24878 Federal Register / Vol. 65, No. 83 / Friday, April 28, 2000 / Rules and Regulations

[FR Doc. 00–10521 Filed 4–27–00; 8:45 am]

BILLING CODE 6560–50–P

DEPARTMENT OF TRANSPORTATION

Coast Guard

46 CFR Part 26

[USCG–1999–5040]

RIN 2115–AF69

Safety of Uninspected Passenger

Vessels Under the Passenger Vessel

Safety Act of 1993 (PVSA)

AGENCY: Coast Guard, DOT.

ACTION: Interim rule.

SUMMARY: The Coast Guard establishes

this interim rule to provide for the

issuance of special permits to

uninspected vessels under the Passenger

Vessel Safety Act of 1993 (PVSA). That

Act authorizes the Coast Guard to

amend operating and equipment

guidelines for uninspected passenger

vessels over 100 gross tons, carrying 12

or less passengers for hire. In addition,

it authorizes the Coast Guard to issue

special permits for vessels participating

in a Marine Event of National

Significance, such as OPSAIL 2000 and

Tall Ships 2000.

DATES: This interim rule is effective May

12, 2000.

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–1999–5040 and are

available for inspection or copying at

the Docket Management Facility, U.S.

Department of Transportation, room PL–

401, 400 Seventh Street SW.,

Washington, DC, between 9 a.m. and 5

p.m., Monday through Friday, except

Federal holidays. You may also find this

docket on the Internet at http://

dms.dot.gov.

FOR FURTHER INFORMATION CONTACT: For

questions on this rule, call Lieutenant

Commander Michael A. Jendrossek,

Office of Operating and Environmental

Standards (G–MSO–2), Coast Guard,

telephone 202–267–0836. For questions

on viewing or submitting material to the

docket, call Dorothy Walker, Chief,

Dockets, Department of Transportation,

telephone 202–366–9329.

SUPPLEMENTARY INFORMATION:

Regulatory History

On September 30, 1994, we published

Navigation and Vessel Inspection

Circular (NVIC) No. 7–94 to provide

compliance and enforcement guidance

to Coast Guard members on

implementing the provisions of the

PVSA while detailed regulations were

being developed. The NVIC addressed

the statutory changes in detail,

including one of the more significant

changes requiring all chartered vessels

carrying more than 12 passengers to be

inspected by the Coast Guard. The

PVSA allowed these vessels to apply for

inspection with a phase-in period for

compliance. The period for application

for inspection expired on June 21, 1994,

and the period for compliance expired

on December 21, 1996. With widespread

public notification, several hundred

charter vessels applied for and met the

conditions for certification with the

requirements of the PVSA and policy

guidance of the NVIC.

The NVIC also provided extensive

guidance to Coast Guard Marine Safety

field units on implementing the

provisions of the new law. For those

interested in viewing a copy of NVIC 7–

94, it is available in this rulemaking

docket as indicated under ADDRESSES

and also on the Internet at

www.uscg.mil/hq/g-m/nvic/

index90.htm.

On April 1, 1999, the Coast Guard

published an advanced notice of

proposed rulemaking (ANPRM) in the

Federal Register (64 FR 15709),

notifying the public of the intent of this

rulemaking and requesting comments in

several areas. We received nine letters

in response to the ANPRM.

On March 2, 2000, we published a

notice of proposed rulemaking (NPRM)

entitled ‘‘Safety of Uninspected

Passenger Vessels Under the Passenger

Vessel Safety Act of 1993 (PVSA)’’ in

the Federal Register (65 FR 11410).

Almost all of the changes proposed

there are still open for public comment.

Proposed section 26.03–8, however, was

issued with a 30-day comment period to

enable the Coast Guard to have

regulations in place for this year’s

millennium celebrations involving

sailing vessels from around the world,

beginning May 25, 2000. The Coast

Guard was not sure that certain vessels

would need an exemption in order to

participate in this celebration, thus we

did not propose these regulations

earlier. We received six comments on

this proposed section. No public hearing

was requested, and none was held.

Effective Date

The Coast Guard finds having these

regulations in place before this year’s

Marine Event of National Significance

begins constitutes good cause under the

Administrative Procedure Act (5 U.S.C.

