E9-28473. Shipping; Vessel Inspections; Technical and Conforming Amendments

AGENCY:

Coast Guard, DHS.

ACTION:

Final rule.

SUMMARY:

This rule makes a non-substantive change to the definition of “ferry” in 46 CFR. The purpose of this rule is to incorporate into Coast Guard regulations the statutory definition of “ferry” found at 46 U.S.C. 2101(10)(b), as amended by the Coast Guard and Maritime Transportation Act of 2006. This rule will have no substantive effect on ferry vessel owners or operators or other members of the public.

DATES:

This final rule is effective December 4, 2009.

ADDRESSES:

Comments and material received from the public, as well as documents mentioned in this preamble as being available in the docket, are part of docket USCG-2008-1107 and are available for inspection or copying at 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. You may also find this docket on the Internet by going to http://regulations.gov,, inserting USCG-2008-1107 in the “Keyword” box, and then clicking “Search.”

FOR FURTHER INFORMATION CONTACT:

If you have questions on this rule, call or email LCDR Reed Kohberger, Coast Guard Headquarters, Washington, DC, telephone [phone], [e-mail]. If you have questions on viewing the docket, call Ms. Renee V. Wright, Program Manager, Docket Operations, telephone [phone].

SUPPLEMENTARY INFORMATION:

Table of Contents for Preamble

I. Abbreviations

II. Regulatory History

III. Background and Purpose

IV. Regulatory Analysis

A. Regulatory Planning and Review

B. Small Entities

C. Collection of Information

D. Federalism

E. Unfunded Mandates Reform Act

F. Taking of Private Property

G. Civil Justice Reform

H. Protection of Children

I. Indian Tribal Governments

J. Energy Effects

K. Technical Standards

L. Environment

I. Abbreviations

CFR Code of Federal Regulations

DHS Department of Homeland Security

FR Federal Register

NPRM Notice of Proposed Rulemaking

U.S.C. United States Code

II. Regulatory History

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(3)(B), the Coast Guard finds that good cause exists for not publishing an NPRM for the revision in the rule because it is a non-substantive change. These changes will have no substantive effect on the public beyond what is already required by statute; therefore, it is unnecessary to publish an NPRM because these regulatory revisions are already mandated by law. Notice and public procedures are unnecessary because public comment on this rulemaking will have no effect on the statute that these rules incorporate. This rule does not create any substantive requirements, but merely incorporates a technical change to a statutory definition into the CFR. See, Gray Panthers Advocacy Committee v. Sullivan, 936 F.2d 1284, 1291 (D.C. Cir. 1991) (when regulations merely restate the statute they implement, notice-and-comment procedures are unnecessary); Komjathy v. National Transportation Safety Bd., 832 F.2d 1294, 1297 (D.C.Cir.1987), cert. denied, 486 U.S. 1057, 108 S.Ct. 2825, 100 L.Ed.2d 926 (1988) (“The fact that the regulation merely reiterates the statutory language precludes any serious argument that the regulation affects the agency or holders of airman certificates in such a way as to require notice-and-comment procedures pursuant to 5 U.S.C. 553.”) Under 5 U.S.C. 553(b)(3)(A), the Coast Guard also finds that this rule is exempt from notice and comment rulemaking requirements because these provisions involve agency organization, procedures, and practices. This final rule merely restates the revised statutory definition for the inspection and certification of ferry vessels. The Coast Guard already ensures that these vessels comply with the vessel inspection laws and regulations. It is necessary for Coast Guard inspection personnel to be aware of this new statutory mandate and for Coast Guard procedures used by local Coast Guard inspection offices to be modified where necessary to reflect this change in the law. These amendments place this new statutory mandate into Coast Guard regulations that are used by inspection personnel. This rule consists only of corrections and editorial, organizational, and conforming amendments.

The rule is effective immediately notwithstanding 5 U.S.C. 553(d) because it is not a substantive rule.

III. Background and Purpose

We are amending the definition of “ferry” in 46 CFR to conform to the statutory definition of “ferry” found at 46 U.S.C. 2101(10)(b), which was amended by section 301 of The Coast Guard and Maritime Safety Act of 2006, Public Law 109-241. The amended definition provides that “Ferry means a vessel that is used on a regular schedule—

(1) To provide transportation only between places that are not more than 300 miles apart; and

(2) To transport only —

(i) Passengers; or

(ii) Vehicles, or railroad cars, that are being used, or have been used, in transporting passengers or goods.”

