[Federal Register Volume 73, Number 190 (Tuesday, September 30, 2008)]
[Rules and Regulations]
[Pages 56738-56741]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-22235]


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DEPARTMENT OF TRANSPORTATION

Maritime Administration

46 CFR Part 390

[Docket No. MARAD-2008-0075]
RIN 2133-AB71


Capital Construction Fund

AGENCY: Maritime Administration, Department of Transportation.

ACTION: Final rule.

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SUMMARY: The Maritime Administration is issuing this final rule to 
implement provisions of the Energy Independence and Security Act of 
2007 and amend the definition of a ``qualified vessel'' under the 
Capital Construction Fund. This rule is final because its underlying 
statutes leave no discretion; therefore, a notice of proposed 
rulemaking is not required.

DATES: Effective Date: This final rule is effective September 30, 2008.

FOR FURTHER INFORMATION CONTACT: Murray Bloom, Chief, Division of 
Maritime Programs, Maritime Administration at 202-366-5320, via e-mail 
at [email protected], or by writing to Murray Bloom, Office of the 
Chief Counsel, Maritime Administration, MAR-222, 1200 New

[[Page 56739]]

Jersey Avenue, SE., Washington, DC 20590.

SUPPLEMENTARY INFORMATION:

Background

    The Capital Construction Fund allows a deferral of federal income 
tax provided that the amount of the tax deferral is deposited into a 
fund to be used for the purpose of acquiring, constructing or 
reconstructing U.S.-built, U.S.-documented vessels. Such vessels are 
called ``qualified vessels,'' and they must be operated in the United 
States foreign, Great Lakes or noncontiguous domestic trade. On 
December 19, 2007, the President signed Public Law 110-140, the Energy 
Independence and Security Act of 2007, which contains Title XI--Energy 
Transportation and Infrastructure, Subtitle C--Department of 
Transportation, authorizing the creation of a new Short Sea 
Transportation Program. The Short Sea Transportation Program 
establishes an expanded definition of a qualified vessel under the 
Capital Construction Fund. Public Law 110-140 also expands the trade 
permitted to qualified vessels by allowing qualified vessels to operate 
in the short sea transportation trade in addition to the other trades 
presently permitted. Since Public Law 110-140 specifically defines 
``short sea transportation trade,'' this final rule merely amends the 
existing regulation by including the statutory definition and making 
other conforming changes. Separately, Congress enacted Public Law 109-
304 to complete the codification of Title 46, United States Code. This 
statute restated section 607 of the Merchant Marine Act, 1936, without 
substantive change. Section 607 is now section 53501, et seq. This 
final rule updates the statutory references in the regulation to 
conform to the new codification.

Rulemaking Analyses and Notices

Executive Order 12866 (Regulatory Planning and Review), and Department 
of Transportation (DOT) Regulatory Policies; Public Law 104-121

    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. The Maritime 
Administration believes that the economic impact of this rulemaking is 
so minimal as to not warrant the preparation of a full regulatory 
evaluation. This rulemaking amends the definition of a qualified vessel 
to conform to the newly enacted statute.

Executive Order 13132

    We have 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 have no substantial effects on the States, 
the current Federal-State relationship, or the current distribution of 
power and responsibilities among various local officials. Therefore, 
consultation with State and local officials was not necessary.

Executive Order 13175

    Executive Order 13175--Consultation and Coordination with Indian 
Tribal Governments, dated November 6, 2000, seeks to establish regular 
and meaningful consultation and collaboration with tribal officials in 
the development of Federal policies that have tribal implications, to 
strengthen the United States government-to-government relationships 
with Indian tribes, and to reduce the imposition of unfunded mandates 
upon Indian tribes. Executive Order 13175 does not apply to this 
regulation as it does not affect, directly or indirectly, Indian 
tribes.

Regulatory Flexibility

    The Regulatory Flexibility Act requires us to assess the impact 
that regulations will have on small entities. After analysis of this 
final rule, the Maritime Administrator certifies that this final rule 
will not have a significant economic impact on a substantial number of 
small entities.

Unfunded Mandates Reform Act of 1995

    This final rule will not impose an unfunded mandate under the 
Unfunded Mandates Reform Act of 1995. It will not result in costs of 
$100 million or more, in the aggregate, to any of the following: State, 
local, or Native American tribal governments, or the private sector, 
and is the least burdensome alternative that achieves this objective of 
U.S. policy. Department of Transportation guidance requires the use of 
a revised threshold figure of $136.1 million, which is the value of 
$100 million in 2008 after adjusting for inflation.

Environmental Assessment

    We have analyzed this final 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 final rule 
does not change the environmental effects of the current Capital 
Construction Fund program. This final rule implements a definition of a 
qualified vessel for the Capital Construction Fund. This rulemaking 
will not result, either individually or cumulatively, in a significant 
impact on the environment.

