[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]
 BILLING CODE 9110-04-P