§ 553(d)(3)) for an effective date of less

than 30 days. These regulations will

take affect on May 12, 2000.

Background and Purpose

The PVSA authorizes the Coast Guard

to develop regulations to issue special

permits to uninspected vessels. This

broadens the Coast Guard’s authority

from the excursion permit for inspected

vessels to carry passengers for unique

events. Under this authority, we

proposed issuing special permits to the

owner or operator of a vessel that is a

registered participant in an event that

the Commandant, U.S. Coast Guard,

declares as a Marine Event of National

Significance.

Discussion of Comments and Changes

The following is a summary of the

comments we received concerning the

proposed section 26.03–8 in the Notice

of Proposed Rulemaking. We received

six comments concerning the Coast

Guard’s implementation of special

permits for Marine Events of National

Significance.

One comment from The American

Sail Training Association requests that

Tall Ships 2000, scheduled to take place

from 12 June to 16 July 2000, be granted

designation as a Marine Event of

National Significance. The Commandant

has determined that Tall Ships 2000

meets the criteria necessary to be

designated as such an event. Therefore,

Tall Ships 2000 has been officially

designated as a Marine Event of

National Significance. In the NPRM for

this rule, we noted that the

Commandant had designated OPSAIL

2000 as a Marine Event of National

Significance (65 FR 11410).

We received four comments that

specifically address foreign flagged

vessels carrying passengers in coastwise

trade.

One comment states that the Coast

Guard cannot permit foreign flagged

vessels to transport passengers in the

U.S. coastwise trades. The Coast Guard

concurs with this comment. The

Passenger Vessel Services Act (46 U.S.C.

App. 283) prohibits the transportation of

merchandise and passengers between

points in the United States embraced

within the coastwise laws in any vessel

other than a vessel built in and

documented under the laws of the

United States and owned by persons

who are citizens of the United States.

However, the United States Customs

Service has defined a passenger as

‘‘* * *any person carried on a vessel

who is not connected with the operation

of such vessel, her navigation,

ownership, or business’’ (19 CFR § 4.50

[b]). Based on this definition, the

Customs Service has held that a person

Federal Register / Vol. 65, No. 83 / Friday, April 28, 2000 / Rules and Regulations 24879

1The relevant industries are Deep Sea

Transportation of Passengers (4481) and Water

Transportation of Passengers, N.E.C. (4489).

being trained or receiving instruction in

the handling or navigation of a vessel,

and whose presence on board the vessel

is necessarily required in order to

receive such training or instruction, is

not a passenger within the meaning of

the coastwise laws (Customs Letter

Rulings 111168, dated March 20, 1991).

This includes a person who pays to be

a trainee aboard a vessel. (You may

access the Custom Service’s written

ruling on the Internet at http://

192.239.92.158/cgi-bin/om_isapi.dll.

From this site, search the ‘‘Headquarters

Customs Rulings’’ infobase for ‘‘HQ

111168.’’) Conversely, the Coast Guard,

in accordance with maritime safety

laws, defines an individual that pays to

be a trainee to be a ‘‘passenger for hire.’’

However, there is an exception for U.S.

inspected sailing school vessels. While

the difference between the Coast

Guard’s and Customs Service’s

‘‘passenger’’ definition appears to be in

conflict, they serve vastly different

purposes. The Coast Guard’s issuing of

special permits for Marine Events of

National Significance is not intended to

provide an exemption to the Passenger

Vessel Services Act for foreign flagged

vessels. Foreign flagged vessels

participating in these events must

ensure that they are in compliance with

all appropriate U.S. laws, including the

Passenger Vessel Services Act.

To alleviate the confusion that may

arise due to the differing definitions of

‘‘passenger,’’ we have added paragraph

(e) to Section 26.03–8. Paragraph (e)

states that vessels carrying passengers

for hire under a special permit must still

meet the regulations set forth under the

Passenger Vessel Services Act.

