Proceedings Of The Marine

SPR 2013

Proceedings magazine is a communication tool for the Coast Guard's Marine Safety & Security Council. Each quarterly magazine focuses on a specific theme of interest to the marine industry.

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of Training, CertiÀcation and Watchkeeping for Seafarers (STCW) amendments, the notice provided the dates and facility addresses for public meetings (including those locations where government-issued photo identiÀcation would be required for entrance), and who to contact for more information. The notice also announced that a verbatim record of each meeting would be posted to the docket and provided websites for live webcasts of the meetings.4 In addition to logistical measures, we can take other steps to ensure the public gets the most out of a meeting, such as arranging for the rulemaking project manager to preside at the meeting, or for a Áag ofÀcer or another senior ofÀcial to attend the meeting — to indicate by deed that the agency considers the meeting important. Coast Guard public meetings follow a standard format. In most cases, the presiding ofÀcer opens the meeting with administrative matters and provides a summary of the published proposal.5 Because the primary purpose of a public meeting is to gather information about a rulemaking, Coast Guard ofÀcials will normally listen to comments without engaging in a dialogue with those who comment. Sometimes, a question-and-answer format may be used; in these cases, answers are restricted to matters of fact contained in the initial proposal or already in the docket. While a reasonable amount of give and take in such circumstances may be acceptable, meetings are structured to facilitate receiving comments. Coast Guard ofÀcials must be careful to not allow the meeting to digress into a free-for-all. Ex Parte Communications and the Public Record Coast Guard policies prohibit ex parte communications in informal rulemaking, which is verbal or written communication that takes place off the public record. This type of communication can create the appearance of unfairness, or deny those on one side of an issue the opportunity to respond to comments made by the other. Public meetings avoid the unfairness of ex parte communications. We avoid ex parte communications by ensuring that all comments received at a public meeting become part of the docket. Moreover, Coast Guard personnel enter into the docket all handouts and presentations the public offers at the meeting; written comments, such as a letter delivered to a Coast Guard ofÀcial at the 54 Proceedings Winter 2012 | Spring 2013 meeting; and comments sent to a Coast Guard ofÀcial after the meeting. Coast Guard ofÀcials who do receive ex parte communications will encourage the submitter to send this information to the docket for consideration. Individuals can always submit their comments anonymously. Since ex parte communications in the context of a rulemaking will increase the risk of a legal challenge to the rule's legitimacy, the Coast Guard will normally inform the commenter that it will submit this information to the docket anonymously. The Benefits of a Public Meeting Not every informal rulemaking project includes a public meeting; however, it is a useful tool to offer to the public, especially when a project is controversial, complex, or both. A properly organized public meeting can increase the public's conÀdence that concerns and opinions are considered with the seriousness they deserve. Some of the most signiÀcant Coast Guard rulemakings in the past have included public meetings, including the aforementioned STCW rulemaking, as well as rulemakings regarding the Transportation Worker IdentiÀcation Credential, and towing vessel inspection. Reviewing the dockets for those rulemakings is a good way to further your understanding of the purpose and conduct of Coast Guard public meetings. About the author: CDR Michael Cavallaro is the deputy ofÀce chief, U.S. Coast Guard OfÀce of Regulations and Administrative Law, and executive secretary, Marine Safety and Security Council. Previous assignments include assistant legal ofÀcer at the Coast Guard Academy and marine inspector/investigator at Sector Hampton Roads. He received his J.D. from George Mason University School of Law. Endnotes: 1. 5 U.S.C. § 556. See also Lubbers, Jeffrey S., A Guide to Federal Agency Rulemaking (4th ed.), ABA Publishing (2006). 2. See 5 U.S.C. (section) 553(c). In United States v. Florida East Coast Railway, 410 U.S. 224 (1973), the Supreme Court, reviewing a section of the Interstate Commerce Act, held it did not mandate the use of formal rulemaking procedures because it only required a decision "after hearing," rather than employing the precise phrase "on the record after opportunity for an agency hearing" used in section 553(c). After Florida East Coast Railway, a statute requiring use of formal rulemaking procedures can be expected to have those "magic" words. 3. Commandant Instruction M16703.1, Preparation of Regulations, 4.E.2.a. 4. All Coast Guard rulemaking electronic public dockets are available at 5. Administrative matters include availability of sign-in sheets for attendees and sign-up sheets for those members of the public wishing to speak, time limits for speakers, a request that commenters speak from the podium microphone and state their name and organization before beginning, and announcing that the meeting is being recorded (or summarized) and the resultant record will be placed in the docket.

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