[Federal Register Volume 74, Number 89 (Monday, May 11, 2009)]
[Notices]
[Pages 21814-21816]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-10971]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

[USCG-2004-17674]


Craft Routinely Operated Dockside

AGENCY: Coast Guard, DHS.

ACTION: Notice of policy.

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SUMMARY: The Coast Guard gives notice that, in accord with a recent 
Supreme Court decision, it will no longer inspect permanently moored 
craft or issue Certificates of Inspection to such craft unless a craft 
demonstrates that it is a vessel, capable of being used as a means of 
transportation on water. This notice discusses the implications of the 
Supreme Court decision and responds to comments received in response to 
a 2004 notice that proposed a policy for permanently moored vessels.

DATES: The policy announced in this notice is effective May 11, 2009. 
Inspection services will continue, with State concurrence, until May 
11, 2011, for permanently moored craft that currently possess a Coast 
Guard-issued Certificate of Inspection, and that have been designed to 
Coast Guard regulations, and that may not be acceptable for regulation 
immediately by the State having jurisdiction.

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-2004-17674 and are available for inspection or 
copying at the Docket Management Facility, U.S. Department of 
Transportation, West Building Ground Floor, Room W12-140, 1200 New 
Jersey Avenue, SE., Washington, DC 20590-0001, 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://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: For questions on this policy, contact 
Lieutenant Commander David Webb of the Coast Guard's Office of Vessel 
Activities (CG-543), telephone 202-372-1216. For questions on viewing 
the docket call Renee V. Wright, Program Manager, Docket Operations, 
telephone 202-366-9826.

SUPPLEMENTARY INFORMATION: 

Background

    This notice is issued under the authority of 46 U.S.C. 3306, which 
conveys authority to the Secretary of Homeland Security to implement 
the vessel inspection provisions of 46 U.S.C. 3301.
    On June 21, 2004, the Coast Guard published a notice of proposed 
policy in the Federal Register (69 FR 34385), regarding the inspection 
of permanently moored vessels (PMVs). We proposed a policy of no longer 
issuing Certificates of Inspection (COI) to PMVs and no longer 
inspecting PMVs that currently have a COI, and invited public comments. 
In response, we received letters from 27 commenters, containing 62 
comments.
    While we were considering those public comments, the Supreme Court 
issued its decision in Stewart v. Dutra Construction Company, Inc., 543 
U.S. 481, 125 S.Ct. 1118 (2005). That case held that a dredge was a 
``vessel'' under 1 U.S.C. 3. The Court decided that 1 U.S.C. 3 provides 
the defining criteria for determining what constitutes a vessel, 
wherever the U.S. Code refers to ``vessel'' as a jurisdictional 
criterion. In determining whether a particular craft is also a vessel, 
the ``question remains in all cases whether the watercraft's use `as a 
means of transportation on water' is a practical possibility or merely 
a theoretical one.'' 543 U.S. at 496.
    The Supreme Court's decision ended the prior situation, under which 
various circuit courts of appeal had applied different tests to 
determine whether a particular craft constituted a vessel, depending on 
the statute to be construed and the facts of the case. Under the prior 
situation, we attempted to apply the different tests so as to provide 
maximum flexibility in achieving the purpose of the particular statute 
being administered. After Stewart, however, it is clear that we must 
apply the single test of whether a craft is used, or is practically 
capable of being used, as a means of transportation on water. Stewart 
implies that a ``permanently moored vessel'' is an oxymoron, since such 
a craft is neither used nor practically capable of being used as 
transportation on water, and therefore cannot be considered a vessel. 
Only a vessel can be inspected by the Coast Guard under the authority 
of 46 U.S.C. 3301. Thus, in order to conform to Stewart, we have 
concluded that we will issue Certificates of Inspection to

[[Page 21815]]

craft that routinely operate dockside and do not normally get underway 
only if they also constitute ``vessels'' as defined in 1 U.S.C. 3 and 
interpreted in Stewart.

