[Federal Register Volume 78, Number 247 (Tuesday, December 24, 2013)]
[Rules and Regulations]
[Pages 77587-77590]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-30656]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 64

[Docket No. USCG-2012-0054]
RIN 1625-AC11


Waiver for Marking Sunken Vessels With a Light at Night

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

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SUMMARY: The Coast Guard is revising its regulations to implement 
section 301 of the Coast Guard and Maritime Transportation Act of 2004. 
This Act authorized the Commandant to waive the statutory requirement 
to mark sunken vessels with a light at night if the Commandant 
determines that placing a light would be impractical and waiving the 
requirement would not create an undue hazard to navigation. The 
Commandant has delegated to the Coast Guard District Commander in whose 
district the sunken vessel is located the authority to grant this 
waiver.

DATES: This final rule is effective January 23, 2014.

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 number USCG-2012-0054 and are available for 
inspection or copying at the Docket Management Facility (M-30), U.S. 
Department of Transportation, West Building Ground Floor, Room W12-140, 
1200 New Jersey Avenue SE., Washington, DC 20590 between 9 a.m. and 5 
p.m., Monday through Friday, except Federal holidays. You may also find 
this docket online by going to http://www.regulations.gov and 
following the instructions on that Web site.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call or email LT Patrick N. Armstrong, Coast Guard; telephone 202-372-
1561, email [email protected]. If you have questions on 
viewing or submitting material to the docket, call Ms. Barbara 
Hairston, Program Manager, Docket Operations, telephone 202-366-9826.

SUPPLEMENTARY INFORMATION: 

Table of Contents for Preamble

I. Abbreviations
II. Regulatory History
III. Background
IV. Discussion of Comments and Changes
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

BLS Bureau of Labor Statistics
CFR Code of Federal Regulations
COTP Captain of the Port
E.O. Executive Order
MISLE Marine Information for Safety and Law Enforcement
NAICS North American Industry Classification System
NPRM Notice of proposed rulemaking
Pub. L. Public Law
Sec.  Section symbol
U.S.C. United States Code
USCG United States Coast Guard

II. Regulatory History

    The Coast Guard published a notice of proposed rulemaking (NPRM) on 
May 28, 2013 (78 FR 31872). We note that the NPRM was published with an 
incorrect Regulatory Identification Number of 1625-AA97, and so we 
published a correcting notice on September 10, 2013 (78 FR 55230). We 
received no comments on the proposed rule, no public meeting was 
requested, and none was held.

III. Background

    The Coast Guard is revising its regulations in Title 33 of the Code 
of Federal Regulations (CFR) part 64, which prescribe rules relating to 
the marking of structures, sunken vessels, and other obstructions for 
the protection of maritime navigation. These regulations apply to all 
sunken vessels in the navigable waters or waters above the continental 
shelf of the United States. The current regulations in 33 CFR 64 
require an owner of a vessel, raft, or other craft that is wrecked and 
sunk in a navigable channel to immediately mark it with a buoy or a 
beacon during the day and a light at night, and maintain the markings 
until the wreck is removed. The current wording uses the phrase ``buoy 
or daymark,'' which we are replacing with ``buoy or beacon'' in this 
part. This is a more precise phrase encompassing floating and fixed 
aids to navigation. There are no provisions for exemptions to this 
regulation. However, the Commandant is authorized by statute to grant a 
waiver from the lighting requirement if the Coast Guard determines, due 
to conditions of the waterway, that marking the sunken vessel with a 
light is impracticable and that not marking the sunken vessel does not 
pose an undue hazard to navigation. Such a waiver could save owners the 
cost of marking sunken vessels with a light without jeopardizing 
navigational safety.
    The potential for saving owners money where there is little risk to 
navigation safety is the primary purpose of this rule. This final rule 
adds to the regulations a provision in section 301 of the Coast Guard 
and Maritime Transportation Act of 2004 (``the Act'') (Pub. L. 108-
293), codified at 33 U.S.C. 409, that authorizes the Commandant to 
waive the requirement to mark a sunken vessel, raft, or other craft 
with a light at night if the Commandant determines it would be 
``impracticable and granting

[[Page 77588]]

such a waiver would not create an undue hazard to navigation.'' The 
Commandant has delegated to the District Commander the authority to 
grant this waiver. (See Aids to Navigation Manual--Administration 
(COMDTINST M16500.7A)).
    In addition, the Coast Guard is making the editorial and 
organizational changes to 33 CFR part 64 subpart B addressed in the 
NPRM to make the regulations clearer to the regulated industry.

