is authorized to administer oaths and issue subpoenas necessary to the conduct of a hearing, to the extent provided by law.
§ 1.07-20   Initiation of action.
(a) When a case is received for action, the Hearing Officer makes a preliminary examination of the material submitted. If, on the basis of the preliminary examination, the Hearing Officer determines that there is insufficient evidence to proceed, or that there is any other reason which would make penalty action inappropriate, the Hearing Officer returns the case to the District Commander with a written statement of the reason. The District Commander may close the case or cause a further investigation of the alleged violation to be made with a view toward resubmittal of the case to the Hearing Officer.
(b) If on the basis of the preliminary examination of the case file, the Hearing Officer determines that a violation appears to have been committed, the Hearing Officer notifies the party in writing of:
(1) The alleged violation and the applicable law or regulations;
(2) The amount of the maximum penalty that may be assessed for each violation;
(3) The general nature of the procedure for assessing and collecting the penalty;
(4) The amount of penalty that appears to be appropriate, based on the material then available to the Hearing Officer;
(5) The right to examine all materials in the case file and have a copy of all written documents provided upon request; and,
(6) The fact that the party may demand a hearing prior to any actual assessment of a penalty.
(c) If at any time it appears that the addition of another party to the proceedings is necessary or desirable, the Hearing Officer provides the additional party with notice as described above.
§ 1.07-25   Preliminary matters.
(a) Within 30 days after receipt of notice of the initiation of the action, as described above, the party, or counsel for the party, may request a hearing, provide any written evidence and arguments in lieu of a hearing, or pay the amount specified in the notice as being appropriate. A hearing must be requested in writing; the request must specify the issues which are in dispute. Failure to specify a nonjurisdictional issue will preclude its consideration.
(b) The right to a hearing is waived if the party does not submit the request to the Hearing Officer within 30 days after receiving notice of the alleged violation. At the discretion of the Hearing Officer, a hearing may be granted if the party submits a late request.
(c) The Hearing Officer must promptly schedule all hearings which are requested. The Hearing Officer shall grant any delays or continuances which may be necessary or desirable in the interest of fairly resolving the case.
(d) A party who has requested a hearing may amend the specification of the issues in dispute at any time up to 10 days before the scheduled date of the hearing. Issues raised later than 10 days before the scheduled hearing may be presented only at the discretion of the Hearing Officer.
§ 1.07-30   Disclosure of evidence.
The alleged violator may, upon request, receive a free copy of all the written evidence in the case file, except material that would disclose or lead to the disclosure of the identity of a confidential informant. Other evidence or material, such as blueprints, sound or video tapes, oil samples, and photographs may be examined in the Hearing Officer's offices. The Hearing Officer may provide for examination or testing of evidence at other locations if there are adequate safeguards to prevent loss or tampering.
§ 1.07-35   Request for confidential treatment.
(a) In addition to information treated as confidential under § 1.07-30, a request for confidential treatment of a document or portion thereof may be made by the person supplying the information on the basis that the information is:
(1) Confidential financial information, trade secrets, or other material exempt from disclosure by the Freedom of Information Act (5 U.S.C. 552);
(2) Required to be held in confidence by 18 U.S.C. 1905; or
(3) Otherwise exempt by law from disclosure.
(b) The person desiring confidential treatment must submit the request to the Hearing Officer in writing and state the reasons justifying nondisclosure. Failure to make a timely request may result in a document being considered as nonconfidential and subject to release.
(c) Confidential material is not considered by the Hearing Officer in reaching a decision unless:
(1) It has been furnished by a party, or
(2) It has been furnished pursuant to a subpoena.
§ 1.07-40   Counsel.
A party has the right to be represented at all stages of the proceeding by counsel. After receiving notification that a party is represented by counsel, the Hearing Officer directs all further communications to that counsel.
§ 1.07-45   Location of hearings and change of venue.
(a) The hearing is normally held at the office of the Hearing Officer.