Discussion of Comments

    In response to our June 2004 notice of proposed policy, the Coast 
Guard received letters from 27 commenters, containing 62 comments. Ten 
comments asked for greater clarity in our proposed policy, or 
questioned how uniformly it could be applied across the country, four 
comments pertained to specific craft that might be affected by the 
proposed policy, and two comments requested public meetings to discuss 
the proposed policy. We have concluded that these comments need no 
specific response, in light of the Stewart case and the consequent 
revision of our policy. Also, we received three comments raising 
concerns about the timing of any transition from Coast Guard to land-
based State or local regulation. As we discuss later in this notice, we 
will respond to these concerns by providing temporary grandfathering 
for certain PMCs that currently possess a Certificate of Inspection. 
The remaining 43 comments are addressed under the following four 
subject headings.

Vessels Operating in Moorings and Not Underway

    Fourteen comments expressed concern that the Coast Guard might 
force any vessel choosing to operate in its moorings instead of getting 
underway to surrender its Certificate of Inspection and become 
reclassified as a ``permanently moored vessel''.
    In light of Stewart, we will not reclassify any craft as a 
``permanently moored vessel.'' Existing policy documents that refer to 
permanently moored vessels are not aligned with Stewart, and for that 
reason we hereby cancel Chapter B.4.I of the Coast Guard Marine Safety 
Manual, Vol. II, and G-MOC Policy Letter 04-01 (May 25, 2004), until 
they can be conformed to the Stewart decision.
    For the purposes of this document, a ``permanently moored craft'' 
(PMC) is a craft of design and mooring arrangement such that it does 
not have a practical capability of being used as transportation on the 
water. We will continue to inspect craft that are indeed vessels and 
are subject to inspection, even if they do not normally get underway. 
However, except for the temporarily grandfathered PMCs discussed later 
in this notice, we will no longer inspect or issue COIs to PMCs that 
are not vessels or that do not otherwise meet the statutory 
requirements for vessels subject to inspection.
    Manning. Nineteen comments expressed concerns that a craft's loss 
of its COI would result in the loss of licensed and documented crew 
members, and that this would adversely affect passenger safety, 
security, and craft maintenance. We agree that inspected vessels must 
be crewed and operated by qualified personnel and one of the Coast 
Guard's missions is to ensure that these mariners possess a minimum 
level of safety knowledge and professional competency through a 
qualification and renewal process.
    As previously discussed, we will continue to inspect craft that are 
indeed vessels and are subject to inspection, even if they do not 
normally get underway, and those vessels will continue to be subject to 
all applicable Coast Guard regulations.
    Economic Costs. Five comments expressed concerns over the economic 
impact of requiring a permanently moored craft to comply with land-
based State or local regulations. The Coast Guard is sympathetic to 
these concerns, but if a craft is a PMC, it is therefore not a vessel 
under the Stewart criteria and we are without authority to deem it 
otherwise and inspect it. Nevertheless, as we discuss later in this 
notice, we will provide temporary grandfathering for certain PMCs that 
currently possess a Certificate of Inspection.
    Coast Guard Inspection Alternatives. Five comments suggested that 
the Coast Guard seek alternative approaches to the traditional Coast 
Guard inspection for certification, such as the Streamlined Inspection 
Program or the use of third-party inspection and certification as the 
basis for issuance of a Coast Guard Certificate of Inspection.
    This type of approach already exists. We encourage, but do not 
require, the use of these programs by the operators of craft that 
qualify as vessels under Stewart. For PMCs the use of land-based 
structure building codes may be appropriate, but we will not object if 
the State or local government having jurisdiction over a PMC adopts any 
or all of the regulatory standards we use to issue Coast Guard 
Certificates of Inspection.