One comment states that section

26.03–8 Marine Event of National

Significance Special Permits does not

do a good job establishing the criteria a

foreign vessel should meet and provide

to the Office in Charge Marine

Inspection (OCMI) before a special

permit to carry passengers may be

issued. The section does not address if

the vessel(s) must comply with SOLAS,

how the Jones Act is to be taken into

consideration, if the vessel(s) must

undergo a Port State Control Exam, if

the vessel must be ‘‘classed,’’ or what

criteria is used to decide if a waiver of

any of the above (if applicable) is

acceptable.

The Coast Guard is developing

inspection guidance in the form of a

Navigation and Inspection Circular

(NVIC), which will be distributed to

Coast Guard Marine Safety Units

responsible for issuing special permits

and to registered participants of Marine

Events of National Significance. It will

also be available in the docket for this

rulemaking at the locations indicated

under ADDRESSES. This NVIC, 1–00,

details the criteria that a vessel should

meet to qualify for a special operating

permit. The criteria is based on the

requirements the vessels would

otherwise have to meet as an inspected

vessel while taking into consideration

the intended operations of the vessel,

and the condition of the vessel and its

equipment. Other criteria maybe

considered as appropriate for individual

vessels to ensure the vessel provides a

satisfactory level of safety for the

intended operation. The guidance will

cover U.S. (certificated, uninspected,

and recreational) vessels, foreign flagged

vessels with International Maritime

Organization Certificates, public vessels,

and other vessels not included above.

The NVIC, also will include guidance

on foreign flag sail training vessels,

coastwise trade restrictions and

enforcement, Port State Control

inspections, and the handling of moored

attraction vessels. The NVIC will be

available within days of the publication

of this interim rule.

One comment expresses concern that

the term ‘‘Marine Event of National

Significance’’ may be somewhat

misleading and urged that the term not

be construed too strictly. The Coast

Guard will give all applications for

Marine Events of National Significance

fair and equal consideration.

The interim rule also includes small

grammatical changes to create a more

readable regulation.

Regulatory Evaluation

This rule is not a ‘‘significant

regulatory action’’ under section 3(f) of

Executive Order 12866 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. It is not ‘‘significant’’ under the

regulatory policies and procedures of

the Department of Transportation (DOT)

(44 FR 11040, February 26, 1979).

A final Regulatory Evaluation under

paragraph 10e of the regulatory policies

and procedures of DOT follows:

This rule establishes regulations that

implement safety measures for

uninspected passenger vessels under the

Passenger Vessel Safety Act of 1993

(PVSA). These regulations provide for

the issuance of special permits for

vessels registered as participants in

Marine Events of National Significance.

This rule affects uninspected vessels

participating in Marine Events of

National Significance. The Coast Guard

will inspect vessels not possessing the

appropriate certification and may issue

special permits allowing these vessels to

carry passengers during the event.

Vessel owners will have an information

request burden, as they must apply for

permits. For the estimate of costs, we

assume that about 175 vessels will

apply for special permits for each

Marine Event of National Significance.

We also assume that the amount of time

taken to file the application with the

Coast Guard and post the permit will

take 15 minutes (0.25 hrs.), and that the

person performing this activity earns a

wage rate of $48 per hour. Lastly, we

assume that vessels will take part in

such events once every 10 years.

Therefore, the 10-year present value cost

of this information collection request is

$2,064. As participation in these events

is not a requirement of the rule, these

costs are considered to be nonmandatory. There will be additional

cost to the government due to

inspections and travel. The 10-year

present value of the additional cost to

the government is estimated to be

$75,111. The intent of this requirement

is to provide a safer environment at

Marine Events of National Significance.

While there have been no notable past

problems at such events, the Coast

Guard is acting proactively to reduce the

risk of marine casualties.

Small Entities

Under the Regulatory Flexibility Act

(5 U.S.C. 601–612), we 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.

The only type of small entity that will

be affected by this interim rule is small

businesses. The size standards for the

relevant Standard Industrial

Classification (SIC) codes 1 consider

enterprises with 500 or less employees

to be small businesses. We assume that

all of the 175 uninspected vessels that

will require the special permits are

owned by small entities. The burden of

applying for participation in a Marine

Event of National Significance is

estimated at $12 per vessel. We do not

expect that owners of vessels will

consider this additional cost to be

significant.

