[Federal Register Volume 70, Number 156 (Monday, August 15, 2005)]
[Proposed Rules]
[Pages 47771-47774]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-16096]


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DEPARTMENT OF TRANSPORTATION

Maritime Administration

46 CFR Part 389

[Docket No. MARAD-2005-22050]
RIN 2133-AB67


Determination of Availability of Coastwise-Qualified Launch 
Barges

AGENCY: Maritime Administration, DOT.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Maritime Administration (MARAD, we, our, or us) is 
publishing this proposed rulemaking to establish regulations governing 
administrative determinations of availability of coastwise-qualified 
launch barges to be used in the transportation and launching of 
offshore oil drilling or production platform jackets in specified 
projects. This rulemaking implements provisions of the Coast Guard and 
Maritime Transportation Act of 2004, which, among other things, 
requires the Secretary of Transportation (acting through the Maritime 
Administrator) to adopt procedures to determine if coastwise-qualified 
vessels are available for platform jacket transport and launching, and, 
if not, to allow the use of non-coastwise qualified foreign built 
vessels.

DATES: Comments are due by October 14, 2005.

ADDRESSES: You may submit comments [identified by DOT DMS Docket Number 
MARAD-2005-22050] by any of the following methods:
     Web Site: http://dms.dot.gov. Follow the instructions for 
submitting comments on the DOT electronic docket site.
     Mail: Docket Management Facility; U.S. Department of 
Transportation, 400 7th St., SW., Nassif Building, Room PL-401, 
Washington, DC 20590-001.
     Hand Delivery: Room PL-401 on the plaza level of the 
Nassif Building, 400 7th St., SW., Washington, DC, between 9 a.m. and 5 
p.m., Monday through Friday, except Federal holidays.
     Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting 
comments.
    Instructions: All submissions must include the agency name and 
docket number for this rulemaking. Note that all comments received will 
be posted without change to http://dms.dot.gov including any personal 
information provided. Please see the Privacy Act heading under 
Regulatory Notices.
    Docket: For access to the docket to read background documents or 
comments received, go to http://dms.dot.gov at any time or to Room PL-
401 on the plaza level of the Nassif Building, 400 7th St., SW., 
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, 
except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Michael Hokana, Office of Ports and 
Domestic Shipping, Maritime Administration, MAR-830, Room 7201, 400 7th 
St., SW., Washington, DC 20590; telephone: (202) 366-0760; email: 
[email protected].

SUPPLEMENTARY INFORMATION: Section 27 of the Merchant Marine Act of 
1920, commonly known as the Jones Act (46 App. U.S.C. 883), requires, 
with a few exceptions, that all cargo transported in the coastwise 
trade be carried on ships that are U.S.-owned and U.S.-built. The Jones 
Act has been amended over the years, and in 1988 a special technical 
proviso, known as the thirteenth proviso, was added to allow for the 
use of foreign-built platform jacket launch barges in the coastwise 
trade if no U.S.-built vessels were found to be available.
    On August 9, 2004, the thirteenth proviso of the Jones Act was 
amended by section 417 of the Coast Guard and Maritime Transportation 
Act of 2004, Public Law 108-293 (the Act). Under the Act, the Secretary 
of Transportation is directed to establish procedures to issue 
determinations as to whether suitable U.S.-built barges are available 
for use in transportation and launching (i.e., installation) of 
offshore oil drilling or production structures. The Act directs that if 
the Secretary determines, upon application by the owner/operator of a 
foreign-built barge, that a suitable U.S.-built barge is not reasonably 
available for use in a specified launch project, then the foreign-built 
barge may be used. Because the Bureau of Customs and Border Protection 
(CBP) is responsible for enforcing violations of the coastwise laws, 
MARAD recommends that applicants that receive a determination from 
MARAD further

[[Page 47772]]

obtain a ruling regarding the use of the thirteenth proviso of the 
Jones Act from CBP before proceeding with their transportation and 
launch projects.