The statutory definition of ferry was further included elsewhere in the Act as a category of passenger vessel or small passenger vessel, both of which already require inspection and certification. See, 46 U.S.C. 2101(22) and (35).

This rule merely conforms to the statutory requirements of defining ferry vessels and including them within the category of passenger vessel or small passenger vessel as appropriate. The existing tables in 46 CFR that describe vessels requiring inspection and certification are being amended to reflect the change in statutory definition.

Discussion of Rule

Subchapters A, H, K, and T of 46 CFR, define the term “ferry” and this rule modifies those definitions to conform to the statutory definition and the applicability of the inspection subchapter to ferry vessels. Subchapters A, C, D, I, H, and U of 46 CFR contain tables that describe vessels requiring inspection and certification. This rule incorporates ferry vessels into those tables in the appropriate category of passenger vessel or small passenger vessel in accordance with the statutory change.

IV. 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.

A. 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 under the regulatory policies and procedures of DHS is unnecessary. As this rule involves technical and conforming amendments and procedures and non-substantive changes, it will not impose any costs on the public.

B. 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. This rule does not require a general NPRM and, therefore, is exempt from the requirements of the Regulatory Flexibility Act. Although this rule is exempt, we reviewed it for potential economic impact on small entities. Therefore, the Coast Guard certifies under 5 U.S.C. 605(b) that this final rule will not have a significant economic impact on a substantial number of small entities.

C. 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).

D. 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. It is well settled that States may not regulate in categories reserved for regulation by the Coast Guard. It is also well settled, now, that all of the categories covered in 46 U.S.C. 3306, 3703, 7101, and 8101 (design, construction, alteration, repair, maintenance, operation, equipping, personnel qualification, and manning of vessels), as well as the reporting of casualties and any other category in which Congress intended the Coast Guard to be the sole source of a vessel's obligations, are within the field foreclosed from regulation by the States. (See the decision of the Supreme Court in the consolidated cases of United States v. Locke and Intertanko v. Locke, 529 U.S. 89, 120 S.Ct. 1135 (March 6, 2000).)

Section 301 of The Coast Guard and Maritime Safety Act of 2006, Public Law 109-241, amended the statutory definition of ferry found at 46 U.S.C. 2101(10)(b) to include ferry vessels as a category of passenger vessel or small passenger vessel in the statute. These categories of vessels are required to undergo safety inspections prior to and during subsequent operation of the vessels, including approval of the design, construction, alteration, repair, maintenance, operation, equipping, personnel qualification, and manning of the vessels. Because the States may not regulate within these categories, preemption under Executive Order 13132 is not an issue.

E. 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 an expenditure of this magnitude, we do discuss the effects of this rule elsewhere in this preamble.

F. Taking of Private Property

This rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

G. 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.

H. 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 create an environmental risk to health or risk to safety that may disproportionately affect children.

I. 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.

J. 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.

K. 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.

L. Environment

We have analyzed this rule under Department of Homeland Security 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. This rule is categorically excluded, under section 2.B.2. figure 2-1, paragraph 34(a) and (d), of the Instruction. This rule involves a non-substantive, technical change to conform the regulations to an amended statutory definition found at 46 U.S.C. 2101(10)(b) and the applicability of inspection to ferry vessels. Paragraph 34(a) deals with editorial or procedural regulations and paragraph 34(d) concerns regulations for the inspection of vessels. An environmental analysis checklist and a categorical exclusion determination are available in the docket where indicated under ADDRESSES.

List of Subjects

46 CFR Part 2

• Marine safety
• Passenger vessels
• Water transportation

46 CFR Part 24

• Marine safety
• Passenger vessels

46 CFR Part 30

• Marine safety
• Passenger vessels

46 CFR Part 70

• Marine safety
• Passenger vessels
• Water transportation

46 CFR Part 90

• Marine safety
• Passenger vessels

46 CFR Part 114

• Marine safety
• Passenger vessels
• Water transportation

46 CFR Part 175

• Marine safety
• Passenger vessels
• Water transportation

46 CFR Part 188

• Marine safety
• Passenger vessels

For the reasons discussed in the preamble, the Coast Guard amends 46 CFR parts 2, 24, 30, 70, 90, 114, 175, and 188 as set forth below:

