§ 1.01-50 Delegation

[CGD 85-071, 51 FR 22805, June 23, 1986] to District Commander, Seventeenth Coast Guard District.

The Commandant redelegates to the District Commander, Seventeenth Coast Guard District, the authority under the Act of September 10, 1976 (90 Stat. 1236, 46 U.S.C. 420) to issue permits exempting specific cargo-carrying vessels serving remote villages in the State of Alaska from all or part of the requirements of 46 U.S.C. 88, 391, 391a, and 404 and the regulations issued thereunder.

[CGD 80-90, 46 FR 15685, Mar. 9, 1981]

(a) The Commandant delegates to the Chief, Office of Navigation and Waterway Services, 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:

(i) 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.

(ii) A determination under section 4(f) of the Department of Transportation Act of 1966 (49 U.S.C. 1653).

(iii) Concurrence of the Department of Transportation under DOT Order 5610.1C (Procedures for Considering Environmental Impacts).

(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 Command

er, 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.

[CGD 80-099, 46 FR 38353, July 27, 1981; 46 FR 42268, Aug. 20, 1981, as amended by CGD 88-052, 53 FR 25119, July 1, 1988]

§ 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 Chief, Office of Marine Safety, Security and Environmental Protection (G-M) 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 CERCLA section 109, relating to violations of sections 103 (a) and (b) pertaining to notification requirements, and section 122 pertaining to administrative orders and consent decrees.

(e) Subject to the provisions of Executive Order 12580, 49 CFR 1.46 (ff)

and (gg), 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.

(a) The Secretary of Transportation is empowered by various statutes to issue regulations regarding the functions, powers and duties of the Coast Guard.

(b) The Secretary of Transportation by 49 CFR 1.45 and 1.46 has delegated to the Commandant, U.S. Coast Guard, the authority to issue regulations regarding the functions, powers and duties of the Coast Guard together with the authority to redelegate and authorize successive redelegations of that authority within the Coast Guard.

(c) The Commandant redelegates to the Chief, Office of Navigation Safety and Waterway Services, U.S. Coast Guard Headquarters, with the reservation that this authority shall not be further redelegated, the authority to:

(1) Grant exemptions from provisions of the Vessel Bridge-to-Bridge Radiotelephone Act and part 26 of this chapter.

(d) Subject to the provisions of paragraphs (e) and (f) of this section, the Commandant redelegates to each Coast Guard District Commander, with the reservation that this author

ity shall not be further redelegated, the authority, under section 13 of the Federal Boating Safety Act of 1971, to issue regulations applicable to a specific boat within his jurisdiction designating that boat unsafe for a specific voyage on a specific body of water when it is determined, under the provisions of § 177.07(g) of this chapter, that an unsafe condition exists.

(e) Each regulation issued by a Coast Guard District Commander under the provisions of paragraph (d) of this section shall contain:

(1) Notice that the person upon whom the rule is served has the right, under the Administrative Procedure Act (5 U.S.C. 553(e)), to petition for reconsideration and repeal of the rule;

(2) Full title and address of the Coast Guard District Commander to whom the petition is to be submitted; and

(3) Notice that the petition should contain:

(i) The text or substance of the rule which the petitioner seeks to have reconsidered and repealed;

(ii) A statement of the action sought by the petitioner;

(iii) Whatever arguments or data that are available to the petitioner to support the action sought; and

(iv) If the petitioner desires reconsideration and repeal of the rule before a specific date, the petition should so state and give reasons why action by that date is necessary.

(f) If a Coast Guard District Commander determines that a petition submitted under the provisions of paragraph (e) of this section contains adequate justification, he shall initiate prompt rulemaking action to repeal the rule. If the Coast Guard District Commander determines that repeal of the rule is not justified, he shall issue prompt written notice of denial to the petitioner.

(g) Except for those matters specified in paragraphs (h), (i), and (j) of this section, the Commandant redelegates to each Coast Guard District Commander, with the reservation that this authority shall not be further redelegated, the authority to issue rules and regulations pertaining to the following:

(1) Anchorage grounds and special anchorage areas.

(2) The designation of lightering

zones.

(3) The operation of drawbridges. (4) The establishment of Regulated Navigation Areas.

(h) The Commandant reserves authority to issue any rules and regulations specified in paragraph (g) of this section which are determined to be significant in accordance with the Department of Transportation's Policies and Procedures for Simplification, Analysis, and Review of Regulations (DOT Order 2100.5).

(i) The Commandant redelegates to the Chief, Office of Navigation Safety and Waterway Services, with the reservation that this authority should not be further redelegated, the authority to issue rules and regulations pertaining to anchorage grounds and special anchorage areas which:

(1) Have bean shown to raise substantial issues concerning the reasonable needs of navigation; or

(2) Have been shown to generate controversy on an issue of importance to a particular locality.

(j) The Commandant redelegates to the Chief, Office of Navigation Safety and Waterway Services, with the reservation that this authority shall not be further redelegated, the authority to issue rules and regulations pertaining to the operation of drawbridges which:

(1) Have been shown to raise substantial issues concerning the reasonable needs of navigation; or

(2) Have been shown to generate controversy on an issue of importance to a particular locality.

(k) The Commandant redelegates to each Coast Guard District Commander and Captain of the Port the authority to make the certification in 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.

