
[Federal Register: December 4, 2009 (Volume 74, Number 232)]
[Rules and Regulations]               
[Page 63617-63672]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr04de09-26]                         

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

46 CFR Parts 2, 24, 30, 70, 90, 114, 175, and 188

[USCG-2008-1107]
RIN 1625-ZA21

 
Shipping; Vessel Inspections; Technical and Conforming Amendments

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

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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 202-372-1471, Reed.H.Kohberger@uscg.mil. If 
you have questions on viewing the docket, call Ms. Renee V. Wright, 
Program Manager, Docket Operations, telephone 202-493-0402.

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.

[[Page 63618]]

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

[[Page 63619]]

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.


0
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

0
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).


0
2. Revise Table 2.01-7(a) to read as follows:


Sec.  2.01-7  Classes of vessels (including motorboats) examined or 
inspected and certificated.

    (a) * * *
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* * * * *

0
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 Sec.  2.10-25


Sec.  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

0
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.


0
5. Revise Table 24.05-1(a) to read as follows:


Sec.  24.05-1  Vessels subject to the requirements of this subchapter.

    (a) * * *
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* * * * *

PART 30--GENERAL PROVISIONS

0
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.


0
7. Revise Table 30.01-5(d) to read as follows:


Sec.  30.01-5  Application of regulations--TB/ALL.

* * * * *
    (d) * * *
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* * * * *

PART 70--GENERAL PROVISIONS

0
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.


0
9. Revise Table 70.05-1(a) to read as follows:


Sec.  70.05-1  United States flag vessels subject to the requirements 
of this subchapter.

    (a) * * *
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* * * * *

0
10. Section 70.10-1 is amended by revising the definitions for 
``Ferry'' and ``Passenger vessel'' to read as follows:


Sec.  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

0
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.


0
12. Revise Table 90.05-1(a) to read as follows:


Sec.  90.05-1  Vessels subject to the requirements of this subchapter.

    (a) * * *
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* * * * *

PART 114--GENERAL PROVISIONS

0
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; Sec.  114.900 also issued under 44 U.S.C. 
3507.


0
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:


Sec.  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.
* * * * *

0
15. Section 114.400(b) is amended by revising the definition for 
``Ferry'' to read as follows:


Sec.  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

0
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.


0
17. Section 175.110 is amended by redesignating the ``Note to Sec.  
175.110'' as ``Note to paragraph (a)'', revising paragraph (a)(4) and 
adding paragraph (a)(5) to read as follows:


Sec.  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.
* * * * *

0
18. Section 175.400 is amended by revising the definition for ``Ferry'' 
to read as follows:


Sec.  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

0
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.


0
20. Revise Table 188.05-1(a) to read as follows:


Sec.  188.05-1  Vessels subject to requirements of this subchapter.

    (a) * * *
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* * * * *

    Dated: November 23, 2009.
Stefan G. Venckus,
Chief, Office of Regulations and Administrative Law, United States 
Coast Guard.
[FR Doc. E9-28473 Filed 12-3-09; 8:45 am]

BILLING CODE 9110-04-C
