[Federal Register Volume 83, Number 207 (Thursday, October 25, 2018)]
[Rules and Regulations]
[Pages 53818-53822]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-23314]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
46 CFR Parts 136 and 142
[Docket No. USCG-2017-1060]
RIN 1625-AC43
Harmonization of Fire Protection Equipment Standards for Towing
Vessels
AGENCY: Coast Guard, DHS.
ACTION: Final rule.
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SUMMARY: The Coast Guard is finalizing an interim final rule that
applied the changes made by the 2016 final rule, ``Harmonization of
Standards for Fire Protection, Detection, and Extinguishing
Equipment,'' to inspected towing vessels. The interim final rule,
published February 26, 2018 in the Federal Register, aligned fire
protection and equipment regulations for inspected towing vessels with
other commercial vessel regulations. The Coast Guard received no
comments on the interim rule, and adopts the interim final rule with
one clarification.
DATES: This final rule is effective November 26, 2018.
ADDRESSES: Documents mentioned in this preamble are available in the
public docket by going to http://www.regulations.gov, typing USCG-2017-
1060 in the ``SEARCH'' box and clicking ``SEARCH.'' Click on Open
Docket Folder on the line associated with this rule.
FOR FURTHER INFORMATION CONTACT: For information about this document,
call or email LT Alexandra Miller, Office of Design and Engineering
Standards, Lifesaving and Fire Safety Division (CG-ENG-4), Coast Guard;
telephone 202-372-1356, email [email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents for Preamble
I. Abbreviations
II. Background Information, Legal Authority, and Discussion of
Change
[[Page 53819]]
III. 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 and Incorporation by Reference
M. Environment
I. Abbreviations
CFR Code of Federal Regulations
DHS Department of Homeland Security
Fire Protection rule ``Harmonization of Standards for Fire
Protection, Detection, and Extinguishing Equipment'' final rule (81
FR 48220, July 22, 2016)
FR Federal Register
NFPA 10 National Fire Protection Association Standard for Portable
Fire Extinguishers, 2010 edition
OCMI Officer in Charge, Marine Inspection
OMB Office of Management and Budget
RA Regulatory Analyses
Sec. Section symbol
Subchapter C 46 CFR subchapter C--Uninspected Vessels
Subchapter M 46 CFR subchapter M--Towing Vessels
U.S.C. United States Code
II. Background Information, Legal Authority, and Discussion of Change
On February 26, 2018, the Coast Guard published an interim final
rule with request for comments entitled ``Harmonization of Fire
Protection Equipment Standards for Towing Vessels'' in the Federal
Register (83 FR 8175). We received no comments. This final rule adopts
the interim final rule, with one change. For a detailed description of
the regulations finalized by this final rule, see the preamble of the
interim final rule (83 FR 8175, February 28, 2018).
The Coast Guard may regulate fire protection equipment on inspected
towing vessels under the statutory authority found in 46 U.S.C. 3301
and 3306, which was delegated by the Secretary of Homeland Security to
the Coast Guard in DHS Delegation Number 0170.1(II)(92). The interim
final rule harmonized fire protection equipment requirements regarding
portable and semi-portable fire extinguishers on inspected towing
vessels with the requirements for other commercial vessels in Title 46
of the Code of Federal Regulations (CFR), including uninspected towing
vessels.
Prior to the publication of the interim final rule, inspected
towing vessels were subject to older, less modern fire protection
regulations for fire extinguishers than uninspected towing vessels and
other commercial vessels. The interim final rule corrected the
inconsistent situation where a towing vessel transitioning from
uninspected to inspected status would be required to comply with the
previous standards instead of the newer standards. The interim final
rule provided uniformity in fire protection equipment requirements
across uninspected and inspected towing vessel fleets.
