[Federal Register Volume 74, Number 84 (Monday, May 4, 2009)]
[Rules and Regulations]
[Pages 20416-20419]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-10113]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

46 CFR Parts 2, 8, and 189

[Docket No. USCG-2004-19823]
RIN 1625-AA92


Alternate Compliance Program: Vessel Inspection Alternatives

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

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SUMMARY: The Coast Guard amends the vessel inspection regulations to 
expand the Alternate Compliance Program (ACP). Through these 
amendments, we are updating the list of certificates the Coast Guard 
issues, incorporating Coast Guard policy regarding eligibility 
requirements for classification societies participating in the ACP, 
recognizing classification societies other than the American Bureau of 
Shipping, and expanding the ACP to include oceanographic research 
vessels.

DATES: This rule is effective June 3, 2009

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-2004-19823 and are available for inspection at 
the Docket Management Facility, U.S. Department of Transportation, 1200 
New Jersey Avenue, SE., West Building Ground Floor, Room W12-140, 
Washington, DC 20590 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: If you have questions on this rule, 
call Mr. William Peters, U.S. Coast Guard Office of Design and 
Engineering Standards, at telephone 202-372-1371, or e-mail him at 
[email protected]. If you have questions on viewing the docket, 
call Ms. Renee V. Wright, Program Manager, Docket Operations, telephone 
202-366-9826.

SUPPLEMENTARY INFORMATION:

Table of Contents for the Preamble

I. Abbreviations
II. Background and Purpose
III. Discussion of Comments
IV. Discussion of Final Rule
V. Regulatory Analyses
    A. Regulatory Planning and Review
    B. Small Entities
    C. Assistance for Small Entities
    D. Collection of Information
    E. Federalism
    F. Unfunded Mandates Reform Act
    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

ACP Alternate Compliance Program
CFR Code of Federal Regulations
DHS Department of Homeland Security
DMS Docket Management System
DOT Department of Transportation
FR Federal Register
IMO International Maritime Organization
NEPA National Environmental Policy Act of 1969
NPRM Notice of Proposed Rulemaking
NTTAA National Technology Transfer and Advancement Act
NVIC Navigation and Vessel Inspection Circular
PSSC Passenger Ship Safety Certificate
HSC High-speed Craft
RIN Regulation Identifier Number
SIP Streamlined Inspection Program
SOLAS International Convention for the Safety of Life at Sea
US United States
USC United States Code
USCG United States Coast Guard
VAP Vessel Action Plan

II. Background and Purpose

    The Alternate Compliance Program (ACP) was launched as a pilot 
program in 1995. A notice about the ACP was published in the Federal 
Register on February 3, 1995. 60 FR 6687. Under the ACP, owners and 
operators of eligible vessels may request inspection by an authorized 
classification society, as defined in 46 CFR 8.100, using an 
equivalence to the requirements in the Code of Federal Regulations 
(CFR) comprising classification society rules, provisions of 
International Maritime Organization (IMO) treaties, and a supplementary 
list of requirements from the CFR that were not in IMO provisions or 
classification society rules. A classification society gained 
eligibility to participate in the ACP by meeting the standards 
described in the regulations. If it met these standards, a 
classification society was recognized and delegated authority to 
conduct plan reviews and inspections, and issue, on the Coast Guard's 
behalf, certain IMO certificates documenting compliance with IMO treaty 
provisions.
    An interim rule establishing new 46 CFR part 8, ``Vessel Inspection 
Alternatives'' was published in the Federal Register on December 27, 
1996. 61 FR 68510. The pilot program was concluded in 1997 and the ACP 
was fully implemented by a final rule published on December 24, 1997. 
62 FR 67526.
    Predictably, the program has evolved since 1997 and the lessons 
learned have been documented and typically implemented through Coast 
Guard policy decisions, where appropriate. The May 2007 notice of 
proposed rulemaking (NPRM) preceding this final rule described the 
Coast Guard's plans to expand the ACP and incorporate the lessons we 
have learned into the CFR. 72 FR 28650, May 22, 2007. For example, when 
the ACP was initiated, the Coast Guard chose to retain issuing 
authority for the SOLAS Passenger Ship Safety Certificate (PSSC). This 
decision was based on our experience with the complexities of the 
passenger vessel plan review, inspection, and certification process. 
Experience has shown that retaining this issuing authority has created 
confusion over the roles of the Coast Guard versus the authorized 
classification society under the ACP. Experience with the ACP has also 
allowed us to gain confidence with the ACP process. Therefore, we 
decided to grant PSSC issuing authority to authorized classification 
societies.
    For similar reasons, in the May 2007 NPRM, we proposed to delegate 
to authorized classification societies issuing authority for the High-
Speed Craft (HSC) Safety Certificate. This follows our determination 
that the HSC Code is equivalent to the 46 CFR Subchapter H requirements 
for passenger vessels. We published our