IV. Discussion of Comments and Changes

    Because the Coast Guard received no comments on the proposed rule, 
we are publishing this final rule with no changes from the May 28, 2013 
NPRM.

V. Regulatory Analyses

    We developed this rule after considering numerous statutes and 
executive orders (E.O.s) related to rulemaking. Below we summarize our 
analyses based on these statutes or E.O.s.

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 reducing costs, of harmonizing rules, and of 
promoting flexibility.
    This rule is not a significant regulatory action under section 3(f) 
of E.O. 12866, as supplemented by E.O. 13563, and does not require an 
assessment of potential costs and benefits under section 6(a)(3) of 
E.O. 12866. The Office of Management and Budget (OMB) has not reviewed 
it under E.O. 12866. Nonetheless, we developed an analysis of the costs 
and benefits of the rule to ascertain its probable impacts on industry.
    The Coast Guard did not receive any comments related to the 
proposed rule or regulatory assessment during the public comment 
period. We received no additional information or data that would alter 
our assessments in the NPRM. Therefore, we are adopting the regulatory 
assessment for the NPRM as final. The following summarizes the costs 
and benefits as presented in the NPRM regulatory assessment:

                      Summary of Costs and Benefits
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                Category                          Proposed rule
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Applicability..........................  Owner/operator of a vessel sunk
                                          in navigable channels that
                                          request a waiver from the
                                          requirement to provide a
                                          lighted marker if providing an
                                          unlighted marker does not
                                          create a hazard to navigation.
Affected population....................  6 sunken vessels per year.
Industry annualized costs (7% discount   $217 per year.
 rate).
Government annualized costs (7%          $1,140 per year.
 discount rate).
Total annualized cost of the rule (7%    $1,357 per year.
 discount).
Benefits...............................  Cost savings due to waiver of
                                          requirement that the marker
                                          have a light.
                                         Improved clarity and
                                          readability for existing
                                          information requirements.
------------------------------------------------------------------------

    The Coast Guard is revising its regulations requiring the owner of 
a sunken vessel to mark the vessel with a light at night. Existing 
regulations require an owner of a vessel, raft, or other craft that is 
wrecked and sunk in a navigable channel to immediately mark it with a 
buoy or a beacon during the day and with a light at night, and maintain 
the markings until the sunken vessel is removed.
    The revision to the regulations codifies a provision in the Coast 
Guard and Maritime Transportation Act of 2004 that authorizes the 
Commandant of the Coast Guard, under certain circumstances, to waive 
the requirement to mark sunken vessels with a light at night. This new 
regulatory language permits a waiver to be granted if the District 
Commander determines the placement of a light would be impractical and 
granting a waiver will not create an undue hazard to navigation. This 
final rule also makes certain edits in order to improve readability and 
clarify existing information requirements.
    Costs associated with the rule result from vessel owners/operators 
requesting waivers from marking a sunken vessel. We estimate that six 
vessel owners and/or operators per year would request waivers from a 
District Commander. It is estimated that it would take an owner or 
operator approximately 15 minutes to report the incident to the Coast 
Guard, via voice communication, and informally request a waiver for 
their marker. The loaded hourly wage rate of a Captain, Mate, and Pilot 
of a Water Vessel (NAICS 53-5021) is $48.30.\1\ Therefore, the 
estimated cost of the initial reporting, per incident, is $12.07 = 
($48.30 x .25). We also estimate that it would take approximately 30 
minutes, per waiver, to write up and submit a formal request to the 
District Commander. Therefore, the cost of submitting a request is 
$24.15 = ($48.30 x .5), and the total cost for each occurrence is 
$36.22 = ($12.07 + $24.15). The total 10-year cost of six affected 
vessels is $1,526 discounted at 7 percent and an annualized cost of 
$217.32 discounted at 7 percent.
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    \1\ See the Bureau of Labor Statistics' (BLS) Web site at http://www.bls.gov/oes/2011/may/oes535021.htm, Mean hourly wage for 
Captains, Mates and Pilots of Water Vessels. In addition, the cost 
reported in the analysis is based on the loaded wage rate, which is 
the reported BLS wage rate multiplied by the load rate of 1.4.
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    The Federal Government will also incur costs to review and grant 
waivers. We anticipate a Coast Guard Commander (O-5) will review the 
waiver request and make the determination of whether to grant it. As 
previously stated, it is projected that six waiver requests per year 
would be submitted for review. We estimate that each waiver review 
would take approximately 2 hours. Therefore, the Government's economic 
burden of reviewing a written waiver request is $190 ($95.00 at an O-5 
wage rate \2\ x 2 hours) per waiver, and an estimated annual burden of 
$1,140 per year ($190 per waiver x 6 waivers). The total Government 10-
year cost is $8,007, and the annualized cost is $1,140, both discounted 
at 7 percent. The total 10-year (industry and government) cost of this 
rule is estimated at $13,573.20 (undiscounted) and $9,533.25 discounted 
at 7 percent.
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    \2\ Wage rate for an O-5 comes from COMDTINST 7310.1M. Feb 2011.

