[Federal Register Volume 85, Number 158 (Friday, August 14, 2020)]
[Rules and Regulations]
[Pages 49600-49601]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-16965]


=======================================================================
-----------------------------------------------------------------------

FEDERAL MARITIME COMMISSION

46 CFR Part 540

[Docket No. 20-13]


Policy Statement on Passenger Vessel Financial Responsbility

AGENCY: Federal Maritime Commission.

ACTION: Policy statement.

-----------------------------------------------------------------------

SUMMARY: The Federal Maritime Commission (Commission) is publishing 
this policy statement in order to provide guidance on possible 
regulatory relief with respect to COVID-19's unprecedented economic 
effects to passenger vessel operators.

DATES: This policy statement is effective August 14, 2020.

FOR FURTHER INFORMATION CONTACT: Cindy Hennigan, Director, Bureau of 
Certification and Licensing, Federal Maritime Commission, 800 North 
Capitol Street NW, Room 1018, Washington, DC 20573; email: [email protected]; 
phone: 202-523-5787.

SUPPLEMENTARY INFORMATION:

I. Background

    On March 14, 2020, the Centers for Disease Control and Prevention 
(CDC) issued a ``No Sail Order and Suspension of Further Embarkation'' 
causing passenger vessel operators (PVOs) in the U.S. to cease all 
operations. CDC later extended the term of the order, demonstrating the 
uncertainty associated with this coronavirus pandemic (COVID-19).
    On April 30, 2020, the Commission initiated Fact Finding 30 to 
investigate COVID-19's impact on the cruise industry. The Commission's 
Fact-Finding Officer has been meeting with PVOs, marine terminal 
operators, and other stakeholders to understand COVID-19's effects on 
the cruise industry.
    To overcome the effects COVID-19 has had on our economy, on May 19, 
2020, President Trump issued Executive Order 13924, Regulatory Relief 
To Support Economic Recovery. President Trump declared that federal 
agencies ``should address this economic emergency by rescinding, 
modifying, waiving, or providing exemptions from regulations and other 
requirements that may inhibit economic recovery, consistent with 
applicable law and with protection of the public health and safety, 
with national and homeland security, and with budgetary priorities and 
operational feasibility.''

II. Policy Statement for 46 CFR Part 540 Passenger Vessel Financial 
Responsibility

    The Commission administers Public Law 89-777, 46 U.S.C. 44101 et 
seq., to ensure PVOs satisfy the financial responsibility requirements 
related to nonperformance of transportation and death or injury to 
passengers. The Commission set forth the procedures for PVOs to 
establish their financial responsibility in 46 CFR part 540.
    Pursuant to the Commission's regulations, PVOs must file with the 
Commission evidence of financial responsibility for nonperformance of 
transportation in the form and amount described in the regulations. The 
Commission's regulations at 46 CFR 540.5 provides that the amount of 
coverage generally required shall be in an amount determined by the 
Commission to be no less than 110 percent of the unearned passenger 
revenue (UPR) of the applicant on the date within the two fiscal years 
immediately prior to the filing of the application which reflects the 
greatest amount of unearned passenger revenue.
    The regulation, however, also provides that the Commission may, for 
good cause shown, consider a time period other than the previous two-
fiscal-year requirement or other methods acceptable to the Commission 
to determine the amount of coverage required. The Commission's 
regulations at 46 CFR 540.9(l) further allow smaller PVOs \1\ to submit 
a request to substitute alternative forms of financial protection to 
evidence the financial responsibility as otherwise provided in the 
regulations.
---------------------------------------------------------------------------

    \1\ Only PVOs whose UPR at no time during the two immediately 
prior fiscal years has exceeded 150% of the required cap may request 
alternative forms of financial responsibility under Sec.  540.9(l).
---------------------------------------------------------------------------

    The Commission believes the sudden suspension of most cruise 
transportation due to COVID-19 has likely significantly reduced some 
PVOs' current UPR, leading to substantial disparity between current UPR 
and the generally required coverage amount under 46 CFR 540.5. This 
disparity could result in unnecessarily high premiums and required 
collateral for PVOs to maintain their required financial instruments. 
The Commission believes that COVID-19's unprecedented effects on the 
cruise

[[Page 49601]]