Statement of Policy

    The following policy applies to any craft that routinely operates 
dockside and does not usually get underway, currently existing or built 
in the future. The determination of whether any specific craft is or 
will be a vessel as defined in 1 U.S.C. 3 and interpreted by the 
Supreme Court in Stewart will be made by the cognizant Coast Guard 
Officer in Charge, Marine Inspection (OCMI). The OCMI will advise the 
craft's owner or operator of this determination, as well as any appeal 
rights should the owner or operator wish to contest the OCMI's 
determination. If you are contemplating operating a craft, we advise 
you to consult with the cognizant OCMI as soon as possible in order to 
determine whether your craft will qualify as a vessel.
    In order to be inspected and certificated as a vessel by the Coast 
Guard, the craft owner or operator must demonstrate, to the OCMI's 
satisfaction, the practical, rather than theoretical, capability of the 
craft to operate as a means of transportation on water. The following 
non-exclusive list of questions is intended to assist OCMIs and vessel 
owners in determining whether or not a craft possesses that capability. 
This list should be considered under the totality of the circumstances 
presented in each instance:
    <bullet> Is the craft surrounded by a cofferdam, land or other 
structure, such that although floating, it is in a ``moat'' with no 
practical access to navigable water?
    <bullet> Is the craft affixed to the shore by steel cables, I-beams 
or pilings, or coupled with land based utility connections for power, 
water, sewage and fuel?
    <bullet> If the craft were operated in navigation, would it be 
thereby endangered because of its construction?
    <bullet> What is the purpose, function, or mission of the craft?
    <bullet> Can the craft get underway in less than eight (8) hours? 
If more than eight hours are required, the OCMI will determine if the 
delay was attributable to factors outside the owner's or operator's 
control, in which case the delay may be overlooked.
    ``Getting underway'' consists of operating in the navigation 
channel, at the time of inspection for certification or at least 
annually, and conducting propulsion tests, steering tests, and drills 
including the launching of rescue boats, all to the satisfaction of the 
OCMI. Non-self propelled craft may get underway with the assistance of 
an appropriate towing vessel. A craft that cannot demonstrate its 
ability to get underway to the satisfaction of the OCMI will be deemed 
a land structure and will no longer be inspected for certification by 
the Coast Guard, except for temporary grandfathering of certain PMCs.
    A craft that has been determined to be a vessel remains subject to 
all applicable requirements including Coast Guard inspection and 
certification

[[Page 21816]]

requirements, and must remain in compliance with its approved plans at 
all times, even if it does not normally get underway but routinely 
engages in dockside operations. Authorized exceptions and equivalencies 
may be granted by the Coast Guard; for example, 46 CFR part 199 allows 
an OCMI to conduct a safety assessment on passenger vessels over 100 
tons by using risk based decision-making principles to allow departures 
from traditional lifesaving equipment requirements. Sliding scale 
manning tables have also been found acceptable.
    We recognize that the owners and operators of some PMCs currently 
possess, and expected to be able to renew indefinitely, a Certificate 
of Inspection issued by the Coast Guard. Now, these PMCs may be subject 
to State and local building codes or similar standards. Complying with 
the land-based standards may be time-consuming and costly (as much as 
$10 million for a casino craft, according to one comment). Therefore, 
with the concurrence of the State having jurisdiction over the craft, 
we will continue to provide inspection services for a two-year period, 
provided that the PMC:
    <bullet> Currently possesses a Coast Guard-issued Certificate of 
Inspection;
    <bullet> Has been designed to Coast Guard regulations; and
    <bullet> May not be acceptable for regulation immediately by the 
State having jurisdiction.
    This policy will not affect semi-submersible platforms, which are 
not listed as ``vessels subject to inspection'' under 46 U.S.C. 3301, 
but instead are inspected under 43 U.S.C. 1333 based on their work on 
the Outer Continental Shelf.

    Dated: April 24, 2009.
Brian M. Salerno,
Rear Admiral, U.S. Coast Guard, Assistant Commandant for Marine Safety, 
Security, and Stewardship.
[FR Doc. E9-10971 Filed 5-8-09; 8:45 am]
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