[Federal Register Volume 74, Number 123 (Monday, June 29, 2009)]
[Rules and Regulations]
[Pages 30935-30938]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-15195]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 1

46 CFR Part 1

[USCG-2009-0314]
RIN 1625-ZA22


Establishment of Suspension and Revocation National Center of 
Expertise

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

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SUMMARY: This rule makes non-substantive, technical changes to Titles 
33 and 46 of the CFR to reflect the authorization and establishment of 
the Coast Guard Suspension and Revocation National Center of Expertise 
(S&R NCOE). The S&R NCOE is responsible for performing suspension and 
revocation functions regarding Merchant Mariner Credentials. 
Investigating Officers (IOs), both military and civilian employees, are 
assigned to the S&R NCOE for this purpose. These changes affect 
internal Coast Guard organization and functioning only and will have no 
substantive effect on mariners or other members of the public.

DATES: Effective on June 29, 2009.

ADDRESSES: Documents mentioned in this preamble as being available in 
the docket, are part of USCG-2009-0314 and are available online by 
going to http://www.regulations.gov, selecting the Advanced Docket 
Search option on the right side of the screen, inserting USCG-2009-0314 
in the Docket ID box, pressing Enter, and then clicking on the item in 
the Docket ID column. They are also available for inspection or copying 
at two locations: The Docket Management Facility (M-30), U.S. 
Department of Transportation, West Building Ground Floor, Room W12-140, 
1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 
p.m., Monday through Friday, except Federal Holidays, and at S&R COE 
co-located with the National Maritime Center, 100 Forbes Drive, 
Martinsburg, WV between 9 a.m. and 5 p.m., Monday through Friday, 
except Federal holidays.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call Commander Scott Budka, Supervisor, S&R NCOE, U.S. Coast Guard, 
telephone 304-433-3744. If you have questions on viewing the docket, 
call Ms. Renee V. Wright, Program Manager, Docket Operations, telephone 
or 202-366-9826.

SUPPLEMENTARY INFORMATION:

Regulatory Information

    The Coast Guard is issuing this final rule without prior notice and 
opportunity to comment pursuant to authority under section 4(a) of the 
Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision 
authorizes an agency to issue a rule, without prior notice and 
opportunity to comment, when the agency for good cause finds that those 
procedures are ``impracticable, unnecessary, or contrary to the public 
interest.'' Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good 
cause exists for not publishing a notice of proposed rulemaking (NPRM) 
with respect to this rule because is unnecessary. This rulemaking makes 
amendments to rules regarding agency organization and functioning. As 
such, comments are unnecessary because they would not change the Coast 
Guard's internal delegation of authority and duty regarding the 
Suspension and Revocation process or provide additional expertise 
regarding Coast Guard functioning.
    Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause 
exists for making this rule effective less than 30 days after 
publication in the Federal Register because these changes affect 
internal Coast Guard organization and functioning only and will have no 
substantive effect on the public.

[[Page 30936]]

Background and Purpose

    The Coast Guard published the Marine Safety Performance Plan for 
Fiscal Years 2009-2014 in November 2008. The plan is available at: 
http://www.uscg.mil/hq/cg5/cg54/mspp.asp. The plan announced the Coast 
Guard's intention to establish National Centers of Expertise to provide 
venues for professional development of Coast Guard personnel. One such 
National Center of Expertise is the Suspension and Revocation National 
Center of Expertise (S&R NCOE). The Coast Guard is charged by law to 
ensure that over 200,000 credentialed merchant mariners are competent 
and their conduct promotes marine safety, security and protection of 
the marine environment. See generally, 46 U.S.C. Part E. One of the 
mechanisms the Coast Guard utilizes to ensure the safe operation of the 
Maritime Transportation System (MTS) and protect the lives and safety 
of those at sea is our suspension and revocation (S&R) process 
regarding Merchant Mariner's Credentials (MMCs). See 46 U.S.C. Chapter 
77. The Coast Guard recognizes that mariners spend a great deal of time 
and effort to receive and to maintain their MMCs, which provides them a 
livelihood. The significant implications that result from the 
suspension or revocation of an MMC demand that Coast Guard 
investigating officers (IOs) be properly trained and proficient in the 
S&R process and administrative hearing procedures. The creation of an 
S&R NCOE will help to improve the professionalism and proficiency of 
IOs involved in the S&R process and administrative hearing procedures, 
but will not change the S&R process or procedures. The S&R NCOE will 
initially operate as a detached duty office of the Coast Guard's Office 
of Quality Assurance and Traveling Inspections (CG-546), with future 
plans to operate under the Commander, Coast Guard Force Readiness 
Command (FORCECOM).