(b) The Hearing Officer may transfer a case to another Hearing Officer on request or on the Hearing Officer's own motion.
(c) A request for change of location of a hearing or transfer to another Hearing Officer must be in writing and state the reasons why the requested action is necessary or desirable. Action on the request is at the discretion of the Hearing Officer.
§ 1.07-50   Witnesses.
A party may present the testimony of any witness either through a personal appearance or through a written statement. The party may request the assistance of the Hearing Officer in obtaining the personal appearance of a witness. The request must be in writing and state the reasons why a written statement would be inadequate, the issue or issues to which the testimony would be relevant, and the substance of the expected testimony. If the Hearing Officer determines that the personal appearance of the witness may materially aid in the decision on the case, the Hearing Officer seeks to obtain the witness' appearance. Because many statutes prescribing civil penalties do not provide subpoena power, there may be cases where a witness cannot be required to attend. In such a case, the Hearing Officer may move the hearing to the witness' location, accept a written statement, or accept a stipulation in lieu of testimony. If none of these procedures is practical, the Hearing Officer shall proceed on the basis of the evidence before him.
§ 1.07-55   Hearing procedures.
(a) The Hearing Officer must conduct a fair and impartial proceeding in which the party is given a full opportunity to be heard. At the outset of the hearing, the Hearing Officer insures that the party is aware of the nature of the proceeding and of the alleged violation, and of the provisions of the law or regulation allegedly violated.
(b) The material in the case file pertinent to the issues to be determined by the Hearing Officer is presented. The party has the right to examine, and to respond to or rebut, this material. The party may offer any facts, statements, explanations, documents, sworn or unsworn testimony, or other exculpatory items which bear on appropriate issues, or which may be relevant to the size of an appropriate penalty. The Hearing Officer may require the authentication of any written exhibit or statement.
(c) At the close of the party's presentation of evidence, the Hearing Officer may allow the introduction of rebuttal evidence. The Hearing Officer may allow the party to respond to any such evidence submitted.
(d) In receiving evidence, the Hearing Officer is not bound by strict rules of evidence. In evaluating the evidence presented, the Hearing Officer must give due consideration to the reliability and relevance of each item of evidence.
(e) The Hearing Officer may take notice of matters which are subject to a high degree of indisputability and are commonly known in the community or are ascertainable from readily available sources of known accuracy. Prior to taking notice of a matter, the Hearing Officer gives the party an opportunity to show why notice should not be taken. In any case in which notice is taken, the Hearing Officer places a written statement of the matters as to which notice was taken in the record, with the basis for such notice, including a statement that the party consented to notice being taken or a summary of the party's objections.
(f) After the evidence in the case has been presented, the party may present argument on the issues in the case. The party may also request an opportunity to submit a written statement for consideration by the Hearing Officer and for further review. The Hearing Officer shall allow a reasonable time for submission of the statement and shall specify the date by which it must be received. If the statement is not received within the time prescribed, or within the limits of any extension of time granted by the Hearing Officer, the Hearing Officer renders his decision in the case.
§ 1.07-60   Records.
(a) A verbatim transcript will not normally be prepared. The Hearing Officer prepares notes on the material and points raised by the party, in sufficient detail to permit a full and fair review and resolution of the case, should it be appealed.
(b) A party may, at its own expense, cause a verbatim transcript to be made. If a verbatim transcript is made, the party shall submit two copies to the Hearing Officer not later than the time of filing an administrative appeal. The Hearing Officer includes them in the record.
§ 1.07-65   Hearing Officer's decisions.
(a) The Hearing Officer issues a written decision. Any decision to assess a penalty is based upon substantial evidence in the record. If the Hearing Officer finds that there is not substantial evidence in the record establishing the alleged violation or some other violation of which the party had full and fair notice, the Hearing Officer shall dismiss the case and remand it to the District Commander. A dismissal is without prejudice to the District Commander's right to refile the case and have it reheard if additional evidence is obtained. A dismissal following a rehearing is final and with prejudice.
