[Federal Register Volume 88, Number 112 (Monday, June 12, 2023)]
[Rules and Regulations]
[Pages 37988-37992]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-12466]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 83

[Docket No. USCG-2022-0071]
RIN 1625-AC81


State Enforcement of Inland Navigation Rules

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

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SUMMARY: The Coast Guard is issuing this final rule to adopt the 2022 
interim rule removal of an incorrect statement in the Code of Federal 
Regulations about field preemption of State or local regulations 
regarding inland navigation. The incorrect language was added by a 2014 
final rule, and the error was subsequently discovered. By adopting the 
removal of this language, this rule clarifies the ability of States to 
regulate inland navigation as they have historically done. This rule 
does not require States to take any action.

DATES: This final rule is effective June 12, 2023.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to www.regulations.gov, type USCG-2022-0071 
in the search box and click ``Search.'' Next, in the Document Type 
column, select ``Supporting & Related Material.''

FOR FURTHER INFORMATION CONTACT:  For information about this document 
call or email Jeffrey Decker, Coast Guard Office of Auxiliary and 
Boating Safety (CG-BSX); telephone 202-372-1507, email 
[email protected].

SUPPLEMENTARY INFORMATION: 

Table of Contents for Preamble

I. Abbreviations
II. Basis and Purpose, and Regulatory History
III. Background
IV. Discussion of Comments and Changes
V. Discussion of the Rule
VI. Regulatory Analyses
    A. Regulatory Planning and Review
    B. Small Entities
    C. Assistance for Small Entities
    D. Collection of Information
    E. Federalism
    F. Unfunded Mandates
    G. Taking of Private Property
    H. Civil Justice Reform
    I. Protection of Children
    J. Indian Tribal Governments
    K. Energy Effects
    L. Technical Standards
    M. Environment

I. Abbreviations

APA Administrative Procedure Act
COLREGS International Regulations for Prevention of Collisions at 
Sea, 1972
CFR Code of Federal Regulations
DHS Department of Homeland Security
FR Federal Register
Inland Rules Inland Navigation Rules
NAICS North American Industry Classification System
NPRM Notice of proposed rulemaking
OMB Office of Management and Budget
Sec.  Section
SFRBT Sport Fish Restoration and Boating Trust
RFA Regulatory Flexibility Act
U.S.C. United States Code

II. Basis and Purpose, and Regulatory History

    Section 3 of the Inland Navigational Rules Act of 1980, as amended 
by section 303 of the Coast Guard and Maritime Transportation Act of 
2004,\1\ ``Inland Navigation Rules Promulgation Authority,'' authorizes 
the Secretary of the Department in which the Coast Guard is operating 
to issue inland navigation regulations and technical annexes for all 
vessels on the inland waters of the United States. The goal of such 
regulations is to be as consistent as possible with the corresponding 
international regulations. The Secretary delegated this authority to 
the Coast Guard in Department of Homeland Security (DHS) Delegation 
00170.1, Revision No. 01.3, paragraph (II)(79). The purpose of this 
final rule is to correct an error in title 33 of the Code of Federal 
Regulations (CFR) part 83, specifically in paragraph (a) of Sec.  
83.01, about the preemptive effect of the navigation regulations upon 
State or local regulation.
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    \1\ Public Law 108-293, 118 Stat. 1028, Aug. 9, 2004. Section 3 
of the Inland Navigational Rules Act of 1980 is codified at 33 
U.S.C. 2071.
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    On September 6, 2022, the Coast Guard published an interim rule, 
making this correction effective immediately for good cause. (87 FR 
54385) The interim rule also solicited public comments for 90 days.

III. Background

    The Inland Navigation Rules (hereafter ``Inland Rules'') are a body 
of ``special rules'' as referred to in Rule 1 of the International 
Regulations for Prevention of Collisions at Sea, 1972, often referred 
to as ``COLREGS'' or ``International Rules.'' The President proclaimed 
the International Rules as

[[Page 37989]]