Program Description

    In this rulemaking, MARAD is proposing procedures to be followed in 
order to apply for U.S.-flag availability determinations for the 
specialized ``platform jacket'' launch market. ``Platform jacket'' 
refers to a single physical component and includes any type of offshore 
exploration, development, or production structure or component thereof, 
including platform jackets, tension leg or SPAR platform 
superstructures (including the deck, drilling rig and support 
utilities, and supporting structure), hull (including vertical legs and 
connecting pontoons or vertical cylinder), tower and base sections of a 
platform jacket, jacket structures, and deck modules (known as 
``topsides'').
    For each proposed project, MARAD will publish a notice of 
application in the Federal Register and will provide the appropriate 
references to the DOT Docket Management System where applications will 
be available for public review and comment. Each application must 
include the engineering details (specifying the need for a vessel with 
a launch capacity of 12,000 long tons or more) and the timing 
requirements (establishing an approximate date and time window for the 
launch). MARAD will request that comments and information on the 
availability of coastwise-qualified vessels be submitted within thirty 
(30) days after publication of the initial notice of application. If 
MARAD does not receive information within the thirty (30) day comment 
period indicating that a suitable coastwise-qualified vessel is 
available for the project, or if MARAD receives such information, but 
determines that the vessel is not suitable or is not reasonably 
available for the project, then MARAD will issue a determination 
indicating the non-availability of a coastwise-qualified barge. 
Determinations will be issued within ninety (90) days from the date the 
initial notice of application is published in the Federal Register.
    Because launch barges have long lead times for construction, 
applicants are encouraged to provide the Maritime Administration and 
the public with as much notice as possible in advance of their 
projects. Early notification will help ensure the maximum utilization 
of coastwise-qualified vessels, and will assist the Maritime 
Administration in its review process. The ideal time for providing 
notification is when the need for the installation of a platform jacket 
is identified. For instance, transportation plans for launch projects 
are typically arranged when application is made to the Minerals 
Management Service for use of an offshore portion of the outer 
continental shelf, which is typically years in advance of a launch 
project.
    The Maritime Administration recognizes that advance notice of 
projects may increase the U.S. presence in the launch barge industry, 
as companies would be more likely to build barges to meet known market 
demands. MARAD welcomes suggestions, in addition to comments on the 
proposed regulation, regarding how to increase the utilization of U.S.-
flag launch barges and is interested in hearing from the public on how 
it may facilitate the flow of information regarding early notification 
of projects so that the U.S. launch barge industry may effectively 
respond to projected needs.

Application Fee

    Title V of the Independent Offices Appropriations Act of 1952 
(``IOAA''; 31 U.S.C. 9701) authorizes Federal agencies to establish and 
collect user fees. The statute provides that each service or thing of 
value provided by an agency should be self-sustaining to the extent 
possible, and that each charge shall be fair and based on the costs to 
the Government, the value of the service or thing to the recipient, the 
policy or interest served, and other relevant factors. 31 U.S.C. 9701.
    The primary guidance for implementation of the IOAA is Office of 
Management and Budget (OMB) Circular No. A-25 (``User Charges,'' July 
8, 1993). Circular A-25, section 6, directs agencies to assess user 
charges against identifiable recipients for special benefits derived 
from Federal activities beyond those received by the general public. 
Circular A-25 further directs agencies, with limited exceptions, to 
recover the full cost of providing a Government service from the direct 
recipients of special benefits. Section 6(d) of Circular A-25 defines 
``full cost'' as including ``all direct and indirect costs to any part 
of the Federal Government of providing a good, resource, or service.''
    Pursuant to these directives, MARAD is proposing to set the 
application fee for administrative determination of availability at 
$16,460.00. Because determinations of availability under part 389 
represent special benefits to identifiable recipients (i.e., vessel 
owners) that are beyond the benefits and services normally received by 
the general public, the IOAA and Circular A-25 direct MARAD to assess 
user fees for providing this service.
    Following the principles embodied in Circular A-25, MARAD estimates 
the costs associated with processing and issuing determinations under 
part 389 as follows. The main cost components of the program include 
direct and indirect personnel costs and Federal Register publication 
costs. MARAD estimates that average personnel costs for processing each 
application will be $15,995.00. The second main cost component of the 
program will be the cost of publishing notices of applications in the 
Federal Register. The current Federal Register publication cost is $155 
per column and the average length of a public notice published for this 
program is estimated to be three columns. Thus, the total average 
publication cost will be $465.00. The total of personnel costs and 
Federal Register publication costs is estimated to be $16,460.00.