In this final rule we add clarifying language to 46 CFR 142.215(d)
to eliminate possible ambiguity as to whether existing firefighting
equipment must meet the requirements of part 142. The additional
language in Sec. 142.215(d) clarifies that this paragraph applies only
to excess existing firefighting equipment and installations. When the
Coast Guard issued a final rule establishing inspected towing vessels
as a class of vessel,\1\ Sec. 142.215(c) provided the requirements for
carriage of both new and existing excess firefighting equipment and
installations. In the interim final rule, we attempted to clarify the
excess firefighting equipment requirements by breaking Sec. 142.215(c)
into two sections: Sec. 142.215(c) for new equipment and Sec.
142.215(d) for existing equipment. In doing so, we inadvertently
omitted the statement that Sec. 142.215(d) only applies to excess
existing firefighting equipment and installations. Therefore, we are
correcting that omission in this final rule.
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\1\ See 81 FR 40003 (June 20, 2016).
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Section 553(b)(B) of Title 5 U.S.C. provides an exception from
notice and comment rulemaking requirements when an agency finds that
notice and comment are ``impracticable, unnecessary, or contrary to the
public interest.'' In the interim final rule, we separated the excess
equipment requirements in 46 CFR 142.215(c) into two sections: One for
existing firefighting equipment and one for new firefighting equipment.
In doing so, however, the Coast Guard did not intend to change the
original requirements of Sec. 142.215(c). In the preamble to the
Inspection of Towing Vessels final rule, which initially created Sec.
142.215(c), we said we ``have added a paragraph (c) to this section to
address equipment that is installed but not required by this subpart.''
(81 FR 40003, 40057, June 20, 2016). This preamble language makes clear
that we intended paragraph (c) to apply to both new and existing excess
firefighting equipment on towing vessels.
However, when the Coast Guard created Sec. 142.215(d) in the 2018
interim final rule, the Coast Guard inadvertently omitted the statement
that Sec. 142.215(d) only applies to excess existing firefighting
equipment and installations. As currently written in the interim final
rule, Sec. 142.215(d) could be interpreted as a blanket grandfathering
clause for existing equipment and installations to forego some or all
of the requirements of part 142. This interpretation was never
intended. The Regulatory Analyses in the interim final rule described
the creation of Sec. 142.215(d) from the last sentence of previous
Sec. 142.215(c) as a change to ``[e]dit and reorganize paragraph for
clarity'' and characterized it as a ``non-substantive text edit'' (83
FR 8177). Additionally, the interim final rule referred to the creation
of paragraph (d) in its Cost Analysis section as ``Add[ing] a new
paragraph to allow equipment beyond the regulatory minimum'' (83 FR
8177).
In this final rule, the Coast Guard is adding clarifying language
in paragraph (d) to align with our original intent for this section, to
allow excess equipment to remain in use if it does not meet all the
requirements of 46 CFR part 142. Public comment on this clarifying
language is unnecessary, because the change will not alter the fire
equipment and installations requirements already required for the
towing vessel population. Since the interim final rule, the Coast Guard
has not enforced Sec. 142.215(d) as a blanket grandfathering clause,
and no existing inspected or uninspected towing vessels will need to do
anything new in order to comply with the amended paragraph (d). Because
this change to Sec. 142.215(d) clarifies the original intent of the
section and does not alter the expectations and duties of the affected
population, prior notice and opportunity to comment on the change is
unnecessary. Under 5 U.S.C. 553(b)(B), the Coast Guard finds good cause
to forgo notice and comment.
III. Regulatory Analyses
We developed this rule 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,
[[Page 53820]]
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. Executive Order 13771 (Reducing
Regulation and Controlling Regulatory Costs), directs agencies to
reduce regulation and control regulatory costs and provides that ``for
every one new regulation issued, at least two prior regulations be
identified for elimination, and that the cost of planned regulations be
prudently managed and controlled through a budgeting process.''
The Office of Management and Budget (OMB) has not designated this
rule a significant regulatory action under section 3(f) of Executive
Order 12866. Accordingly, OMB has not reviewed it. Because this rule is
not a significant regulatory action, this rule is exempt from the
requirements of Executive Order 13771. See OMB's Memorandum titled
``Guidance Implementing Executive Order 13771, titled `Reducing
Regulation and Controlling Regulatory Costs' '' (April 5, 2017). A
regulatory analysis (RA) follows.