Title 46—Shipping

PART 2—VESSEL INSPECTIONS

1. The authority citation for part 2 continues to read as follows:

Authority: 33 U.S.C. 1903; 43 U.S.C. 1333; 46 U.S.C. 2110, 3103, 3205, 3306, 3307, 3703; 46 U.S.C. Chapter 701; E.O. 12234, 45 FR 58801, 3 CFR, 1980 Comp., p. 277; Department of Homeland Security Delegation No. 0170.1. Subpart 2.45 also issued under the Act Dec. 27, 1950, Ch. 1155, secs. 1, 2, 64 Stat. 1120 (see 46 U.S.C. App. Note prec. 1).

2. Revise Table 2.01-7(a) to read as follows:

§ 2.01-7

Classes of vessels (including motorboats) examined or inspected and certificated.

(a) * * *

* * * * *

3. Section 2.10-25 is amended by revising the definitions for “Ferry”, “Passenger Vessel”, and “Small Passenger Vessel”, to read as follows:

46 CFR § 2.10-25

§ 2.10-25

Definitions.

* * * * *

Ferry means a vessel that is used on a regular schedule—

(1) To provide transportation only between places that are not more than 300 miles apart; and

(2) To transport only—

(i) Passengers; or

(ii) Vehicles, or railroad cars, that are being used, or have been used, in transporting passengers or goods.

* * * * *

Passenger vessel means a vessel of at least 100 gross tons:

(1) Carrying more than 12 passengers, including at least one passenger for hire;

(2) That is chartered and carrying more than 12 passengers;

(3) That is a submersible vessel carrying at least one passenger for hire; or

(4) That is a ferry carrying a passenger.

* * * * *

Small passenger vessel means a vessel of less than 100 gross tons:

(1) Carrying more than 6 passengers, including at least 1 passenger for hire;

(2) That is chartered with the crew provided or specified by the owner or the owner's representative and carrying more than 6 passengers;

(3) That is chartered with no crew provided or specified by the owner or the owner's representative and carrying more than 12 passengers;

(4) That is a submersible vessel carrying at least one passenger for hire; or

(5) That is a ferry carrying more than 6 passengers.

* * * * *

PART 24—GENERAL PROVISIONS

4. The authority citation for part 24 continues to read as follows:

Authority: 46 U.S.C. 2113, 3306, 4104, 4302; Pub. L. 103-206; 107 Stat. 2439; E.O. 12234; 45 FR 58801; 3 CFR, 1980 Comp., p. 277; Department of Homeland Security Delegation No. 0170.1.

5. Revise Table 24.05-1(a) to read as follows:

§ 24.05-1

Vessels subject to the requirements of this subchapter.

(a) * * *

* * * * *

PART 30—GENERAL PROVISIONS

6. The authority citation for part 30 continues to read as follows:

Authority: 46 U.S.C. 2103, 3306, 3703; Pub. L. 103-206, 107 Stat. 2439; 49 U.S.C. 5103, 5106; Department of Homeland Security Delegation No. 0170.1; Section 30.01-2 also issued under the authority of 44 U.S.C. 3507; Section 30.01-05 also issued under the authority of Sec. 4109, Pub. L. 101-380, 104 Stat. 515.

7. Revise Table 30.01-5(d) to read as follows:

§ 30.01-5

Application of regulations—TB/ALL.

* * * * *

(d) * * *

* * * * *

PART 70—GENERAL PROVISIONS

8. The authority citation for part 70 continues to read as follows:

Authority: 46 U.S.C. 3306, 3703; Pub. L. 103-206, 107 Stat. 2439; 49 U.S.C. 5103, 5106; E.O. 12234, 45 FR 58801; 3 CFR, 1980 Comp., p. 277; Department of Homeland Security Delegation No. 0170.1; Section 70.01-15 also issued under the authority of 44 U.S.C. 3507.

9. Revise Table 70.05-1(a) to read as follows:

§ 70.05-1

United States flag vessels subject to the requirements of this subchapter.

(a) * * *

* * * * *

10. Section 70.10-1 is amended by revising the definitions for “Ferry” and “Passenger vessel” to read as follows:

§ 70.10-1

Definitions.