Rulemaking Analyses and Notices

Executive Order 12866 and DOT Regulatory Policies and Procedures

    This rulemaking is not significant under section 3(f) of Executive 
Order 12866, and as a consequence, OMB did not review the rule. This 
rulemaking is also not significant under the Regulatory Policies and 
Procedures of the Department of Transportation (44 FR 11034; February 
26, 1979). It is also not considered a major rule for purposes of 
congressional review under Public Law 104-121. MARAD believes that the 
economic impact of this rulemaking is so minimal as to not warrant the 
preparation of a full regulatory evaluation. This rulemaking merely 
establishes procedures to determine if a coastwise-qualified barge is 
available for use in a project and, if not, to allow the use of a non-
coastwise qualified barge.

Executive Order 13132

    We analyzed this rulemaking in accordance with the principles and 
criteria contained in Executive Order 13132 (``Federalism'') and have 
determined that it does not have sufficient federalism implications to 
warrant the preparation of a federalism summary impact statement. The 
regulations herein have no substantial effects on the States, the 
current Federal-State relationship, or the current distribution of 
power and responsibilities among local officials. Therefore, MARAD did 
not consult with State and local officials because it was not 
necessary.

[[Page 47773]]

Regulatory Flexibility Act

    The Regulatory Flexibility Act requires MARAD to assess the impact 
that regulations will have on small entities. After analysis of this 
proposed rule, the Maritime Administrator certifies that this proposed 
rule will not have a significant economic impact on a substantial 
number of small entities. We anticipate that few, if any, small 
entities will participate in this process due to the nature of the 
shipping industry and the capital costs associated with vessels that 
fall under this program.

Environmental Assessment

    We have analyzed this proposed rule for purposes of compliance with 
the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et 
seq.) and we have concluded that, under the categorical exclusions 
provision in section 4.05 of Maritime Administrative Order (MAO) 600-1, 
``Procedures for Considering Environmental Impacts,'' 50 FR 11606 
(March 22, 1985), neither the preparation of an Environmental 
Assessment, an Environmental Impact Statement, nor a Finding of No 
Significant Impact for this rulemaking is required. This rulemaking 
will not result, either individually or cumulatively, in a significant 
impact on the environment. This rulemaking only relates to the 
determination of whether a coastwise-qualified barge is available for a 
project, and, if not, allows the use of a non-coastwise qualified 
barge.

Paperwork Reduction Act

    This rulemaking contains an information collection that will 
require review and clearance by the Office of Management and Budget 
(OMB).

Unfunded Mandates Reform Act

    This rulemaking does not impose unfunded mandates under the 
Unfunded Mandates Reform Act of 1995. It does not result in costs of 
$100 million or more to either State, local, or tribal governments, in 
the aggregate, or to the private sector, and is the least burdensome 
alternative that achieves this objective of U.S. policy.

Executive Order 13175

    MARAD believes that these regulations will have no significant or 
unique effect on the communities of Indian tribal governments when 
analyzed under the principles and criteria contained in Executive Order 
13175 (Consultation and Coordination with Indian Tribal Governments). 
Therefore, the funding and consultation requirements of this Executive 
Order do not apply.

Regulation Identifier Number (RIN)

    A regulation identifier number (RIN) is assigned to each regulatory 
action listed in the Unified Agenda of Federal Regulations. The 
Regulatory Information Service Center publishes the Unified Agenda in 
April and October of each year. The RIN contained in the heading of 
this document can be used to cross-reference this action with the 
Unified Agenda.

Privacy Act

    Anyone is able to search the electronic form of all comments 
received into any of our dockets by the name of the individual 
submitting the comment (or signing the comment, if submitted on behalf 
of an association, business, labor union, etc.). You may review DOT's 
complete Privacy Act Statement in the Federal Register published on 
April 11, 2000 (Volume 65, Number 70; Pages 19477-78) or you may visit 
http://dms.dot.gov.

