[Federal Register Volume 87, Number 114 (Tuesday, June 14, 2022)]
[Rules and Regulations]
[Pages 35899-35901]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-12473]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

46 CFR Part 4

[Docket No. USCG-2021-0348]


Navigation and Navigable Waters, and Shipping; Technical, 
Organizational, and Conforming Amendments

AGENCY: Coast Guard, DHS.

ACTION: Technical amendment.

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SUMMARY: On January 21, 2022, the Coast Guard prematurely amended the 
definition of ``major marine casualty'' for title 46 of the Code of 
Federal Regulations as part of a technical amendment. The Coast Guard 
is reverting that definition back to how it appeared prior to issuance 
of the technical amendment.

DATES: This final rule is effective June 14, 2022.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to https://www.regulations.gov, type USCG-
2021-0348 in the search box and click ``Search.'' Next, in the Document 
Type column, select ``Supporting & Related Material.''

FOR FURTHER INFORMATION CONTACT: For information about this document 
call or email Courtney Mallon, Coast Guard; telephone 202-372-3758, 
email [email protected].

SUPPLEMENTARY INFORMATION: 

Table of Contents for Preamble

I. Abbreviations
II. Basis and Purpose, and Regulatory History
III. Discussion of the Rule
IV. Regulatory Analyses
    A. Regulatory Planning and Review
    B. Small Entities
    C. Assistance for Small Entities
    D. Collection of Information
    E. Federalism
    F. Unfunded Mandates
    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

CFR Code of Federal Regulations
NPRM Notice of proposed rulemaking
NTSB National Transportation Safety Board
Sec.  Section
U.S.C. United States Code

II. Basis and Purpose, and Regulatory History

    On January 21, 2022, the Coast Guard published a technical 
amendment \1\ that revised the definition of ``major marine casualty'' 
in title 46 of the Code of Federal Regulations (CFR), paragraph 4.40-
5(d)(3). That change altered the property damage threshold from 
$500,000 to $2,000,000. The stated basis for the change was to 
implement section 211 of the Save Our Seas Act of 2018 (Pub. L. 115-
265, 132 Stat. 3742). However, the Coast Guard has determined that this 
matter needs further analysis. The correct legal authority for changing 
this regulation is title 49 of the United States Code (U.S.C.), section 
1131. That statute requires a rule prescribed jointly by the National 
Transportation Safety Board (NTSB) and the Coast Guard. As a result, we 
need to revert to the previous value of $500,000 for the time being.
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    \1\ 87 FR 3217.
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    The Coast Guard is issuing this technical amendment without prior 
notice and opportunity to comment pursuant to authority under section 
4(a) of the Administrative Procedure Act (5 U.S.C. 553(b)). This 
provision authorizes an agency to issue a rule without prior notice and 
opportunity to comment when the agency for good cause finds that those 
procedures are ``impracticable, unnecessary, or contrary to the public 
interest.'' Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good 
cause exists for not publishing a notice of proposed rulemaking (NPRM) 
with respect to this technical amendment because publishing an NPRM 
would be unnecessary. Under 49 U.S.C. 1131, changes to the reporting 
value threshold for 46 CFR 4.40-5(d)(3) requires a rule prescribed 
jointly by the NTSB and the Coast Guard. The January 21, 2022, 
technical amendment was only issued by the Coast Guard, so the value 
listed before the technical amendment should be restored, and can later 
be adjusted in a joint rulemaking. For those same reasons, under 5 
U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for 
making this technical amendment effective less than 30 days after 
publication in the Federal Register.

III. Discussion of the Rule

    This action restores the property damage threshold of 46 CFR 4.40-
5(d)(3), to $500,000.

IV. Regulatory Analyses

    We developed this amendment 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, environmental, public 
health and safety effects, distributive impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of