This final rule will implement the interim final rule's update to
the fire safety rules in subchapter M with one change: The addition of
clarifying language to Sec. 142.215(d). This RA presents the costs and
benefits of this one change. The costs and the benefits of the interim
final rule are located in the RA section of that rule (83 FR 8175;
February 26, 2018). The Coast Guard believes this will be a cost
neutral rule, as we do not expect the addition of clarifying language
to Sec. 142.215(d) to generate any costs or quantifiable benefits to
either industry or government. Table 1 presents a summary of the
impacts of this rule.
Table 1--Summary of Impacts of the Rule
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Category Summary
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Applicability..................... Towing vessels required to be
inspected under subchapter M.
Affected population............... 5,509 towing vessels.
Costs............................. No costs identified.
Benefits.......................... Provides clarifying language on an
ambiguously written regulatory
section in the interim final rule.
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Affected Population
The affected population consists of the U.S.-flagged towing vessels
subject to the provisions of subchapter M. The RA performed for the
Inspection of Towing Vessels final rule identified 5,509 towing vessels
that will be affected and concluded that the long-term pattern was a
steady-state population. We have no new information to revise that
conclusion and will use the population from that rule for this
analysis.
Cost Analysis
This rule adapts the interim final rule's alignment of fire
protection and equipment regulations for inspected towing vessels with
other commercial vessels, with one additional change. The final rule
will add text to clarify the wording in Sec. 142.215(d), which allows
extra equipment to remain in service on a vessel even if it does not
meet the specific requirements of the applicable regulations, as long
as it is approved by the local OCMI. Table 2 describes the economic
impact of this change.
Table 2--Assessment of Cost Impacts of Changes Made Between the Interim
Final Rule and Final Rule
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Description of change given in
the interim final rule Sec. Type of change Cost impact
142.215(d)
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Added additional text to Sec. Non-substantive No cost, because all
142.215(d) to clarify that text edit only. existing vessels are
the section only applies to already required to
equipment not required or in be in compliance
excess of the regulatory with the regulatory
minimum. requirements of part
142 from when they
were uninspected,
under subchapter C.
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Benefits
This final rule will adapt the interim final rule's harmonization
of the fire safety rules in subchapter M with the fire safety rules
applicable to uninspected towing vessels and commercial vessels. The
final rule also provides clarifying language in the regulatory text,
ensuring that there is no confusion about the intent of Sec.
142.215(d). This section allows equipment in excess of this part to
remain in service on a vessel even if it does not meet the specific
requirements of the applicable regulations, as long as it is found
acceptable by the local OCMI. Without this additional text, the Coast
Guard believes the section could be read as a blanket grandfathering
clause, and we would have to issue guidance to all OCMIs to ensure that
all required existing equipment meets the requirements of part 142.
B. Small Entities
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as
amended, requires Federal agencies to consider the potential impact of
regulations on small entities during rulemaking. 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. The Coast Guard received no comments from the Small Business
Administration on this rulemaking.
Our economic analysis concluded that this final rule will have no
cost impact and will not affect the small entities that own and operate
the towing vessels that comprise the affected population, described
above. Therefore, the Coast Guard certifies under 5 U.S.C. 605(b) that
this rule 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, Public Law 104-121, we offered to assist small
entities in understanding this rule so that they could better evaluate
its effects on them and participate in the rulemaking. The Coast Guard
will not retaliate against
[[Page 53821]]
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
This rule calls for no new collection of information or
modification of an existing 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 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 Executive Order 13132 and
have determined that it is consistent with the fundamental federalism
principles and preemption requirements described in Executive Order
13132. Our analysis follows.
It is well settled that States may not regulate in categories
reserved for regulation by the Coast Guard. It is also well settled
that all of the categories covered in 46 U.S.C. 3306, 3703, 7101, and
8101 (design, construction, alteration, repair, maintenance, operation,
equipping, personnel qualification, and manning of vessels), as well as
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 the field foreclosed from regulation by the
States. See the Supreme Court's decision in United States v. Locke and
Intertanko v. Locke, 529 U.S. 89, 120 S.Ct. 1135 (2000). This rule
covers foreclosed categories as it establishes regulations covering
fire extinguishing equipment for towing vessels subject to inspection
under 46 U.S.C. 3301 and 3306. Therefore, because the States may not
regulate within these categories, this rule is consistent with the
fundamental federalism principles and preemption requirements described
in Executive Order 13132.