* * * * *

Ferry means a vessel that is used on a regular schedule—

(1) To provide transportation only between places that are not more than 300 miles apart; and

(2) To transport only—

(i) Passengers; or

(ii) Vehicles, or railroad cars, that are being used, or have been used, in transporting passengers or goods.

* * * * *

Passenger vessel means a vessel of at least 100 gross tons:

(1) Carrying more than 12 passengers, including at least one passenger for hire;

(2) That is chartered and carrying more than 12 passengers;

(3) That is a submersible vessel carrying at least one passenger for hire; or

(4) That is a ferry carrying a passenger.

* * * * *

PART 90—GENERAL PROVISIONS

11. The authority citation for part 90 continues to read as follows:

Authority: 46 U.S.C. 3306, 3703; Pub. L. 103-206, 107 Stat. 2439; 49 U.S.C. 5103, 5106; E.O. 12234, 45 FR 58801; 3 CFR, 1980 Comp., p. 277; Department of Homeland Security Delegation No. 0170.1.

12. Revise Table 90.05-1(a) to read as follows:

§ 90.05-1

Vessels subject to the requirements of this subchapter.

(a) * * *

* * * * *

PART 114—GENERAL PROVISIONS

13. The authority citation for part 114 continues to read as follows:

Authority: 46 U.S.C. 2103, 3306, 3703; Pub. L. 103-206, 107 Stat. 2439; 49 U.S.C. App. 1804; Department of Homeland Security Delegation No. 0170.1; § 114.900 also issued under 44 U.S.C. 3507.

14. Section 114.110 is amended by revising paragraph (a)(3) and adding a new paragraph (a)(4) before the Note to paragraph (a) to read as follows:

§ 114.110

General applicability.

* * * * *

(a) * * *

(3) If a submersible vessel, carries at least one passenger for hire; or

(4) Is a ferry carrying more than 150 passengers, or having overnight accommodations for more than 49 passengers.

* * * * *

15. Section 114.400(b) is amended by revising the definition for “Ferry” to read as follows:

§ 114.400

Definitions of terms used in this subchapter.

* * * * *

(b) * * *

“Ferry” means a vessel that is used on a regular schedule—(1) To provide transportation only between places that are not more than 300 miles apart; and

(2) To transport only—

(i) Passengers; or

(ii) Vehicles, or railroad cars, that are being used, or have been used, in transporting passengers or goods.

* * * * *

PART 175—GENERAL PROVISIONS

16. The authority citation for part 175 continues to read as follows:

Authority: 46 U.S.C. 2103, 3205, 3306, 3703; Pub. L. 103-206, 107 Stat. 2439; 49 U.S.C. App. 1804; Department of Homeland Security Delegation No. 0170.1; 175.900 also issued under authority of 44 U.S.C. 3507.

17. Section 175.110 is amended by redesignating the “Note to § 175.110” as “Note to paragraph (a)”, revising paragraph (a)(4) and adding paragraph (a)(5) to read as follows:

§ 175.110

General applicability.

* * * * *

(4) If a submersible vessel, carries at least one passenger for hire; or

(5) Is a ferry carrying more than six passengers.

* * * * *

18. Section 175.400 is amended by revising the definition for “Ferry” to read as follows:

§ 175.400

Definitions of terms used in this subchapter.

* * * * *

Ferry means a vessel that is used on a regular schedule—

(1) To provide transportation only between places that are not more than 300 miles apart; and

(2) To transport only—

(i) Passengers; or

(ii) Vehicles, or railroad cars, that are being used, or have been used, in transporting passengers or goods.

* * * * *

PART 188—GENERAL PROVISIONS

19. The authority citation for part 188 continues to read as follows:

Authority: 46 U.S.C. 2113, 3306; Pub. L. 103-206, 107 Stat. 2439; 49 U.S.C. 5103, 5106; E.O. 12234, 45 FR 58801; 3 CFR, 1980 Comp., p. 277; Department of Homeland Security Delegation No. 0170.1.

20. Revise Table 188.05-1(a) to read as follows:

§ 188.05-1

Vessels subject to requirements of this subchapter.

(a) * * *

* * * * *

Dated: November 23, 2009.

Stefan G. Venckus,

Chief, Office of Regulations and Administrative Law, United States Coast Guard.