List of Subjects in 46 CFR Part 389

    Administrative practice and procedure, Maritime carriers, Reporting 
and recordkeeping requirements.

    Accordingly, the Maritime Administration proposes to amend 46 CFR 
chapter II, subchapter J, by adding Part 389 to read as follows:

PART 389--DETERMINATION OF AVAILABILITY OF COASTWISE-QUALIFIED 
LAUNCH BARGES

Sec.
389.1 Purpose.
389.2 Definitions.
389.3 Application and fee.
389.4 Review; Issuance of determinations.

    Authority: 46 App. U.S.C. 1114(b); 46 App. U.S.C. 883; Pub. L. 
108-293, 118 Stat 1028; 49 CFR 1.66.


Sec.  389.1  Purpose.

    This part prescribes regulations implementing the provisions of 
section 417 of Public Law 108-293, which grants the Secretary, acting 
through the Maritime Administration, the authority to review and 
approve applications for determinations of availability of coastwise-
qualified launch barges. Owners or operators of non-coastwise qualified 
launch barges may submit information regarding a specific platform 
jacket transport and launch project in order for MARAD to determine 
whether a suitable coastwise-qualified barge is available for the 
project. If a suitable coastwise-qualified launch barge is not 
available, a non-coastwise qualified foreign built vessel may be used 
subject to applicable laws and approval from the Bureau of Customs and 
Border Protection.


Sec.  389.2  Definitions.

    For the purposes of this part:
    (a) Administrator means the Maritime Administrator.
    (b) Coastwise-qualified Vessel means a vessel that has been issued 
a certificate of documentation with a coastwise endorsement under 46 
U.S.C. 12106.
    (c) Coastwise Trade Laws include:
    (1) The Coastwise Endorsement Provision of the Vessel Documentation 
Laws, (46 U.S.C. 12106);
    (2) The Passenger Services Act, section 8 of the Act of June 19, 
1886 (46 App. U.S.C. 289);
    (3) The Jones Act, section 27 of the Merchant Marine Act, 1920 (46 
App. U.S.C. 883); and
    (4) Section 2(c) of the Shipping Act of 1916 (46 App. U.S.C. 802).
    (d) Eligible Vessel means a Launch Barge that:
    (1) Is technically capable of transporting and launching an 
offshore drilling or production platform jacket;
    (2) Is available to load the jacket structure, transport the jacket 
and launch the jacket (in a timely manner or within 7 calendar days of 
projected loading date); and
    (3) Was built before December 31, 2000.
    (e) Launch Barge means a non-self-propelled barge (or vessel) that 
is capable of:
    (1) Carrying an offshore drilling and/or production platform jacket 
structure of 12,000 long tons or more; and
    (2) Stern launching the offshore drilling or production platform 
jacket structure in an offshore environment.
    (f) A long ton equals 2,240 pounds.
    (g) MARAD means the Maritime Administration, U.S. Department of 
Transportation.
    (h) Platform Jacket refers to a single physical component and 
includes any type of offshore exploration, development, or production 
structure or component thereof, including platform jackets, tension leg 
or SPAR platform superstructures (including the deck, drilling rig and 
support utilities, and supporting structure), hull (including vertical 
legs and connecting pontoons or vertical cylinder), tower and base 
sections of a platform jacket, jacket structures, and deck modules 
(known as ``topsides'').
    (i) Secretary means the Secretary of Transportation.


Sec.  389.3  Application and fee.