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. Although this rule will 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 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).
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.
L. Technical Standards and Incorporation by Reference
The National Technology Transfer and Advancement Act, codified as a
note to 15 U.S.C. 272, directs agencies to use voluntary consensus
standards in their regulatory 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.
The interim rule, as adopted by this final rule, uses the following
updated voluntary consensus standard: NFPA 10, Standard for Portable
Fire Extinguishers, 2010 Edition, effective December 5, 2009. This
standard applies to the selection, installation, inspection,
maintenance, recharging, and testing of portable fire extinguishers.
Consistent with 1 CFR part 51 incorporation by reference
provisions, this material is reasonably available. Interested persons
have access to it through their normal course of business, may purchase
it from the organization identified in 46 CFR 136.112(h), or may view a
copy by means we have identified in that section.
M. Environment
We have analyzed this rule under Department of Homeland Security
Management Directive 023-01(series), and Commandant Instruction
M16475.lD (COMTINST M16475.1D), which guide the Coast Guard in
complying with the National Environmental Policy Act of 1969 (42 U.S.C.
4321-4370f), and have concluded that this action is one of 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
where indicated under the ``Public Participation and Request for
Comments'' section of this preamble.
This rule makes final updates to 46 CFR subchapter M which
harmonized fire safety standards for inspected towing vessels with
those of other commercial vessels. These updated regulations are
categorically excluded under paragraphs L52, L54, L57, and L58 of
Appendix A, Table 1 of DHS Instruction Manual 023-01(series). Paragraph
L52 pertains to regulations
[[Page 53822]]
concerning vessel operation safety standards; paragraph L54 pertains to
regulations which are editorial or procedural; paragraph L57 pertains
to regulations involving the inspection and equipping of vessels; and
paragraph L58 pertains to regulations concerning equipment approval and
carriage requirements.\2\
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\2\ Please note that the USCG categorical exclusions used in the
NEPA analysis for the interim final rule, published on February 26,
2018, appear as cited in Figure 2 of COMDTINST M16475.1D and under
paragraph 6(a) of the ``Appendix to National Environmental Policy
Act: Coast Guard Procedures for Categorical Exclusions, Notice of
Final Agency Policy'' (67 FR 48243, July 23, 2002). The categorical
exclusions that appear in Appendix A, Table 1 of DHS Instruction
Manual 023-01 (series) use a different numbering system, but are
substantially equivalent to those used for the interim final rule.
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List of Subjects in 46 CFR Part 142
Fire prevention, Incorporation by reference, Marine safety,
Reporting and recordkeeping requirements, Towing vessels.
For the reasons discussed in the preamble, the Coast Guard adopts
the interim final rule amending 46 CFR 136 and 142 as final, except it
amends 46 CFR part 142 as follows:
PART 142--FIRE PROTECTION
0
1. The authority citation for part 142 continues to read as follows:
Authority: 46 U.S.C. 3103, 3301, 3306, 3308, 3316, 8104, 8904;
33 CFR 1.05; Department of Homeland Security Delegation No. 0170.1.
0
2. Revise Sec. 142.215(d) to read as follows:
Sec. 142.215 Approved equipment.
* * * * *
(d) Existing equipment and installations, of a type not required,
or in excess of that required by this part, not meeting the applicable
requirements of this part may be continued in service so long as they
are in good condition and accepted by the local OCMI or TPO.
Dated: October 18, 2018.
J.P. Nadeau,
Rear Admiral, U.S. Coast Guard, Assistant Commandant for Prevention
Policy.
[FR Doc. 2018-23314 Filed 10-24-18; 8:45 am]
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