(b) If the Hearing Officer assesses a penalty, the Hearing Officer's decision contains a statement advising the party of the right to an administrative appeal. The party is advised that failure to submit an appeal within the prescribed time will bar its consideration and that failure to appeal on the basis of a particular issue will constitute a waiver of that issue in any subsequent proceeding.
§ 1.07-70   Right to appeal.
(a) Any appeal from the decision of the Hearing Officer must be submitted by a party within 30 days from the date of receipt of the decision. The appeal and any supporting brief must be submitted to the Hearing Officer. The only issues which will be considered on appeal are those issues specified in the appeal which were properly raised before the Hearing Officer and jurisdictional questions.
(b) The failure to file an appeal within the prescribed time limit results in the action of the Hearing Officer becoming the final agency action in the case.
§ 1.07-75   Action on appeals.
(a) Upon receipt, the Hearing Officer provides a copy of the appeal and any supporting brief to the District Commander who referred the case. Any comments which the District Commander desires to submit must be received by the Hearing Officer within 30 days. The Hearing Officer includes the District Commander's comments, or not later than 30 days after receipt of the appeal if no comments are submitted by the District Commander, the Hearing Officer forwards all materials in the case to the Commandant.
(b) The Commandant issues a written decision in each case and furnishes copies to the party, the District Commander, and the Hearing Officer, The Commandant may affirm, reverse, or modify the decision, or remand the case for new or additional proceedings. In the absence of a remand, the decision of the Commandant on appeal shall be final. In addition to the actions which may be taken by the Commandant on appeal, the Commandant may also remit, mitigate or suspend the assessment in whole or in part. Upon the taking of remission, mitigation, or suspension action, the Commandant will inform the party of the action and any conditions placed on the action.
§ 1.07-80   Reopening of hearings.
(a) At any time prior to final agency action in a civil penalty case, a party may petition to reopen the hearing on the basis of newly discovered evidence.
(b) Petitions to reopen must be in writing describing the newly found evidence and must state why the evidence would probably produce a different result favorable to the petitioner, whether the evidence was known to the petitioner at the time of the hearing and, if not, why the newly found evidence could not have been discovered in the exercise of due diligence. The party must submit the petition to the Hearing Officer.
(c) The District Commander may file comments in opposition to the petition. If comments are filed, a copy is provided the party.
(d) A petition to reopen is considered by the Hearing Officer unless an appeal has been filed, in which case the petition is considered by the Commandant.
(e) The decision on the petition is decided on the basis of the record, the petition, and the comments in opposition, if any. The petition is granted only when newly found evidence is described which has a direct and material bearing on the issues and when a valid explanation is provided as to why the evidence was not and could not have been, in the exercise of due diligence, produced at the hearing. The decision is rendered in writing.
(f) Following a denial of a petition to reopen, the party is given 30 days to file an appeal if one has not already been filed, or to amend an appeal which has already been filed.
§ 1.07-85   Collection of civil penalties.
(a) Payment of a civil penalty may be made by check or postal money order payable to the U.S. Coast Guard.
(b) Within 30 days after receipt of the Commandant's decision on appeal, or the Hearing Officer's decision in a case in which no appeal has been filed, the party must submit payment of any assessed penalty to the office specified in the assessment notice. Failure to make timely payment will result in the institution of appropriate action under the Federal Claims Collection Act and the regulations issued thereunder.
(c) When a penalty of not more than $200 has been assessed under Chapter 43 or 123 of Title 46 U.S.C., the matter may be referred for collection of the penalty directly to the Federal Magistrate of the jurisdiction wherein the person liable may be found, for the institution of collection procedures under supervision of the district court, if the court has issued an order delegating such authority under section 636(b) of Title 28, United States Code.
§ 1.07-90   Criminal penalties.
(a) Prosecution in the Federal courts for violations of those laws or regulations enforced by the Coast Guard which provide, upon conviction, for punishment by fine or imprisonment is a matter finally determined by the Department of Justice. This final determination consists of deciding whether and under what conditions to prosecute or to abandon prosecution.