Paperwork Reduction

    This rule does not establish a new requirement for the collection 
of information. Thus, the Office of Management and Budget (OMB) will 
not be requested to review and approve the information collection 
requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501, 
et seq.).

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 number contained in the heading 
of this document can be used to cross-reference this action with the 
Unified Agenda.

Privacy Act

    You may review DOT's complete Privacy Act Statement in the Federal 
Register published on April 11, 2000 (Volume 65, Number 70; Pages 
19477-19478) or you may visit http://www.regulations.gov.

List of Subjects in 46 CFR Part 390

    Income taxes, Investments, Maritime carriers, Vessels.

0
Accordingly, the Maritime Administration amends 46 CFR part 390 as 
follows:

PART 390--CAPITAL CONSTRUCTION FUND

0
1. The authority citation for part 390 is amended to read as follows:

    Authority: Secs. 53501, et seq., of Title 46, United States 
Code, formerly, section 607,

[[Page 56740]]

Merchant Marine Act, 1936, as amended (46 App. U.S.C. 1177); 49 CFR 
1.66.


0
2. In the table below, for each section indicated in the left column, 
remove the phrase indicated in the middle column and add the phrase 
indicated in the right column:

------------------------------------------------------------------------
           Section                   Remove                  Add
------------------------------------------------------------------------
390.2(a)(2)(i)..............  section 2 of the       46 U.S.C. 50501.
                               Shipping Act, 1916.
390.2(a)(2)(ii).............  section 607(k)(1) of  46 U.S.C. 53501.
                               the Act.
390.2(a)(2)(iii)............  section 607(k)(2) of  46 U.S.C. 53501(5).
                               the Act.
390.2(a)(2)(iii)............  section 607(k) of     46 U.S.C. 53501.
                               the Act.
390.2(a)(2)(iii)............  section 905(a) of     46 U.S.C. 109(b).
                               the Act.
390.3(a)....................  section 101 of the    46 U.S.C. 50501.
                               Act.
390.3(b)(2)(i)..............  Internal Revenue      Internal Revenue
                               Code of 1954.         Code of 1986.
390.5(a)....................  section 607(k) of     46 U.S.C. 53501.
                               the Act.
390.5(b)(2) introductory      section 607(b) of     46 U.S.C. 53505.
 text.                         the Act.
390.5(c)(2) introductory      section 607(f) of     46 U.S.C. 53509.
 text.                         the Act.
390.5(c)(3)(ii).............  section 506 of the    46 U.S.C. 53101
                               Act.                  note.
390.5(c)(7)(ii)(A)..........  section 905 of the    46 U.S.C. 109.
                               Act.
390.7(a)(1).................  section 607(b) of     46 U.S.C. 53505.
                               the Act.
390.7(a)(2).................  section 607(d) of     46 U.S.C. 53507.
                               the Act.
390.7(b)(1).................  section 607(c) of     46 U.S.C. 53506.
                               the Act.
390.7(c)(1).................  section 607(d)(2) of  46 U.S.C. 53507(b).
                               the Act.
390.7(d)(1).................  section 607(c) of     46 U.S.C. 53506.
                               the Act.
390.7(e)(1).................  section 607(a) of     46 U.S.C. 53504.
                               the Act.
390.7(f)(1).................  section 607(b)(2) of  46 U.S.C. 53505(b).
                               the Act.
390.7(h)(2).................  section 607(c) of     46 U.S.C. 53506.
                               the Act.
390.7(i)....................  Title XI of the Act.  46 U.S.C. Chapter
                                                     537.
390.8(a)....................  section 607(c) of     46 U.S.C. 53506.
                               the Act.
390.8(b)(3)(ii).............  Internal Revenue      Internal Revenue
                               Code of 1954.         Code of 1986.
390.8(c)(4).................  Internal Revenue      Internal Revenue
                               Code of 1954.         Code of 1986.
390.9(a)(1) introductory      section 607(f) of     46 U.S.C. 53509.
 text.                         the Act.
390.9(a)(2).................  section 607(g) of     46 U.S.C. 53510.
                               the Act.
390.9(b)(4).................  section 607(f)(1)(C)  46 U.S.C.
                                                     53509(a)(2).
390.9(c)(1).................  Internal Revenue      Internal Revenue
                               Code of 1954.         Code of 1986.
390.9(c)(4).................  Internal Revenue      Internal Revenue
                               Code of 1954.         Code of 1986.
390.10(a)(2)................  section 607(h) of     46 U.S.C. 53511.
                               the Act.
390.11(c)(1)................  Internal Revenue      Internal Revenue
                               Code of 1954.         Code of 1986.
390.12(b)(2)................  Internal Revenue      Internal Revenue
                               Code of 1954.         Code of 1986.
390.13(a)...................  section 607(f)(2) of  46 U.S.C. 53509(c).
                               the Act.
Appendix I to Part 390......  section 2 of the      46 U.S.C. 50501.
                               Shipping Act, 1916.
Appendix I to Part 390......  section 607(k) of     46 U.S.C. 53501.
                               the Act.
Appendix I to Part 390......  section 607(f)(2) of  46 U.S.C. 53509(c).
                               the Act.
Appendix I to Part 390I.....  section 607(k) of     46 U.S.C. 53501.
                               the Act.
------------------------------------------------------------------------


0
3. Amend Sec.  390.1 by:
0
A. Revising paragraph (a)(1) and (b) to read as set forth below;
0
B. Removing the phrase ``Section 607'' and adding in its place 
``Chapter 535'' in paragraphs (a)(3) and (4); and
0
C. Removing the phrase ``Section 607 of the Act'' and adding in its 
place ``Chapter 535'' in paragraph (c).