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reducing costs, of harmonizing rules, and of promoting flexibility.
    The Office of Management and Budget has not designated this 
technical amendment a significant regulatory action under section 3(f) 
of Executive Order 12866. A regulatory analysis follows.
    This technical amendment returns the property damage threshold in 
the definition of a ``major marine casualty'' to $500,000 from 
$2,000,000. This property damage threshold is contained within 46 CFR 
Subpart 4.40 covering the joint regulations between the NTSB and the 
Coast Guard for the investigation of marine casualties. Specifically, 
this property damage threshold defines when the NTSB may investigate 
marine casualties. Among other marine casualties, the NTSB has the 
right to investigate any major marine casualities with total property 
damage above the threshold.\2\
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    \2\ 46 CFR 4.40-15(a) reads, ``The Board may conduct an 
investigation under the Act of any major marine casualty or any 
casualty involving public and non-public vessels.''
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    The Coast Guard made an error in its previous technical amendment 
in January 2022, and the Coast Guard quickly realized its error. As a 
result, both the NTSB and Coast Guard are still operating as if the 
NTSB may investigate any major marine casualty resulting in property 
damage of $500,000 or more. Because Coast Guard and NTSB operations 
have not changed since the publication of the previous technical 
amendment, there has been no change in the regulatory analysis baseline 
since the January 2022 technical amendment.
    The technical amendment in this notice will not result in costs to 
any industry, or government entities. Because the Coast Guard and NTSB 
are continuing to implement the $500,000 property damage threshold for 
a major marine casualty, returning the regulation back to $500,000 will 
result in no change in policy or practices across the public, NTSB, or 
Coast Guard. Without a change in practices there can be no costs from 
this technical amendment.
    This technical amendment will result in unquantified benefits 
stemming from timely correction of the technical amendment that was 
made in error in January 2022. If an operator/owner or other pertinent 
marine entity suffered a marine casualty with between $500,000 and 
$2,000,000 in property damage, the NTSB would investigate it using the 
current Coast Guard/NTSB policy. This investigation would not be 
permitted by the current regulations. The individual could be averse to 
the investigation and argue that the Coast Guard/NTSB policy is not 
consistent with the current regulations. However, because the Coast 
Guard issued the previous technical amendment under an incorrect legal 
authority, the previous change is invalid. Accordingly, the actual text 
of the CFR is not correct and can cause confusion and disagreement 
between the public, the Coast Guard, and the NTSB. By reverting the 
property damage threshold of a major marine casualty to $500,000, the 
Coast Guard would eliminate a source of confusion from this section of 
regulation.

B. Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996, Public Law 104-121, we offer to assist small 
entities in understanding this technical amendment 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 technical amendment 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).

C. Collection of Information

    This technical amendment calls for no new or revised collection of 
information under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501-
3520.

D. 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 technical amendment under Executive 
Order 13132 and have determined that it is consistent with the 
fundamental federalism principles and preemption requirements described 
in Executive Order 13132.

E. Unfunded Mandates

    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 technical amendment 
will not result in such expenditure, we do discuss the effects of this 
amendment elsewhere in this preamble.

F. Taking of Private Property

    This technical amendment 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).

G. Civil Justice Reform

    This technical amendment 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.

H. Indian Tribal Governments

    This technical amendment 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.

I. Energy Effects

    We have analyzed this technical amendment 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.

J. Environment

    We have analyzed this technical amendment under Department of 
Homeland Security Management Directive 023-01, Rev. 1, associated 
implementing instructions, and Environmental Planning COMDTINST 5090.1 
(series), which guide the Coast Guard in complying with the National 
Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made 
a determination that this action is one of

[[Page 35901]]

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. 
For instructions on locating the docket, see the ADDRESSES section of 
this preamble.
    This technical amendment is categorically excluded under paragraphs 
A3 and L54 of Appendix A, Table 1 of Department of Homeland Security 
Instruction Manual 023-01-001-01, Rev. 1. Paragraph A3 pertains to the 
promulgation of rules, issuance of rulings or interpretations, and the 
development and publication of policies, orders, directives, notices, 
procedures, manuals, advisory circulars, and other guidance documents 
of the following nature: (a) Those of a strictly administrative or 
procedural nature; (b) those that implement, without substantive 
change, statutory or regulatory requirements; (c) those that implement, 
without substantive change, procedures, manuals, and other guidance 
documents; and (d) those that interpret or amend an existing regulation 
without changing its environmental effect. Paragraph L54 pertains to 
regulations which are editorial or procedural. This technical amendment 
involves non-substantive technical, organizational, and conforming 
amendments to existing Coast Guard regulations.

List of Subjects in 46 CFR Part 4

    Administrative practice and procedure, Drug testing, 
Investigations, Marine safety, National Transportation Safety Board, 
Nuclear vessels, Radiation protection, Reporting and recordkeeping 
requirements, Safety, Transportation.

    For the reasons discussed in the preamble, the Coast Guard amends 
46 CFR part 4 as follows:

PART 4--MARINE CASUALTIES AND INVESTIGATIONS

0
1. The authority citation for part 4 is revised to read as follows:

    Authority: 14 U.S.C. 102; 43 U.S.C. 1333; 46 U.S.C. 2103, 2303A, 
2306, 6101, 6301, 6305, 70034; 50 U.S.C. 198; DHS Delegation 
00170.1, Revision No. 01.2. Subpart 4.40 issued under 49 U.S.C. 
1131(a)(1)(E).


Sec.  4.40-5  [Amended]

0
2. In Sec.  4.40-5 amend paragraph (d)(3) by removing the text 
``$2,000,000'' and adding, in its place, the text ``$500,000''.

    Dated: June 6, 2022.
Michael Cunningham,
Chief, Office of Regulations and Administrative Law, U.S. Coast Guard.
[FR Doc. 2022-12473 Filed 6-13-22; 8:45 am]
BILLING CODE 9110-04-P