(b) Except in those cases where the approval of the Commandant is required, the Area, Maintenance & Logistics Command (MLC), and District Commanders are authorized to refer the case to the U.S. attorney. The Commandant's approval is required in the following cases where evidence of a criminal offense is disclosed:
(1) Marine casualties or accidents resulting in death.
(2) Marine Boards (46 CFR part 4).
(3) Violations of port security regulations (33 CFR parts 6, 121 to 126 inclusive).
(c) The Area, MLC, or District Commander will identify the laws or regulations which were violated and make specific recommendations concerning the proceedings to be instituted by the U.S. attorney in every case.
§ 1.07-95   Civil and criminal penalties.
(a) If a violation of law or regulation carries both a civil and a criminal penalty, the Area, MLC, and District Commanders are authorized to determine whether to institute civil penalty proceedings or to refer the case to the U.S. attorney for prosecution in accordance with § 1.07-90.
(b) When the U.S. Attorney declines to institute criminal proceedings, the Area, MLC, or District Commander decides whether to initiate civil penalty proceedings or to close the case.
§ 1.07-100   Summons in lieu of seizure of commercial fishing industry vessels.
(a) As used in this section, the following terms have the meanings specified:
(1) Commercial fishing industry vessel means a fishing vessel, a fish processing vessel, or a fish tender vessel as defined in 46 U.S.C. 2101 (11a), (11b), or (11c), respectively.
(2) Personal use quantity means a quantity of a controlled substance as specified in 19 CFR 171.51.
(b) When a commercial fishing industry vessel is subject to seizure for a violation of 21 U.S.C. 881(a)(4), (6), or (7); of 19 U.S.C. 1595a(a); or of 49 U.S.C. App. 782 and the violation involves the possession of a personal use quantity of a controlled substance, the vessel shall be issued a summons to appear as prescribed in subpart F of 19 CFR part 171 in lieu of seizure, provided that the vessel is:
(1) Proceeding to or from a fishing area or intermediate port of call; or
(2) Actively engaged in fishing operations.
§ 1.08-1   Applicability.
(a) The regulations in this subpart apply to certain violations of the following statutes and regulations for which Coast Guard boarding officers are authorized to issue written warnings instead of recommending civil or criminal penalty procedures under subpart 1.07 of this part:
(1) 46 CFR 25.05 whistles or other sound producing devices;
(2) 33 CFR part 175, subpart B and 46 CFR subpart 25.25, Personal Flotation Devices.
(3) 46 CFR 25.35 backfire flame control;
(4) 46 CFR 25.40 ventilation;
(5) 33 CFR part 173 numbering;
(6) 46 U.S.C. 103, documented yachts;
(7) 33 CFR part 155 oil pollution prevention; and
(8) 46 CFR subpart 25.30, Fire Extinguishing Equipment and 33 CFR part 175, subpart E, Fire Protection Equipment;
(9) 33 CFR part 159 marine sanitation devices;
(10) 33 CFR part 175 subpart C, Visual Distress Signals.
(11) 33 CFR 83.01(g) Copy of rules.
(b) The Commandant authorizes designated boarding officers to issue warnings for certain minor violations of the statutes and regulations listed in paragraph (a) of this section. Written warnings are not authorized for all violations of these statutes and regulations.
§ 1.08-5   Procedures.
(a) A written warning may be issued where the boarding officer determines that:
(1) The observed violation is a first offense; and
(2) The operator states that the violation will be promptly corrected.
(b) A written warning may not be issued where:
(1) The operator is required to be licensed or credentialed;
(2) The violation is a failure to have required safety equipment on board; or
(3) The boarding officer notes three or more violations during one boarding.
(c) Each district office maintains a record of each written warning issued within that district for a period of not more than one year after date of issue except in cases involving violations of 33 CFR part 159 marine sanitation devices, records of which are maintained by each district office for not more than three years after date of issue.