[[Page 20417]]

decision in Navigation and Vessel Inspection Circular (NVIC) 6-99 on 
inspection of high-speed craft and in Policy Letter 01-00, dated May 3, 
2000. NVIC 6-99 is available from the Coast Guard National Maritime 
Center on the World Wide Web at http://www.uscg.mil/hq/gm/nvic/index90.htm. Policy Letter number 01-00 is available in the docket for 
this rulemaking. As the Coast Guard and several classification 
societies have now gained significant experience with the HSC Code, it 
is now appropriate to add the HSC Certificate to the ACP.
    Our experience with the success of the ACP has also given us the 
flexibility to explore applying the program to other types of vessels 
that were originally excluded under our measured implementation 
approach. Positive feedback and recommendations from the U.S. maritime 
industry gathered since we initiated ACP demonstrate broad support for 
this idea. As a result, in May 2007, we proposed that the ACP be 
expanded to encompass Oceanographic Research Vessels that engage in 
international voyages.
    Soon after the ACP rules went into effect, we recognized that a 
classification society needs authorization to issue five basic IMO 
certificates to fully leverage ACP flexibility, namely:
     The Cargo Ship Safety Construction Certificate from the 
International Convention for Safety of Life at Sea, 1974;
     The Cargo Ship Safety Equipment Certificate from the 
International Convention for Safety of Life at Sea, 1974;
     The International Load Line Certificate from the 
International Convention on Load Lines;
     The International Tonnage Certificate from the 
International Convention on Tonnage Measurement; and
     The International Oil Pollution Prevention Certificate 
from the Protocol of 1978 relating to the International Convention for 
the Prevention of Pollution from Ships, 1973.
    While we have implemented this concept as part of our operating 
policies, it had not been incorporated into 46 CFR part 8. Therefore, 
in our May 2007 NPRM, we proposed to revise 46 CFR part 8 to require 
that a classification society have authority to issue the five basic 
IMO certificates to be eligible to participate in the ACP.
    The initial version of the ACP only applied to the American Bureau 
of Shipping with whom the Coast Guard had collaborated to develop the 
first U.S. Supplement--a list of differences between the CFR and the 
combination of IMO treaty provisions and classification society rules. 
As the program has expanded, we have engaged in similar partnerships 
with other classification societies that are now approved to 
participate in the ACP. Consequently, our specific references to the 
American Bureau of Shipping in 46 CFR part 2 are outdated. Therefore, 
in May 2007, we proposed to replace specific references to the American 
Bureau of Shipping with a more general reference to authorized 
classification societies. The term ``authorized classification 
society'' is already defined in 46 CFR 8.100.

III. Discussion of Comments

    We received four letters commenting on the notice of proposed 
rulemaking published May 22, 2007. 72 FR 28650. The commenters 
supported the Alternate Compliance Program (ACP) and recommended the 
Coast Guard expand the program further to the U.S. tank barge industry, 
the Great Lakes shipping fleet, offshore supply vessels, and other 
domestic vessels that receive classification and loadline certificates.
    The Coast Guard appreciates these comments. The ACP is one of many 
ways the Coast Guard partners with our industry stakeholders to make 
the best use of our combined resources, achieve a balance between 
industry and government interests, and improve opportunities for the 
U.S. maritime community to be competitive in the global marketplace. 
The Coast Guard has opted not to delegate authority to implement our 
regulations on domestic vessels.
    The owners of domestic vessels may apply for enrollment in other, 
similar programs, such as the Streamlined Inspection Program (SIP) 
described in 46 CFR part 8, subpart E. In the SIP, the vessel owner and 
the Coast Guard work together to develop a Vessel Action Plan (VAP) 
that prescribes the procedures for maintenance, examination, and 
inspection of a vessel enrolled in the SIP. Under the SIP, owners of 
domestic vessels earn, in a manner similar to the ACP, more autonomy, 
flexibility, and responsibility for their vessels and operations under 
Coast Guard oversight. We made no changes from the proposed rule based 
on these comments.

