Rule2022-12473
Navigation and Navigable Waters, and Shipping; Technical, Organizational, and Conforming Amendments
Primary source
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Published
June 14, 2022
Effective
June 14, 2022
Issuing agencies
Homeland Security DepartmentCoast Guard
Abstract
On January 21, 2022, the Coast Guard prematurely amended the definition of "major marine casualty" for title 46 of the Code of Federal Regulations as part of a technical amendment. The Coast Guard is reverting that definition back to how it appeared prior to issuance of the technical amendment.
Full Text
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<title>Federal Register, Volume 87 Issue 114 (Tuesday, June 14, 2022)</title>
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[Federal Register Volume 87, Number 114 (Tuesday, June 14, 2022)]
[Rules and Regulations]
[Pages 35899-35901]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-12473]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
46 CFR Part 4
[Docket No. USCG-2021-0348]
Navigation and Navigable Waters, and Shipping; Technical,
Organizational, and Conforming Amendments
AGENCY: Coast Guard, DHS.
ACTION: Technical amendment.
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SUMMARY: On January 21, 2022, the Coast Guard prematurely amended the
definition of ``major marine casualty'' for title 46 of the Code of
Federal Regulations as part of a technical amendment. The Coast Guard
is reverting that definition back to how it appeared prior to issuance
of the technical amendment.
DATES: This final rule is effective June 14, 2022.
ADDRESSES: To view documents mentioned in this preamble as being
available in the docket, go to <a href="https://www.regulations.gov">https://www.regulations.gov</a>, type USCG-
2021-0348 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 Courtney Mallon, Coast Guard; telephone 202-372-3758,
email <a href="/cdn-cgi/l/email-protection#0d4e62787f7963687423406c616162634d787e6e6a23606461"><span class="__cf_email__" data-cfemail="a2e1cdd7d0d6ccc7db8cefc3cececdcce2d7d1c1c58ccfcbce">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
Table of Contents for Preamble
I. Abbreviations
II. Basis and Purpose, and Regulatory History
III. Discussion of the Rule
IV. 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
CFR Code of Federal Regulations
NPRM Notice of proposed rulemaking
NTSB National Transportation Safety Board
Sec. Section
U.S.C. United States Code
II. Basis and Purpose, and Regulatory History
On January 21, 2022, the Coast Guard published a technical
amendment \1\ that revised the definition of ``major marine casualty''
in title 46 of the Code of Federal Regulations (CFR), paragraph 4.40-
5(d)(3). That change altered the property damage threshold from
$500,000 to $2,000,000. The stated basis for the change was to
implement section 211 of the Save Our Seas Act of 2018 (Pub. L. 115-
265, 132 Stat. 3742). However, the Coast Guard has determined that this
matter needs further analysis. The correct legal authority for changing
this regulation is title 49 of the United States Code (U.S.C.), section
1131. That statute requires a rule prescribed jointly by the National
Transportation Safety Board (NTSB) and the Coast Guard. As a result, we
need to revert to the previous value of $500,000 for the time being.
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\1\ 87 FR 3217.
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The Coast Guard is issuing this technical amendment without prior
notice and opportunity to comment pursuant to authority under section
4(a) of the Administrative Procedure Act (5 U.S.C. 553(b)). This
provision authorizes an agency to issue a rule without prior notice and
opportunity to comment when the agency for good cause finds that those
procedures are ``impracticable, unnecessary, or contrary to the public
interest.'' Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good
cause exists for not publishing a notice of proposed rulemaking (NPRM)
with respect to this technical amendment because publishing an NPRM
would be unnecessary. Under 49 U.S.C. 1131, changes to the reporting
value threshold for 46 CFR 4.40-5(d)(3) requires a rule prescribed
jointly by the NTSB and the Coast Guard. The January 21, 2022,
technical amendment was only issued by the Coast Guard, so the value
listed before the technical amendment should be restored, and can later
be adjusted in a joint rulemaking. For those same reasons, under 5
U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for
making this technical amendment effective less than 30 days after
publication in the Federal Register.
III. Discussion of the Rule
This action restores the property damage threshold of 46 CFR 4.40-
5(d)(3), to $500,000.
IV. Regulatory Analyses
We developed this amendment 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
Executive Orders 12866 (Regulatory Planning and 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
[[Page 35900]]
reducing costs, of harmonizing rules, and of promoting flexibility.
The Office of Management and Budget has not designated this
technical amendment a significant regulatory action under section 3(f)
of Executive Order 12866. A regulatory analysis follows.
This technical amendment returns the property damage threshold in
the definition of a ``major marine casualty'' to $500,000 from
$2,000,000. This property damage threshold is contained within 46 CFR
Subpart 4.40 covering the joint regulations between the NTSB and the
Coast Guard for the investigation of marine casualties. Specifically,
this property damage threshold defines when the NTSB may investigate
marine casualties. Among other marine casualties, the NTSB has the
right to investigate any major marine casualities with total property
damage above the threshold.\2\
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\2\ 46 CFR 4.40-15(a) reads, ``The Board may conduct an
investigation under the Act of any major marine casualty or any
casualty involving public and non-public vessels.''