(d) The district commander of the district in which the warning is issued may rescind a written warning and institute civil penalty action under § 1.07-10 of this part if a record check discloses a prior written warning or violation issued within one year or in the case of a violation of 33 CFR part 159 a prior written warning or violation issued within three years.
(e) Within 15 days after the date of issue, any person issued a written warning by a Coast Guard boarding officer may appeal the issuance of the warning to the district commander by providing in writing or in person any information that denies, explains, or mitigates the violations noted in the warning.
(f) Each written warning shall indicate that:
(1) The warning is kept on file for a period of not more than one year after date of issue or in the case of a violation of 33 CFR part 159 a period of not more than three years for reference in determining appropriate penalty action if there is a subsequent violation;
(2) If a record check reveals a prior written warning or violation within the time period designated in § 1.08-5(d) of this part, the warning may be revoked and civil penalty action instituted;
(3) If an additional violation occurs within the time period designated in § 1.08-5(d) the warning may be used as a basis for the assessment of a higher penalty for the subsequent violation; and
(4) Within 15 days after the date of issue, the person who is issued the warning may appeal to the District Commander by providing in writing or in person any information or material that denies, explains, or mitigates the violations noted in the warning.
§ 1.10-1   Official records and documents.
Identifiable records and documents of the Coast Guard are made available to the public in accordance with the Department of Transportation regulations contained in part 7 of title 49, Code of Federal Regulations.
§ 1.10-5   Public availability of records and documents.
(a) Each person desiring to inspect a record or document covered by this subpart that is located in Headquarters, or to obtain a copy of such a record or document, must make a written request to the Commandant (CG-61), Attn: Office of Information Management, U.S. Coast Guard Stop 7710, 2703 Martin Luther King Jr. Avenue SE., Washington, DC 20593-7710.
(b) Each person desiring to inspect a record or document covered by this subpart that is located in a Coast Guard district, or to obtain a copy of such a record or document, must make a written request to the district commander in command of the district, or to the officer-in-charge of the appropriate marine inspection zone. Coast Guard districts and marine inspection zones are listed in part 3 of this chapter.
(c) If the person making the request does not know where in the Coast Guard the record or document is located, he may send his request to the Chief, Office of Information Management (CG-61), at the address in paragraph (a) of this section.
§ 1.20-1   Testimony by Coast Guard personnel and production of records.
(a) The regulations in 49 CFR part 9 apply to the testimony of Coast Guard personnel, production of Coast Guard records, and service of process in legal proceedings.
(b) Except for the acceptance of service of process or pleadings under paragraph (d) of this section and 49 CFR 9.19, the Legal Officer of each Maintenance and Logistics Command, each District Legal Officer, and the Legal Officer assigned to any other Coast Guard unit or command, for matters involving personnel assigned to their command, are delegated the functions of “agency counsel” described in 49 CFR part 9.
(c) A request for a member or employee of the Coast Guard to testify, or for permission to interview such a member or employee, should be made to the Legal officer serving the command to which that member or employee is assigned, or, if the member or employee is serving at Coast Guard Headquarters, or with a command receiving legal services from the Judge Advocate General and Chief Counsel, U.S. Coast Guard (CG-094), to the Chief, Office of Claims and Litigation (CG-0945). Should the member or employee no longer be employed by the Coast Guard, and the testimony or information sought falls within the provisions of 49 CFR part 9, the request should be made to the District Legal Officer serving the geographic area where the former member or employee resides or, if no District Legal Officer has geographic responsibility, to the Chief, Office of Claims and Litigation.
(d) Process or pleadings in any legal proceeding concerning the Coast Guard may be served, at the option of the server, on the Judge Advocate General and Chief Counsel or the Deputy Judge Advocate General and Deputy Chief Counsel of the Coast Guard (CG-094) with the same effect as if served on the Commandant of the Coast Guard. The official accepting the service under this section acknowledges the service and takes further action as appropriate.
§ 1.25-1   Purpose.