industry constitute good cause under 46 CFR 540.5 and 46 CFR 540.9(l) 
for the Commission to consider alternative forms of financial 
protection using a shorter period to determine the amount of PVOs' 
financial responsibility.
    PVOs eligible under 46 CFR 540.9(l) (i.e., those whose UPR at no 
time during the two immediately prior fiscal years has exceeded 150% of 
the cap (currently $32 million)) are therefore encouraged to submit a 
request to the Director of the Bureau of Certification and Licensing 
(BCL) to substitute alternative forms of evidence of financial 
responsibility for nonperformance with a lower coverage amount based on 
UPR determined over a shorter period of time. In accordance with 46 CFR 
540.9(l), such requests should include copies of the requesting PVO's 
most recently available annual and quarterly financial and income 
statements, as well as any other supporting documentation. See 46 CFR 
540.9(l)(3). The Commission intends to review such requests with 
greater flexibility considering the unprecedented economic effects of 
COVID-19 to the cruise industry.
    In particular, the Commission will look favorably on requests for 
alternative forms of evidence of financial responsibility that are 
based upon 110% of the PVO's previous month's UPR, provided that: (1) 
The PVO agrees to comply with individual reporting requirements imposed 
by the Director of BCL regarding the submission of satisfactory 
documentation demonstrating the PVO's UPR on a monthly basis; \2\ and 
(2) if the PVO fails to comply with the requirements and conditions of 
the alternative form of evidence of financial responsibility, the PVO 
will once again be subject to the generally applicable financial 
responsibility requirements and coverage amounts under part 540.\3\ The 
Director of BCL is delegated the authority to grant such requests. 
Requests for other types of alternative forms of evidence of financial 
responsibility, other than those described in 46 CFR 501.26(d),\4\ will 
continue to be reviewed by the Commission.
---------------------------------------------------------------------------

    \2\ In accordance with Sec.  540.9(l)(8), the Commission or BCL 
may request additional information from a PVO whose request under 
this section has been granted. Under this authority, BCL may 
establish individual reporting requirements for each PVO whose 
request is granted in order to monitor their UPR and ensure that the 
amount covered by the financial instrument (or instruments) remains 
adequate.
    \3\ In addition, failure to comply with the conditions of an 
approved request for an alternative form of evidence of financial 
responsibility may result in the suspension or revocation of the 
PVO's certificate under 46 CFR 540.26(b)(2) and (3).
    \4\ The Director of BCL is delegated the authority to grant 
requests to substitute alternative financial responsibility under 
Sec.  540.9(l) based upon existing protection available to purchases 
of passenger vessel transportation by credit card by an amount up to 
fifty (50) percent of the passenger vessel operator's highest two-
year unearned passenger revenues. See 46 CFR 501.26(d).
---------------------------------------------------------------------------

    The Commission will maintain this policy as long as it determines 
that COVID-19's negative effects on the cruise industry continue and 
may maintain the policy after the expiration of the CDC's ``No Sail 
Order'' but in no case shall this policy terminate prior to the 1st of 
April 2021.
    PVOs with any questions or concerns are encouraged to contact the 
Commission's Bureau of Certification and Licensing by email at 
[email protected] or phone at 202-523-5787.

III. Regulatory Analyses and Notices

Administrative Procedure Act

    The Administrative Procedure Act (APA) (5 U.S.C. 551 et seq.) 
excludes the following types of rules from the notice-and-comment 
requirement: Interpretative rules; general statements of policy; rules 
of agency organization, procedure, or practice; or when the agency for 
good cause finds that notice and public procedure are impracticable, 
unnecessary, or contrary to public interest. See 5 U.S.C. 553(b). This 
is a general statement of policy that is exempt from many of the 
procedural rulemaking requirements of the APA, including the 
requirements for prior notice, an opportunity for comment, and a delay 
between the issuance of a final rule and its effective date.

Congressional Review Act

    This policy statement is not a ``major rule'' as defined by the 
Congressional Review Act, codified at 5 U.S.C. 801 et seq. The policy 
will not result in: (1) An annual effect on the economy of $100,000,000 
or more; (2) a major increase in costs or prices; or (3) significant 
adverse effects on competition, employment, investment, productivity, 
innovation, or the ability of United States-based companies to compete 
with foreign-based companies. 5 U.S.C. 804(2).

Regulatory Flexibility Act

    The Regulatory Flexibility Act (codified as amended at 5 U.S.C. 
601-612) provides that whenever an agency promulgates a final rule 
after being required to publish a notice of proposed rulemaking under 
the APA (5 U.S.C. 553), the agency must prepare and make available a 
final regulatory flexibility analysis describing the impact of the rule 
on small entities or the head of the agency must certify that the rule 
will not have a significant economic impact on a substantial number of 
small entities. 5 U.S.C. 604-605. As indicated above, this policy 
statement is not subject to the APA's notice-and-comment requirements, 
and the Commission is not required to either prepare a regulatory 
flexibility analysis or certify that the final rule would not have a 
significant economic impact on a substantial number of small entities.

Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521) requires 
an agency to seek and receive approval from the Office of Management 
and Budget (OMB) before collecting information from the public. 44 
U.S.C. 3507. The agency must submit collections of information in rules 
to OMB in conjunction with the publication of the notice of proposed 
rulemaking. 5 CFR 1320.11. This policy statement, however, does not 
contain any new collections of information, as defined by 44 U.S.C. 
3502(3) and 5 CFR 1320.3(c).

    By the Commission.
Rachel Dickon,
Secretary.
[FR Doc. 2020-16965 Filed 8-13-20; 8:45 am]
BILLING CODE 6730-02-P