U.S. law in accordance with the International Navigational Rules Act of 
1977.\2\ Congress subsequently set about harmonizing the Inland Rules 
that remained in use within the United States, including the Western 
Rivers Rules, Great Lakes Rules, the old Inland Rules, and parts of the 
Motorboat Act of 1940. These efforts culminated in the Inland 
Navigational Rules Act of 1980, which codified Rules 1 through 38, 
considered the main body of the Inland Rules.\3\
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    \2\ Public Law 95-75, 91 Stat. 308 (July 27, 1977).
    \3\ Public Law 96-591, 94 Stat. 3415 (Dec. 24, 1980).
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    Neither the International Navigational Rules Act of 1977 nor the 
Inland Navigational Rules Act of 1980 contained express language 
regarding the preemption of State law. A 2009 Sea Tow study (available 
in the docket where indicated under the ADDRESSES portion of the 
preamble) found that ``each State and Territory has its own version of 
navigation rules recorded in different locations in State law.'' The 
study further found that 37 of the 56 States and Territories had either 
adopted the International Rules or Inland Rules, or enacted laws 
requiring conformity with them. In April 2010, in accordance with 
congressional authorization, the Coast Guard issued regulations 
effectively transferring the Inland Rules from United States Code to 
the Code of Federal Regulations.\4\ The 2010 rule made no specific 
statements about the preemptive effect of the Inland Rules. The section 
of the preamble that discussed federalism said that there were no 
implications for federalism under Executive Order 13132, which 
addresses preemption.
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    \4\ 75 FR 19544, April 15, 2010; 33 CFR part 83.
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    In 2012, the Coast Guard proposed routine amendments to the Inland 
Rules to retain consistency with COLREGS amendments approved by the 
International Maritime Organization.\5\ At that time, the Coast Guard 
proposed to add a statement of preemptive effect to 33 CFR 83.01(a) in 
accordance with a 2009 Presidential memorandum regarding preemption.\6\ 
A commenter asked the Coast Guard to clarify that the proposed 
preemption language referred to field preemption rather than conflict 
preemption, and in the 2014 final rule, the Coast Guard said that it 
did.\7\ This erroneous statement has recently led to questions about 
whether State and local governments may regulate navigation on State 
waters where the Inland Rules apply. Some State agencies use State 
statutes to enforce violations outside the scope of the Inland Rules. 
These include prohibitions on negligent operations. Others have 
continued to patrol and enforce State boating violations under State 
navigation rules.
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    \5\ 77 FR 52175, August 28, 2012.
    \6\ ``Presidential Memorandum Regarding Preemption,'' May 20, 
2009, available at: DCPD-200900384.pdf (govinfo.gov).
    \7\ 79 FR 37897, 37900, July 2, 2014.
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    Field preemption means that State and local governments may not 
regulate in that field at all. This is distinct from conflict 
preemption, which allows State and local governments to regulate so 
long as their actions do not conflict with Federal regulations. Without 
express guidance from Congress, conflict preemption is the foundation 
for the relationship between the laws of the Federal government and 
those of the States. See Arizona v. United States, 567 U.S. 387 (2012).
    The 2014 preemption language was not viewed as a change in 
authority, and State and local enforcement continued as before. In 
2019, however, the Coast Guard learned that a boater had argued that 
the preemption statement in 33 CFR 83.01(a) meant that State law 
enforcement could not charge a violation of State navigation rules that 
were within the field of the Coast Guard's Inland Rules.
    The Coast Guard had informal discussions with State boating law 
administrators about the meaning of the language, and, in 2021, the 
National Association of State Boating Law Administrators asked the 
Coast Guard to clarify the issue. The Coast Guard revisited the 
preemption language and determined that the 2014 statement of field 
preemption is incorrect and undermines States' efforts to enhance 
navigational safety. In particular, the Coast Guard determined that 
Congress is not only aware of States' broad efforts to regulate in the 
area of boating safety, but also that Congress, in part, funds these 
efforts through the Sport Fish Restoration and Boating Trust (SFRBT) 
Fund,\8\ which is administered by the Coast Guard. The SFRBT Fund 
provides funding to States to enforce State boating laws and 
investigate boating accidents and fatalities, many of which are the 
direct result of navigation rules violations.
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    \8\ 46 U.S.C. Ch. 131: RECREATIONAL BOATING SAFETY (house.gov), 
See Section 13107: Authorization of Appropriations. Last viewed June 
2022.
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IV. Discussion of Comments

    The Coast Guard received one comment on the interim rule, which 
simply stated ``GOOD.'' As a result, we made no changes to the 
regulatory text of the interim rule.