Therefore, the Coast Guard certifies

under 5 U.S.C. 605(b) that this interim

rule will not have a significant

24880 Federal Register / Vol. 65, No. 83 / Friday, April 28, 2000 / Rules and Regulations

economic impact on a substantial

number of small entities.

Assistance for Small Entities

Under section 213(a) of the Small

Business Regulatory Enforcement

Fairness Act of 1996 (Pub. L. 104–121),

we offered to assist small entities in

understanding the rule so that they

could better evaluate its effects on them

and participate in this rulemaking. If

this rule affects your small business,

organization, or governmental

jurisdiction and you have questions

concerning its provisions or options for

compliance, please consult Lieutenant

Commander Michael A. Jendrossek,

Office of Operating and Environmental

Standards (G–MSO–2), telephone 202–

267–1055.

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 annually evaluates these

actions and rates each agency’s

responsiveness to small business. If you

wish to comment on actions by

employees of the Coast Guard, dial 1–

888–REG–FAIR (1–888–734–3247).

Collection of Information

This rule calls for a new collection of

information under the Paperwork

Reduction Act of 1995 (44 U.S.C. 3501–

3520). This collection of information

will be included under the current

approved Office of Management and

Budget (OMB) control number 2115–

0133, entitled ‘‘Vessel Inspection

Related Forms and Posting

Requirements Under Title 46 U.S.

Code.’’ We asked for public comment on

the collection of information, and we

received no comments.

Title: Vessel Inspection Related Forms

and Posting Requirements Under Title

46 U.S. Code.

Summary of the Collection of

Information: The owner, operator, or

agent of an uninspected vessel

participating in a Marine Event of

National Significance must submit an

application for a special permit.

Need for Information: The

information is needed to identify, and

inspect, all uninspected vessels that

participate in Marine Events of National

Significance to attest to the safety of

each vessel.

Proposed Use of the Information:

Applications will be used to initiate the

inspection process to determine

whether these vessels are properly

equipped to be granted the special

permit.

Description of Respondents: The

respondents are owners or operators of

uninspected vessels participating in a

Marine Event of National Significance.

Number of Respondents: The Coast

Guard estimates that owners of

approximately 175 vessels will require

and apply for permits at Marine Events

of National Significance in 2000.

Frequency of Response: The permits

are only valid for the duration of the

event or as otherwise prescribed by the

issuing authority. We estimate that the

vessels that require these permits will

only attend one Marine Event of

National Significance in 2000. We

further estimate that vessels will

participate in these events

approximately once every 10 years.

Burden of Response: The time burden

of this response request in 2000 is 43

hours for industry and 1080 hours for

the government. The total cost of these

burdens is $2,064 for industry and

$75,111 for the government.

Estimate of Total Annual Burden:

Since we estimate that vessels will

participate in Marine Events of National

Significance approximately every 10

years, the total annual burden is the

total burden reported above divided by

10. The annual time burden for industry

is 4 hours and the annual time burden

for government is 108 hours. The annual

cost of these respective burdens is $206

for industry and $7,511 for the

government.

As required by the Paperwork

Reduction Act of 1995 (44 U.S.C.

3507(d)), we submitted a copy of this

rule to the Office of Management and

Budget (OMB) for its review of the

collection of information. The section

number is 46 CFR 2.01–45, and the

corresponding approval number from

OMB is OMB Control Number 2115–

0133.

OMB has not yet acted upon our

request for an increase. We will publish

an additional notice when they do.

Until then, you are not required to

respond to a collection of information

unless it displays a currently valid OMB

control number.

Federalism Summary Impact Statement

We analyzed this rule under

Executive Order 13132, Federalism.

It is well settled that States are

precluded from regulating in categories

that are reserved for regulation by the

Coast Guard. It has also been settled that

all of the categories covered in 46 U.S.C.

3306 and 3703(a), 7101, and 8101 (e.g.,

design, construction, alteration, repair,

maintenance, operation, equipping,

personnel qualification, and manning of

vessels) are within the field foreclosed

from State regulation. See United States

v. Locke,—U.S.—No. 98–1701 (March 6,

2000). Ray v. Atlantic Richfield Co., 435

U.S. 151 (1978). This rule falls into the

above mentioned categories, thereby

precluding State regulation. Because

states may not promulgate regulations

within these categories, preemption is

not an issue under E.O. 13132.