IV. Discussion of Final Rule

    This final rule amends 46 CFR 2.01-25(a)(1) and (a)(2) to:
     List all SOLAS certificates required to be maintained 
aboard ships, including the High-Speed Craft Safety Certificate; and
     Update the lists of SOLAS certificates that the Coast 
Guard issues and that can be issued by an authorized classification 
society on the Coast Guard's behalf.
    In the proposed regulatory text of the May 2007 NPRM, we omitted 
the HSC Safety certificate from the list of IMO certificates the Coast 
Guard would issue, but we did reference such an update in the preamble 
of the NPRM (72 FR 28651). Therefore, in this final rule we added a 
paragraph (ix) to Sec.  2.01-25(a)(2) to include HSC Safety in the list 
of certificates issued by the Coast Guard.
    In Sec.  2.01-25(a)(3), we changed the phrase ``American Bureau of 
Shipping'' to ``authorized classification society.''
    In Sec.  8.320(b), we added the following IMO certificates to the 
list of those that can be issued by an authorized classification 
society:
     Passenger Ship Safety Certificate, and
     High-Speed Craft Safety Certificate.
    Also, in Sec.  8.420(c), we added to the list of conditions for 
eligibility to participate in the ACP, a requirement that a 
classification society must have been delegated issuing authority for 
the Cargo Ship Safety Construction Certificate, Cargo Ship Safety 
Equipment Certificate, International Load Line Certificate, 
International Tonnage Certificate, and International Oil Pollution 
Prevention Certificate.
    Finally, in new Sec.  189.15-5, we expand the ACP to include 
Subchapter U ``Oceanographic Research Vessels.''

V. Regulatory Analyses

    We developed this rule after considering numerous statutes and 
executive orders related to rulemaking. Below we summarize our analyses 
based on 13 of these statutes or executive orders.

A. Regulatory Planning and Review

    This rule is not a ``significant regulatory action'' under section 
3(f) of Executive Order 12866, Regulatory Planning and Review, 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.
    This rule will not impose mandatory costs on the public because it 
enables voluntary alternatives to inspections by Coast Guard personnel. 
We anticipate that vessel owners and operators will realize potential 
cost savings due to the expansion of the ACP. In this rule, we add to 
the delegation of certain inspections (and the resulting issuance of 
certain certificates) to classification societies that potentially 
leads to a

[[Page 20418]]

reduction of time and resources for plan review and the vessel 
inspection process.

B. Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have 
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.
    In the NPRM, we certified under 5 U.S.C. 605(b) that the proposed 
rule would not have a significant economic impact on a substantial 
number of small entities and we requested public comments on this 
certification. We received no comments on this certification and adopt 
it as final.
    This rule does not change any requirements in the regulations. It 
simply updates and expands an existing voluntary program for alternate 
compliance with Coast Guard regulations. Therefore, the Coast Guard 
certifies under 5 U.S.C. 605(b) that this rule would not have a 
significant economic impact on a substantial number of small entities.

C. Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), we want to assist small 
entities in understanding this rule so they can better evaluate its 
effects on them and participate in the rulemaking. If the rule affects 
your small business, organization, or governmental jurisdiction and you 
have questions concerning its provisions or options for compliance, 
please consult Mr. William Peters, U.S. Coast Guard Office of Design 
and Engineering Standards, telephone 202-372-1731. The Coast Guard will 
not retaliate against small entities that question or complain about 
this rule or any policy or action of the Coast Guard.