V. Discussion of the Rule

    This rule adopts the removal of the final sentence of 33 CFR 
83.01(a), which states that regulations in 33 CFR parts 83 through 90 
have preemptive effect over State or local regulation within the same 
field. Removing the final sentence clarifies the original statutory 
language of Rule 1. This rule does not insert any other statement about 
preemption. This is consistent with prior versions of the Inland Rules, 
which were also silent on the subject and were historically viewed as 
conflict preemptive.
    Generally, under the Supremacy Clause of the U.S. Constitution, 
States are precluded from regulating conduct in a certain field (that 
is, field preemption applies) where a statute contains an express 
preemption provision, or when Congress has determined that conduct in a 
particular field must be regulated by its exclusive governance. In the 
words of the U.S. Supreme Court, ``The intent to displace state law 
altogether can be inferred from a framework of regulation so pervasive 
. . . that Congress left no room for the States to supplement it, or 
where there is a federal interest . . . so dominant that the federal 
system will be assumed to preclude enforcement of state laws on the 
same subject.'' Arizona, 567 U.S. at 399 (internal quotations omitted).
    In the case of inland navigation, nothing in the relevant statutory 
enactments by Congress has ever expressly stated or otherwise implied 
that the States are preempted from regulating in the field. Rather, the 
appropriate analysis is one of conflict preemption. Under conflict 
preemption, State law is preempted by Federal law only when compliance 
with both the State law and a Federal law is impossible, or the State 
law stands as an obstacle to the accomplishment and execution of the 
full purposes and objective of Congress. See Arizona, 567 U.S. 387. 
State regulation in the field of inland navigation is clearly evidenced 
by the longstanding existence of many State navigation laws and rules 
around the country, and by Congress' demonstrated awareness of such 
laws and rules and its lack of action to preempt them.
    State and local marine patrols play a significant role in ensuring 
safety on our waterways by enforcing navigational safety rules. State 
and local marine patrols outnumber Coast Guard patrols and conduct 
almost all the on-water safety enforcement interactions with the 
boating public. Operator inattention, improper lookout, unsafe speed, 
and other navigation rules violations, such as operating at night 
without navigation

[[Page 37990]]

lights, are contributing factors in many boating accidents. The Coast 
Guard fully supports the efforts of State and local marine patrols to 
prevent unsafe operations in accordance with the Inland Rules. While 
Congress has legislated in this area, it has not created a pervasive or 
dominant framework that indicates any intent to preclude States from 
regulating or enforcing their own laws and rules. Accordingly, State 
and local rules are preempted only in the instances described above: 
where compliance with both a State requirement and a Federal 
requirement is impossible, or where the State law stands as an obstacle 
to the accomplishment and execution of the full purposes and objective 
of Congress.
    We believe that most vessel operators, and State boating law 
administrators, assigned no meaning to the 2014 preemption language. 
Their ongoing operations will be unchanged by this final rule. Adopting 
the removal of the incorrect language about field preemption does not 
alter the obligations of the boating public. They have always been 
required to comply with the Inland Rules in 33 CFR parts 83 through 90. 
It also does not impose obligations on State and local government: no 
State or local government is required to enact its own navigation 
rules, and that does not change with removal of this language. This 
final rule merely allows State and local governments to continue to 
regulate local navigation in a way that is consistent with longstanding 
practice.

VI. Regulatory Analyses

    We developed this rule after considering numerous statutes and 
Executive orders related to rulemaking. Below, we summarize our 
analyses based on these statutes or Executive orders.