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 regulatory actions not specifically

required by law. 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 such an expenditure, we do

discuss the effects of this rule elsewhere

in this preamble.

Taking of Private Property

This rule will not effect a taking of

private property or otherwise have

taking implications under E.O. 12630,

Governmental Actions and Interference

with Constitutionally Protected Property

Rights.

Civil Justice Reform

This rule meets applicable standards

in sections 3(a) and 3(b)(2) of E.O.

12988, Civil Justice Reform, to minimize

litigation, eliminate ambiguity, and

reduce burden.

Protection of Children

We analyzed this rule under E.O.

13045, Protection of Children from

Environmental Health Risks and Safety

Risks. This rule is not an economically

significant rule and does not concern an

environmental risk to health or risk to

safety that may disproportionately affect

children.

Environment

We considered the environmental

impact of this rule and concluded that,

under figure 2–1, paragraph (34)(c), (d),

and (e) of Commandant Instruction

M16475.lC, this rule is categorically

excluded from further environmental

documentation. This rule will not result

in any significant cumulative impact on

the human environment; any substantial

controversy or substantial change to

existing environmental conditions; any

impact, which is more than minimal, on

properties protected under 4(f) of the

DOT Act, as superseded by Public Law

97–449 and Section 106 of the National

Historic Preservation Act; or any

inconsistencies with any Federal, State,

Federal Register / Vol. 65, No. 83 / Friday, April 28, 2000 / Rules and Regulations 24881

or local laws or administrative

determinations relating to the

environment. A ‘‘Categorical Exclusion

Determination’’ is available in the

docket where indicated under

ADDRESSES.

List of Subjects in 46 CFR Part 26

Marine safety, Penalties, Reporting

and recordkeeping requirements.

For the reasons discussed in the

preamble, the Coast Guard amends 46

CFR part 26 as follows:

PART 26—OPERATIONS

1. The authority citation for part 26

continues to read as follows:

Authority: 46 U.S.C. 3306, 4104, 6101,

8105; E.O. 12234, 45 FR 58801, 3 CFR, 1980

Comp., p. 277; 49 CFR 1.46.

2. Add § 26.03–8 to read as follows:

§ 26.03–8 Marine Event of National

Significance special permits.

(a) For a Marine Event of National

Significance, as determined by the

Commandant, U.S. Coast Guard, a vessel

may be permitted to engage in

excursions while carrying passengersfor-hire for the duration of the event.

Event sponsors seeking this

determination must make written

request to the Commandant (G–M) at

least one year prior to the event.

(b) The owner, operator, or agent of a

vessel that is registered as a participant

in a Marine Event of National

Significance, may apply for a special

permit to carry passengers-for-hire for

the duration of the event. The master,

owner, or agent of the vessel must apply

to the Coast Guard OCMI who has

jurisdiction over the vessel’s first United

States port of call. The OCMI may issue

a Form CG–949 ‘‘Permit to Carry

Excursion Party’’ if in the opinion of the

OCMI the operation can be undertaken

safely. The OCMI may require an

inspection prior to issuance of a special

permit to insure that the vessel can

safely operate under the conditions for

which the permit is issued.

(c) The permit will state the

conditions under which it is issued.

These conditions must include the

number of passengers-for-hire the vessel

may carry, the crew required, the

number and type of lifesaving and safety

equipment required, the route and

operating details for which the permit is

issued, and the dates for which the

permit will be valid.

(d) The permit must be displayed in

a location visible to passengers.

(e) The carrying of passengers-for-hire

during a Marine Event of National

Significance must comply with the

regulations governing coastwise

transportation of passengers under 19

CFR 4.50 (b) and 19 CFR 4.80 (a).

Dated: April 21, 2000.

R.C. North,

Rear Admiral, U.S. Coast Guard, Assistant

Commandant for Marine Safety and

Environmental Protection.

[FR Doc. 00–10499 Filed 4–27–00; 8:45 am]

BILLING CODE 4910–15–U