D. Collection of Information

    This rule calls for no new collection of information under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

E. Federalism

    A rule has implications for federalism under Executive Order 13132, 
Federalism, if it has a substantial direct effect on State or local 
governments and would either preempt State law or impose a substantial 
direct cost of compliance on them. We have analyzed this rule under 
that Order and have determined that it does not have implications for 
federalism.

F. 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 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 or more in any 
one year. Though this rule will not result in such expenditure, we 
discuss the effects of this rule elsewhere in this preamble.

G. Taking of Private Property

    This rule will not affect a taking of private property or otherwise 
have taking implications under Executive Order 12630, Governmental 
Actions and Interference with Constitutionally Protected Property 
Rights.

H. Civil Justice Reform

    This rule 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.

I. Protection of Children

    We have analyzed this rule under Executive Order 13045, Protection 
of Children from Environmental Health Risks and Safety Risks. This rule 
is not an economically significant rule and will not create an 
environmental risk to health or risk to safety that might 
disproportionately affect children.

J. Indian Tribal Governments

    This rule 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.

K. Energy Effects

    We have analyzed this rule 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. The Administrator of the Office of Information and 
Regulatory Affairs has not designated it as a significant energy 
action. Therefore, it does not require a Statement of Energy Effects 
under Executive Order 13211.

L. Technical Standards

    The National Technology Transfer and Advancement Act (NTTAA) (15 
U.S.C. 272 note) directs agencies to use voluntary consensus standards 
in lieu of government-unique standards in their regulatory activities 
unless the agency determines use of these standards would be 
inconsistent with law or are otherwise impractical. Agencies not using 
voluntary consensus standards in lieu of government-unique standards 
must provide Congress, through the Office of Management and Budget, 
with an explanation of why using these standards would be inconsistent 
with applicable law or otherwise impractical. Voluntary consensus 
standards are technical standards (e.g. specifications of materials, 
performance, design, or operation; test methods; sampling procedures; 
and related management systems practices) that are developed or adopted 
by voluntary consensus standard bodies.
    This rule does not use voluntary consensus standards as there are 
none that meet the objectives of this rulemaking, and, therefore, we 
did not consider the use of voluntary consensus standards.

M. Environment

    We have analyzed this proposed rule under Department of Homeland 
Security Directive 023-01 and Commandant Instruction M16475.lD, which 
guide the Coast Guard in complying with the National Environmental 
Policy Act of 1969 (NEPA)(42 U.S.C. 4321-4370f), and have concluded 
that this action is one of a category of actions which do not 
individually or cumulatively have a significant effect on the human 
environment. Therefore, this rule is categorically excluded, under 
section 2.B.2. Figure 2-1, paragraph 34(b), (d), and (e) of the 
Instruction and neither an environmental assessment nor an 
environmental impact statement is required. This rule involves the 
delegation of authority, the inspection and documentation of vessels, 
and equipment approval and carriage requirements. An environmental 
analysis checklist and a categorical exclusion determination are 
available in the docket where indicated under ADDRESSES.

[[Page 20419]]

List of Subjects

46 CFR Part 2

    Marine safety, Reporting and recordkeeping requirements, Vessels.

46 CFR Part 8

    Administrative practice and procedure, Incorporation by reference, 
Organization and functions (Government agencies), Reporting and 
recordkeeping requirements, Vessels.

46 CFR Part 189

    Marine safety, Oceanographic research vessels, Reporting and 
recordkeeping requirements.

0
For the reasons discussed in the preamble, the Coast Guard amends 46 
CFR parts 2, 8, and 189 as follows:

PART 2--VESSEL INSPECTIONS

0
1. The authority citation for part 2 continues to read as follows:

    Authority:  33 U.S.C. 1903; 43 U.S.C. 1333; 46 U.S.C. 2110, 
3103, 3205, 3306, 3307, 3703; 46 U.S.C. Chapter 701; E.O. 12234, 45 
FR 58801, 3 CFR, 1980 Comp., p. 277; Department of Homeland Security 
Delegation No. 0170.1. Subpart 2.45 also issued under the Act Dec. 
27, 1950, Ch. 1155, secs. 1, 2, 64 Stat. 1120 (see 46 U.S.C. App. 
Note prec. 1).