Discussion of the Rule

    This rule amends Coast Guard regulations to incorporate the S&R 
NCOE into the S&R process. Specifically, changes to 33 CFR 1.01-20 and 
46 CFR 1.01-15 update the authority of the Commanding Officer of the 
National Maritime Center to refer issues regarding MMCs to the S&R 
NCOE, in addition to the current process of referring such cases to the 
processing Regional Examination Center or the cognizant Officer in 
Charge, Marine Inspection (OCMI). This update broadens the team of 
Coast Guard personnel who may handle a S&R case, but will not affect 
the process or procedures for a mariner who is the subject of an S&R 
case.
    This rule also updates the S&R process to reflect that the IOs at 
the S&R NCOE are authorized to initiate S&R proceedings by issuing 
complaints directly to mariners and handle all other aspects of S&R 
case processing. Current regulations authorize an OCMI, or an IO under 
the supervision of an OCMI, to initiate an S&R action. Under 46 CFR 
5.15, IOs are Coast Guard officials designated by either an OCMI, a 
District Commander, or Commandant for the purpose of conducting 
investigations of matters pertaining to the conduct or persons applying 
for or holding MMCs, among other matters. In accordance with internal 
delegation of authority and duty, IOs assigned to the S&R NCOE will be 
designated as IOs by the Commandant, and as such will be authorized to 
initiate S&R actions under existing authority in 46 CFR 5.15. To 
reflect this, 46 CFR 1.01-25 is amended by replacing specific language 
regarding the IOs with a cross-reference to the definition of IOs in 46 
CFR 5.15. This update also broadens the team of Coast Guard personnel 
who may handle a S&R case, but will not affect the process or 
procedures for a mariner who is the subject of an S&R case.
    Section 1.01-25 is also amended by updating specific terms used to 
describe the S&R process, but these changes are nonsubstantive and 
reflect only changes in current term usage. This amendment will make 
the general flow of functions information found in Part 1 compatible 
with the existing definition and authorities of an IO found in Part 5. 
Additionally, 46 CFR 1.01-25(c)(1)(i) is updated to accurately reflect 
that, under existing authority in 46 CFR part 5 and 33 CFR part 20, 
either party (the Coast Guard or the respondent) may appeal an 
Administrative Law Judge's decision. Currently, paragraph 1.01-
25(c)(1)(i) only addresses appeals filed by a respondent, and a new 
cross-reference to 33 CFR 20.1001 points the reader to the existing 
procedures for filing such an appeal.

Regulatory Analyses

    We developed this rule after considering numerous statutes and 
executive orders related to rulemaking. Below we summarize our analyses 
based on 13 of these statutes or executive orders.

Regulatory Planning and Review

    This rule is not a significant regulatory action under section 3(f) 
of Executive Order 12866, Regulatory Planning and Review, and does not 
require an assessment of potential costs and benefits under section 
6(a)(3) of that Order. The Office of Management and Budget has not 
reviewed it under that Order. We expect the economic impact of this 
rule to be so minimal that a full Regulatory analysis is not necessary. 
As this rule involves only non-substantive changes involving internal 
Coast Guard organization and functioning, it will not impose any costs 
on the public.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have 
considered whether this rule would have a significant economic impact 
on a substantial number of small entities. The term ``small entities'' 
comprises small businesses, not-for-profit organizations that are 
independently owned and operated and are not dominant in their fields, 
and governmental jurisdictions with populations of less than 50,000. It 
is not expected that this amendment will have a significant economic 
impact on any small entities. Therefore, the Coast Guard certifies 
under 5 U.S.C. 605(b) that this technical amendment will not have a 
significant economic impact on a substantial number of small entities.

Collection of Information

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

Federalism

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

Unfunded Mandates Reform Act

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

Taking of Private Property

    This amendment will not effect a taking of private property or 
otherwise have taking implications under

[[Page 30937]]

Executive Order 12630, Governmental Actions and Interference with 
Constitutionally Protected Property Rights.