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[[Page 77589]]

    The primary benefit of this final rule is that it provides a 
regulatory efficiency benefit. Currently, ship operators may not be 
aware that waivers from the lighting requirement may be requested. By 
establishing a waiver provision as part of the Coast Guard regulations, 
we anticipate a wider audience would have knowledge about petitioning 
the Coast Guard for a waiver. Additionally, we believe that the 
clarifications to the regulations could improve the efficiency of data 
collection of sunken vessels by explaining the information required 
(such as specifying that vessel type and size should be included in the 
description of a sunken vessel).

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 fewer than 50,000 
people. The Coast Guard received no comments related to its discussion 
and analysis of impacts on small entities during the public comment 
period. We received no additional information or data that would alter 
our discussion and analysis in the NPRM.
    The Coast Guard expects that this rule could impact a maximum of 
six small entities per year at a cost of $36 per waiver per entity, 
which we assume would have a cost impact of less than 1 percent of 
annual revenue per affected entity.
    Therefore, the Coast Guard certifies under 5 U.S.C. 605(b) that 
this rule, if promulgated, will 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 the rule 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 rule 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).

D. Collection of Information

    As noted previously, we estimate that there would be fewer than 10 
respondents affected in any given year. Therefore, this rule would call 
for no new collection of information under the Paperwork Reduction Act 
of 1995 (44 U.S.C. 3501-3520), since the estimated number of 
respondents is less than the threshold of 10 respondents per 12-month 
period for collection of information reporting purposes under the 
Paperwork Reduction Act.

E. Federalism

    A rule has implications for federalism under E.O. 13132 
(``Federalism'') if it has a substantial direct effect on the 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 rule under that E.O. and 
have determined that it does not have implications for federalism. This 
rule would merely permit owners and operators of vessels sunk in 
navigable channels to request a waiver from the existing Coast Guard 
requirement to mark the sunken vessel with a light at night.
    It is well-settled that States may not regulate in categories 
reserved for regulation by the Coast Guard. It is also well-settled 
that the reporting of casualties and any other category in which 
Congress intended the Coast Guard to be the sole source of a vessel's 
obligations, are within fields foreclosed from regulation by the States 
or local governments. (See the decision of the Supreme Court in the 
consolidated cases of United States v. Locke and Intertanko v. Locke, 
529 U.S. 89, 120 S.Ct. 1135 (March 6, 2000)). The Coast Guard believes 
the Federalism principles articulated in Locke apply to this rule since 
it would only affect an area regulated exclusively by the Coast Guard.

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 (adjusted for 
inflation) or more in any one year. Though this rule would not result 
in such an expenditure, we do discuss the effects of this rule 
elsewhere in this preamble.

G. Taking of Private Property

    This rule would not cause a taking of private property or otherwise 
have taking implications under E.O. 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 E.O. 12988 (``Civil Justice Reform''), to minimize litigation, 
eliminate ambiguity, and reduce burden.

I. Protection of Children

    We have analyzed this rule under E.O. 13045 (``Protection of 
Children from Environmental Health Risks and Safety Risks''). This rule 
is not an economically significant rule and would 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 E.O. 13175 
(``Consultation and Coordination with Indian Tribal Governments''), 
because it would 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 E.O. 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 E.O. 12866, as supplemented by E.O. 13563, 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 E.O. 13211.

L. Technical Standards

    The National Technology Transfer and Advancement Act (15 U.S.C. 272 
note) directs agencies to use voluntary consensus standards in their 
regulatory

[[Page 77590]]

activities unless the agency provides Congress, through OMB, 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 standards bodies. This rule does not use 
technical standards. Therefore, we did not consider the use of 
voluntary consensus standards.

