[Federal Register Volume 65, Number 83 (Friday, April 28, 2000)]
[Rules and Regulations]
[Pages 24878-24881]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-10499]


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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.

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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. Sec. 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 Sec. 4.50 [b]). Based on 
this definition, the Customs Service has held that a person

[[Page 24879]]

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 non-mandatory. 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.
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    \1\ The relevant industries are Deep Sea Transportation of 
Passengers (4481) and Water Transportation of Passengers, N.E.C. 
(4489).
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    Therefore, the Coast Guard certifies under 5 U.S.C. 605(b) that 
this interim rule will not have a significant

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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,

[[Page 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 Sec. 26.03-8 to read as follows:


Sec. 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 passengers-for-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]
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