(a) The regulations in this subpart established fees and charges which shall be imposed by the Coast Guard for making copies or excerpts of information or records, and for issuing certain duplicate merchant mariner credentials, merchant mariner documents, licenses or certificates.
(b) These fees and charges are imposed as required by Title V of the Independent Offices Appropriation Act of 1952 (Sec. 501, 65 Stat. 290, 31 U.S.C. 483a). This Act states that it is the sense of Congress that fees and charges shall be charged for services rendered the public by Federal agencies in order that such services may be performed on a self-sustaining basis to the fullest extent possible.
§ 1.25-30   Exceptions.
(a) The general policies and instructions of the Bureau of the Budget specify when certain services as specifically described in this subpart will be furnished without charge.
(b) The fees and charges prescribed in this subpart are not applicable when requested by, or furnished to, the following persons, or under the following circumstances:
(1) A person who donated the original document.
(2) A person who has an official, voluntary or cooperative relationship to the Coast Guard in rendering services promoting safety of life and property.
(3) Any agency, corporation or branch of the Federal Government.
(4) A person found guilty by an administrative law judge receives one copy of the transcript of the hearing if he:
(i) Files a notice of appeal, under 46 CFR 5.30-1; and
(ii) Requests a copy of the transcript.
(5) A person who has been required to furnish personal documents retained by the Coast Guard.
(6) For other exceptions see 49 CFR 7.97.
§ 1.25-40   Fees for services for the public.
The fees for services performed for the public, as prescribed in sections 552(a) (2) and (3) of title 5, United States Code, by the Department of Transportation are in subpart I of title 49, Code of Federal Regulations. The fee schedule for these services is contained in 49 CFR 7.95. The applicable fees are imposed and collected by the Coast Guard as prescribed in 49 CFR 7.93.
§ 1.25-45   Special admeasurement services.
If an admeasurer is assigned to measure or certify the tonnage of a vessel at the request of the owner thereof at a place other than a port of entry, a custom station, or port where an officer-in-charge, marine inspection, is located, the owner shall pay the admeasurer's:
(a) Pay based on the hourly rate for the grade or level of position held or the daily military compensation rate, as appropriate;
(b) Travel expense based on the estimated cost of travel from and return to the nearest port of entry, customs station, or office of an officer-in-charge, marine inspection; and
(c) Daily subsistence expense from the time he leaves his official duty station until he returns thereto.
§ 1.25-48   Oceanographic research.
(a) Each person allowed by the Coast Guard to join a Coast Guard voyage for the purpose of oceanographic research is charged the cost of each meal that he consumes while on board the Coast Guard vessel.
(b) The person, company, association, or government agency engaging a Coast Guard vessel for an oceanographic research study is charged the daily cost of operating the vessel.
§ 1.25-80   Payment of fees, charges or sales.
(a) The payment of fees and charges must be made by postal money order or check payable to the “Treasurer of the United States” or “U.S. Coast Guard,” and sent to the office of the Coast Guard performing the service or furnishing or delivering the record, document, or certificate. If copy is to be transmitted by registered, air, or special delivery mail, postal fees therefor will be added to fees provided in this subpart (or the order must include postage stamps or stamped return envelopes).
(b) The fee is payable in advance.
§ 1.26-1   Purpose.
(a) The regulations in this subpart establish charges which shall be imposed by the Coast Guard when the Coast Guard sells supplies, equipment, apparatus, temporary shelter, and services under certain specified conditions as authorized by law.
(b) These sales are intended to permit repayment of costs involved in those instances which are ordinarily outside the scope of those distress services with which the Coast Guard is primarily concerned (14 U.S.C. 88), or the equipment and apparatus are not readily procurable in the open market.
§ 1.26-5   Replacement of medals.
(a) A medal, or a bar, emblem, or insignia in lieu thereof, that is lost, destroyed, or rendered unfit for use without fault or neglect on the part of the person to whom it was awarded by the Coast Guard is replaced without charge by the Coast Guard as authorized in 14 U.S.C. 501.
