The Coast Guard plays a critical role in enforcing oil pollution laws in the United States. The Coast Guard’s Marine Safety Manual provides guidance on penalties for various types of pollution incidents (de la Rue, Anderson & Hare, 2022). However, the question of whether this guidance is a rule, which necessitates notice and comment rulemaking procedures, arises, and its validity is subject to judicial review. This paper will look at legal precedents and case law to see if the Coast Guard’s penalty guidance in the Marine Safety Manual is a rule.
Much is dependent on how the Coast Guard’s penalty guideline is classified under administrative law. If the guideline is deemed as a legislative rule, it will be subject to the Administrative Procedure Act’s (APA) notice-and-comment rulemaking processes, and its legality will be susceptible to judicial review. If, on the other hand, the guideline is categorized as an interpretative rule or a policy statement, it is exempt from notice-and-comment processes, and its legality is subject to more lenient court assessment. The court decided in Appalachian Power Co. v. EPA (208 F.3d 1015, 2000) that an EPA guidance paper establishing a regular enforcement program constituted a legislative regulation because it set binding standards that affected regulated parties. The policy statement, the court reasoned, had a substantive effect on private persons and had the force and effect of law. As a result, before producing the advice paper, the EPA was compelled to follow notice-and-comment processes.
Similarly, in United States v. Mead Corp. (533 U.S. 218, 2001), the Supreme Court held that whether an agency action qualifies as a legislative rule is determined by whether Congress delegated the agency the authority to make rules with the force of law, and whether the agency exercised that authority through notice-and-comment rulemaking. The Court highlighted that the APA distinguishes between legislative rules and policy statements that have the force and effect of law and interpretative rules and policy statements that do not. Based on these precedents, the Coast Guard’s guidance on fines in the Maritime Safety Manual might be regarded a legislative regulation subject to notice-and-comment procedures if it creates binding standards that influence regulated parties. For example, if the guideline provides precise penalties for certain types of pollution events and the Coast Guard routinely uses those penalties in enforcement proceedings, the guidance might be regarded as a binding norm.
If the guidance simply describes how the Coast Guard uses its enforcement discretion in determining fines, it may be deemed an interpretative rule or policy statement exempt from notice-and-comment processes. Whether the Coast Guard’s penalty instruction in the Maritime Safety Manual is a rule is determined by its substantive impact on regulated parties and whether it qualifies as a legislative rule subject to notice-and-comment procedures. If it is a legislative regulation, its legality will be challenged in court, and the Coast Guard will be forced to follow notice-and-comment processes before publishing or changing the guidance.
The Coast Guard’s penalty guideline in the Maritime Safety Manual is classified as a rule based on its substantial effect on regulated parties and whether it qualifies as a legislative rule subject to notice-and-comment processes. If it is a legislative regulation, its legality will be challenged in court, and the Coast Guard will be forced to follow notice-and-comment processes before publishing or changing the guidance. As legal precedents and case law illustrate, determining whether the guideline is a rule or not is a difficult legal topic that necessitates a thorough evaluation of its substantive effect on regulated parties.
Reference
de la Rue, C., Anderson, B. C., Hare, J. (2022). Shipping and the environment: Law and practice (3rd ed.). Taylor & Francis.