Civil Justice Reform

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

Protection of Children

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

Indian Tribal Governments

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

Energy Effects

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

Technical Standards

    The National Technology Transfer and Advancement Act (NTTAA) (15 
U.S.C. 272 note) directs agencies to use voluntary consensus standards 
in their regulatory activities unless the agency provides Congress, 
through the Office of Management and Budget, with an explanation of why 
using these standards would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., specifications of materials, performance, design, or 
operation; test methods; sampling procedures; and related management 
systems practices) that are developed or adopted by voluntary consensus 
standards bodies. This rule does not use technical standards. 
Therefore, we did not consider the use of voluntary consensus 
standards.

Environment

    We have analyzed this rule under Department of Homeland Security 
Management Directive 023-01 and Commandant Instruction M16475.lD, which 
guide the Coast Guard in complying with the National Environmental 
Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded 
that this action is one of a category of actions which do not 
individually or cumulatively have a significant effect on the human 
environment. Therefore, this rule is categorically excluded, under 
figure 2-1, paragraph (34)(b), of the Instruction, which excludes 
regulatory actions concerning internal agency functions or 
organization, such as delegation of authority. This rule concerns Coast 
Guard internal functioning and organization. An environmental analysis 
checklist and a categorical exclusion determination are available in 
the docket where indicated under ADDRESSES.

List of Subjects

33 CFR Part 1

    Administrative practice and procedure, Organization and functions, 
Delegation of authority.

46 CFR Part 1

    Administrative practice and procedure, Organization and functions, 
General flow of functions.

0
For the reasons set forth in the preamble, the Coast Guard amends 33 
CFR part 1 and 46 CFR part 1 as follows:

Title 33

PART 1--GENERAL PROVISIONS

0
1. The authority citation for 33 CFR part 1 continues to read as 
follows:

    Authority: 14 U.S.C. 633; 33 U.S.C. 401, 491, 525, 1321, 2716, 
and 2716a; 42 U.S.C. 9615; 49 U.S.C. 322; Department of Homeland 
Security Delegation No. 0170.1; section 1.01-70 also issued under 
the authority of E.O. 12580, 3 CFR, 1987 Comp., p. 193; and sections 
1.01-80 and 1.01-85 also issued under the authority of E.O. 12777, 3 
CFR, 1991 Comp., p. 351.


0
2. Revise Sec.  1.01-20(b)(2) to read as follows:


Sec.  1.01-20  Officer in Charge, Marine Inspection.

* * * * *
    (b) * * *
    (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
* * * * *

Title 46

PART 1--ORGANIZATION, GENERAL COURSE AND METHODS GOVERNING MARINE 
SAFETY FUNCTIONS

0
3. The authority citation for 46 CFR part 1 continues to read as 
follows:

    Authority: 5 U.S.C. 552; 14 U.S.C. 633; 46 U.S.C. 7701; 46 
U.S.C. Chapter 93; Pub. L. 107-296, 116 Stat. 2135; Department of 
Homeland Security Delegation No. 0170.1; Sec.  1.01-35 also issued 
under the authority of 44 U.S.C. 3507.


0
4. Revise Sec.  1.01-15(c)(2) to read as follows:


Sec.  1.01-15  Organization; Districts; National Maritime Center.

* * * * *
    (c) * * *
    (2) Refer 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 recommend suspension or revocation under 46 U.S.C. 
Chapter 77 when deemed appropriate; and
* * * * *


0
5. Revise Sec.  1.01-25(c)(1) and (c)(1)(i) to read as follows:


Sec.  1.01-25  General flow of functions.

* * * * *
    (c) * * *
    (1) In the United States, the Commonwealth of Puerto Rico, 
Territory of Guam, the Virgin Islands, and other possessions, the 
proceedings are initiated by the issuance of a complaint against the 
holder of the Coast Guard credential. A Coast Guard Investigating 
Officer, as defined in 46 CFR 5.15, causes the complaint to be served 
on the person described therein (respondent) who is a holder of a Coast 
Guard credential. At a hearing the Coast

[[Page 30938]]

Guard submits evidence to support the allegations of the complaint, 
while the respondent may submit evidence in rebuttal or mitigation. The 
Administrative Law Judge renders a decision on the basis of the 
evidence adduced at the hearing and the law. The Administrative Law 
Judge's decision is given to the respondent.
    (i) In a case where an appeal is made by either party (Coast Guard 
or respondent), the notice of appeal is filed in accordance with the 
procedures of 33 CFR 20.1001(a).
* * * * *

    Dated: June 22, 2009.
Stefan G. Venckus,
Chief, Office of Regulations and Administrative Law, United States 
Coast Guard.
 [FR Doc. E9-15195 Filed 6-26-09; 8:45 am]
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