(5 U.S.C. 553; 14 U.S.C. 632; Pub. L. 92-63, 85 Stat. 165, (33 U.S.C. 1201-8); 33 U.S.C. 471, 180, 258, 322, and 499; 46 U.S.C. 1488; 49 U.S.C. 1655, 1657; 49 CFR 1.4(a), (g), 1.45(b), and 1.46)

[CGFR 69-115, 35 FR 8279, May 27, 1970]

EDITORIAL NOTE: For FEDERAL REGISTER Cİtations affecting § 1.05-1, see the List of CFR Sections Affected in the Finding Aids section of this volume.

§ 1.05-3 Advance notice of proposed rulemaking.

An advance notice of proposed rulemaking may be issued under the Coast Guard policy for the early institution of public rulemaking proceedings. An advance notice is issued if the resources of the Coast Guard and a reasonable inquiry outside the Coast Guard do not yield a sufficient basis for identifying and selecting tentative or alternate courses of action upon which a rulemaking proceeding might be undertaken. An advance notice is also issued if it is helpful to invite early public participation in the identification and selection of tentative or alternate courses of action upon which a rulemaking proceeding might be undertaken.

[CGD 75-193, 41 FR 7506, Feb. 19, 1976]

81.05-5 Notices of proposed rulemaking.

(a) Whenever proposed changes in or additions to regulations relating to Coast Guard activities come within the scope of section 4 of the Administrative Procedure Act or are required by the provisions of a particular statute under which the authority to promulgate such regulations is given, notice of intention to consider enacting or amending rules and regulations or granting or withdrawing approvals of equipment for use on vessels will be published in the FEDERAL REGISTER, and will be distributed to interested parties for review and comment, upon request. Publication of the notice will be made approximately 30 days, or more if possible, before either the hearing or the final date for submission of comments, except that in certain cases circumstances may make it necessary to give less than 30 days' notice.

(b) Copies of the notice of proposed rulemaking or the full text of proposed regulations or type approvals of equipment will be distributed to interested parties for review and comment, so long as such copies are available. The notice will state where copies are available for inspection purposes only.

§ 1.05-10 Hearings.

(a) When required by the provisions of the particular statute under which the proposed regulations are to be promulgated, a public hearing shall be held in accordance with the notice of proposed rulemaking unless an emergency exists or it is contrary to the public interest to hold such a hearing.

(b) When the proposed regulations regarding activities under the cognizance of the United States Coast Guard may be of such scope and future effect that it would be in the public interest and would tend to promote safety of life and property at sea, a public hearing may also be held to allow for the orderly presentation of comments, suggestions, and recommendations.

(R.S. 4233A, as amended, 4417a, as amended, 4472, as amended, sec. 1, 30 Stat. 96, as amended; 33 U.S.C. 353, 46 U.S.C. 391a, 170, 33 U.S.C. 157)

[CGFR 48-72, 13 FR 9330, Dec. 31, 1948, as amended by CGFR 61-55, 26 FR 12570, Dec. 28, 1961]

§ 1.05-15 Hearing officer or panel of offi

cers.

(a) Except as provided under § 1.0525, each hearing under § 1.05-10 is conducted by a Hearing Officer or a panel of officers appointed by the Marine Safety Council.

(b) Each Hearing Officer or panel of officers described in paragraph (a) of this section hears the comments on proposed rules and regulations that are presented at each hearing.

[CGD 75-193, 41 FR 7506, Feb. 19, 1976]

§ 1.05-25 Hearings on regulations having only local applicability.

When proposed regulations have only local applicability, hearings, whenever practicable, will be held in the locality to which such regulations apply by an officer designated by the Commandant, U.S. Coast Guard.

[CGFR 48-72, 13 FR 9330, Dec. 31, 1948]

§ 1.05-30 Final action.

(a) After the hearing or after the final date when comments may be submitted in accordance with the notice of proposed rulemaking, the Merchant

Safety Council or the official designated in the notice shall consider all the data, views or arguments submitted and shall forward to the appropriate officer recommendations regarding the proposed regulations.

(b) Final action on the proposed regulation will be determined and the regulation issued by the Commandant or any other person delegated or otherwise authorized to issue rules.

(c) Amendments to the regulations or new regulations will be published in the FEDERAL REGISTER. The effective date will be not less than 30 days after the date of publication except when otherwise provided by the Administrative Procedure Act.

(5 U.S.C. 553; 49 U.S.C. 1655, 1657; 49 CFR 1.4(a) and (g), 1.46(b))

[CGFR 69-115, 35 FR 8279, May 27, 1970, as amended by CGD 72-105R, 37 FR 16546, Aug. 16, 1972; CGD 75-193, 41 FR 7506, Feb. 19, 1976]

Subpart 1.07-Enforcement; Civil and

Criminal Penalty Proceedings

AUTHORITY: 14 U.S.C. 633; 49 CFR 1.46. SOURCE: CGD 78-82, 43 FR 54186, Nov. 20, 1978, unless otherwise noted.

§ 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 a member of his staff.

(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 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.

(b) Reports of any investigation conducted by the Coast Guard or received from any other agency which indicate that a violation may have occurred are forwarded to a District Commander for 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 District Commander reviews the reports 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.

[CGD 78-82, 43 FR 54186, Nov. 20, 1978, as amended by CGD 87-008a, 52 FR 17554, May 11, 1987]

§ 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 subpenas necessary to the conduct of a hearing, to the extent provided by law.