0
2. Amend Sec.  2.01-25 as follows:
0
a. Add a new paragraph (a)(1)(ix) to read as set forth below;
0
b. Add a new paragraph (a)(2)(ix) to read as set forth below;
0
c. In paragraph (a)(3), remove the words ``the American Bureau of 
Shipping may issue the Cargo Ship Safety Construction Certificate to 
cargo and tankships which it classes.'' and add, in their place, the 
words ``an authorized classification society may issue international 
convention certificates as permitted under part 8, subpart C, of this 
title.'' and;
0
d. In paragraph (b)(1), after the word ``Cargoes),'' remove the word 
``and'', and after the words ``Passenger Vessels)'', add the words 
``and Subchapter U (Oceanographic Research Vessels),''.


Sec.  2.01-25  International Convention for the Safety of Life at Sea, 
1974.

    (a) * * *
    (1) * * *
    (ix) High-Speed Craft Safety Certificate
    (2) * * *
    (ix) High-Speed Craft Safety Certificate
* * * * *

PART 8--VESSEL INSPECTION ALTERNATIVES

0
3. The authority citation for part 8 continues to read as follows:

    Authority:  46 U.S.C. 3103, 3306, 3316, 3703; Department of 
Homeland Security Delegation No. 0170.1.


0
4. Amend Sec.  8.320 as follows:
0
a. In paragraph (b)(8), remove the word ``and'';
0
b. In paragraph (b)(9), remove the period and add, in its place, a 
semicolon; and
0
c. Add new paragraphs (b)(10) and (b)(11) to read as follows:


Sec.  8.320  Classification society authorization to issue 
international certificates.

* * * * *
    (b) * * *
    (10) SOLAS Passenger Ship Safety Certificate; and
    (11) High-Speed Craft Safety Certificate.
* * * * *


0
5. In Sec.  8.420, revise paragraph (c) to read as follows:


Sec.  8.420  Classification society authorization to participate in the 
Alternate Compliance Program.

* * * * *
    (c) A recognized classification society:
    (1) Will be eligible to receive authorization to participate in the 
ACP only after the Coast Guard has delegated to it the authority to 
issue the following certificates:
    (i) International Load Line Certificate;
    (ii) International Tonnage Certificate;
    (iii) Cargo Ship Safety Construction Certificate;
    (iv) Cargo Ship Safety Equipment Certificate; and
    (v) International Oil Pollution Prevention Certificate; and
    (2) Must have performed a delegated function related to general 
vessel safety assessment, as defined in Sec.  8.100 of this part, for a 
two-year period.
* * * * *

Subchapter U--Oceanographic Research Vessels

PART 189--INSPECTION AND CERTIFICATION

0
6. The authority citation for part 189 continues to read as follows:

    Authority:  33 U.S.C. 1321(j); 46 U.S.C. 2113, 3306, 3307; E.O. 
12234, 45 FR 58801, 3 CFR, 1980 Comp., p. 277; E.O. 12777, 56 FR 
54757, 3 CFR, 1991 Comp., p. 351; Department of Homeland Security 
Delegation No. 0170.1.


0
7. Add new Sec.  189.15-5 to read as follows:


Sec.  189.15-5  Alternate compliance.

    (a) In place of compliance with other applicable provisions of this 
subchapter, the owner or operator of a vessel subject to plan review 
and inspection under this subchapter for initial issuance or renewal of 
a Certificate of Inspection may comply with the Alternate Compliance 
Program provisions of 46 CFR part 8.
    (b) For the purposes of this section, a list of authorized 
classification societies, including information for ordering copies of 
approved classification society rules and supplements, is available 
from Commandant (CG-521), 2100 Second St., SW., Washington, DC 20593-
0001; telephone (202) 372-1371; or fax (202) 372-1925. Approved 
classification society rules and supplements are incorporated by 
reference into 46 CFR 8.110(b).

    Dated: April 27, 2009.
Howard L. Hime,
U.S. Coast Guard, Acting Director of Commercial Regulations and 
Standards.
[FR Doc. E9-10113 Filed 5-1-09; 8:45 am]
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