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The Coast Guard made an error in its previous technical amendment
in January 2022, and the Coast Guard quickly realized its error. As a
result, both the NTSB and Coast Guard are still operating as if the
NTSB may investigate any major marine casualty resulting in property
damage of $500,000 or more. Because Coast Guard and NTSB operations
have not changed since the publication of the previous technical
amendment, there has been no change in the regulatory analysis baseline
since the January 2022 technical amendment.
The technical amendment in this notice will not result in costs to
any industry, or government entities. Because the Coast Guard and NTSB
are continuing to implement the $500,000 property damage threshold for
a major marine casualty, returning the regulation back to $500,000 will
result in no change in policy or practices across the public, NTSB, or
Coast Guard. Without a change in practices there can be no costs from
this technical amendment.
This technical amendment will result in unquantified benefits
stemming from timely correction of the technical amendment that was
made in error in January 2022. If an operator/owner or other pertinent
marine entity suffered a marine casualty with between $500,000 and
$2,000,000 in property damage, the NTSB would investigate it using the
current Coast Guard/NTSB policy. This investigation would not be
permitted by the current regulations. The individual could be averse to
the investigation and argue that the Coast Guard/NTSB policy is not
consistent with the current regulations. However, because the Coast
Guard issued the previous technical amendment under an incorrect legal
authority, the previous change is invalid. Accordingly, the actual text
of the CFR is not correct and can cause confusion and disagreement
between the public, the Coast Guard, and the NTSB. By reverting the
property damage threshold of a major marine casualty to $500,000, the
Coast Guard would eliminate a source of confusion from this section of
regulation.
B. 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 technical amendment 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 technical amendment 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).
C. Collection of Information
This technical amendment calls for no new or revised collection of
information under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501-
3520.
D. Federalism
A rule has implications for federalism under Executive Order 13132
(Federalism) if it has a substantial direct effect on 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 have analyzed this technical amendment under Executive
Order 13132 and have determined that it is consistent with the
fundamental federalism principles and preemption requirements described
in Executive Order 13132.
E. 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 technical amendment
will not result in such expenditure, we do discuss the effects of this
amendment elsewhere in this preamble.
F. Taking of Private Property
This technical amendment 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).
G. Civil Justice Reform
This technical amendment meets applicable standards in sections
3(a) and 3(b)(2) of Executive Order 12988 (Civil Justice Reform) to
minimize litigation, eliminate ambiguity, and reduce burden.
H. Indian Tribal Governments
This technical amendment 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.
I. Energy Effects
We have analyzed this technical amendment under Executive Order
13211 (Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use). We have determined that it is not a
``significant energy action'' under that order because it is not a
``significant regulatory action'' under Executive Order 12866 and is
not likely to have a significant adverse effect on the supply,
distribution, or use of energy.
J. Environment
We have analyzed this technical amendment 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
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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 technical amendment is categorically excluded under paragraphs
A3 and L54 of Appendix A, Table 1 of Department of Homeland Security
Instruction Manual 023-01-001-01, Rev. 1. Paragraph A3 pertains to the
promulgation of rules, issuance of rulings or interpretations, and the
development and publication of policies, orders, directives, notices,
procedures, manuals, advisory circulars, and other guidance documents
of the following nature: (a) Those of a strictly administrative or
procedural nature; (b) those that implement, without substantive
change, statutory or regulatory requirements; (c) those that implement,
without substantive change, procedures, manuals, and other guidance
documents; and (d) those that interpret or amend an existing regulation
without changing its environmental effect. Paragraph L54 pertains to
regulations which are editorial or procedural. This technical amendment
involves non-substantive technical, organizational, and conforming
amendments to existing Coast Guard regulations.
List of Subjects in 46 CFR Part 4
Administrative practice and procedure, Drug testing,
Investigations, Marine safety, National Transportation Safety Board,
Nuclear vessels, Radiation protection, Reporting and recordkeeping
requirements, Safety, Transportation.
For the reasons discussed in the preamble, the Coast Guard amends
46 CFR part 4 as follows:
PART 4--MARINE CASUALTIES AND INVESTIGATIONS
0
1. The authority citation for part 4 is revised to read as follows:
Authority: 14 U.S.C. 102; 43 U.S.C. 1333; 46 U.S.C. 2103, 2303A,
2306, 6101, 6301, 6305, 70034; 50 U.S.C. 198; DHS Delegation
00170.1, Revision No. 01.2. Subpart 4.40 issued under 49 U.S.C.
1131(a)(1)(E).
Sec. 4.40-5 [Amended]
0
2. In Sec. 4.40-5 amend paragraph (d)(3) by removing the text
``$2,000,000'' and adding, in its place, the text ``$500,000''.
Dated: June 6, 2022.
Michael Cunningham,
Chief, Office of Regulations and Administrative Law, U.S. Coast Guard.
[FR Doc. 2022-12473 Filed 6-13-22; 8:45 am]
BILLING CODE 9110-04-P
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