(b) A medal, a bar, emblem or insignia in lieu thereof, that is lost, destroyed, or rendered unfit for use due to the fault or neglect of the person to whom it was awarded, is replaced after the Coast Guard is reimbursed for its cost. Current prices may be obtained from Commander, Personnel Service Center (PSC-PSD-M&A), U.S. Coast Guard Stop 7200, 4200 Wilson Boulevard Suite 1100, Arlington, VA 20598-7200.
§ 1.26-10   Sales to Coast Guard Auxiliary.
(a) The provisions of Title 14, U.S. Code, section 4101, authorizes the Coast Guard to furnish the Coast Guard Auxiliary such items as flags, pennants, uniforms, and insignia at actual cost.
(b) Sales of the following items (when available) are permitted to members of the Auxiliary:
(1) Auxiliary flags and pennants.
(2) Uniforms.
(3) Auxiliary insignia.
§ 1.26-15   Sales of nonexcess personal property and services.
(a) Authority. The provisions of Title 14, U.S. Code, section 901(b), authorizes the Coast Guard to sell apparatus or equipment manufactured by or in use in the Coast Guard, which is not readily procurable in the open market. The provisions of Title 14, U.S. Code, section 654 (Pub. L. 86-159 approved Aug. 14, 1959), authorize the Coast Guard to sell supplies and furnish services to public and commercial vessels, and other watercraft. 49 U.S.C. 44502(d) authorizes the Coast Guard to provide for assistance, the sale of fuel, oil, equipment, and supplies, to an aircraft when necessary to allow the aircraft to continue to the nearest private airport.
(b) Charges established by District Commander. The charges for supplies and services which may be normally expected to be furnished to persons, corporations, companies, vessels, and other watercraft, and non-Federal aircraft will vary between various geographical regions depending on local circumstances. The District Commander is hereby delegated authority to prescribe and he shall establish, in advance wherever practicable, the charges to be imposed and collected in various areas under his jurisdiction, which will be in accordance with the applicable general minimum terms and conditions in the laws and this section. In those cases where the charges have not been established in advance, the matter shall be priced on an individual basis, taking into consideration the facts and circumstances regarding the situation. The list(s) of charges established by the District Commander shall be available for reading and copying at the office of the issuing District Commander, which list(s) will be up-dated and reissued when necessary.
(c) Sales to vessels and other watercraft. (1) The charges imposed for services are intended to permit repayment of costs involved in those instances where supplies and services are furnished to meet the necessities of the circumstances, and such vessels or watercraft are not within the scope of those distress services performed by the Coast Guard.
(2) Charges for sales of supplies and/or furnishing of services are considered appropriate when the furnishing of food, fuel, general stores, or repairs to the vessel or its equipage are primarily for the convenience of the owner, master, or crew, and furnished at his or their request. It is not intended and the Coast Guard does not procure and stock equipment and supplies except as provided for in current instructions issued by competent authority.
(3) Supplies provided and services performed will be of a limited nature consistent with the situation and within the capabilities of the Coast Guard unit concerned; provided this will not be in competition with commercial enterprise when such facilities are available and deemed adequate. It is not intended to permit the operators of vessels or watercraft to take advantage of the Government by demanding free supplies or services. Determination as to whether charges will be made is dependent upon the circumstances involved in each instance. The responsibility to make this determination rests with the District Commander who may delegate it to his subordinates.
(4) The minimum charge for any supplies or services furnished to a vessel or other watercraft shall be $10. The prices for fuels and materials which may be sold will be at Coast Guard cost plus 20 percent or, if readily determinable, at the commercial price in the immediate operating area, whichever is higher. The charges for services furnished a vessel or watercraft will be an average cost equal to the full price, plus taxes, that a boat owner would pay a local commercial concern for such services.
(5) The sales of supplies and services will be documented and will set forth the name, type, and identifying number of the vessel or watercraft receiving supplies or services; name and address of vessel's owner; and conditions under which it was determined to make a sale to the vessel or watercraft. Wherever possible, payment shall be obtained at the time supplies and services are furnished.