M. Environment

    We have analyzed this rule under Department of Homeland Security 
Management Directive 0023.1 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. This rule is categorically excluded under section 2.B.2, 
figure 2-1, paragraph (34)(a), (b) and (i) of the Instruction. This 
rule involves regulations which are editorial, regulations delegating 
authority and regulations in aid of vessel traffic services, and 
marking of navigation systems. An environmental analysis checklist and 
a categorical exclusion determination are available in the docket where 
indicated under ADDRESSES.

List of Subjects in 33 CFR Part 64

    Navigation (water), Reporting and recordkeeping requirements.

    For the reasons discussed in the preamble, the Coast Guard amends 
33 CFR part 64 as follows:

PART 64--MARKING OF STRUCTURES, SUNKEN VESSELS AND OTHER 
OBSTRUCTIONS

0
1. The authority citation for part 64 continues to read as follows:


    Authority:  14 U.S.C. 633; 33 U.S.C. 409, 1231; 42 U.S.C. 9118; 
43 U.S.C. 1333; Department of Homeland Security Delegation No. 
0170.1.


0
2. Revise Sec.  64.11 to read as follows:


Sec.  64.11  Marking, notification, and approval requirements.

    (a) The owner and/or operator of a vessel, raft, or other craft 
wrecked and sunk in a navigable channel must mark it immediately with a 
buoy or beacon during the day and with a light at night. The 
requirement to mark the vessel, raft, or other craft with a light at 
night may be waived by the District Commander pursuant to Sec.  64.13 
of this subpart.
    (b) The owner and/or operator of a sunken vessel, raft, or other 
craft that constitutes a hazard to navigation must mark it in 
accordance with this subchapter.
    (c) The owner and/or operator of a sunken vessel, raft, or other 
craft must promptly report to the District Commander, in whose 
jurisdiction the vessel, raft, or other craft is located, the action 
they are taking to mark it. In addition to the information required by 
46 CFR 4.05, the reported information must contain--
    (1) Name and description of the sunken vessel, raft, or other 
craft, including type and size;
    (2) Accurate description of the location of the sunken vessel, 
raft, or other craft, including how the position was determined;
    (3) Water depth; and
    (4) Location and type of marking established, including color and 
shape of buoy or other beacon and characteristic of the light, if 
fitted.
    (d) The owner and/or operator of a vessel, raft, or other craft 
wrecked and sunk in waters subject to the jurisdiction of the United 
States or sunk on the high seas, if the owner is subject to the 
jurisdiction of the United States, must promptly report to the District 
Commander, in whose jurisdiction the obstruction is located, the action 
they are taking to mark it in accordance with this subchapter. The 
reported information must contain the information listed in paragraph 
(c) of this section, including the information required by 46 CFR 4.05.
    (e) Owners and/or operators of other obstructions may report the 
existence of such obstructions and mark them in the same manner as 
prescribed for sunken vessels.
    (f) Owners and/or operators of marine pipelines that are determined 
to be hazards to navigation must report and mark the hazardous portion 
of those pipelines in accordance with 49 CFR parts 192 or 195, as 
applicable.
    (g) All markings of sunken vessels, rafts, or crafts and other 
obstructions established in accordance with this section must be 
reported to and approved by the appropriate District Commander.
    (h) Should the District Commander determine that these markings are 
inconsistent with part 62 of this subchapter, the markings must be 
replaced as soon as practicable with approved markings.

0
3. Revise Sec.  64.13 to read as follows:


Sec.  64.13  Approval for waiver of markings.

    (a) Owners and/or operators of sunken vessels, rafts or other craft 
sunk in navigable waters may apply to the District Commander, in whose 
jurisdiction the vessel, raft, or other craft is located, for a waiver 
of the requirement to mark them with a light at night as required under 
Sec.  64.11(a) of this subpart. Information on how to contact the 
District Commander is available at http://www.uscg.mil/top/units.
    (b) The District Commander may grant a waiver if it is determined 
that--
    (1) Marking the wrecked vessel, raft or other craft with a light at 
night would be impractical, and
    (2) The granting of such a waiver would not create an undue hazard 
to navigation.

    Dated: December 12, 2013.
Gary C. Rasicot,
Director, U.S. Coast Guard, Marine Transportation Systems.
[FR Doc. 2013-30656 Filed 12-23-13; 8:45 am]
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