    (a) General. Owners and operators must submit the information 
described in paragraphs (b) and (c) of this section to the Maritime 
Administration, Office of Ports and Domestic Shipping, MAR-

[[Page 47774]]

830, Room 7201, 400 7th St., SW., Washington, DC 20590. Written 
applications must be signed by the submitting party and accompanied by 
a check in the amount of $16,460.00 made payable to the ``Maritime 
Administration.''
    (b) Required transport and launch project information. (1) 
Applications must include a general description of the launch project, 
including:
    (i) A description of the jacket structure with launching weight, 
center of gravity, major dimensions, and a general arrangement plan,
    (ii) The projected loading date and site,
    (iii) The projected launching date and site, and
    (iv) The launch barges considered, their technical merits and 
availability studies.
    (2) Characteristics of the desired Launch Barge, including, at a 
minimum, the following information:
    (i) Name of the Launch Barge,
    (ii) Registered owner of the barge,
    (iii) Physical dimensions, deadweight capacity in long tons, 
ballasting capacities and arrangements, and launch rail capacity and 
arrangements,
    (iv) Hull girder stress study, with supporting documentation, for 
the proposed launching scenario, and with American Bureau of Shipping 
(ABS) or United States Coast Guard (USCG) approval,
    (v) Hull girder stress study, with supporting documentation, for 
the proposed transit scenario, and with ABS or USCG approval,
    (vi) Vessel intact stability study, with supporting documentation, 
for the transit condition with a 100-year storm, and with USCG 
approval, and
    (vii) Vessel intact stability study, with supporting documentation, 
for the launching operation in calm sea condition, and with USCG 
approval.
    (3) Date and place of construction and (if applicable) rebuilding. 
(If applicant is unable to document the origin of the vessel, foreign 
construction will be assumed).
    (4) Name, address, and telephone number of the vessel owner.
    (5) A statement that the applicant represents that the information 
in this paragraph (b) is true to the best of the applicant's knowledge.
    (c) MARAD may require additional information from the applicant as 
part of the review process.


Sec.  389.4  Review; Issuance of determinations.

    (a) Initial process; Completeness. MARAD will review each 
application for completeness as received. Applications will not be 
processed until deemed complete by MARAD. We will notify the applicant 
if additional information is necessary. MARAD encourages the submission 
of applications well in advance of projects dates in order to allow 
sufficient time for review under this part. All applications will be 
available for public inspection electronically in the Department of 
Transportation Docket at http://dot.dms.gov.
    (b) Technical reviews. (1) MARAD technical personnel will review 
the technical data stated in Sec.  389.3. The data must be complete and 
current. The submitted data will not be returned to the applicant and 
will be retained by MARAD on file for a period of time. The review will 
not substitute the review and approval by either the ABS or USCG . The 
review will not verify the accuracy or correctness of the applicant's 
engineering proposal. The review only pertains to the general 
reasonableness and soundness of the technical approach.
    (2) If a previously reviewed and approved Launch Barge is to be 
used for carrying a jacket that in all aspects is similar to the last 
loading and launching operation, the applicant may state so in writing, 
and submit only the Jacket information for verification and no in-depth 
vessel stability or hull girder stress studies will be required.
    (c) Administrative review; Public comment. (1) Notice of 
applications under review will be published in the Federal Register. 
Interested parties will have thirty (30) days from the date of 
publication to submit information regarding the availability of 
eligible coastwise-qualified vessels. Such information should include 
the technical data outlined in Sec.  389.3(b)(2).
    (2) If MARAD does not receive information within the thirty (30) 
day comment period indicating that a suitable coastwise-qualified 
vessel is available for the transportation of the platform jacket, or 
if MARAD receives such information, but determines that the vessel is 
not suitable or is not reasonably available for the transportation, 
then MARAD will issue a determination indicating the non-availability 
of a coastwise-qualified barge.
    (3) Determinations will be issued within ninety (90) days from the 
date the initial notice of application is published in the Federal 
Register.
    (4) Upon issuance of a determination, MARAD recommends that 
applicants contact the Bureau of Customs and Border Protection to 
ensure that all other requirements of the coastwise laws are satisfied.
    (5) Determinations of availability expire one hundred twenty (120) 
days after the date of issuance, unless extended for good cause, as 
determined by the Maritime Administrator.

    Dated: August 9, 2005.

    By order of the Maritime Administrator.
Joel C. Richard,
Secretary.
[FR Doc. 05-16096 Filed 8-12-05; 8:45 am]
BILLING CODE 4910-81-P