Sec.  390.1  Scope of the regulations.

    (a) In general--(1) Scope. The regulations prescribed in this part 
govern the capital construction fund (``fund'') authorized by 46 U.S.C. 
53501 et seq.
* * * * *
    (b) Act. For purposes of this part, the term Act shall mean Chapter 
535 of Title 46, United States Code.
* * * * *

0
4. Section 390.2 is amended by:
0
A. Removing the phrase ``section 607 of the Act'' and adding in its 
place ``Chapter 535'' in paragraph (a)(2) introductory text; and
0
B. Revising the last sentence of paragraph (a)(2)(iii) to read as 
follows:


Sec.  390.2  Application for an agreement.

    (a) * * *
    (2) * * *
    (iii) * * * Such provisions state that the vessel will be operated 
in the United States foreign, Great Lakes, noncontiguous domestic, or 
short sea transportation trade as defined in 46 U.S.C. 53501 and 46 
U.S.C. 109(b); and
* * * * *

0
5. Section 390.5 is amended by
0
A. Revising paragraph (c)(1)(iii);
0
B. Redesignating paragraphs (c)(6) through (c)(8) as paragraphs (c)(7) 
through (c)(9) and adding new paragraph (c)(6);
0
C. Removing the phrase ``section 607 of the Act'' and adding in its 
place ``Chapter 535'' in newly redesignated paragraph (c)(7)(i); and
0
D. Revising newly redesignated paragraphs (c)(7)(iv) and (c)(8)(iii);


Sec.  390.5  Agreement vessel.

* * * * *
    (c) * * *
    (1) * * *
    (iii) Operated in the United States foreign, Great Lakes, 
noncontiguous domestic, or short sea transportation trade.
* * * * *
    (6) Short Sea Transportation Trade. The term short sea 
transportation trade means the carriage by vessel of cargo--
    (i) That is:
    (A) Contained in intermodal cargo containers and loaded by crane on 
the vessel; or
    (B) Loaded on the vessel by means of wheeled technology; and
    (ii) That is:
    (A) Loaded at a port in the United States and unloaded either at 
another port in the United States or at a port in Canada located in the 
Great Lakes Saint Lawrence Seaway System; or
    (B) Loaded at a port in Canada located in the Great Lakes Saint 
Lawrence

[[Page 56741]]

Seaway System and unloaded at a port in the United States.''
    (7) * * *
    (iv) Bunkering in support of non-qualified trade operations.
    (8) * * *
    (iii) Ship assist work, including lightering or shifting of a 
vessel at the end or beginning of a noncontiguous domestic, short sea 
transportation trade, Great Lakes or U.S. foreign trade voyage. In 
addition, the lightering of foreign-flag vessels in U.S. ports is 
permitted.
* * * * *


Sec.  390.12  [Amended]

0
6. In Sec.  390.12, remove the phrase ``section 607 of the Act'' and 
add in its place ``Chapter 535'' in paragraph (a)(1).

Appendix I to Part 390--[Amended]

0
7. In Appendix I:
0
A. Remove the phrase ``section 607 of the Merchant Marine Act, 1936, as 
amended (46 U.S.C. 1177)'' and add in its place ``46 U.S.C. 53501 et 
seq.'' wherever it may occur; and
0
B. Remove ``19----'' and add in its place ``20----'' wherever it may 
occur.

Appendix II to Part 390--[Amended]

0
8. In Appendix II:
0
A. Remove the phrase ``section 607 of the Merchant Marine Act, 1936, as 
amended (46 U.S.C. 1177)'' and add in its place ``46 U.S.C. 53501 et 
seq.'' wherever it may occur; and
0
B. Remove ``19----'' and add in its place ``20----'' wherever it may 
occur.

Appendix IV to Part 390--[Amended]

0
9. In Appendix IV:
0
A. Remove the phrase ``Assistant General Counsel'' and add in its place 
``Assistant Chief Counsel'' wherever it may occur; and
0
B. Remove ``19----'' and add in its place ``20----'' wherever it may 
occur.

    Dated: September 18, 2008.

    By order of the Maritime Administrator.
Leonard Sutter,
Secretary, Maritime Administration.
[FR Doc. E8-22235 Filed 9-29-08; 8:45 am]
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