A. Regulatory Planning and Review

                                  Table 1--Summary of Impacts of the Final Rule
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                      Category                                                  Summary
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Applicability.......................................  The final rule adopts the removal of the last sentence in
                                                       33 CFR 83.01(a), ``The regulations in this subchapter
                                                       (subchapter E, 33 CFR parts 83 through 90) have
                                                       preemptive effect over State or local regulation within
                                                       the same field.''
Affected Population.................................  State and local Governments and vessel operators on the
                                                       inland waterways.
Costs...............................................  No estimated costs.
Unquantified Benefits...............................  Adopts the removal of incorrect regulatory language. This
                                                       removal provides regulatory clarity to State and local
                                                       governments to enforce their own regulations.
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    Executive Orders 12866 (Regulatory Planning and Review), as amended 
by Executive Order 14094 (Modernizing Regulatory Review), and 13563 
(Improving Regulation and Regulatory Review) direct agencies to assess 
the costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility.
    The Office of Management and Budget (OMB) has not designated this 
rule a significant regulatory action under section 3(f) of Executive 
Order 12866, as amended by Executive Order 14094. A regulatory analysis 
follows.
    This final rule adopts the removal of incorrect language from 33 
CFR 83.01(a). This rule clarifies that State and local governments are 
free to continue to regulate navigation consistent with longstanding 
practice. We believe that most vessel operators, and many local 
governments, were unaware of the 2014 error, and that their ongoing 
operations will be unchanged by this rule. No State has changed its 
Inland Rules since 2014, and our conversations with state regulators 
suggest they did not understand the preemption language to alter their 
enforcement ability. Based on our analysis, this rule does not impose 
any new requirements or regulatory costs on vessel operators, or on 
State and local governments. Many State and local governments were 
already enforcing navigation safety regulations, and the boating public 
has always been required to comply with the Inland Rules.
Affected Population
    This rule affects all State and local navigational law enforcement 
patrols whose laws or regulations were purported to have been preempted 
by 33 CFR 83.01(a). Although vessel operators on the inland waterways 
are a part of the affected population of this rule, they will not incur 
any new regulatory costs because they were already required by Federal 
law to comply with State and local navigation rules. This rule creates 
legal clarity about the States' ability to enforce their own 
navigational rules, which will maintain safe boating conditions for 
vessel operators. This rule only confirms the States' ability to retain 
and enforce navigational safety laws within the field of the Inland 
Rules. We are not aware that any State altered its navigational rules 
in response to the 2014 preemption statement, so we do not expect any 
State will alter its navigational rules in response to the statement's 
removal.
Cost Analysis of the Final Rule
    This final rule will not impose any new costs on vessel operators, 
or on State and local governments. State and local governments were 
already enforcing State and local regulations, and the boating public 
has always been required to comply with the Inland Rules. The economic 
baseline is that all potentially affected vessel operators and States 
are already in compliance with State and local rules, and, therefore, 
will not incur any costs from this rule.
Benefits Analysis of the Final Rule
    The primary benefit of the final rule is to clarify the Inland 
Rules by adopting the removal of incorrect regulatory language and, 
therefore, removing any potential question about whether States and 
local jurisdictions can enforce navigational rules on vessel operators 
who navigate the inland waterways. Without adopting this removal, the 
regulatory text applied as previously written would purport to prevent 
State and local marine patrols from enforcing the navigation laws or 
regulations. Continued State and local enforcement of State and local 
navigational safety rules is essential. Four of the top five factors in 
recreational boating accidents, as reported in the 2020 Recreational 
Boating Statistics (Commandant

[[Page 37991]]

Publication P16754.34),\9\ involve violations of navigation rules. 
Further, this rule clarifies that field preemption was never intended 
to be a valid legal defense in State enforcement proceedings.
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    \9\ Recreational-Boating-Statistics-2020.pdf 
(menlosecurity.com), last viewed March 2022.
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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.
    There are two affected populations for this final rule, States or 
State governments and vessel operators on the inland waterways. The 
North American Industry Classification System (NAICS) codes list State 
governments under the classification of ``Public Administration'' with 
a NAICS sector code of ``92.'' Although State governments would be 
affected by this final rule, they are not considered small entities 
under the Regulatory Flexibility Act (RFA) because they have 
populations of 50,000 or more. Local governments and vessel operators 
may be small entities under the RFA; however, this final rule does not 
impose any new regulatory requirements or costs on them. As a result, 
there are no small entities affected by this final rule. Our analysis 
shows that this final rule will not impose any regulatory costs on 
States and recreational boaters. The primary benefit of this final rule 
is to clarify existing regulatory text; 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. Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996, Public Law 104-121, we offer to assist small 
entities in understanding this rule so that they can better evaluate 
its effects on them and participate in the rulemaking. The Coast Guard 
will not retaliate against small entities that question or complain 
about this rule or any policy or action of the Coast Guard.
    Small businesses may send comments on the actions of Federal 
employees who enforce, or otherwise determine compliance with, Federal 
regulations to the Small Business and Agriculture Regulatory 
Enforcement Ombudsman and the Regional Small Business Regulatory 
Fairness Boards. The Ombudsman evaluates these actions annually and 
rates each agency's responsiveness to small business. If you wish to 
comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR 
(1-888-734-3247).