(d) Sales of equipment not readily procurable on the open market. Charges imposed for sales of apparatus and equipment manufactured by or in use in the Coast Guard which, in the opinion of the Commandant (CG-9), is not readily procurable in the open market, are subject to the following conditions:
(1) The apparatus or equipment has not been reported as excess to the General Services Administration (if so reported, requests to purchase will be submitted by the Commandant (CG-9) to the General Services Administration); and,
(2) The apparatus or equipment is not classified for security reasons or is not dangerous to the public health and safety; and,
(3) The authorized buyers of this apparatus or equipment are foreign, State, or municipal governments or governmental units thereof; parties required to maintain private aids to navigation; contractors engaged on public works; and in other cases in which, in the judgment of the Commandant (FS), the public interest may be served; and,
(4) The approved sales will be at prices determined by the Commandant (CG-9), which will include an overhead charge not to exceed 25 percent of acquisition cost.
(e) Sales to and storage of non-Federal aircraft. (1) Activities having the necessary supplies and facilities are authorized to furnish fuel, oil, equipment, supplies, mechanical services, temporary storage, or other assistance to any aircraft operated by State, municipal, or private enterprise in emergency cases. Complete engines, airplane wings, or other major items of equipment shall not be furnished without prior authority from the Commandant.
(2) Aircraft damaged to the extent that major repairs are required may be given emergency storage at the request of the pilot, provided the necessary facilities are available. No such aircraft will be given a major or minor overhaul. Damaged aircraft may be stored in its original damaged condition. If aircraft requires extensive repairs, such as would include the replacing of major parts and such major parts cannot be made available or supplied within a reasonable length of time by the operator of such aircraft, then the aircraft must be removed from the Coast Guard reservation by the operator without delay.
(3) The Government will not assume any responsibility for any loss or damage incurred by such aircraft while on a Coast Guard reservation and the owner shall be required to remove the aircraft from the reservation at the earliest practicable date.
(4) Storage charges for such aircraft on a Coast Guard reservation shall be as follows:
(i) For the first 6 working days, no charge;
(ii) For each calendar day thereafter, $3 for a single motor plane and $5 for a dual or multiengine plane.
(5) In the absence of any information to the contrary regarding a particular item or material, the price at which the item is carried in stock, or on the Plant Property Record (book price) will be regarded as the fair market value.
(6) When materials or services or both materials and services are furnished an aircraft, a deposit equal to the estimated value of such services and materials as will be required shall be obtained in advance of the rendition of the services and issuance of the materials.
(7) The charges for mechanical services rendered (other than in connection with the arrival, refueling, and departure of airplanes) shall be an hourly charge for labor, with a minimum of 1 hour, which shall be the equivalent to the schedule of wage rates for civilian personnel for the district (i.e., machinists, helpers, etc.), regardless of whether the services are performed by enlisted or civilian personnel.
§ 1.26-20   Sales to eligible foreign governments.
(a) Policy of United States. The Congressional policy is set forth in Title 22, U.S. Code, section 2351. The Executive Order No. 10973 dated November 3, 1961 (26 FR 10469), describes the administration of foreign assistance and related functions.
(b) Diplomatic transactions. Sales of Coast Guard material under reimbursable aid will be by direction of the Commandant (CG-9) and as approved by the Office of the Chief of Naval Operations. Reimbursable aid transactions are diplomatic transactions and are negotiated primarily between the respective foreign military attaché or other representatives of their embassy in Washington, DC, and the Office of the Chief of Naval Operations. Prices will be based on material cost only and estimates will not include packing, crating, and handling or transportation costs. Under reimbursable aid, transportation costs are borne by the purchasing country and shipments are usually accomplished on collect commercial bills of lading.
§ 1.26-25   Payment of charges.
(a) The payment of charges shall be by postal money order or check payable to “U.S. Coast Guard,” and given or sent to the office of the Coast Guard performing the service or furnishing the supplies, equipment, etc.