D. Collection of Information

    This rule calls for no new or revised collection of information 
under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501-3520.

E. Federalism

    A rule has implications for federalism under Executive Order 13132 
(Federalism) if it has a substantial direct effect on States, on the 
relationship between the National Government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government. We analyzed this final rule under Executive Order 13132 and 
determined that it is consistent with the fundamental federalism 
principles and preemption requirements described in Executive Order 
13132. Our analysis follows.
    States may not regulate in categories reserved by Congress for the 
exclusive regulation by the Coast Guard. For example, 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 United States v. 
Locke, 529 U.S. 89 (2000). This final rule, however, is adopting the 
correction of a misstatement in the Inland Rules to clarify that the 
Inland Rules are not field preemptive of State regulation of categories 
touching upon navigational safety. Therefore, this rule is consistent 
with the fundamental federalism principles and preemption requirements 
described in Executive Order 13132.
    While it is well settled that States may not regulate in categories 
in which Congress intended the Coast Guard to be the sole source of a 
vessel's obligations, the Coast Guard recognizes the key role that 
State and local governments may have in making regulatory 
determinations. Additionally, for rules with federalism implications 
and preemptive effect, Executive Order 13132 specifically directs 
agencies to consult with State and local governments during the 
rulemaking process. If you believe this rule has implications for 
federalism under Executive Order 13132, please call or email the person 
listed in the FOR FURTHER INFORMATION CONTACT section of this preamble.

F. Unfunded Mandates

    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 (adjusted for 
inflation) or more in any one year. Although this rule will not result 
in such expenditure, we do discuss the effects of this rule elsewhere 
in this preamble.

G. Taking of Private Property

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

H. 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.

I. 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 will not create an 
environmental risk to health or risk to safety that might 
disproportionately affect children.

J. Indian Tribal Governments

    This rule does not have Tribal implications under Executive Order 
13175 (Consultation and Coordination with Indian Tribal Governments), 
because it will 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.

K. 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

[[Page 37992]]

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.

L. Technical Standards

    The National Technology Transfer and Advancement Act, codified as a 
note to 15 U.S.C. 272, directs agencies to use voluntary consensus 
standards in their regulatory activities unless the agency provides 
Congress, through OMB, 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.

M. Environment

    We have analyzed this rule under Department of Homeland Security 
Management Directive 023-01, Rev. 1, associated implementing 
instructions, and Environmental Planning COMDTINST 5090.1 (series), 
which guide the Coast Guard in complying with the National 
Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made 
a determination that this action is one of a category of actions that 
do not individually or cumulatively have a significant effect on the 
human environment. A Record of Environmental Consideration supporting 
this determination is available in the docket. For instructions on 
locating the docket, see the ADDRESSES section of this preamble. This 
rule meets the criteria for categorical exclusions A3 and L54 in 
Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev 1. 
Categorical exclusion A3 pertains to ``promulgation of rules of a 
strictly administrative or procedural nature;'' and those that 
``interpret or amend an existing regulation without changing its 
environmental effect.'' Categorical exclusion L54 pertains to 
regulations that are editorial or procedural. This rule is a standalone 
action to delete an incorrect statement about field preemption of State 
or local regulations on the topic of inland navigation, the legal 
implications of which were recently recognized. This rule is not part 
of a larger action, and it will not result in significant impacts to 
the human environment. Removing the incorrect language will affirm the 
ability of States to legally regulate inland navigation as they long 
have done, well before the Inland Rules were established.

List of Subjects in 33 CFR Part 83

    Navigation (water); Waterways.

    Accordingly, the interim rule amending 33 CFR part 83, which was 
published on September 6, 2022 (87 FR 54385), is adopted as a final 
rule with the following change:

PART 83--NAVIGATION RULES

0
1. The authority citation for part 83 is revised to read as follows:

    Authority: 33 U.S.C. 2071; DHS Delegation No. 00170.1, Revision 
No. 01.3.

    Dated: June 7, 2023.
W.R. Arguin,
Rear Admiral, U.S. Coast Guard, Assistant Commandant for Prevention 
Policy.
[FR Doc. 2023-12466 Filed 6-9-23; 8:45 am]
BILLING CODE 9110-04-P


